Smith's Complete Market

National Labor Relations Board - Board Decisions

Aug 30, 1978

237 N.L.R.B. 1024 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith's Complete Market of Tulare County, Inc.,
d/b/a Smith's Complete Market and Clerks
Union, Local 1288, Retail Clerks International As-
sociation, AFL-CIO. Case 32 CA-- 191 (formerly
20-CA-12705)
August 30, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MFMBERS PENELLO
AND TRUESDALE
On May 10, 1978, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding. Thereafter, Respondent and General Coun-
sel filed exceptions and supporting briefs.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
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 and hereby
orders that the Respondent, Smith's Complete Mar-
ket of Tulare County, Inc., d/b/a Smith's Complete
Market, Porterville, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
The General Counsel and Respondent have excepted to certain credibil-
ity findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard D)ro I all
Products, Inc.. 91 NLRB 544 (1950). 188 F.2d 362 ((. A 3. 1951). We hase
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge erroneously ascribed the testimon? of
Howard Smith to David Miller. who was not a witness, in finding ihat
David Miller telephoned Douglas Ruby from Respondent's office on March
3. 1977. This inadvertent error does not affect our decision herein.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE. Administrative Law Judge: This mat-
ter was heard before me in Fresno, California, on Novem-
ber 29 and 30 and December 1, 2, 13, 14, and 15, 1977. The
charge was filed on April 4, 1977, by Retail Clerks Union,
Local 1288, Retail Clerks International Association, AFL-
('IO (Union). The complaint issued on June 30, was
amended during the hearing, and alleges that Smith's Com-
plete Market of Tulare County, Inc., d/b/a Smith's Com-
plete Market (Respondent), has violated Section 8(a)(l)
and (5) of the National Labor Relations Act (Act).
The parties were permitted during the hearing to intro-
duce relevant evidence, examine and cross-examine wit-
nesses, and argue orally. Post-hearing briefs were filed for
the General Counsel and for Respondent.
1. JURISDICTION
Respondent is a California corporation engaged in the
operation of a retail food store in Porterville, California. Its
annual gross income exceeds $500,000, and it annually pur-
chases inventory and supplies of a value exceeding $10,000
directly from sources outside California.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
11 LABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
111. ISSUES
The complaint alleges that beginning in February 1977
Respondent violated Section 8(a)(l) by numerous specified
verbal acts of supervisors and/or agents, and by engaging
in photographic surveillance of picket-line activity.
The complaint further alleges that Respondent violated
Sectiorl 8(a)(5) and (1) "by its entire course of conduct" in
collective-bargaining negotiations with the Union in 1977,
and additionally violated that Section by (a) dealing direct-
ly with bargaining-unit employees on March 3 and 8, 1977,
(b) refusing to meet with a designated representative of the
Union on April 26. 1977, (c) unilaterally instituting a
health-and-welfare plan for unit employees on May 1,
1977, and (d) failing to comply with the Union's request for
information concerning the duties of student clerks.
The complaint alleges, finally, that Respondent's em-
ployees went on strike on March 23, 1977, and that the
strike "was caused and/or prolonged by" Respondent's un-
fair labor practices.
The answer denies any wrongdoing.
IV THE AL.LEGED UNFAIR LABOR PRACTICES
A. Overview
Respondent was founded in 1929 by Howard Smith. It
and a rival grocery store in Porterville receive 65 to 70
percent of the area's business. Howard Smith is corporate
president and the dominant management figure to this day.
Second in command is his son, Neil, who is the corporate
treasurer and the store's general operations manager. Im-
mediately beneath him is Don Forrester, grocery manager.
237 NLRB No. 145
1424
SMITH'S COMPLETE MARKET
The Union for some years has been the collective-bar-
gaining representative of Respondent's employees in this
unit:
All employees employed by Respondent at its Por-
terville, California, location, excluding butchers. bak-
ery and confectionery employees, office clerical em-
ployees, guards and supervisors as defined in the Act.'
The unit consisted of about 60 employees at relevant times,
of whom 27 or so were students working part time. com-
monly called student clerks. The rival Porterville store is
nonunion.
The latest contract covering the employees in the above
unit expired on February 26, 1977, after which it was re-
newed on short-term bases from time to time until March
23, when the Union called a strike. Negotiation of a succes-
sor contract was deferred pending completion of negotia-
tions between sister locals of the Union and the employer-
members of the Independent Grocers' Association (IGA)
in central California. A tentative IGA contract was
reached on March 2, and the first formal session between
Respondent and the Union followed on March 8. Succeed-
ing prestrike negotiations were held on March 18 and 22.
The strike persisted at least through the present hearing,
some 12 subsequent sessions having failed to produce ac-
cord. Respondent's principal spokesman throughout was
Leland Brewer, who operates a management consulting
firm in Stockton known as Alpha Agency. Brewer also rep-
resented a number of the employers in the IGA negotia-
tions. The Union's principal spokesmen were its president.
Art Smith, and two San Francisco attorneys, Robert Co-
well and John Cohenour.
As is more fully described later, the bargaining difficulty
centered on the student clerks. Respondent and the Union
historically had followed the basic IGA "A" contract, but
with a side understanding permitting Respondent to give
its student clerks less favored wage and benefit treatment
than full-time employees doing similar tasks.2 This time,
however, the Union was emerging from an upheaval in
leadership and was determined that there be no "side
deals" concerning the student clerks.
So it was that: (a) On or about February 15, 1977, well
before the first formal bargaining session, Art Smith told
Brewer that the Union viewed parity for student clerks as a
"strike issue," and Brewer replied that continuation of the
past practice was a "must" to enable Respondent to com-
pete with its nonunion rival in Porterville; 3 (b) the Union
The parties are in agreement that this is an appropriate unit under the
Act. It is so found.
2 Stores grossing over $30,000 per week, of which Respondent's is one.
generally are subject to the IGA "A" contract. Those grossing less are sub-
ject to an IGA "B" contract. Respondent's student clerks perform a miscel-
lany of duties, such as retrieving shopping carts. stocking sending machines.
cleaning up, watering plants, bagging at checkstands. etc. IThe IGA "A"
contract classifies employees doing some of these tasks as utility clerks and
employees doing others of them as courtesy clerks. and has no student clerk
classification. The IGA "B" contract, however, permits a certain number of
student clerks, so called, who may be paid less than the prevailing scale for
full-time employees doing the same things.
Brewer is credited over Smith's denial that Smith termed the student-
clerk matter as a strike issue at this time Had Respondent not been put on
early notice of the Union's resolve to end the past practice, which Respon
dent wanted to continue. it is improbable that it would hase undertaken the
received strike authorization from the membership in mid-
February: 4 (c) in late February. Howard Smith obtained
an opinion letter from a labor relations consultant "con-
cerning the status of union employees crossing the picket
line": (d) on March 1. still several days before the start of
formal negotiations. Respondent began advertising for
striker replacements, should a strike eventuate; (e) on
March 3, during an all-employee meeting at the store,
Howard Smith declared that the Union's posture concern-
ing student clerks "could put us into a possible strike posi-
tion": and (f) on March 5, Respondent began training ses-
sions for prospective striker replacements.
It was in this milieu that the various alleged instances of
misconduct occurred.
B. The Questions of Supervisorv Status
1. The evidence
It is undisputed that Howard and Neil Smith and Don
Forrester were supervisors for purposes of the Act at rele-
vant times. Beneath Forrester in the operation of the store.
until they went out on strike, were Glen Lowe. head clerk
on the day shift: Travis Jackson, head clerk on the night
shift: and Leroy Delk, head clerk in the delicatessen de-
partment. The General Counsel contends that they were
employees rather than supervisors at relevant times, and
thus that certain conduct directed to them violated Section
8(a)( 1). Respondent disagrees.
Lowe. as head clerk on the day shift, did much of the
ordering for the store, conducted a warehouse inventory
every 3 months, saw that shelves were properly stocked,
and was responsible for unloading trucks and for ware-
house functions generally. His area of authority covered
the entire facility with the exception of the "front end" or
checkstand area. As he testified: "Basically, I was in
charge of everyone out on the floor." Lowe was over a
crew ranging in size from 10 to 15. and in addition had a
full-time assistant. Lowe also assumed many of Forrester's
duties when Forrester was away.
Lowe directed the work of those under him, which in-
cluded correcting those not doing their assigned tasks or
doing them improperly, and trained new employees. When
checkers were released from check-stand duty during slow
times, it was Lowe's job to assign them "wherever they
should go" elsewhere in the store and to send them back to
the front end when he had no further use for them. Lowe
sometimes called nonscheduled employees to work, in
overload situations or when scheduled employees were ab-
sent, and sometimes permitted employees to leave early.
Hle sometimes spoke with Forrester before taking such
steps, and sometimes said nothing to Forrester until af-
terwards. As Forrester testified, he "wanted to know what
was going on in the department," but not necessarily be-
forehand.
elaborate prenegotiation strike preparations that it did, described later
Art Smith credibl, testified that the strike vote was in mid-Februar.
Ronald Nix, the L non's steward in the store. testified that the vote was in
mid-Msarch Nix's testimon), howeser, was vague and halting on that score.
and its general tenor suggested that he had the strike-vote meeting confused
with a meeting held by Art Smith on March 22, just before the strike.
1425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lowe did not have the power to hire or fire but on occa-
sion effectively recommended that employees receive pro-
motions and raises.
Jackson, as head clerk on the night shift, was his shift's
counterpart of Lowe. He was over a crew of six, which
generally reported for work at 2 or 3 a.m., and was the
ranking person on the premises until the arrival of Forres-
ter and Lowe at about 8. As Forrester credibly testified,
Jackson "more or less ran the whole operation" until he
and Lowe got there. The store was not open for business at
those times.
Although much of the work of Jackson's crew was fairly
routine, he considered the employees' abilities and the na-
ture of tasks to be done in assigning work. Jackson some-
times granted breaks at other than the accustomed times:
sometimes let employees leave before shift's end: and at
least once, shortly before the strike, blocked the assign-
ment of a prospective new-hire to his crew. Like Lowe,
Jackson was expected to keep Forrester advised of his ac-
tions, but not necessarily in advance. And, like Lowe, Jack-
son did not have power to hire or fire. but did counsel
those in his crew about the quality of their work, and re-
ported unsatisfactory performance to Forrester.
Delk, as head clerk in the delicatessen department, was
responsible for ordering and setting prices on delicatessen
items, arranging them in display cases, preparing advertise-
ments concerning them, etc. On delivery days, which were
twice a week, he had a regularly assigned helper to assist
him in "working the load." In rare instances-perhaps
once every 2 or 3 months-he asked that Forrester give
him yet more help, which requests generally were honored.
When he had no further use for extra help, he sent it from
where it had come. He did not have power to hire or fire
but sometimes commented to Forrester on the perfor-
mance of those helping him.
Lowe, Jackson, and Delk all received 33 cents per hour
more than the journeyman clerks: attended monthly de-
partment head meetings conducted by Howard Smith;
wore different attire than the employees generally; and,
unlike the employees generally, had the use of an office in
the store and had custody of a security key to the store's
back door.
Forrester did all preparation of work schedules.
2. Conclusions
It is concluded, in agreement with Respondent, that
Lowe and Jackson were supervisors; and, in agreement
with the General Counsel, that Delk was not.
