The Liberal Market, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1954

108 N.L.R.B. 1481 (N.L.R.B. 1954)

THE LIBERAL MARKET, INC. 1481
THE LIBERAL MARKET, INC. and AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA,
A.F.L., LOCAL 430, Petitioner . Case No . 9-RC-1772. June
25, 1954
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued on
December 17, 1952 , 1 an election by secretballotwas conducted
herein on January 8, 1953, under the direction and supervision
of the Regional Director for the Ninth Region, among the em-
ployees in the unit described in the Board's decision . Upon the
conclusion of the election , a tally of ballots was furnished the
parties. The tally showed that, of approximately 70 eligible
voters , 69 cast ballots , of which 31 were for the Petitioner, 36
were for the Liberal Independent Union of Dayton, Ohio, herein
referred to as Intervenor , 1 was against the participating labor
organizations , and 1 was challenged.
On January 14, 1953 , the Petitioner filed objections to conduct
affecting the results of the election . Thereafter , on April 3,
1953 , the Regional Director, pursuant to the Board ' s Rules and
Regulations , issued and duly served on the parties a report on
objections , in which he recommended that the Board order a
hearing to be held on the issues raised by the objections. No
exceptions were filed to the Regional Director ' s report. On
April 17 , 1953 , the Board issued an order directing hearing on
objections . A hearing was held on May 13 , 14, and 15, 1953,
before William J. Cavers, hearing officer. The Employer, the
Petitioner, and the Intervenor appeared and participated. Full
opportunity to be heard , to examine and cross - examine
witnesses , and to introduce evidence bearing on the issues, was
afforded the parties.
On July 30 , 1953 , the hearing officer issued and duly served
upon the parties his report , a copy of which is hereto attached,
in which he recommended that certain of the Petitioner's
objections be sustained , that others be overruled , and that the
results of the election be set aside . The Employer and the
Intervenor filed exceptions to the hearing officers report.
The Board has reviewed the hearing officer ' s rulings made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered
the hearing officer ' s report, the exceptions thereto , and the
entire record in the case , and hereby adopts the findings and
conclusions of the hearing officer only insofar as they are con-
sistent with the findings and conclusions herein set forth.
Before we advert specifically to those acts by the Employer
which the Regional Director found objectionable , itmaybe well
1Not reported in printed volumes of Board Decisions and Orders.
108 NLRB No. 220.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to set forth certain basic considerations of which we are mind-
ful when, as here, we pass upon a contention that conduct
which occurred before an election affected the election's re-
sults. It is fundamental, of course, that employees should be
afforded the opportunity of registering a free choice in the
selection, or rejection, of a bargaining representative. To
help achieve that end, a number of important safeguards have
been prescribed, such as the requirement that elections be
conducted by secret ballot, and the recently announced rule
that there should be no campaign speeches on company time
and property during the 24 hour period immediately preceding
the scheduled time of an election. ! But precepts, it has been
shown, are not enough; the Board itself must scrutinize events
preceding an election, and, when the need arises, must itself
step in and overturn the election. The problem, of course, is
to determine at what point the Board should affirmatively
interfere with what purports to be the choice of the voters. We
think the Board should intervene only when the registration of
a free choice is shown by all the circumstances to have been
unlikely.
In deciding whether the registration of a free choice is
shown to have been unlikely, the Board must recognize that
Board elections do not occur in a laboratory where controlled
or artificial conditions maybe established. We seek to establish
ideal conditions insofar as possible, but we appraise the actual
facts in the light of realistic standards of human conduct. It
follows that elections must be appraised realistically and
practically, and should not be judged against theoretically
ideal, but nevertheless artificial, standards. In this connection,
we note that a realistic appraisal of the effect of antecedent
conduct upon a Board election must, of course, be concerned
with particular acts and their effect upon those of the voters
who are directly involved; it must also be concerned, however,
with the overall picture of how the totality of the conduct
affects not only the voters directly involved, but any others
who may or may not be indirectly affected because they are
within the voting unit. In some cases, a nice balancing of
these considerations may be required. Basically, we feel
that the results of a secret ballot, conductedunder Government
sponsorship and with all the safeguards which have been
developed throughout the years, should not be lightly set
aside. Like any other contest in which the stakes are high,
the losing party is likely to protest the result, but this Board
cannot be influenced by any subjective considerations. Our
job is to make reasonably certain that the election reflected
the true sentiments of the voters. An evenhanded application
of an objective test is the best protection against arbitrary
administrative action.
Our dissenting colleagues assert that we are virtually
nullifying the "firm rule" of The Great Atlantic and Pacific
2 Peerless Plywood Company, 107 NLRB 427.
THE LIBERAL MARKET, INC. 1483
Tea Company case , 101 NLRB 1118. They seem to assert
that rule to be that any conduct , regardless of the time element,
may not be considered by the Board as "remote " if it occurs
after notice of hearing has issued. We have not , however,
ignored the A & P case in reaching our present conclusion,
which, incidentally, our dissenting colleagues mistakenly
interpret to be a rule relating to waiver . The A & P case has
nothing to do with waiver. It simply establishes the notice of
hearing as a cutoff on objections to an election . In that case,
the Board passed upon an issue of estoppel predicated upon a
failure to protest, prior to an election , known objectionable
conduct. In passing upon that issue , the Board stated that it
would not "consider elections objections based upon inter-
ference which may occur prior" to the date of the issuance
of notice of hearing (or other pertinent date). The Board also
announced in that case that, whether or not a preelection pro-
test is made , it had "decided to consider on the merits any
alleged interference which occurs or has occured" after the
issuance of notice of hearing ( or other pertinent date ). There
is nothing in the A & P case warranting the present inter-
pretation of our colleagues.