Most indicative of their supervisory status, both Lowe
and Jackson were in charge of substantial numbers of em-
ployees on a daily basis; with Jackson, in addition, being
the ranking person on the premises for several hours each
day. While much of the work of their crews doubtless was
of a routine nature, their direction of those under them
required significant measures of discretion from time to
time. Moreover, were they without at least some superviso-
rial indicia, it would mean that all immediate supervision
of Lowe's crew came from Forrester, and that Jackson's
crew simply went unsupervised much of the time. The for-
mer is unlikely, given the broad range of Forrester's duties
and responsibilities otherwise, and the latter defies all rea-
son.
Delk, on the other hand, generally had no one under
him: and, on the 2 days per week that he had a helper, the
direction he provided involved little, if any, discretion.
Consequently, although Delk's higher wage, attendance at
department-head meetings, use of an office, custody of a
security key, etc.. connoted special status, it cannot be said
that he was a statutory supervisor.6
C. The,4 Alleged Independent Violations of Section 8(a)(1)
I. Paragraphs 6(a)., 6(b), 6(k), 6 (p), and 13
Paragraph 6(a) of the complaint alleges that on several
dates in February 1977 Grocery Manager Forrester "inter-
rogated an employee regarding employee activities and/or
sentiments on behalf of the Union." Paragraph 6(b) alleges
that on about February 15 Forrester "promised an employ-
ee an individual employment contract if said employee
would cease his membership in and/or activities on behalf
of or support for the Union." Paragraph 6(k) alleges that,
in mid-March 1977, Forrester "threatened an employee
with discharge if said employee engaged in a strike or work
stoppage." Paragraph 6(p) alleges that, on several days in
early and mid-March, Forrester "solicited employees to re-
sign their membership in the Union." Paragraph 13 alleges
that Respondent in each instance violated Section 8(a)(l).
The evidence. These allegations concern various remarks
said to have been made by Forrester to Lowe, to Jackson,
to Delk, and to Jessie Orosco, a part-time checker. The
General Counsel's theory in each instance presupposes that
the person receiving the remarks was an employee rather
than a supervisor. Therefore, it having been concluded that
Lowe and Jackson were supervisors, it is now concluded
that whatever may have been said to them was not unlaw-
ful.
Delk testified to two conversations with Forrester before
the strike, both in Forrester's office. Delk could not be sure
if Forrester had called him to the office on these occasions,
explaining that he "went up quite a bit on [his] own." In
the first conversation, in early March, Delk asked Forrester
what would happen if there were a strike, and if Forrester
thought that he, Delk, should continue working in the
event of one. Forrester thought that he, Delk, should con-
tinue working in the event of one. Forrester replied, as
See. generally. Shop-Rite Supermarket. Inc.. 231 NLRB 500 (1977):
Luke's Supermarket. Inc., 228 NLRB 763 (1977).: Dexter Foods. Inc., d/b, a
De tier IGA Foodliner. 209 NL RB 369. 370 373 (1974): Luoma's Foods. Inc.,
d bha Va/u King. 206 NLRB 1. 4-5 (1973): Food Marts. Inc., 200 NLRB 18.
19 20(1972).
hSee, generally. C & W Super Markets. Inc.. 231 NLRB 403 (1977);
Foote' Di.ie Dandi,. Inr . 223 NLRB 1363 (1976): B & B Grocery. Inc.,
db a St. Louis IGA Foodliner, 223 NLRB 793. 795-797 (1976): Tanner
Brothers Foods. Inc. dhba Big T Food Store. 200 NLRB 409. 411412
11972. In Dorance J. Benzschowel and Terrence D. Swinger Co-Parners.
d ,h a Parkwood IG.4 Foodliner. 210 NLRB 349(1974). one of the issues was
whether to include in the unit a produce manager. whose circumstances
were somewhat similar to Delk's The Board excluded him on community-
of-interest grounds, expressly declining to pass on his supervisory status. 210
NL.RB at 350. In. 2. and accompanying text.
1426
SMITH'S COMPLETE MARKET
Delk recalled: "The best thing to do would be to fill out a
letter . . . [and] . . . send the letter to the Union . . . be-
fore you decide to cross the picket line." Delk, a member of
the Union, understood Forrester to mean a letter resigning
from union membership. Delk further testified that he had
a "very vague" rememberance of Forrester's then asking
about the "feeling" among the employees.
The second conversation was about a week later, accord-
ing to Delk, and in it he assertedly told Forrester that he
would remain "with the store"-meaning that he would
not join in a strike-as long as he believed Respondent to
be bargaining in good faith. This assumedly was in re-
sponse to Forrester's asking about his intentions in the
event of a "problem"-i.e., a strike-for Forrester conced-
edly made such an inquiry.
Delk testified that he then asked "what kind of assur-
ance" Respondent would give him should he work during a
strike; and that Forrester answered: "Fill out any kind of
contract you like, and put anything you want on it, and
Howard [Smith] would sign it." This prompted Delk to ask,
as he recalled, if such a contract would be binding were the
store to be sold, and Forrester said it would be "a lifetime
binding contract."
Forrester admittedly told Delk that, if he wished to work
during the impending strike, he "should resign from the
Union"; and showed him the opinion letter to Howard
Smith from a labor relations consultant "concerning the
status of union employees crossing a picket line." Forrester
denied, however, that he ever said anything to Delk about
an individual contract.
To the extent that their testimony conflicts, Delk is
credited. While both were presentable witnesses, Delk
seemed the more thoughtful and conscientious of the two.
Beyond that, it is hard to imagine that Delk, who appeared
to be a person of intelligence and good sense, would have
contrived so fanciful a story as this about a lifetime, binding
contract. Finally, as will be seen later, another employee,
Donald Wieland, credibly testified that Neil Smith made
much the same overtures to him-a circumstance tending
to corroborate Delk.
Orosco testified that she telephoned Forrester on March
21 to inquire about the possibility and implications of a
strike; and that Forrester said there would be one and that
Orosco would be fired if she went "through those
doors"-i.e., struck. The next day in Forrester's office, Or-
osco continued, he asked her if she had "made up [her]
mind to stay with the store"; she indicated that she had
and asked him what she should do; and he advised her to
"send a telegram to the Union requesting a temporary
withdrawal card" and showed her a piece of paper bearing
resignation language. Orosco testified that Forrester re-
peated to her, during this latter conversation, that she
would be fired if she struck and "will never be allowed to
work in this store again."
Forrester admittedly suggested to Orosco, in answer to
her stated desire to continue working during the strike and
still avoid trouble with the Union, that she send a letter
resigning from union membership. He testified that, in an-
other conversation, he remarked on Orosco's high anxiety
over the prospect of working behind a picket line, and sug-
gested that she might be better off either joining the strike
or getting another job instead. Forrester denied ever telling
Orosco that she would be fired if she struck.
Orosco is credited that Forrester threatened discharge
should she strike. Although she was an excitable, hard-to-
control witness at times, there was nothing in her presenta-
tion to indicate a want of veracity or an inability to per-
ceive and report matters of this sort with reasonable accu-
racy. In addition, as is developed later, both Orosco and
Barbara Davin, a witness of impressive demeanor, credibly
testified that Howard Smith likewise stated that those strik-
ing would never again work for Respondent. which indi-
cates that the theme was abroad.
Conclusions. It is concluded, without need for extended
commentary, that Forrester violated Section 8(a)(1) as al-
leged, by conjuring up visions of "a lifetime binding con-
tract" for Delk, obviously as an enticement not to strike;
and by telling Orosco that she would never again work for
Respondent if she went "through those doors"--i.e.,
struck.
It is concluded that Forrester also violated Section
8(aXI) as alleged by inquiring of Delk and Orosco in one
form or another about their plans in the event of a strike,
and by counseling them to resign from the Union as a
prelude to working during the strike. While employer con-
duct of this sort is not invariably unlawful, it is when juxta-
posed, as in the situations at hand, with promises or
threats. 7
It is concluded, finally, that Delk's "very vague" remem-
brance that Forrester asked him about the "feeling" among
the employees is too nebulous to support a finding of viola-
tion.
2. Paragraphs 6(c) and 13
Paragraphs 6(c) and 13 of the complaint allege that, on
about February 15, 1977, Forrester "promised an employee
a profit sharing plan in order to discourage said employee's
activities on behalf of or support for the Union," thereby
violating Section 8(a)(1).
The evidence. It is undisputed that, in late February, For-
rester spoke to Glen Lowe and Travis Jackson about insti-
tuting a "bonus incentive plan" for them, ostensibly to
"give them some incentive ... to get more production out
of their respective crews."
Conclusion. Lowe and Jackson being supervisors,
Forrester's conduct did not violate the Act, whatever the
underlying motivation.
3. Paragraphs 6(d), 6(o), and 13
Paragraph 6(d) of the complaint alleges that, on about
March I and 8, 1977, Howard Smith "solicited employees
to resign their membership in the Union and encouraged
an employee to solicit other employees to resign...."
Regarding interrogation into strike plans, see Mosher Steel Company.
220 NLRB 336 (1975). at fns. 3 and 6, and accompanying text. Regarding
the counseling of employees to resign, see, generally. Nordstrom Inc.. 229
NLRB 601 (1977); Maintenance Contractors of King Counov and its Affiliated
Members. et a/. 228 NLRB 1182 ( 1977). Mosher Steel Company. supra. Ten-
nessee Shell Companh. Inc. 2 12 NLRB 193 (1974): Clark Control Division of
A.O Corporation, 166 NLRB 266 (1967); Cumberland Shoe Company. 160
NLRB 1256 (1966): Perkins Machine Company. 141 NLRB 697. 700 (1963).
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraph 6(o) alleges that, on several dates in early and
mid-March 1977, Howard Smith "interrogated employees
as to their intentions to engage in [a] work stoppage against
Respondent." Paragraph 13 alleges that Respondent in
each instance violated Section 8(a)(1).
The evidence. In support of these allegations, the General
Counsel adduced evidence of comments made by Howard
Smith to Lowe, to Jackson, to Delk, and to John Stewart, a
produce clerk. Again, Lowe and Jackson being supervisors,
it is concluded that nothing said to them was unlawful.
Delk testified that Howard Smith asked him more than
once if he had sent a membership-resignation letter to the
Union, once urging him to do so "before D-Day"-a mani-
fest allusion to the anticipated strike.
Stewart testified that, a few days before the strike, while
he was having coffee in the store's coffee shop, Howard
Smith summoned him to a nearby room called the Orange
Room; and, once there, asked Stewart: "Just in case there
is a picket line in front of the market, will you go through
the picket line?" Stewart recalled answering that he would
not, prompting Smith to ask why and eventually to state,
when Stewart explained that he had "no other choice" as a
union member: "You have to do what you have to do. and
I have to do what I have to do."
Smith denied engaging in the conversations just de-
scribed. Delk is credited as to those of which he testified
inasmuch as Smith admittedly spoke with those deemed
supervisors about resigning from the Union, and Delk sup-
posedly was considered a supervisor. Stewart also is credit-
ed. Not only did he have credible demeanor, but his recital
was convincingly detailed and completely plausible.
Smith's denials, on the other hand, appeared to be mechan-
ically rendered, without regard for the underlying truth.
Conclusions. It is concluded that Smith violated Section
8(a)(1) as alleged by the combination of questioning Delk
whether he had sent in his resignation and urging him to do
so "before D-Day." So doing, Smith went well beyond
merely advising Delk of his rights concerning resignation,
instead injecting himself into the matter in a way that nec-
essarily interfered with Delk's freedom of choice.8
It is further concluded that Smith violated Section
8(a)(1) as alleged by asking Stewart if he would "go
through the picket line." While interrogation such as this,
during the pendency of a strike and not coupled with
threats or promises, generally is permissible, 9 the surround-
ing misconduct of Howard Smith and others, as found
above and below, necessarily imparted a threatening aspect
to the interrogation in this instance.
4. Paragraphs 6(e) and 13
Paragraphs 6(e) and 13 of the complaint allege that, on
about March 3 and again in mid-March 1977, Howard
Smith "promised employees economic benefits, including a
health and welfare plan and overtime benefits, if said em-
ployees would abandon their support for the Union and
not engage in a strike or work stoppage," thereby violating
Section 8(a)(1).
Cumberland Shoe ('ompan,, supra at 1259.
9 Mosher Steel (ompanv, supra at 336, Ins. 3 and 6. Industrial Towel &
Uniform Service Compant, 172 NL RB 2254 (1968).
The evidence. The General Counsel contends that this
allegation finds support in remarks allegedly made by
Howard Smith to Lowe, to Jackson, and to Delk, and dur-
ing a March 8 employee meeting. Once more, Lowe and
Jackson having been found to be supervisors, it is conclud-
ed that any remarks to them were not unlawful.
Delk testified that, on March 4, he approached Howard
and Neil Smith in the Orange Room and stated that he
would not strike as long as Respondent bargained in good
faith. Howard said that he appreciated Delk's loyalty, and
Delk voiced concern about being fined by the Union
should he cross a picket line. Howard replied, according to
Delk, that "it would be taken care of." Delk recalled that
Neil Smith had left before this last remark by Howard.
Howard Smith denied telling Delk that fines would be
taken care of. Delk is credited. In this instance, as in
others, his demeanor was convincing and his recital credi-
ble in detail and plausibility, whereas Smith's denial
seemed mechanical.'
Howard Smith presided over an all-employee meeting
the night of March 8, the ostensible purpose being to de-
scribe the status of negotiations. Speaking from a prepared
text, Smith elaborated upon the pension-plan proposal Re-
spondent had made to the Union in that day's negotia-
tions, and adverted to its health-and-welfare proposal as
well. The text, in relevant part:
We are only able to report to you those things that
have been discussed with your union, as you know we
cannot negotiate or are we even suggesting to negoti-
ate with you. .... We are not certain of the outcome
of the present negotiations, but we want to explain
that, should your company have its own health-and-
welfare program, it will be equal to the present union
plan.
If ,we should institute a company pension plan
owned by the employees, we would contribute month-
ly to the plan 7-1/2% of total weekly wages and you
would have full control of these monies. I tell you
about these programs now as they were presented to
your union today. I am going to show you one exam-
ple of a clerk, age 20, and what he might have at age
55 or 65, figured at a 6%, 7%, and 8% growth.
It is my understanding that, if you have been in the
Retail Clerks Union plan you are vested and that
money is guaranteed to you. Also, if you have less
than 10 years and should decide to leave this or any
other union store, you could pick up your pension if
you obtain a job in a union food store within a 2-year
period.
We have examples here tonight of Retail Clerks and
also meat and bakery personnel, only because I know
you would have questions about your status. The fig-
ures are only pertinent to the Retail Clerks.
I will attempt to answer any questions, but you
must remember that certain questions that have not
I' Katherine Belcher credibly testified, over the denial of Neil Smith, that
Nell told her In early March that, if she were to be fined by the Union for
working during a strike, Respondent would "take care of it." Although this
conduct by Neil is not alleged to be a violation, his having engaged in it
adds plausibility to Delk's testimony that Howard did the same.
1428
SMITH'S COMPLETE MARKET
been discussed with your union I cannot answer. The
office girls are at tables and you may find out how the
projections would work for you personally in the pro-
posed plan, which is not complete but is just in the
formative stage.
I should mention that the plan begins at age 20,
eliminating most of the student clerks, and that you
will be given credit for time worked in vesting in the
proposed plan.
The prepared text was augmented by a blackboard pre-
sentation in which Smith, using a named employee as an
example, computed a benefit projection under the pro-
posed pension plan; and, after the meeting, the employees
were urged into the office, where projection charts tailored
to their individual situations awaited them, along with of-
fice personnel to assist. Respondent made no comparable
effort, during the bargaining session earlier in the day, to
explain benefit levels under the proposed plan. As Brewer
testified, the benefits had not been "worked out in final
form .... I did not present this as a final form. This is a
concept."
Following Smith's formal presentation, one of the em-
ployees asked when the plan would go into effect. Kather-
ine Belcher and Barbara Davin testified that Smith said
April I, whereupon Leland Brewer seized the microphone
from him and said that the question could not be an-
swered. Three other witnesses, Ron Nix, John Stewart, and
Donald Wieland, testified that Smith mentioned April be-
fore Brewer's intervention. Two others, Delk and Travis
Jackson, testified that they could not recall if Smith stated
a date before Brewer acted.
Howard Smith, Brewer, and Neil Smith all testified that
the questioner asked if the plan would go into effect April 1,
and that Brewer forbade an answer before Howard Smith
could respond. The five employees who testified that Smith
said either April I or April are credited. All appeared to be
conscientious and capable witnesses, and their versions
were basically consistent without being so "pat" as to seem
contrived. Moreover, the testimony of the two Smiths and
Brewer that a specific effective date was incorporated in
the question, not the answer, is of questionable plausibility.
Delk testified of a conversation with Howard Smith 2 or
3 days before the strike in which Smith stated that "a strike
always supplies overtime for the ones who stay inside,"
adding that nonstrikers accruing overtime would have the
option of converting it into time off, on a time-and-one-
half basis, in lieu of premium pay. The time-off option was
something new. Lowe and Jackson testified that Smith
made similar overtures to them. Smith denied discussing
overtime possibilities, in the event of a strike, with anyone.
Delk is credited. He was a generally believable witness, and
his story gains credence from Lowe's and Jackson's recitals
of similar experiences with Smith. Smith, as earlier noted,
was given to mechanical denials that lacked conviction.
Conclusions. It is concluded that Smith violated Section
8(aXI) as alleged by telling Delk that "it would be taken
care of' if he were to be fined for crossing a picket line. It
is manifest from Respondent's surrounding misconduct, as
found above and below-the interrogations into strike in-
tent, the encouragement to resign from the Union, the
promises of benefit for not striking, the threats of discharge
for striking that the purpose and effect of Smith's state-
ment was not merely one of "protecting those employees
who wished to continue working. . . from possible reprisal
by the Union," ' but of tampering by economic induce-
ment with Delk's Section 7 freedom to honor or not honor
a picket line.' 2
It is concluded that Smith also violated Section 8(a)(1) as
alleged by talking to Delk of increased overtime, with the
unique time-off option, should he work during the strike.
This plainly was another economic "carrot" calculated to
interfere with Delk's freedom of choice whether or not to
strike. 13
It is concluded, finally, that Smith's elaboration of pen-
sion benefits under Respondent's proposal, during the
March 8 employee meeting, together with the postmeeting
availability of individually tailored benefit charts, also vio-
lated Section 8(a)( I) as alleged. For, while Smith gave lip-
service to the notion that he could speak to the employees
only of "those things that have been discussed with your
union," and disavowed any intention of negotiating direct-
1y with them, he and the benefit charts went well beyond
Brewer's same-day presentation to the Union in detailing
benefits under Respondent's pension proposal. Brewer, it
will be recalled, presented the proposal to the Union as "a
concept." representing that benefits had not been "worked
out in final form." Respondent thus engaged in a form of
direct-dealing that exceeded its unquestioned right to com-
municate with employees noncoercively concerning the
status of negotiations and the nature of proposals previous-
ly made.'4
5. Paragraphs 6(f) and 13
Paragraphs 6(f) and 13 of the complaint allege that, on
or about March 3 and 22, 1977, Howard Smith "threatened
employees with discharge if they engaged in a strike or
work stoppage." thereby violating Section 8(a)(l).
The evidence. The General Counsel elicited testimony
from Jessie Orosco and from Barbara Davin, a checker,
concerning this allegation.
Davin testified that, in the early evening of March 3,
Howard Smith asked to speak with her upstairs, in the of-
fice area. Davin related that Smith discussed with her her
status under the Union's pension plan, inquiring about her
age and how long she had participated in it, and suggested
that she see a pension specialist in Bakersfield or Visalia to
find out where she stood. In the same conversation, ac-
cording to Davin, Smith said there probably would be a
strike, and that anyone "that went out the door" would
never again work for Respondent. Smith also stated as Da-
vyin recalled, that he would give her a letter of recommen-
dation, "when this is all over," if she wanted to work in a
union store to qualify for her pension.
.X5,tRmdanrd Plulhibng anrd flating Companr. Inc. and Sam F Messina
d h a Slindard Plumhn,,i ( epam,n. 185 NLRB 444, 448. fn. 9 (1970).
L: Barnl Wi'liA,'r5on ( onsrlrt hln (ormpanl. 145 NLRB 704. 716 (1963)
Conipare Ieed,l anid %\,rrhrup ( onlipanl. 1I5 NL RB 1292, 1294 (1965)
tli-crr Bro,,adcawalin (Corepaun. 227 NL RB 1377. 1380 1977).
,See Jerrdt I.umbehcr C('epamn. In, . 209 NLRB 662. 664 (1974;) The
Procter & Ganihle Ifanuhlruring ( mpan-. 160 NLRB 334. 340 (1966).
1429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith admitted discussing Davin's pension with her the
night of March 3, as a followup to a previous conversation
in which she had posed questions to him about her pension
status, but denied any mention of a strike. Davin is credit-
ed. Her demeanor was excellent and her recital generally
convincing in its detail, while Smith's denial, in this in-
stance as in others, seemed of a rote nature.
Orosco testified that, on March 22, Howard Smith ap-
proached her at a checkstand. put his hands on her shoul-
ders, and said: "Jessie, I love you and respect you, and
regardless of which way you go, I want you to know that I
love you, we think an awful lot of you." Orosco continued
that she presently alluded to her previous conversation
with Forrester, in which he told her she would never again
work for Respondent if she struck,. 5 and that Smith re-
sponded: "You know we love you and respect you, but you
are going to be fired if you go through those doors."
Smith denied this conversation in toto. Orosco is credit-
ed. Although flighty, she exuded sincerity under oath. and
her testimony is the more believable for Smith's having
told Davin that those striking would never again work for
Respondent. The unpersuasive quality of Smith's denials
has been noted.
Conclusion. By telling Davin and Orosco, in effect, that
they would be fired if they went on strike, Smith violated
Section 8(a)(I) as alleged.
6. Paragraphs 6(g) and 13
Paragraphs 6(g) and 13 of the complaint allege that, on
about March 4, 1977, Douglas Ruby, a labor relations con-
sultant, "threatened an employee with economic reprisals
unless said employee abandoned his or her support for the
Union," thereby violating Section 8(a)(1).
The evidence. On March 3, either during the conversation
between Howard Smith and Barbara Davin mentioned in
the preceding segment or just after the all-employee meet-
ing conducted that night by Smith, Smith gave Davin a slip
of paper bearing the name and business address of Doug-
las Ruby, a pension specialist with the Tulare-Kings Em-
ployers' Council in Visalia, and suggested that she see him
the next day. Smith assured her that she would be "cov-
ered," should this absent her from work. With Smith at the
time was Ruby's superior, David Miller, who gave Davin
driving directions to Ruby's office, and who attended the
employee meeting in a consulting capacity for Respondent.