Involved in this case are the employees in the meat depart-
ments of the Employer's retail food stores located in and
adjacent to Dayton , Ohio. There are 10 such stores, with a
total complement of about 70 employees in the meat depart-
ments . The intervenor herein is currently the representative
of about 175 of the Employer's other employees in its grocery,
produce, and dairy departments.
At the hearing on the Petitioner ' s objections , evidence was
adduced with respect to some 31 incidents at 9 of the Em-
ployer's 10 stores, each of which, according to the Petitioner,
was objectionable . The majority of the 31 incidents involved
alleged breaches of the Employer 's no-solicitation rule. Of the
31 incidents, the hearing officer found that only 8 incidents,
which affected employees at but 4 stores , were objectionable.
As is indicated below, of the 8 separate incidents found
objectionable , 2 were exact repetitions of the same conduct.
The Petitioner did not except to the hearing officer ' s findings.
All these facts , we think, must be considered in appraising the
magnitude of the conduct which the hearing officer found
objectionable.
The hearing officer found that on two occasions "between
November 10 , 1952, and the election" of January 8, 1953,
Bruns, manager of store No. 3, asked Meat Department
Manager Burger if he would talk to the employees to see
which way they leaned. Burger refused. The hearing officer
concluded that Bruns' conduct prevented a free choice of
bargaining representative . Although Burger stated in his
affidavit to the Board field examiner that Bruns questioned
him late in December 1952, at the hearing Burger testified
that his best recollection was that Bruns questioned him
"possibly a month or two" before the election and before the
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heat of the campaign . In the light of Burger ' s testimony, we
find that Bruns ' remarks were made at least a month before
the election . In these circumstances, and without passing
upon whether the conduct in question would otherwise afford
grounds for setting aside the election , we conclude that Bruns'
requests occurred too long before the election to have been
likely to have interfered with the results.
The hearing officer found that Witwerd , meat manager at
store No. 8, sent employee Sute to the backroom of the store
to talk to the Intervenor ' s representatives on two occasions
during the week of the election , and concluded that the Em-
ployer thereby discriminated in favor of the Intervenor in the
application of its no - solicitation rule . There is no direct
evidence , however , to show that Witwerd knew what would be
discussed on these occasions . As the hearing officer also
found, both the Intervenor and the Petitioner sought on many
occasions to solicit employees during working hours in spite
of the known existence of the no - solicitation rule; and, as the
hearing officer further found , except for the two incidents in
question , the Employer vigorously enforced the rule impartially
when it was aware that evasions were being attempted, per-
mitting the representatives of the Intervenor to have access to
grievances of employees who are not involved in this proceeding.
There is no showing , moreover, that the Petitioner ' s repre-
sentatives were ever denied a like opportunity when their visits
did not transgress the rule . Accordingly , we are convinced that
the Employer ' s earnest neutrality in the application of its no-
solicitation rule was well known to its employees . For this
reason , even were we to assume that Witwerd was aware, as the
hearing officer found, that the Intervenor ' s representatives
intended to utilize the Employer ' s premises for propaganda
purposes , we would not be convinced that the conduct of this
minor supervisor at one of the Employer ' s stores had such
an impact upon employees at that store , or upon employees
generally , as to have rendered a free choice unlikely.
The hearing officer also found objectionable : ( 1) A reply
by the manager of store No. 4 to employee Paskiewiecz, who
was seeking information about wages , in which the manager
revealed " confidential" information about an increase, and
also stated that a contract with the Intervenor would be the
"best in the city"; ( 2) a similar statement by the Employer's
director of operations to one Fritz, an employee in store No.
4, which was made approximately 2 months before the election;
and (3 ) two incidents in which a store manager questioned em-
ployees in stores Nos . 4 and 6 as to their union preferences.
As to the first incident , the record shows that the store
manager ' s remark was elicited by Paskiewiecz ' query about
the wages employees were to receive in the future --a question
which an employee normally may be expected to ask of one in
the position of the store manager . Paskiewiez herself testified
that the manager was not talking against any union and was not
trying to bribe her , but was just replying to her question. To
THE LIBERAL MARKET, INC. 1485
say, therefore, in the face of such testimony that the store
manager's remark is likely to have interfered with the em-
ployees' freedom of choice would not only be a serious re-
striction on the Employer's freedom of speech but would also
be tantamount to the substitution of mere conjecture for proof
of a very convincing nature.
As to the second incident, the record shows that the state-
ment of the director of operations was casually made to Fritz
in the course of a general conversation "about some other
employees," and that this conversation resulted from a chance
meeting of Fritz with the director of operations at a different
store from the one in which Fritz was working. Under such
circumstances, and especially because the remark in question
was made so long before the election was held, we are unable
to believe that this remark was significant so far as the results
of the election are concerned.
So far as the interrogation of employees is concerned, the
record shows only that, about a week before the election,
Hackney, the assistant store manager of store No. 6, asked
a group of three or four employees what their feelings were
about the union, and that some employees replied they were in
favor of the Petitioner and that others said they were in favor
of the Intervenor; and that, about 2 weeks before the election,
Minniear, the store manager of store No. 4, asked an employee
which union she favored, adding that the Intervenor could get
the employees as much money as the Petitioner. The hearing
officer found these two incidents to be per se violative of
Section 8 (a) (1) of the Act, and therefore, to have interfered
with the employees' freedom of choice. Whether or not the
conduct in question is per se violative of the Act, we are not
called upon to say. In this proceeding, we need only appraise
the incidents to determine their likely effect upon the employees
involved in the election. And, if we project these isolated
incidents against the background of an extensive preelection
campaign, in which both the Petitioner and the Intervenor
vigorously sought to induce employee support and to counteract
direct or indirect utterances favorable to the other, it does not
seem likely to us that they were of such magnitude as to have
had a serious impact upon the employees' freedom of choice.