Smith credibly testified that, in an earlier conversation
with Davin, he had asked if she wanted him to put her "in
touch" with a pension specialist, and that she had an-
swered yes.'6
The next day, March 4, Davin called on Ruby in Visalia.
He was expecting her. Davin testified that Ruby said to
her, during a general discussion of her pension situation,
that economic circumstances were forcing independent
stores to go nonunion,'7 and that people such as her, who
5 This remark by Forrester to Orosco was found above to have violated
Sec. 8(a X I ).
15 Davin did not expressly den) the accuracy of this testimon): and It is
improbable that Smith would have arranged for her to see a specialist at her
expense, which was the case, without first ascertaining her wishes.
did not have their pensions secured, were "casualties"
when that happened. In the same conversation, according
to Davin, Ruby told her that his fee would be $25 an hour,
and that Smith had instructed him not to exceed $75 with-
out clearing with her.
The meeting closed with Ruby directing Davin to gather
various papers pertaining to her situation, and to bring
them to him for analysis. Two or three days later, she in-
formed Ruby that she no longer cared to pursue the mat-
ter. She presently was billed $25 for the one meeting, which
she paid.
Ruby denied making the "casualties" remark,? and say-
ing he had been told by Smith not to go over $75 without
clearing with Davin. For that matter, he denied having pre-
viously spoken with Smith at all about seeing Davin. Simi-
larly, Smith denied having spoken with Ruby-indeed, that
he even knew Ruby-before the Davin-Ruby meeting.
Miller testified that he telephoned Ruby from Respon-
dent's store the night of the third, at Smith's request, to
arrange for Davin's visit.
Davin's version of her meeting with Ruby is credited. As
earlier mentioned, she was a generally impressive witness.
although an excess of wariness detracted somewhat from
her performance on cross-examination. Ruby, called by
Respondent, testified with assurance as to those matters he
was invited to deny on direct examination, only to encoun-
ter memory lapses of major dimension when asked on
cross-examination to recall surrounding events. On bal-
ance, Davin was the more credible of the two.
Conclusion. It is concluded that Respondent violated
Section 8(a)(1) substantially as alleged when Ruby told
Davin that independent stores were being forced to go
nonunion and that people such as Davin were pension "ca-
sualties" when that happened.
Respondent's store being an "independent," Ruby's re-
mark was inherently threatening. The harder question is
whether Respondent is legally accountable for his conduct.
It is concluded that it is. Howard Smith raised the idea of
Davin's seeing a pension specialist in the first place, and
Davin had no part in Ruby's selection or in the arrange-
ments for her to see him during working time. Beyond that,
Ruby's superior, Miller, was serving Respondent in a labor
relations capacity at the time, and was present both when
Smith discussed arrangements with Davin for her to see
Ruby and at the all-employee meeting that same night. In
these circumstances, it would have been reasonable for Da-
vin to regard Ruby as speaking for Respondent. He there-
fore was Respondent's agent in point of law.'
17 In this regard, Glen Lowe credibly testified, over the denial of Neil
Smith. that Neil said to him before the strike that "approximately 50 stores
. . were going to go . .. nonunion, and the Union could not put on a
strike [atl each one" and continue to function.
I1 Respondent's unopposed motion is corrected so that "of business"
reads "on strike." My contemporaneous notes and surrounding context
both favor the motion.
19 Montgomery Ward & Co.. Incorporated, 228 NLRB 750 (1977); Sterling
Faucet Companv, Texas Division, a Subsidiary of Rockwell Manufacturing
Company, 203 NLRB 1031. 1032 (1973). That Davin ultimately paid Ruby's
fee does not override the aggregate of factors indicating agency.
1430
SMITH'S COMPLETE MARKET
7. Paragraphs 6(h) and 13
Paragraphs 6(h) and 13 of the complaint allege that, on
about March 4 and 11, 1977, Neil Smith "interrogated em-
ployees regarding their activities and/or sentiments on be-
half of the Union, and their intentions to engage in a strike
or work stoppage," thereby violating Section 8(a)(1).
The evidence. In support of this allegation, the General
Counsel cites a conversation between Neil Smith and Don-
ald Wieland, a produce clerk, and questions asked by
Smith of job applicants.
Wieland, in addition to working for Respondent, worked
nights for the janitorial service that cleaned Respondent's
store. He testified that 3 or 4 days before the strike, while
"moonlighting" in the store, Neil Smith asked him his
"feelings about the situation" and if he was "going to stay
in the store or go on strike." Wieland answered, as he re-
called, that he had never crossed a picket line before and
did not think that he could, but would think about it, to
which Smith stated that he liked and respected Wieland,
and would respect any decision he made.
Smith further stated in the same conversation, according
to Wieland, that Respondent would be willing to enter into
an individual contract with Wieland, "good in any court of
law," containing anything that Wieland wished; that Re-
spondent would give Wieland a health-and-welfare plan
equal to the union plan; and that Wieland would continue
to get the equivalent of union wages. Wieland testified that
the conversation ended with Smith's asking if he had any
questions, his saying he did not, and Smith's replying that
his door "is always open" should any questions arise.
Smith denied all but the tail end of Wieland's recital. He
testified that Wieland'sjanitorial employer, Wayne Clifton,
had asked that he speak with Wieland because of concerns
Wieland had expressed about a possible strike; that he
consequently asked Wieland if he had any questions: that
Wieland said he did not wish to talk about it: and that
Smith closed the conversation by saying that Wieland
could "feel free to come upstairs and see me anytime."
Wieland's version is credited. As previously found, both
Howard Smith and Forrester questioned employees about
their strike intentions, raising the probability that Neil
Smith did the same. And, as has been found, Forrester
raised the idea of an individual contract with Delk, lending
credence to Wieland's testimony that Smith did likewise.
Moreover, there was nothing in Wieland's demeanor or in
the content of his testimony to indicate flawed recall or a
disposition to dissemble.2 0 Smith's credibility, on the other
hand, suffered from occasional self-contradiction on fun-
damental matters, and a general inclination, so it seemed,
to testify self-servingly.
As stated preliminarily, Respondent's preparation for a
20 During cross-examination by Respondent's counsel. Wieland was
asked: "Isn't it a fact that Neil Smith never asked you whether or not ,ou
were going out on strike?" Wieland answered: "Yes, it is a fact." During
redirect examination. immediately following. Counsel for the General
Counsel asked: "Did Nell Smith ever ask you if Vou would go out on
strike?" Wieland answered: "Yes." It was my impression at the time, and
now on reading the transcript, that Wieland misconttrued the sense of the
question on cross-examination. and that the conflict is due to that rather
than to poor recall or lack of veracity.
possible strike included advertising for striker-replace-
ments, beginning March 1. Interviews of applicants were
conducted by Neil Smith, among others, running from
March 2 to 22. Smith admittedly asked those he inter-
viewed if they' had ever belonged to a union, their current
membership status, and if they would cross a picket line
should there be a strike. Notations reflecting the appli-
cants' responses were entered on their application forms.
Smith explained:
We were hiring a labor pool that would have to cross
a picket line if there was a strike; and if they would
not cross a picket line, there was no use in hiring them.
Conclusions. It is concluded that Smith violated Section
8(a)(l) as alleged by asking Wieland if he intended to
strike, since the interrogation was coupled with assorted
inducements-most notably, an individual contract-not
to strike.
It is concluded that Smith's prestrike interrogation of
prospective striker replacements concerning their union
backgrounds and willingness to cross a picket line, and the
recordation of the information thus obtained on the appli-
cation forms, also violated Section 8(a)(l) as alleged. Ex-
tracting from W. A. Scheaffer Pen Company, Division of
Textron, Inc.. 22
[B]y requesting applicants for employment during ne-
gotiations with the Union to answer questions . . . as
to their willingness or unwillingness to cross a picket
line in the event of a strike, without assurances against
reprisal for their answer to or failure to answer such
questions, and by maintaining such information in its
personnel files, Respondent has . . . violated Section
8(a)(l) of the Act.
Far from prefacing his questions with assurances against
reprisal, Smith conceded: "[l]f they would not cross a pick-
et line, there was no use in hiring them."
Continuing, the Board stated in W. A. Scheaffer: 23
The Board has never privileged the interrogation of
applicants concerning their willingness to cross a pick-
et line except in situations where a strike was in progress.
[Emphasis supplied.]
And, although a per se rule is expressly eschewed in W. A.
Scheaffer,24 there seemingly are no later decisions permit-
ting such prestrike interrogations of applicants. It thus is
clear that an employer has a heavy burden of justification
in these matters, which Respondent most assuredly failed
to satisfy by embarking upon the conduct in question near-
ly a week before the first formal bargaining session and 3
weeks before the strike.25
21 Mother Sleel Compans. supra at 336. fns 3 and 6, and accompanying
text. No finding of siolation is made regarding the offer to Wieland of an
individual contract It is not alleged to be a violation and the remedy would
not he enhanced bs such a finding, It already having been concluded that
Forrester violated Sec 8(a}Hl) by similar conduct vis-a-vis Delk
199 NLRB 242 11972). enfd. 486 F2d 180 (C.A. 8, 1973).
' At 199 NLRB 243.
2' At 199 NLRB 243: This is not to say . .that there are no situations
where such interrogation of emplo)ee applicants would not be justified."
lThere is no hint of what might he considered ajustifiable prestnke situation.
Respondent argues In its brief that the Interrogation of applicants was
Con tin ued
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. Paragraphs 6(i) and 13
Paragraphs 6(i) and 13 of the complaint allege that, on
about March 4, 1977, Neil Smith "promised an employee
overtime benefits if said employee would not engage in a
strike or work stoppage," thereby violating Section 8(a)( 1).
The evidence. The record contains no evidence that Neil
Smith said anything that might fit this allegation.
Conclusion. Being devoid of record support, this allega-
tion is without merit.
9. Paragraphs 6(j) and 13
Paragraphs 6(j) and 13 of the complaint allege that, on
about March 11 and 19, 1977, Neil Smith "solicited em-
ployees to resign from their membership in the Union."
thereby violating Section 8(a)(1).
The evidence. Neil Smith admittedly discussed resigning
from the Union with several employees, each discussion
taking place in his office. He admitted, in addition, that he
read this prepared statement to some of the employees:
I cannot tell you to resign from the Union. That
cannot be my position, but 1 have the right and re-
sponsibility to inform you that, if you resign from the
Union prior to crossing the picket line:
They no longer can do anything
They cannot fine you
They cannot assess you
They cannot punish you
I want you to know that in no way am I soliciting
you to resign from the Union.
The decision is absolutely your own choice. Regard-
less of your decision there will be work available for
you.
Smith admitted, finally, that he made this resignation
language available to the employees for copying:
I hereby resign from Local 1288 effective immediately.
However, if there is a valid labor agreement in effect,
I will continue to tender an amount equal to dues as
filed with the schedule with the State Secretary of La-
bor.
Katherine Belcher, a clerk for Respondent, testified that
she had a conversation with Smith in his office on March
19 in which he told her that, if she wanted to work during
the pending strike, he could tell her how to get out of the
Union, but only if she asked. She replied, "Okay, how?" as
she recalled, whereupon Smith showed her the above resig-
nation language, suggesting that she incorporate it in a
telegram to the Union. According to Belcher, Smith also
suggested that she pass the language on to other employees
who she felt might be interested.
warranted by sec. 973 of the (California I.ahbor (Code, which requires Ihal
applicants for hire be adsised bhy the prospective employer "that a strikec
lockout, or other labor disturbance exists." The argument is rejected Sec
973 plainly is for the benefit of the applicanl, not the enmployer, and bs no
stretch can be construed as a license to interrogate, Beyond that, its applica-
tion is limited to disputes "in active progress." which certainl) was not the
case when Respondent began interrogating applicants
Belcher testified that, before she left Smith's office, an-
other employee, Alice Vacerra, 26 entered, prompting Smith
to tell her "basically the same thing" he had told Belcher.
Benito Lopez, a produce department employee, testified
about going to Smith's office the evening of March 22, and
of telling Smith he was "undecided" about going on strike
and wanted to know more about it. Smith replied, accord-
ing to Lopez: "If you decide to stay, or want to stay, you
will have to send in a resignation to the Union." With that,
Lopez related, Smith showed him the resignation language
with instructions to use it in a telegram to the Union.
Smith testified that while each of the resignation discus-
sions occurred in his office, the employees came of their
own volition in each instance; and that he raised the possi-
bility of resignation only after the employees had expressed
fears about being disciplined by the Union should they
work during the strike, and only after they had asked about
ways to protect themselves from that. Smith added that he
made it "very clear" on each occasion that he "was not
soliciting or recommending that they resign from the
Union."
Smith is not believed that he took no initiative in the
resignation discussions. Indeed, after first testifying that
Lopez had come to the office of his own accord, Smith
admitted on cross-examination that he had directed anoth-
er employee, Frank Mathis, to summon Lopez. And, to the
extent that Smith may have withheld resignation advice
until asked, Belcher is credited that, at least in her case,
Smith induced the triggering question in the manner she
described. She was a convincing witness-manifestly sin-
cere and usually possessive of excellent recall. Further to
that point, Lopez is credited that, in his case, Smith has-
tened to the subject of resignation without any prefatory
ritual. Lopez. like Belcher, inspired confidence with his tes-
timonial demeanor and the sureness of his recall.
Conclusion. It is concluded that Smith's resignation
counseling violated Section 8(a)(1) as alleged. Not only did
each instance take place in a seat of management authori-
ty, his office, but there is credible evidence that he took the
initiative in summoning at least some of the employees to
go there and in bringing up the subject of their resigning
from the Union. Beyond that, in the case of Lopez, if not
others, Smith seemed to condition working during the
strike upon sending in a resignation.
These circumstances, in combination with surrounding
instances of misconduct by Respondent-e.g., the improp-
er inquiries into employee strike intentions, and Forrester's
and Howard Smith's telling employees they would never
again work for Respondent if they struck-leave little
doubt that Smith's discussions of resignation with the em-
ployees imposed pressures interfering with free employee
choice whether to resign.27
10. Paragraphs 6(m) and 13
Paragraphs 6(m) and 13 of the complaint allege that,
since about March 23. 1977, Respondent "has engaged in
surveillance of employees engaged in a strike or work stop-
page," thereby violating Section 8(a)( ).
Sometimes spelled "Becerra" In the transcript. She did not testify.
Sec fn 7. ,upra
1432
SMITH'S COMPLETE MARKET
The evidence. In anticipation of the strike, Respondent
contracted for the services of Turner Security Systems.
Turner personnel were on the premises around the clock
during the strike's first 3 weeks. Among their various activ-
ities, they took perhaps 300 photographs 28 of picketers, of
picketers' cars and license plates, of the strike headquarters
trailer parked nearby, of assorted happenings on the picket
line, and of the physical surroundings. Pains were taken to
get at least one picture of each picketer, at a range of a few
feet, ostensibly for identification purposes should there he
picket-line misconduct. That was the stated rationale, as
well, for the pictures of the cars and license plates. TIhe
pictures were duly numbered, and their subject matter re-
corded in logs. The picture-taking began on the first daN of
the strike. Turner's services were discontinued after 3
weeks, coincident with the installation of a video tape sys-
tem composed of seven cameras located on the store roof
and six located inside the store, which scanned the area on
a 24-hour basis.2 9
With Turner's departure, Neil Smith assumed picture-
taking duty, taking roughly 200 additional photographs of
picket-line activity. His concentration, avowedly, was on
those activities that he felt would aid in the procurement of
a restraining order.
On May 26, in a state court proceeding, Respondent ob-
tained a temporary restraining order against certain picket-
line activity, pending a determination on the merits. Then,
on June 21, in the course of obtaining a preliminary injunc-
tion in that matter, Respondent offered as exhibits 34
photographs of picket-line conduct. All of these pictures
were taken after May 26, by one John Schwartz, hired by
Respondent for that purpose. There is no persuasive evi-
dence that any of the several hundred pictures taken by
Turner Security Systems and Neil Smith were offered in
that proceeding.
In October and November, three of the picketers either
pleaded or were found guilty of misdemeanors in connec-
tion with their picketing activities. The official summaries
of those proceedings reveal that a video tape film taken by
Respondent was offered by the prosecutor as an exhibit in
one of the proceedings. Other than the one film used in the
one proceeding, neither films nor photographs were used in
those matters.
Conclusion. It is concluded that Respondent's picture-
taking violated Section 8(a)(1) as alleged. It was a massive
undertaking, begun before Respondent had reasonable
grounds to expect picket-line misconduct. and thus bore
the implication that its purpose was intimidation rather
than documentation of expected transgressions) 0
True, a preliminary injunction against certain picket-line
activity issued some 3 months after the strike began, but
28 Don fTurner of rurner Securty Systems estimated that his firm It,ok
between 200 and 250 pictures. I.ater in his testimmons he referred to one
numbered 293, and stated that others were unnumbered
29 Respondent paid nearl) $31,0) foir the video camiera equipmnenl antd
its installation.
30 Ronald L Blanchard, d h a Blani hard ( '.siri[.l (i'onl mlnr 234
NL RB 1035 (1978); ('olonial Haern ,%ursin5g lHome. In. 218 Nl.RB lOi7.
1011 12 X1975): Larand Leisureliev, Inc. 213 NIRB 197. fn I (1974): Ih,
Udilite (orporatiin. 183 NL RB 163, 172 173 t1970); Flamnibha Pht.ls (-.r
poration, 167 NlRB 735. 742 743 lh671)
that involved only 34 of the several hundred photographs
taken, all of which were taken after the strike was 2 months
old. And, true, three picketers eventually were convicted of
misdemeanors, but those prosecutions involved no photo-
graphs and only one strip of film. The picket-line excesses
hardly justified a camera onslaught so overt, relentless, and
immense as that waged by Respondent. The cases cited by
Respondent in attempted justification " are markedly dif-
ferent in degree if not in kind.
II11. Paragraphs 6(n) and 13
Paragraphs 6(n) and 13 of the complaint allege that, on
about April 1, 1977, Forrester "threatened an employee
that membership in or support of the Union was futile be-
cause Respondent would not permit the Union to represent
its employees." thereby violating Section 8(a)( 1).
The evidence. The General Counsel cites two conversa-
tions involving Forrester, one with John Stewart and one
with Delk, in support of this allegation.
Stewart testified that during a coffeebreak 2 or 3 days
before the strike he mentioned to Forrester, alluding to the
likelihood of a strike, that he hated what seemed "to be
coming up"; and that Forrester responded: "Yeah, . . .
but I don't know if Mr. 'S' [Howard Smith] ever plans to
sign the contract."
Forrester denied responding in this fashion, recalling in-
stead that he stated something of this character: "Yes, it is
a bad situation and I am sure it will work out for ev-
eryone." Stewart is credited. As previously indicated, he
was a generally convincing witness, while Forrester's credi-
bility has been found wanting in other areas. In addition,
as is about to be developed. Forrester expressed a kindred
sentiment to Delk.
Delk testified that. 2 or 3 days after the strike's onset,
Forrester telephoned him at home, requesting that he re-
turn his store keys for someone else's use. Later in the
conversation, according to Delk, Forrester suggested that
Delk gather up some of the striking employees and return
to work. Delk continued that he presently asked Forrester
what he thought "about this whole thing," and that Forres-
ter answered: "I am finally convinced [that] Howard was
going out from the start."
Forrester admitted suggesting that Delk "round up"
some of the strikers and return to work, credibly testifying
that this was said "jokingly." Forrester testified, however,
that the conversation ended at that point, denying by im-
plication that Delk asked about or that he voiced his
thoughts on the bargaining situation.
To the extent that their versions differ, Delk is credit-
ed ---for the same reasons he earlier was credited over For-
rester, and for the further reason that, as just found, For-
rester made a similar statement to Stewart.
(Conclusion. Despite the background of Respondent's
other unfair labor practices, it is concluded that the re-
marks in question did not violate Section 8(a)( I). They pur-
ported to express only a personal opinion, not an official
' Sauolnal Sprinnng ( on/ipni. 174 Nl.RB 379 (1969). Hilton tlobhile
Hl,,r,, 155 Nt RB 871 (1965);: 1.). Joint Pipe Coimpani, 141 Nl RB 943
tI')63)
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position, and there has been no showing that Forrester was
connected with the negotiations or had special knowledge
of them. Beyond that, his remarks received minimal expo-
sure, were not spoken until Stewart and Delk had invited
comment, and, while stating firm opposition to the stan-
dard union contract, did not thereby imply rejection of the
bargaining principle.1 2
D. The Alleged Specficf liolalions of Section 8(aJ)()
I. Paragraphs 1 I(a) and 14
Paragraphs 1 I(a) and 14 of the complaint allege that, on
or about March 3, 1977, Howard Smith "bargained direct-
ly with employees in the unit ... concerning rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment," thereby violating Section 8(a)( 5).
The evidence. As indicated earlier. Howard Smith con-
ducted an all-employee meeting on March 3. The bulk of
his presentation consisted of reading from a prepared text
describing Respondent's position in negotiations. The
meeting was timed to permit Respondent first to communi-
cate its position to the Union. That was done the night
before, upon completion of IGA negotiations, when Le-
land Brewer told one of the Union's attorneys, Robert Co-
well, that the new IGA contract would he acceptable to
Respondent provided that Respondent "could maintain
the student clerks as per past practice." 33
On the student-clerk question, Smith stated to the em-
ployees, per the prepared text:
For 10 years we have had a student-clerk classifica-
tion and we need to maintain these young people to
give service that is such an important part of shopping
at Smith's. We have asked that the student-clerk clas-
sification be continued at $2.50 for the first 700 hours,
$2.60 for the next 700 hours, and $2.85 thereafter,
straight time on Sundays and holidays and health and
welfare benefits after 80 hours. This is the present con-
tract except we automatically gave increases at the
time of the change of minimum wage. Plus they re-
ceive vacations.
We think the offer is reasonable and fair. But if the
offer is refused and we are disallowed student clerks
and they are moved into the courtesy clerk category, it
will increase our weekly labor cost an additional
$2,500. This is an approximate figure, but probably on
the low side. This $2,500 per week equals $130,000 per
year. No way can we live with this kind of an in-
creased cost. I want to make it very clear that this
could put us into a possible strike position. And this is
why you have seen the newspaper ads and the streams
of applicants coming into the store the last few days.
But legally I could not tell you until now.
32 Safewav Trails, Inc., 216 NLRB 951. fn. I (1975), and 233 N.RB 1()78.
1081, fn. 8 (1977); Erich R. Weber and Bernadine 4eber. Co-Parmners. d b a
Weber's Bakery, 211 NLRB I, 15 (1974).