Nor can we say that the cumulative effect of the foregoing
acts was different from the effect of the acts considered
individually. Significantly, the total number of employees
directly affected by the various act forms but a very small
percentage of the 70 employees concerned in the election.
To dwell, moreover, on the possible indirect effects of these
acts would be idle speculation. Accordingly, we believe that
a realistic appraisal of the foregoing acts, whether they be
considered singly or collectively, does not provide ample
basis for setting aside this election.
Our dissenting colleagues accuse the majority of "turning
its back on years of sound precedent." They find also that
even though some of the conduct here involved was harmless
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if considered " in isolation ," that the "aggregate" of the
Employer's conduct nonetheless warrants setting aside the
election. As pointed out above, we agree that we must evaluate
the totality of the Employer's conduct; but, as also indicated,
we would evaluate that conduct realistically. We, moreover,
regard precedent as a guide; we approach it with respect;
but we cannot subscribe to a mechanistic application of prece-
dent for precedent's sake. Indeed, in the kind of situation which
this case presents, the utility of precedent is diminished. This
kind of case, as our dissenting colleagues impliedly admit
when they allude to the "aggregate" of the Employer's conduct,
must be decided on its own unique combination of facts, and
not upon the unique combination of facts presented by some
other case. Nor do we believe that in evaluating the Employer's
conduct we need pass upon those acts, as our dissenting
colleagues would do, which the hearing officer considered
harmless, and to which conclusion no exception was taken
by the Petitioner.' In any event, as indicated in the marginal
note, a consideration of these latter acts in conjunction with
the other conduct of the Employer described above--and such
consideration still involves conduct at only 4 of the Employer's
10 stores--has not convinced us that a realistic appraisal of
the situation before us shows that the Employer interfered
with the employees' freedom of choice.
We, therefore, find merit in the exceptions filed to the
hearing officer's report, and hereby overrule the Petitioner's
objections to the election. Because, as the tally shows, a
majority of ballots were cast for the Intervenor , we shall
certify the Intervenor as bargaining representative of the
employees involved.
[The Board certified Liberal Independent Union of Dayton,
Ohio, as the designated collective -bargaining representative
of the employees of the Employer in the unit found appropriate
in the Decision and Direction herein.]
Members Murdock and Peterson, dissenting:
There is no doubt, in our view, that there is sufficient
evidence here of interference with the election to warrant
setting it aside.
3The Petitioner did not except to the hearing officer's conclusions that the following con-
duct did not support the Petitioner's objections: (1) Store Manager Bruns' statement to
employee Iman; (2) Store Manager Minniear's statement to employees Smith and Hail; and
(3) Meat Manger Witwerd's questioning of employee Nelson. Even had exceptions been filed
thereto, we would agree with the hearing officer's findings: that Bruns' statement, without
mentioning any union, that the employees would "be making more money, around $1.35," was
a noncoercive statement privileged under Section 8 (c) of the Act; that Minniear's remark,
without more, that the top salary "is going to be a dollar thirty-five" was likewise the
expression of an opinion privileged under Section 8 (c); that Witwerd's questioning of Nelson
as to how Nelson felt about the election was noncoercive, because Witwerd at the same time
pointed out that he was not interested in the way the employees voted and that they were free
to vote as they pleased.
THE LIBERAL MARKET, INC. 1487
After a Board-directed hearing on the Petitioner's objections
to the election, the hearing officer issued his report, finding
of the numerous acts of interference alleged to have been
committed at the Employer's 10 retail food stores, that there
were 8 specific instances of - objectionable conduct by the
Employer "which rendered it impossible for the Board to ful-
fill its functions" in providing the employees with a free
election of bargaining representatives. We agree with this
conclusion and would find, on the basis of undisputed facts in
the hearing officer's report, no less than 8 separate acts of
interference and coercion on the part of the Employer, which
are detailed hereafter, on which we would rely. Insofar as
proximity to the election is concerned, it is sufficient in this
case that all of these acts were committed after the date of
notice of hearing. This has been a firm rule, laid down in the
A & P case,4 and reaffirmed in numerous later cases, many
very recent.' Because of the critical issue which has developed
in the case respecting the application of the A & P rule, it is
necessary at this point, before consideration of the merits, to
discuss comprehensively the A & P issue.
Without much question, the effect of the majority decision
herein virtually nullifies in contested election cases the in-
tended basic purpose and efficacy in the A & P rule, the pro-
testations of our colleagues to the contrary notwithstanding.
As clearly and simply stated in the A & P case, the rule is,
in the part pertinent herein, that ". . . whether or not charges
have been filed, the Board has decided to consider on the
merits any alleged interference which occurs or has occurred
after . . . the date of issuance by the Regional Director of
notice of hearing. . .; no waivers will be required with re-
spect to charges based thereon. The Board will not, however,
consider election objections based upon interference which
may occur prior to[notice of hearing]." (Emphasis supplied.)
Under the preexisting Denton rule,6 a party was held to have
waived any right to object to an election on the basis of conduct
as to which it had knowledge before the election, where the
party did not file charges or otherwise protest such conduct
until after the election.? The specific intention of the Board
in the A & P case was to revoke and place the Denton rule,
which it found in practice to be unduly prejudicial to parties
4 The Great Atlantic and Pacific Tea Company, 101 NLRB 1118.
5 E g., Clauson's Garage Company, 107 NLRB 1499; S. & L Co. of Des Moores, 107 NLRB
949; Beck & Gregg Hardware Co., 107 NLRB No. 95 (not reported in printed volumes of Board
Decisions and Orders).
6Denton Sleeping Garment Mills, Inc., 93 NLRB 329.