33 After which Brewer described to ( owell in some detail the nature of the
past practice concerning student clerks. Cowell questioned the Union's will-
ingness to permit continuance of the student-clerk exception. hut said he
would convey Respondent's position to) the Union just the same
I rasvis Jackson testified on direct examination by Coun-
sel for the General Counsel that Smith then urged that a
group of employees 'go to the Union and explain" that
they did not want "to go on strike over the student-clerk
situation." Jackson testified to the same effect again on
redirect examination. but. during the intervening cross-ex-
amination, asserted that he had no recollection of Smith's
making such a statement. Katherine Belcher in turn testi-
fied about Smith's saNing that. if the employees "went to
the Union and talked to Art Smith and got the raise and
health and welfare and everything basically the way it was
., that there would be no problem and everything would
be solved." None of the General Counsel's several other
witnesses identified as attending the March 3 meeting
touched on this in their testimony.
Smith admittedly departed from the text "in a couple of
instances," but denied urging the employees to go to the
Union concerning the student clerks. He testified that the
nearest he came to such a statement was his response to
Jackson's asking what could be done to maintain the status
quo on student clerks. when he voiced the hope that there
would be "no strike over that issue." Neil Smith, also pres-
ent at the meeting, recalled the incident almost precisely as
did his father.
Although lacking in testimonial candor in certain other
respects, the two Smiths are credited that Howard did not
urge the employees to go to the Union and express their
unwillingness to strike over the student-clerk question.
Jackson's contrary testimony was undermined by his ina-
hility to recall the incident on cross-examination: by the
lack of correspondence between his and Belcher's versions:
by the abstruseness of Belcher's testimony on the point;
and by the failure of the General Counsel's other witnesses
to provide even arguable corroboration.
(Coniclusion. As is noted later. Howard Smith's conduct in
the March 3 employee meeting constituted some evidence
of overall bad faith toward the negotiations. It nevertheless
is concluded that it alone did not amount to direct-dealing
proscribed by Section 8(a)(5).3 4 Although there had been
no formal bargaining sessions to that time, Brewer had
conveyed Respondent's hold-the-line posture on student
clerks to the Union the previous night and before that, and
it had been identified as a strike issue.
In terms of substance, then, Smith's March 3 remarks to
the employees did not go beyond those earlier passing be-
tween Respondent and the Union. The present situation
thus comes within this extract from The Procter & Gamble
Manufacturing Companre.
As a matter of settled law, Section 8(a)(5) does not,
on a per se basis, preclude an employer from commu-
nicating, in noncoercive terms, with employees during
collective-bargaining negotiations. The fact that an
employer chooses to inform employees of the status of
negotiations, or of proposals previously made to the
Union, or of its version of a breakdown in negotia-
'4 "It is frequents, the case that certain statements or conduct, in and of
Ihemselves. ma) not rise to being a violation of the Act." Safeway Trails,
Im.. 233 NLRB at 1081
1434
SMITH'S COMPLETE MARKET
tions will not alone establish a failure to bargain in
good faith."
2. Paragraphs I I(b) and 14
Paragraphs 1 I(b) and 14 of the complaint allege that on
about March 8, 1977, Howard Smith "bargained directly
with employees in the unit . . . regarding a health and
welfare plan," thereby violating Section 8(a)(5).
The evidence. The focus of this allegation is the March 8
employee meeting, described above in the segment cap-
tioned: "4. Paragraphs 6(e) and 13."
Conclusion. It has been concluded above that Howard
Smith's March 8 elaboration of pension benefits under Re-
spondent's proposal, together with the postmeeting availa-
bility of individually-tailored benefit charts, went well be-
yond Brewer's presentation to the Union; and that
Respondent therefore violated Section 8(a)(1) by exceeding
its right to communicate with employees noncoercively
concerning the status of negotiations and the nature of pro-
posals previously made.3 6
It now is concluded that the same conduct had the likely
effect of undermining the Union in the negotiations. there-
by violating Section 8(a)(5).17
3. Paragraphs I I(c) and 14
Paragraphs I I(c) and 14 of the complaint allege that, on
about April 26, 1977, Leland Brewer, Respondent's bar-
gaining spokesman, "refused to meet with the designated
representative of the Union for purposes of bargaining col-
lectively .... " thereby violating Section 8(a)(5).
The evidence. On the morning of April 26. it was agreed
to hold a bargaining session at 2:30 that afternoon in Fres-
no. The arrangements were made by a state mediator.
working between Brewer and Don Hunsucker, a union
business agent.
Hunsucker testified that once the meeting was set he
notified the San Francisco office of one of Respondent's
attorneys and spokesmen, John Cohenour, and confirmed
that Cohenour would be flying to Fresno to attend. After
that, according to Hunsucker, he learned from the media-
tor that Brewer had said he would cancel the meeting if
any attorneys were to be there. Hunsucker continued that
he consequently telephoned Brewer, at the Fresno offices
of Respondent's attorney, explaining that Cohenour was en
route to Fresno and asking if it would be acceptable for
him to attend; and that Brewer said there would be no
meeting if Cohenour were there. Hunsucker recalled this
conversation as occurring shortly after 12 noon.
Hunsucker testified that he told Cohenour of this devel-
"s 160 NLRB 334. 340 (1966). General Electric Cormpani, 150 N RB 192
(1964). cited by the General Counsel, is distinguishable As observed in
Procter & Gamble, supra at 340-341. the violation in General Electric ,as
based on a totality of conduct involving the emploser's orchestrairln of
bargaining-table rigidity with an away-from-the-table communications pro-
gram in which the employer's proposals were explained and extolled io the
employees and the union's role in the bargaining process generally helittled
It also is concluded that Smith's remarks did not independently violate Sec
8(a)1i). O'Neil Moving and Storage, In.., 209 NLRB 713, 715 (1974); .dco
Advertising, Inc. d/bra Pennysaver and Ampress. Inc., 206 NLRB 497. 498
499 (1973)
36 See in. 14. supra, and accompanying text
37See preceding two footnotes.
opment upon Cohenour's arrival in Fresno. and that they
decided that he not attend rather than risk cancellation.
The meeting proceeded as scheduled, attending by Hun-
sucker, Brewer, and the mediator.
Brewer testified that he had only one premeeting conver-
sation on the 26th-with the mediator that morning con-
cerning time and place. He denied any reference in that
conversation to the presence of attorneys. In aid of his
assertion that he had no premeeting telephone conversa-
tions with Hunsucker that day, he testified that he flew to
Fresno from Stockton by scheduled airline to attend the
meeting, leaving at 1:45 p.m. and arriving at 2:20, the im-
plication being that an earlier call from Hunsucker to him
in Fresno would have been a physical impossibility.
The mediator did not testify: and Cohenour, although
testifying, did not address himself to this incident.
Although resolution of the credibility conflict in this in-
stance is difficult, it is concluded that Hunsucker has failed
to carry the General Counsel's burden. His recital was
vague and disjointed--more so than the foregoing sum-
marx would indicate; and the failure of Cohenour to sup-
ply circumstantial corroboration cannot be ignored.38
Brewer, in contrast, testified with crispness and conviction
on this point, and his testimony that he did not leave
Stockton until 1:45 is entirely believable since that is where
his office is and since arrangements for the meeting were
made only that morning.
Conclusion. The evidence in support of this allegation
having been discredited, it is without merit.
4. Paragraphs 1 1(d) and 14
Paragraphs I l(d) and 14 of the complaint allege that, on
or about May 1, 1977. "Respondent, without first notifying
and bargaining in good faith with the Union, unilaterally
implemented a health-and-welfare plan for the employees
in the unit .... " thereby violating Section 8(a)(5).
The evidence and contentions. The answer admits that Re-
spondent unilaterally instituted the plan in question on
May 1. Respondent contends, however, that the March 22
bargaining session ended with a mutual declaration of im-
passe, and that the plan had been embodied in its last
preimpasse proposal to the union, made during the March
22 session.
Counsel for the General Counsel concedes in his brief
that Respondent proposed the plan "during the March ne-
gotiations," and concedes that negotiations thereafter
broke down on March 22, but argues "that no bona fide
impasse had been reached prior to" implementation be-
cause Respondent's bargaining bad faith had led to the
breakdown.
Representatives of Respondent and the Union met twice
between March 22 and the May I implementation of the
plan--on April 21 and 26. The April 21 meeting was de-
scribed as being "off the record," and that of April 26,
which is mentioned in the segment just preceding, appears
to have been a followup, the hope being to work out a
In l.ew. of the oustomars and ,ell-known prohibitions against testi-
mons hb governmental mediators, the failure of the General Counsel to call
the mediator is deemed of no moment In resoliing this conflict Indeed. the
same medialo,r suhpenaed hs Respondent, declined to testify, citing the
"clnfidentilslt\' .of hi' role in "the mediation process"
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
package resolution of outstanding bargaining issues as well
as those raised by the charge herein, filed April 4. The
record, while vague concerning the substance of the two
meetings, affords no reason to infer significant movement
from the positions reached March 22.
Conclusion. It is concluded that Respondent's institution
of the health-and-welfare plan violated Section 8(a)(5) as
alleged.
As is discussed and concluded later, Respondent's ap-
proach to negotiations revealed a general absence of good
faith, violating Section 8(a)(5), to the time of the strike.
Consequently, although there was a mutual declaration of
impasse on March 22, it was not a valid impasse, licensing
the conduct in question. Quoting from Gerald F. Hinkle
d/b/a Akron Novelty Manufacturing Company:
It is well settled that where an employer has failed to
bargain in good faith no genuine impasse can be
reached. And, absent such impasse, an employer is not
free to unilaterally implement changes in the employ-
ment conditions of its employees.3 9
5. Paragraphs I (e) and 14
Paragraphs 11(e) and 14 of the complaint allege that
since about March 18, 1977, "Respondent has refused to
furnish relevant information requested by the Union relat-
ing to the job duties of student clerks," thereby violating
Section 8(a)(5).
The evidence. During the March 8 bargaining session,
there was "quite a conversation"-Brewer's phrase-about
the duties of student clerks, culminating in a request by the
Union that Respondent provide "a complete
list"-Brewer's testimony-of those duties. Brewer replied,
as he recalled, that he "was not ready to detail exactly"
what their duties were at that time, but "would get as com-
plete a list as [he] could." He added that Respondent was
interested only in maintaining the past practice as concerns
the student clerks, not in enlarging upon their duties, and
that the Union probably knew better than he what they
did.
On March 8, after the session, Brewer admittedly dis-
cussed the duties of the student clerks with Howard and
Neil Smith, but was not given and did not prepare a list.
During the next session, on March 18, the Union asked
about the list it had requested. Brewer replied, by his own
admission, that he was "still looking into it." The Union
repeated its request during the March 22 session. Brewer
replied that he "had not produced a writing at that time,"
but that "past practice was to be the rule."
The Union made its request once more, during a bar-
gaining session in June. Brewer finally complied by letter
dated July 15.40
Brewer testified, in answer to a leading question by
Respondent's counsel, that he did not believe that any of
39 224 NLRB 998. 1002 (1976). See also Neon Sign C(orporatrion, 229
NLRB 861 (1977).
4o The letter is in evidence. The Union's Art Smith testified that he had
not received a list to the time of trial, and its attorney, Cohenour, testified
that he had not seen and was not aware of the list. Brewer is credited that
the letter was sent
the Union's March requests were for a written list. This is
discredited because of the suggestive nature of the question
and the tentative nature-"I don't believe"--of the re-
sponse. Beyond that, even if the Union did not specify that
the list be in writing, the surrounding context leaves little
doubt that both it and Respondent contemplated a written
list.