7See also, cases like Denton, in which such a "waiver" was applied: Cherry & Webb
Company, 94 NLRB 780; R. L. Polk & Co., 93 NLRB 1079; Greater New York Broadcasting
Company, 85 NLRB 414; The Goodyear Tire & Rubber Company, 85 NLRB 135; E. I DuPont
de Nemours and Company, 81 NLRB 238; and many others.
With alacrity, we loin the majority in describing the A & P case as a "rule of estoppel."
We have not said otherwise.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having grounds for objection before an election. The particular
policy established in the A & P case,was the result of thorough
and careful deliberation by the Board based on its whole
practical experience in the past, and on all the equities in-
volved. When-the Board decided in the A & P case to consider
on the merits any alleged interference occurring in the pre-
election period after the date of notice of hearing, it was most
assuredly aware of the fact that in contested election cases the
average elapsed time when prevailing from the date of notice
of hearing to the actual holding of the election approximated
85 days. B The notice of hearing herein was issued on October
22, 1952, and the election was held on January 18, 1953, thus
consuming a period of 77 days. Clearly, therefore, the pertinent
time lapse in the instant case was no more- -indeed it was less--
than that involved in the normal, average contested election
proceeding.
As already shown, the rule inthe A & V 'case was to consider
"on the merits" any alleged interference occurring after notice
of hearing, and no longer to deem as having been waived, inter-
ference within the knowledge of an objecting party before the
election. In avoidance of the merits of the case, our colleagues
now inject the factor of remoteness for purposes of Board dis-
position of alleged election interference- -though it may be of
grave character--which occurs after the date of notice of
hearing. Nor does the majority attempt any distinction in
this regard as between the few unusual cases on the one hand
which consume an inordinate length of time from notice of
hearing to election, and on the other, the normal, average case,
such as the present one. Specifically, the majority here dis-
misses the substantive act of interference on the part of
Director of Operations Schear, i. e., a promise of benefit,--
with the conclusionary statement that the incident, occurring
"so long before the election was held" was not "significant."
But the unavoidable fact is that this promise of benefit was
made on November 13, 1952, less than 2 months before the
election, and more than 3 weeks after notice of hearing. The
majority further indicates the depth of its concept of remote-
ness by applying this factor to another incident here of alleged
interference, which it finds occurred 1 month before the
election.
9
8 Eighteenth Annual Report of the NLRB at p. 2 reveals that as of December 1952 (when the
A & P case issued), the median average days elapsed in contested election cases from issuance
of notice of hearing to Board decision was 64 days. Adding to this figure the average of 21
days from the issuance of Board decision to the date of election, a total is reached of 85 days.
As of the present date, the average time lapse from notice of hearing to election is somewhat
greater. See also 32 LRRM 228.
9It is interesting to note that even in the A & P case the conduct found to constitute inter-
ference occurred some 3 weeks before the election, and in the Denton case, overruled in
A & P, the conduct in question occurred 6 weeks before the election.
THE LIBERAL MARKET, INC. 1489
Our colleagues say that the A & P case does not preclude
consideration of a remoteness factor." Viewing the precise
language of the A & P case and its essential underlying pur-
pose, this construction may, at least, be questionable. We would
concede in an unusual case where perhaps 6 months or a year
has elapsed from notice of hearing to the election that certain
alleged acts of interference with the election, occurring near the
date of notice of hearing, may properly be considered remote.
However, in this case, and in like cases, this is not at all the
situation; and we need not, therefore, pass upon the proposition.
In the normal, average case , as here, to bring into consideration
the factor of remoteness is like adopting again the obsolescent
Denton theory of waiver,--by refusing to pass "on the merits"
of alleged interference. And the inequities inherently involved
in the majority's concept of remoteness , it seems to us, are
potentially even greater than those earlier recognized as
present in the Denton rule. For in Denton, there were at least
limiting considerations of knowledge on the part of the objecting
party, and failure to protest. Moreover, the element of remote-
ness now known to exist in the Board rule can well be expected
to invite acts of interference with an election upon a fairly
measurable estimate that such acts will be declared "remote."
Thus, the majority's clear departure from the A & P rule in
this case, particularly in the light of the language it employs,
represents , in our view, a serious retrogression frompolicies
and principles carefully constructed by the Board on the basis
of its experience over the years.
Proceeding to the substantive issues athand,itis necessary,
we find, to set forth more fully the crucial facts:
Coercive promises of benefit:" (a) Director of Operations
Schear told employee Fritz that regardless of what big union
they would bring in, the employees would get a better contract
with the Intervenor than any big outfit they could bring into the
stores ." (b) Store Manager Bruns stated to employee Iman,
"Well, from what I hear you will be making more money,
around $1.35." (c) Store Manager Minniear stated to employees
Smith and Hail, when informed by them that their wage rate
was $1 .10, "Well, I understand there is going to be a dollar
to In this connection, it should be pointed out that the majority opinion apparently misinter-
prets and misquotes our dissent by stating that we "assert the rule to be that any conduct,
regardless of the time element, may not be considered by the Board as 'remote' if it occurs
after Notice of Hearing has issued." As can be clearly seen, we have not at all taken such an
absolute and extreme position, which, indeed, it is quite unnecessary for us to take under the
immediate facts of this case.
"See, e. g., Schwarzenbach Huber Company, 85 NLRB 1490; American Tool Works of
Hartford, Incorporated, 102 NLRB 1143; R. H. Osbrink Manufacturing Company, 104 NLRB
42; and Lakefield Manufacturing Co., 105 NLRB 952.
12 Before the present petition was filed, the Intervenor had been the bargaining representative
of the employees here in question.
339676 0 - 55 - 95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thirty five." (d) Store Manager Minniear stated to employee
Paskiewicz," . . . it was confidential, but you girls are supposed
to get $1 .30 or $1 .35 per hour," and that "the new contract
which the Independent will get is supposed to be the best in the
City."
Interrogation of employees concerning their union sympa-
thies:13 (a) Assistant Store Manager Hackney asked a group of
employees what their feelings were about the union. (b) Meat
Manager Witwerd asked employee Nelson how she felt about
the union. (We would find it immaterial that Witwerd, after
first questioning and ascertaining Nelson's union sentiments,
stated he was not interested in which way the girls voted.) (c)
Store Manager Minniear asked employee De Bolt which union
she was for, following which he made the coercive promise of
benefit favoring the Intervenor, as noted above. (Clearly, these
instances of interrogation are part of a context of coercion and
could not under any view fairly be treated as isolated acts.)
Discriminatory application of no-solicitation rule:14 (a) On
two separate occasions before the election, Meat Manager Wit-
werd sent employee Sute during working hours to the backroom
to talk to representatives of the Intervenor, who spoke to Sute
each time from 45 minutes to an hour , attempting to persuade
her to vote for the Intervenor. Among other things, the Inter-
venor's representatives told Sute that the Intervenor would get
$1.30 for the employees, and would try to get $1.35. The hearing
officer found that Witwerd knew on both occasions who wanted
to see Sute in the backroom and what they wanted to see her
about.15 (b) In addition, we would find that the statements
favoring the Intervenor, made by Director of Operations Schear
to employee Fritz, and by Store Manager Minniear to De Bolt
and to Paskiewicz, as described above, constituted in effect
violations of the no- solicitation rule on the part of the Employer
itself.
Each of above acts or statements of the Employer the Board
has heretofore held is of the type and character which interfere
with the proper conduct of an election.16 Some of the statements,
to be sure, if considered in isolation, might not alone provide
a sufficient ground to set the election aside. However, all the
described conduct of the Employer, certainly when considered
in the aggregate , leaves no alternative for us but to find a
13See, e. g., J. I. Case Company, 86 NLRB 12; F. B. Rogers Silver Company, 94 NLRB 205;
Goodyear Clearwater Mill No. 2, 102 NLRB 1329; Syracuse Color Press, Inc., 103 NLRB 377.
14See, e. g., Merrimac fiat Corporation, 85 NLRB 329; The Great Atlantic and Pacific Tea
Company, 97 NLRB 295; Grand Central Aircraft Co., Inc., 103 NLRB 1114; National Container
Corporation, 103 NLRB 1544.
15 We note that the hearing officer's finding in this respect is not reversed in the majority
opinion.
16See, for example, cases cited in this opinion. supra. We do not rely on the episode involving
a conversation between two supervisors (Bruns and Burger) which is treated in the majority
opinion. See H. N. Thayer Company, 99 NLRB 1122, 1125.
THE LIBERAL MARKET, INC. 1491
serious restraining influence on the eligible employees as to
their selection of representatives in the election.17
In arriving at a contrary result, the majority opinion fails
to recognize in true perspective the significance of the
facts that an important representative of top management
set the pitch for the Employer' s campaign when Director
of Operations Schear assured an employee that they would get
a better contract with the Intervenor than with any outside
union; and that individual store managers implemented this
policy by specific statements to employees making only $1.10
per hour, that they would be getting $1 .35 with the Intervenor.
If this Board is now to sustain an election in which this kind of
conduct is permitted (without even considering the additional
interrogation and the discriminatory application of no-solicita-
tion rules), then it is necessarily turning its back on years of
sound precedent. The application of precedents in this case
where, for example, promises of benefit are in question, cannot
lightly be discarded as being merely "mechanistic," in the
sense implied in the majority opinion. That promises of benefit
are coercive is, indeed, obvious, and is, moreover, explicitly
reflected in the provisions of Section 8 (c) of the amended Act.
Seemingly, in this case our colleagues do not choose to consider
the precedents, all of which apparently militate strongly
against their ultimate disposition of the objections, but they
resort rather to conclusionary opinions and a discourse on
realism which clearly do not meet the issues. However, in
net effect our colleagues are saying that promises of benefit
by an employer in the form of statements that an incumbent
independent union can get employees a better contract than
an outside union- - specifically wage increases of 25 cents per
hour--have no recognizable impact on the freedom of choice
of employees in selecting a bargaining representative. To
state such a proposition is sufficient to indicate its unsoundness.
To adopt it is to permit the employer to load the scales in favor
of the union of his choice.
For the foregoing reasons, we would set the election aside.
S We must again take note of the fact that certain statements on our part are not accurately
paraphrased in the majority opinion. We have nowhere said "... even though some of the
conduct here involved was harmless if considered 'in isolation,' that the 'aggregate' of the
Employer's conduct nonetheless warrants setting aside the election." Nor do we "admit,"
impliedly or otherwise, that this kind of case "must be decided on its own unique combina-
tion of facts." without regard to authorities or precedents.
Hearing Officer's Report On Objections To Election
Upon a Petition duly filed by Amalgamated Meat Cutters and Butcher Workmen of North
America, A.F.L., Local 430 (hereinafter referred to as Petitioner), i the National Labor Re-
iDuring the afternoon of the second day of the hearing, Petitioner's counsel, Robert C.
Knee, Esq., and Ray E. Schmidt, Esq., withdrew from the hearing because the Board's
representative refused to furnish them with Board affidavits in his possession. Previously
the Board's representative had refused to furnish affidavits to Petitioner's counsel, stating
that the Board's rules and regulations prohibited him from doing so. Throughout the entire
hearing Kenneth J. Pfarrer continued his appearance on behalf of Petitioner.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations Board (hereinafter referred to as the Board) issued its Decision and Direction of
Election2 in which it directed that an election be conducted among all employees in the meat
department of the Employer's retail stores in and around Dayton, Ohio, excluding office and
clerical employees, part-time employees, guards and professional employees, meat depart-
ment managers, and all other supervisors as defined in the Act. On January 8, 1953, pursuant
to the direction of the Board, an election was conducted under the direction and supervision of
the Regional Director for the Ninth Region, Cincinnati, Ohio. At the conclusion of the election,
the parties were furnished with a tally of ballots which showed that of approximately 70 eligible
voters, 69 cast ballots, ofwhich 31 were for the Petitioner, 36 were for the Intervenor, Liberal
Independent Union of Dayton, Ohio (hereinafter referred to as Intervenor), 1 against the partici-
pating labor organizations, and 1 was challenged.