Conclusion. It is concluded that, by delaying more than 4
months from the original request before providing the list
of duties, Respondent violated Section 8(a)(5) as alleged.
An itemization of duties of the student clerks plainly was
within the Union's entitlement, to enable it to bargain in-
telligently, and there is no record justification for Respon-
dent's protracted failure to comply with the Union's re-
quest. Respondent's argument is rejected that it was under
no duty to comply because the Union "possessed substan-
tial independent knowledge" of the information it was
seeking. As stated in The Kroger Company: "The union is
entitled to an accurate and authoritative statement of facts
which only the employer is in a position to make." 41
E. The Alleged General Violation of Section 8(a)(5)
Paragraphs 10(b) and 14 of the complaint allege that,
since about December 6, 1976, "Respondent . . .by its
entire course of conduct in the negotiations . . . has re-
fused and continues to refuse to bargain collectively with
the Union ... by negotiating ... in bad faith and with no
intention of entering into any final or binding . . . agree-
ment," thereby violating Section 8(a)(5).
1. The evidence
As described at the outset, although formal negotiations
between Respondent and the Union awaited the March 2
completion of IGA negotiations, informal exchanges of po-
sition before that time made it apparent that the issue of
student clerks would pose great difficulty. Art Smith, the
Union's president, told Leland Brewer on about February
15 of the Union's resolve to eliminate the historic "side
deal" with Respondent concerning student clerks, charac-
terizing it as a "strike issue," and Brewer countered that
continuation of the past practice was a "must." 42 Also as
described earlier, this prompted Respondent to begin strike
preparations well before the first formal bargaining session
on March 8.
On March 2, with the completion of IGA negotiations,
Brewer told one of the Union's attorneys, Robert Cowell,
that the new IGA "A" contract would be acceptable to
Respondent, provided that Respondent "could maintain
the student clerks as per past practice." The IGA "A" con-
tract, as noted earlier, makes no allowance for student
clerks, whereas the "B" contract, limited to smaller stores,
41 226 NLRB 512, 513 (1976). See also Film Editing Equipment Corp.
d'b/a Hollywood Film Company. 213 NLRB 584, 592 (1974). See, generally,
Georgetown Associates d/b/a Georgetown Holiday Inn, 235 NLRB 485
(1978); Cowles Communications, Inc., 172 NLRB 1909 (1968); Whitin Ma-
chine Works, 108 NLRB 1537 (1954). The conclusion would be the same
even had the Union not been seeking a written list. The point is, the request-
ed information was not fully provided, in any form, until July 15.
42 The credibility conflict between Brewer and Art Smith concerning this
conversation is resolved in Brewer's favor in fn. 3, suproa.
1436
SMITH'S COMPLETE MARKET
permits some student clerks, at reduced wage and benefit
levels. Cowell responded that he believed that the Union
would insist that all "independents" of the requisite size
enter into the standard IGA "A" contract, with no side
deals, but that he nevertheless would transmit Respon-
dent's position to the Union.
The first formal bargaining session, on March 8, opened
with the Union proposing an across-the-board adoption of
the IGA "A" contract, and stated that the student-clerk
exception broached by Brewer to Cowell on March 2
would be unacceptable. Brewer countered by presenting a
one-page document proposing not only preservation of the
status quo as concerns student clerks, but that the Union's
standard health-and-welfare and pension plans, which
were incorporated in the IGA contract, be supplanted by
alternative plans. The document stated, concerning student
clerks:
Student Clerks duties to include: stocking soda, ciga-
rettes and candy; sweep floors and clean up spills; pay
rates, starting rate $2.50, 700 hours and over $2.60,
1400 hours and thereafter $2.85. Health and Welfare
after 80 hours; no Pension; straight-time pay for Sun-
days and Holidays; no premium pay; pro-rate vaca-
tion pay. 43
Brewer and Cowell, the Union's chief spokesman on the
8th, presently convened away from the others. Cowell, re-
peating the Union's determination that there be no stu-
dent-clerk exception, asked why the standard IGA contract
was unacceptable to Respondent when it was "not unpalat-
able" to over 100 other employers. Brewer replied by de-
tailing Respondent's "very, very difficult . . . competitive
situation in Porterville" and the attendant need for a stu-
dent-clerk dispensation. Cowell in turn remarked that the
issue of student clerks was "serious enough" that "we may
very well get into a strike."
As previously described, the duties of the student clerks
were discussed at considerable length during the March 8
meeting, the Union eventually asking that Respondent pro-
vide a list and Brewer stressing that Respondent wished
only to continue the past practice. The session closed with
the Union terming Respondent's health-and-welfare and
pension proposals "substandard" and of doubtful accepta-
bility, subject to a more measured review of the materials
descriptive of them,44 and reiterating its aim of a standard
IGA contract.
The next session, on March 18, began with the Union
officially rejecting Respondent's March 8 proposal. To
Brewer's asking why, someone for the Union answered that
it wanted its own health-and-welfare and pension plans.
This prompted Brewer to ask if it would be permissible
43 Respondent's proposed pension plan did not expressly exclude student
clerks. Rather, it conditioned eligibility on the employee's being 20 years of
age and having worked 1,000 hours in the preceding year. which, as Brewer
explained to the Union's negotiating team, would have the practical effect
of excluding most student clerks.
44 It is undisputed that Brewer provided the Union with a written descrip-
tion of Respondent's proposed pension plan. Brewer testified that he pro-
vided materials about the health-and-welfare plan as well, while the tunion's
Art Smith and Cohenour, both of whom attended the meeting, den) that he
did. Cowell did not testify. Brewer is credited inasmuch as Art Smith's notes
of the meeting support him.
under the Employee Retirement Income Security Act of
1974 (ERISA) to exclude student clerks from the Union's
pension plan and to impose an 80-hour eligibility require-
ment on them under the Union's health-and-welfare plan.
Cowell, again the Union's chief spokesman, replied that
he did not know and suggested that Brewer telephone the
offices of the administering trusts to find out. A recess was
called, and Brewer telephoned the pension trust office,
only to be told that Cowell., as the attorney for the trust,
could speak with more authority on the question. With
that, Brewer rebuked Cowell for "playing games," and Co-
well defended that the "ultimate decision" was not his, but
the trustees'.
After an ensuing caucus, Respondent modified its
March 8 proposal to include the Union's health-and-wel-
fare and pension plans, but adhered to its earlier proposal
in all respects as concerns the student clerks. A union cau-
cus followed, from which Cowell emerged to inform Brew-
er that the Union wanted an hourly wage increase for the
student clerks of $1.10 over the 3-year term of the con-
tract-50 cents in the first year, and 30 cents in each of the
next two. Without waiting for a response, Cowell returned
to the Union's caucus, reported that his demand had been
rejected, and announced that there was no point in further
negotiations because they were "at an impasse."
The union contingent thereupon left the premises, ne-
glecting to pass word to Respondent's caucus room that
they were leaving, and the March 18 session was over. 45
The next day, March 19. Art Smith gave Brewer written
notice that the Union was terminating the old contract, as
extended, effective as of 12:01 a.m., March 23. This was
deemed by both the Union and Respondent to be a strike
notice, and led Neil Smith to post this notice in the store on
the 19th:
To all employees:
The management of this company has been in-
formed there may be a strike at this store.
Section 7 of the National Labor Relations Act gives
you the right to act in concert to force this company to
meet your demands and we fully respect that right.
The Act also gives you the right to refrain from such
activity and to continue working free of threats and
coercion.
The company has a corresponding right to continue
operation. This takes employees. Therefore, in the
event there should be a strike, we request that you
continue working.
The parties next met on March 22, joined by a state
mediator. Art Smith announced at the start that the Union
was rejecting Respondent's March 18 proposal, saying
more money was needed for the student clerks.6 Brewer
asked how much, and Smith said 90 cents per hour over the
3-year contract term-30 cents per year.
Later in the session, after a caucus or two and after the
mediator had separated the two contingents and begun
serving as a go-between, Respondent reverted to its March
45 The foregoing description of the March 18 session does not purport to
be an exhaustive reconstruction Also during this session. as earlier found.
the Inion pursued its March 8 request for a list of the student clerks' duties
Cowell did not attend the March 22 meeting
1437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 proposal with the one exception that student clerks were
to receive $2.90 after 1400 hours instead of $2.85. The
Union, through either Art Smith or Cohenour, promptly
rejected it, again calling the health-and-welfare and pen-
sion plans "substandard."
Brewer replied that excluding student clerks from pen-
sion coverage and limiting their access to health-and-wel-
fare coverage were economic necessities, and that there
simply was no assurance that LRISA would permit this
under the Union's plans. Brewer's explanation continued
that Respondent's proposed plans had a built-in 80-hour
minimum for health-and-welfare participation and a built-
in age minimum for pension participation, meaning in
practical effect that most student clerks would be excluded
without risk to Respondent of incurring unintended obliga-
tions because of a misinterpretation of ERISA.
The Union responded that it would be willing to submit
for government ruling the question of less favored treat-
ment for student clerks under its plans: adding that, should
it be ruled illegal, the Union would be willing to renegoti-
ate the issue of health-and-welfare and pension coverage
for them. Brewer rejected the idea, observing that the rul-
ing could well be 2 to 2-1/'2 years in coming, and that
Respondent was unprepared to risk contribution exposure
over that length of time should the ruling be adverse.
The session came to an end soon afterward with Brewer
calling Respondent's latest proposal "our best offer," and
he and Cohenour agreeing that the parties were "at an im-
passe." 47
As mentioned earlier, the strike began March 23 and was
in effect at the time of hearing, 12 later bargaining sessions
failing to bring settlement. The General Counsel's theory
of a general violation of Section 8(a)(5) is based on events
to March 23; hence, the record contains little of the sub-
stance of those 12 later meetings.
The General Counsel argues that the inference of bad
faith to be drawn from Respondent's conduct at the bar-
gaining table is augmented by the totality of its away-from-
the-table conduct and by the incidents previously cited of
Forrester's telling John Stewart 2 or 3 days before the
strike that he did not know "if Mr. 'S' ever plans to sign the
contract"; and of Forrester's telling Leroy Delk, 2 or 3
days after the strike began, that he was "finally convinced
[that] Howard was going out from the start." 48 The Gener-
al Counsel also cites a prestrike conversation among How-
ard Smith, Forrester, and Glen Lowe, in which How ard
Smith said: "If there is ever a picket line on this store
again, I will never sign another union contract." 49 Perhaps
worthy of note, as well, is the prestrike revelation of Neil
Smith to Lowe that "approximately 50 stores . . . were
going to go . . nonunion, and the Union could not put on
a strike [at] each one" and continue to function.50
4I Fn. 45, apr., is of equal application to the March 22 session
48 Described previously. credibility conflicts being resolved in for Ao
Stewart and Delk.
49 eLowe is credited over Smith's denial that Smith made this statemlenl
Lowe's recall (of the conversation was bhoth detailed and su-e. and thus nmore
convincing that Smith's typically mechanical denial. oI rrester's testilmns
did not touch on the point.
( Mentioned above in fn. 17. I.owe there heing credited oiver Smith's
denial.
Conclusion. It is concluded, weighing the totality of Re-
spondent's conduct at and away from the bargaining table,
that its overall approach to negotiations failed to meet the
statutory requirement of good faith, thus violating Section
8(aW(5) as alleged.