On January 14, 1953, the Petitioner filed with the Regional Director objections to conduct
affecting the results of the election as follows:3
This is to confirm the objections filed to the election in (case No . 9-RC-1772), based on
the fact that the Company and the Independent Union took time during working hours on
Company time to talk to the Employees concerning Union activity and this same privilege,
although requested by the Meat Cutters Union , was denied to them by the Company.
On April 3, 1953, the Regional Director following an investigation issued a report on
Petitioner's objections as follows:
The investigation indicated that the Employer has an oral rule forbidding solicitation
in its retail stores. The investigation revealed that officers of the Intervenor made
frequent visits to the Employer's stores during the week preceding the election, and that
considerable time was spent by these officers in the course of these visits talking to the
employees. On one such occasion the Intervenor's president was asked by the store
manager to leave the store.
The investigation further revealed that on at least three separate occasions the
Petitioner's representatives were stopped by the store managers from distributing
literature or soliciting employees.
The Petitioner contends that the Employer enforced its no-solicitation rule against the
Petitioner while permitting the Intervenor to campaign at will. The Intervenor 's position
is that its visits to the stores were made for the purpose of processing grievances arising
under the contract. The Employer's position is that it enforced the no-solicitation rule to
the best of its ability.
The investigation also showed that on the day before the election the manager of Store
No. 3 conducted a meeting of all employees of the meat department . At this meeting the
forthcoming election and other subjects were discussed.
The Petitioner contends that the meeting constitutes solicitation by the Employer in
violation of its own no-solicitation rule. The Intervenor and the Employer contend that the
meeting was called for the purpose of adjusting grievances and that discussion of the
election was incidental to the main purpose , the discussion of grievances , for which the
meeting was called.
During the investigation evidence was secured to the effect that on several occasions
representatives of the Employer told employees that the Intervenor, if successful in the
election would get a better contract for the employees than would the Petitioner.
2 Not reported in printed volumes of Board Decisions and Orders.
3Two days prior, on January 12, 1953. the Regional Office received a letter from the
Petitioner as follows:
This is to inform you thatLocal430 A M. C. & B. W. is filing objections to the election
(case No . 9-RC-1772) held on January 8, 1953.
Our protest is based on Management interference and affidavits will be sent to your
office promptly.
We feel that on the above charge the election results should be set aside.
A copy of this letter was not served on either the Company or the Intervenor . Petitioner's
objections filed on January 14, 1953, were served on both the Company and the Intervenor.
THE LIBERAL MARKET , INC. 1493
The Petitioner contends that these statements were promises of benefit in return for
voting for the Intervenor . The Employer and the Intervenor , on the other hand, take the
position that these are only expressions of opinion which do not constitute interference.
The Regional Director concluded that the contentions of the Petitioner , if supported by the
facts, would tend to establish substantial issues affecting the results of the election and
recommended that the Board order a hearing to be held on the issues raised by the said
objections . No exceptions were filed by any of the parties to the aforesaid Regional Director's
report.
On April 17, 1953, the Board issued an order that a hearing be held on the issues raised
by the objections . The Board further ordered that the hearing officer designated for the
purpose of conducting the hearing prepare , and cause to be served upon the parties , a report
containing resolutions of credibility of witnesses , findings of fact , and recommendations to the
Board as to the disposition of said objections . Pursuant to notice , a hearing was held on May
13, 14, and 15,1953, atDayton , Ohio, before William J. Cavers , hearing officer , duly designated
for that purpose , at which the Petitioner , the Employer , the Intervenor , and the Board appeared
and participated therein. All parties were afforded full opportunity to be heard , to examine
and cross - examine witnesses , and to introduce evidence bearing upon the issues . At the outset
of the hearing , the Employer moved that the hearing be closed on the ground that the Board's
representative was prejudiced in that he indicated on the record that the election should be
set aside . The hearing officer denied the motion and recommends that his ruling be affirmed.
The Board 's representative clearly stated on the record that he had no opinion as to whether
the election should be set aside and that his sole purpose in participating at the hearing was
to assist the Board in presenting evidence material to the issues.
Upon the entire record in the case and from his observation of the witnesses , the under-
signed makes the following:
L FINDINGS OF FACT
A. Background
The Liberal Market, Inc., hereinafter called Employer , operates 10 retail food stores
within a radius of 4 miles of downtown Dayton, Ohio . It employs about 70 employees in the
meat departments of its stores and about 170 to 175 employees in the grocery , produce, and
dairy sections . Eugene C . Schear is the Employer 's director of operations and Harold N.
Caplinger , its director of personnel.
Following an election held on September 22, 1950 , the Intervenor was certified as the
collective -bargaining representative for a unit of all employees in the meat department of
the Employer 's retail stores in and around Dayton, Ohio , excluding office and clerical em-
ployees , guards , professional employees , meat department managers , and all other super-
visors, as defined in the Act.
On January 22, 1951, the Employer and the Intervenor entered into a collective -bargaining
agreement covering the employees in the unit described above, which by its terms was to re-
main in effect until January 21, 1953. This agreement was still in effect at the time of the
election on January 8, 1953 . Among other thongs, it provided , article V , "The manager of a
store shall grant to any accredited Union official access to the store for the purpose of
satisfying himself that the terms of this Agreement are being complied with." The Intervenor
also represents the employees in the grocery , produce, and dairy sections of the stores.
On October 15, 1952, the Petitioner filed a petition for certification of representatives for
the employees in the aforementioned unit. Pursuant to a notice of representation hearing
issued on October 22 , 1952, a hearing was held on November 10, 1952, following which the
Board directed an election which was subsequently held on Thursday , January 8, 1953.
At the hearing , all parties stipulated that the store managers , assistant store managers,
and meat department managers in all stores are supervisors within the meaning of the Act,
but that the produce managers are not supervisors within the meaning of the Act.
B. The Employer ' s No-solicitation rule
Harold N . Caplinger , the Employer 's director of personnel , testified that for at least 5
years the Employer has had a rule forbidding solicitation in its stores for any purpose.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenneth J. Pfarrer, financial secretary and treasurer of the Petitioner, and Lawrence
IIgen, president of the Intervenor, both testified that they were cognizant of the no-solicitation
rule. Caplinger testified that although there was a no-solicitation rule, there was not any
rule prohibiting the distribution of literature in the stores. He also testified that the managers
for each of the stores were orally notified of the existence of the no-solicitation rule. There
is no evidence that the assistant store managers or the meat department managers were
ever notified of the rule. Willis Hackney, assistant manager of store No. 6, and Everett
Burger, meat manager at store No. 3, both testified that they were never told, nor did they
know, of the existence of a rule prohibiting solicitation in the store. The undersigned credits
the testimony of Caplinger, Hackney, and Burger as set forth above and find that the Em-
ployer did have a rule prohibiting solicitation in the stores and that the Intervenor, Petitioner,
and store managers were cognizant of the rule , but Hackney and Burger were not.
C. Incidents at the stores
1. Store No. 1
Kenneth Pfarrer , financial secretary and treasurer of the Petitioner , testified that on 3
occasions between the latter part of November and late December 1952, he and at least 1
other representative of the Petitioner , entered store No. 1 to talk to the meat department
employees. On the first occasion Meat Manager Kyle met Pfarrer in the front of the store
and told him he could not come in the meat department and was not wanted in the store. On
the other 2 occasions Pfarrer came to the store and was either told not to enter or was seen
by Kyle and did not attempt to enter because he recalled that Kyle had previously told him
he was not wanted in the store . Pfarrer testified he had never asked the manager 's permission
to enter store No. 1. There is no evidence that any of Intervenor 's representatives were per-
mitted to enter store No. 1 for organizational purposes . Kyle was not called as a witness. The
undersigned credits the uncontradicted testimony of Pfarrer as set forth above.
2. Store No. 2
Kenneth Pfarrer testified that on January 7, 1953, he tried alone to enter store No. 2 to
pass out literature and was told by someone , who he presumed -to be the manager or assistant
manager because of the jacket he wore, that he could not come in the store. Pfarrer also
testified that he had never asked the manager's permission to enter store No. 2 . The under-
signed credits the uncontradicted testimony of Pfarrer as related above.
There is no evidence that any of the Intervenor 's representatives were permitted to enter
store No. 2 for organizational purposes.
3. Store No. 3
Kenneth Pfarrer accompanied by WalterPieotrowski , arepresentative of Petitioner , entered
store No. 3 on January 5, 1953, with the permission of the store manager , to check to see
whether the Board 's notice of election was properly posted. Pfarrer testified he was never
in store No . 3 on any other occasion nor did he ask the manager's permission to enter on any
other occasion.
Louella Iman testified that she was employed as a meat hostess at store No . 3 and worked
from 8 a. m. to 6 p. m. The other girls in the meat department work from 8 a. m. to 5 p. m.
During the hours from 5p.m.to6 p. m. Iman worked alone arranging the meat in the counters
and cleaning up. On the Tuesday prior to the election , Iman complained to Bill Sullivan,
steward for the Intervenor , that the butchers were bringing the meat out to be put in the
counters about 10 minutes before the 5 p. m. quitting time, thus , resulting in the other girls
leaving at 5 p. m., with excessive wrapping of meat and cleanup work for her to do from then
until 6 p.m. After registering her grievance with Sullivan , he called Lawrence IIgen, the
Intervenor 's president . Shortly thereafter Ugen appeared and talked with Sullivan and Iman
about her grievance. After this conversation concluded , Iman told Manager Bruns she would
like to talk to him, and he suggested they go in the bakery room. While in the bakery room
Iman related to Bruns her complaint about conditions in the meat department . Bruns told
Iman that the best thing to do would be to have a meeting of all employees in the department
and find out what was wrong and get it straightened out. Bruns then asked Iman to ask the
girls to come into the bakery room the next morning for a meeting . Iman testified that during
THE LIBERAL MARKET, INC. 1495
this conversation she told Bruns what she was making and that "it wasn't worth that to do that
much work," and "well, I had voiced my opinion of a place where I had worked where they
had a union." Iman testified that Bruns replied "well, from what I hear, you will be making
more money, around $1.35.", Earlier Iman had testified that Bruns "said something about
the wages, hat if the Independent Union [Intervenor] would get in we was guaranteed, I think
$1.35 or something like that an hour." Later Iman testified that Bruns didn't promise her
anything and that he didn't mention either the Intervenor's or Petitioner's name in his
conversation with her. Earl Woodey, a fellow meat department employee, testified that about
45 minutes after Brun 's conversation with Iman, she told him (Woodey) that Bruns had said
the employees were going to get $1.35 per hour. Accordingly, the undersigned credits Iman's
uncontradicted testimony and finds that on Tuesday before the election Bruns told Iman "well
from what I hear, you will be making more money, around $1.35", and that Bruns did not
mention the name of either the Intervenor or the Petitioner during his conversation with Iman.