The test, as stated in ,Akron N'ovelhv Manufacturing Com-
pany. is this:
Good faith, or the lack of it, is essentially concerned
with the state of mind with which the parties entered
into and participated in the bargaining process. That
determination is based on reasonable inferences
drawn from the totality of the parties' conduct at, and
away from, the bargaining table. Conduct reflecting a
rejection of the principle of collective bargaining or an
underlying purpose to bypass or undermine the union,
in the Board's view, manifests the absence of a genu-
ine desire to compose differences and to reach agree-
ment in the manner the Act commands. 51
Respondent, by the aggregate of its away-from-the-table
conduct, evinced, in the words just quoted, an "underlying
purpose to bypass or undermine" the Union. There are the
instances in which the employees were unlawfully coun-
seled and urged to resign from the Union; the unlawful
threats that those striking would never again work for Re-
spondent: the assorted unlawful inducements not to
strike individual contracts, more and different overtime.
and that union fines "would be taken care of"; the state-
ment during the March 3 employee meeting-days before
the first formal bargaining session-that negotiations were
in "a possible strike position," coupled with the references
to the "streams of applicants" for jobs should there be a
strike; the unlawful direct-dealing concerning Respon-
dent's pension proposal during and after the March 8 em-
ployee meeting; and, finally, the telltale remarks of Re-
spondent's agents---Ruby's to Barbara Davin about all the
independent stores that were going nonunion, Neil Smith's
to Glen Lowe that "approximately 50 stores . ..were
going to go . . . nonunion"; and Howard Smith's that he
would "never sign another union contract" if the store
were picketed.
Respondent's conduct at the bargaining table, while not
so richly and unequivocally damning as that just cited,
nevertheless augments the inference of general bad faith.
Not only did it unlawfully fail to supply the requested list
of student-clerk duties, but it combined an unalterable ri-
gidity on the student-clerk question with a singular insta-
bility regarding pensions and health and welfare, failing to
adhere to the same position from one day to the next. This
,' 224 NL RB at 1001 See also N L.R B v. Reed& Prince Manufacturing
(Coipii. 205 F 2d 131. 140 ((.A. I, 1953 , where it is stated that the inquiry
into good faith "involves a finding of motive or state of mind which can
ornl' be inferred from circumstantial evidence It is similar to the inquiry
vshether all emploser discharged an employee for union activity.... Re-
garding the relesance of away-from-the-table conduct to the question of
oiverall had f.iath. see il additionl to, i Akron Noveltr Manufacturing Companv.
rupra: l nited Transportation tinion. Local No. 1599 v. N.L. B {Siaficra
Irails In 1/. 546 F 2d 1038 (( .AD.(.. 1976): Safew.ay' Trails, Inc., 233
NL.RB 1(78 (19771: (,General Electric (o.. 150 NLRB 192 1i964). enfd. 418
1 2d 736 (( A. 2. 1969) For a general discussion of the duty to bargain in
good faith, see Graphic Arts International Union, Local 280 (Samuel L.
Ilrm,lls. 235 NI.RB (184 11978).
1438
SMITH'S COMPLETE MARKET
is not to equate ngidity alone with bad faith "instransi-
gence by itself does not establish bad faith." 52 Nor is it to
devalue the relevance of concessions as signs of good faith
"concessions ... raise a strong inference of good faith." 53
Respondent's rigidity, however, was not in a vacuum, tak-
ing adverse coloration from its other conduct; and its shifts
of position on pensions and health and welfare were not so
much concessions as vacillations having the effect if not
the purpose of keeping negotiations in a state of disequili-
brium.
V. THE STATUS OF THE STRIKE
Since the employees struck in protest of Respondent's
bargaining conduct, found herein to have been unlawful,
their strike was an unfair labor practice strike and they
therefore are entitled to reinstatement upon unconditional-
ly applying for reemployment.54
CONCLUSIONS OF LAW
1. By interrogating its employees concerning their inten-
tions of working during a strike, and whether they had
submitted membership resignations to the Union; by coun-
seling and urging its employees to resign from the Union;
by threatening its employees that those going on strike
would never again work for it; by making assorted induce-
ments to its employees not to strike, including individual
contracts, more overtime, and that union fines "would be
taken care of"; by telling an employee that economic pres-
sures were forcing independent stores to go nonunion, and
that employees such as herself were pension "casualties"
when that happened; by interrogating applicants for em-
ployment about their union backgrounds and willingness
to cross a picket line, and recording the information ob-
tained on their application forms; and by photographing
the picket-line activities of its employees without proper
justification, all as found herein, Respondent in each in-
stance engaged in an unfair labor practice violating Section
8(a)(1) of the Act.
2. By dealing directly with its employees on March 8,
1977, concerning its pension-plan proposal, by unilaterally
instituing a health-and-welfare plan for its employees on
May 1, 1977; and by failing for over 4 months to comply
with the Union's request for a list of student-clerk duties,
all as found herein, Respondent in each instance engaged
in an unfair labor practice violating Section 8(a)(5) and (1)
of the Act.
3. By the totality of its conduct at and away from the
bargaining table, as found herein, Respondent bargained
in bad faith with the Union in violation of Section 8(a)(5)
and (1) of the Act.
4. Respondent did not otherwise violate the Act as al-
leged.
5. The strike which began on March 23, 1977, was an
unfair labor practice strike, and the strikers therefore are
52 Wal-Lire Division of Uniled States Gspsum Co, 200 NLRB 1098. 1100
(1972).
53 N.L.R.B. v. General Electric Co. 418 F.2d at 758
54 E.g., Neon Sign Corporalion, 229 NLRB 861 (1977).
entitled to reinstatement upon unconditionally applying
for reemployment with Respondent.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER "
The Respondent, Smith's Complete Market of Tulare
County, Inc.. d/b/a Smith's Complete Market, Porterville,
California. its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment with Retail Clerks Union, Local
1288, Retail Clerks International Association, AFL-CIO,
as the exclusive bargaining representative of the employees
in this appropriate unit:
All employees employed by Respondent at its Por-
terville, California, location, excluding butchers, bak-
ery and confectionery employees, office clerical em-
ployees, guards, and supervisors as defined in the Act.
(b) Unilaterally instituting health-and-welfare coverage
or any other change in terms or conditions of employment
of employees in the above unit.
(c) Failing to comply, with reasonable promptness, with
the Union's request for a list of duties of those employed
by Respondent as student clerks.
(d) Discussing with its employees in the above unit ben-
efit projections under its proposed pension plan without
first notifying and consulting with the Union to a compara-
ble extent.
(e) Coercively interrogating its employees concerning
their intentions of working during a strike, and whether
they had submitted membership resignations to the Union;
coercively counseling and urging its employees to resign
from the Union; threatening its employees that those going
on strike would never again work for it; making assorted
inducements to its employees not to strike, including offers
of individual contracts and more overtime, and that union
fines "would be taken care of"; telling employees that eco-
nomic pressures are forcing independent stores to go non-
union, and that employees are pension "casualties" when
that happens; coercively interrogating applicants for em-
ployment about their union backgrounds and willingness
to cross a picket line; and coercively photographing the
picket-line activities of its employees.
(f) In any like or related manner interfering with, re-
straining, or coercing its employees in their exercise of
rights under the Act.
2. Take this affirmative action:
(a) Upon request, bargain collectively in good faith with
the Union as the exclusive representative of the employees
' All outstanding motions inconsistent with this recommended Order
hereby are denied 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 10248 of the Rules and Regulalions, be adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
1439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the above unit concerning rates of pay, wages, hours,
and other terms and conditions of employment, and em-
body any understanding reached in a signed agreement.
(b) Upon the Union's request, restore the health-and-
welfare coverage that was in effect until Respondent insti-
tuted the new coverage on May I, 1977; and make the
employees whole for any economic detriment suffered be-
cause of any disparity in coverage between the two plans.
(c) Within 5 days after their unconditional application
for reemployment, offer to all striking employees reinstate-
ment to their former positions or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, dis-
charging if necessary any replacements, and make whole
employees who have made such a request for reinstate-
ment, but who have not been offered reemployment, for
any loss of pay from the day beginning 5 days after the
date of their unconditional offer to return to work and
terminating on the date of the Respondent's offer of rein-
statement.
(d) Post at its Porterville, California, store, copies of the
attached notice marked "Appendix." 57 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 32, after being duly signed by an authorized represen-
tative of Respondent, shall be posted by it immediately
upon receipt, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees customarily are posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze any amounts of backpay due under the
terms of this Order.
(g) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply.
Those portions of the complaint lacking in merit are dis-
missed.
s6 Backpay to be computed as set forth in F W Woolworth Companv. 90
NLRB 289 (1950;. with interest thereon as prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977).
5 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 b) Order
of the National 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
After a hearing in which we participated and had a chance
to give evidence, the National Labor Relations Board
found that we had committed an unfair labor practice and
ordered us to post this notice and abide by it.
WE WILL NOT refuse to bargain collectively in good
faith concerning rates of pay, wages, hours, and other
terms and conditions of employment with Retail
Clerks Union, Local 1288, Retail Clerks International
Association, AFL-CIO, as the exclusive bargaining
representative of the employees in this appropriate
unit:
All employees employed by us at our Porterville,
California, location, excluding butchers, bakery and
confectionery employees, office clerical employees,
guards and supervisors as defined in the Act.
WE WIL.L Not unilaterally institute health-and-wel-
fare coverage or any other change in terms or condi-
tions of employment of employees in the above unit.
WE WILt. Nor fail to comply, with reasonable
promptness, with the Union's request for a list of du-
ties of those employed by us as student clerks.
WE WILL NOT discuss with our employees in the
above unit benefit projections under our proposed
pension plan without first notifying and consulting
with the Union to a comparable extent.
WE WiLL NOT coercively interrogate our employees
concerning their intentions of working during a strike,
and whether they have submitted membership resig-
nations to the Union; WE WILL NOT coercively counsel
and urge our employees to resign from the Union; WE
WILL NOT threaten our employees that those going on
strike will never again work for us; WE WILL NOT make
inducements to our employees not to strike, including
offers of individual contracts and more overtime, and
that union fines "would be taken care of"; WE WILL NOT
tell employees that economic pressures are forcing in-
dependent stores to go nonunion, and that employees
are pension "casualties" when that happens; WE WILL
NOT coercively interrogate applicants for employment
about their union background and willingness to cross
a picket line; and WE Wll.L NOT coercively photograph
the picket-line activities of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in their exer-
cise of rights under the Act.
WE WILL, upon request, bargain collectively in good
faith with the Union as the exclusive representative of
the employees in the above unit concerning rates of
pay, wages, hours, and other terms and conditions of
employment, and embody any understanding reached
in a signed agreement.
WE willt. upon the Union's request, restore the
health-and-welfare coverage that was in effect until we
instituted the new coverage on May 1, 1977; and WE
WILL make the employees whole for any economic de-
triment suffered because of any disparity in coverage
between the two plans.
WE WILL. within 5 days after their unconditional ap-
plication for reemployment, offer to all striking em-
ployees reinstatement to their former positions or, if
those jobs no longer exist, to substantially equivalent
1440
SMITH'S COMPLETE MARKET
positions, without prejudice to their seniority or other
rights and privileges, discharging if necessary any re-
placements, and make whole employees who have
made such a request for reinstatement, but who have
not been offered reemployment, for any loss of pay
from the day beginning 5 days after the date of their
unconditional offer to return to work and terminating
on the date of our offer of reinstatement.
SMITH'S COMPI ETE MARKET OF TULARE COUNTY. INC,
d/b/a SMITH'S COMPLETE MARKET
1441