It is undisputed that the following day, Wednesday. January 7, 1953, Manager Bruns called
a meeting of the meat department employees in the bakery and that Louella Iman, Joe Hoblik,
Rose Sweezy, Christine Bell, Mary Clark, Everett Burger, the meat manager, and Robert
Bruns, the store manager were present. The testimony as to precisely what took place at the
meeting is somewhat conflicting.
Louella Iman testified they talked about the girls' hours and having extra girls there to
clean up. Iman further testified, "at the meeting Mr. Bruns stated that there would be no
sense changing the working hours until the election was over, as some of the girls were now
working 42 hours a week, I was working 45 hours a week, and he said he understood the AFL
wanted only a 40-hour workweek with 42 hours guaranteed . All of us did some talking at
the meeting, but I did most of the talking for all of the girls as we all take turns staying
late on Friday, and I have Tuesday and Saturday nights. So I spoke for them all." Iman further
testified that all the employees at the meeting voiced their opinion of the conditions in the
meat department and different other things and that this was the only meeting the meat
department employees have ever had.
Rose Sweezy, a meat wrapper employed at store No. 3, testified that the day before the
election she attended the meeting of the meat department employees and that each employee
was given an opportunity to talk. Sweezy testified that after the meeting was over Bruns said,
"I hope that you people stop and think before you vote", and that Bruns said in effect if the
election went AFL it would not work out with two unions in the store. Sweezy testified that
the way Bruns' statement was made she understood hun to mean that inasmuch as the
grocery employees in the store were represented by the Intervenor that if the meat department
employees selected the Petitioner as their bargaining agent it just would not work out.
Earl Woodey, an employee at store No. 3, testified that when he checked in on Wednesday.
January 7, 1953. Everett Burger, the meat department manager, told him they were having a
meeting in the bakery. When asked what took place at this meeting, Woodey testified as
follows:
Well, they was having a discussion of the working conditions. Some of the girls was
complaining about meat coming out late in the afternoon and then not having time to
get it wrapped or processed and then having the cleaning up to do, because some of
them were coming--we was all coming in, or most of us, at 8 o'clock, and they was
getting off earlier, see, outside of one, and she did all the cleaning up and stuff. That
was it primarily.
Woodey testified that Bruns told the group that there would be an election in the store the next
day and they could vote the way they wanted to and that during the discussion, concerning the
hours the girls were to work, he in effect asked Bruns what would happen if the election did not
go for the Intervenor, and Bruns told him that if the election went the way he thought it would
go there would be no change in the hours but if it went for the Petitioner he had no way of
telling.
Everett R. Burger, meat department manager at store No. 3, testified that he attended the
meeting of the meat department employees and that at the meeting everyone expressed an
opinion concerning the conditions in the meat department and that at the close of the meeting
mention was made of the employees duty to vote in the election. Burger also testified that
he never told an employeehow to vote, nor did he ever hear anyone connected with management
tell an employee how to vote.
Christine Bell, a meat wrapper at store No. 3, testified she attended a meeting of the meat
department employees during working hours sometime before the election at which Robert
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bruns, the manager of store No. 3, talked about conditions in the meat department , such as
cleanliness , etc., and that Bruns said in effect "that we knew how conditions were now, but
if the other union got in we [ he] didn't know what they would be like." This was the only
meeting of the meat department employees that Bell could recall she attended.
Joseph Hoblik , a meat cutter at store No . 3, testified that he attended the meeting of the
meat department employees during which Bruns said in effect , "If we are going to have an
election and if it goes the way I think , there won't be no changes in our hours, but if it goes
the other way, I don't know what will happen ." Hoblik also testified that Bruns did not mention
the name of either union during the meeting , but at the conclusion of his talk said , "think
before you vote."
Manager Bruns was not called as a witness . The undersigned credits each above witness
as to their version of what Bruns said at the meeting , and finds that the meeting was called
by Manager Bruns to discuss working conditions in the meat department and that at the close
of the meeting Bruns told the employees they could vote the way they wanted and that when
asked by employee Woodey what would happen if the Intervenor did not win the election,
Bruns replied in substance that if the election went the way he thought it would go there would
be no change in hours but if it went the other way he had no way of telling.
Iman testified that she saw LawrenceIlgen , thelntervenor 's president, in the store once and
that was the day before the election . On this occasion , IIgen was called to the store by Store
Steward Bill Sullivan and Ilgen talked to Imm about 15 minutes concerning conditions in the
meat department . Ilgen testified that he was in the store the day before the election to dis-
cuss a grievance with Iman and that Manager Bruns wanted to know why he was there and
he told Bruns he was there to discuss a grievance in the meat department . The undersigned
credits the testimony of Iman and IIgen.
Earl Woodey , a meat department employee at store No . 3, testified that on the day before
the election he had a conversation in the store with John Jung 4 during which Jung told him
the Employer was trying to keep the Petitioner's officials out of the stores but he was in
favor of letting them in. Woodey also testified that on this same day he saw Larence IIgen
and Israel Scotts in the store but that he never saw him talking to anyone. Woodey testified
that shortly after his conversation with Jung he called Kenneth Pfarrer and notified him that
Intervenor 's representatives were in the store . There is no evidence that either the store
manager or meat department manager knew Scott or Jung were in the store . The undersigned
credits the above testimony of Earl Woodey.
Louella Iman testified that she saw Kenneth Pfarrer in the store on one occasion a week
or two before the election at which time he was talking to Earl Woodey , another meat depart-
ment employee at the store . Pfarrer testified that the only time he was in the store was on
January 5 , 1953, and on that occasion he was accompanied by Walter Pieotrowski , a repre-
sentative of Petitioner , and entered the store with the permission of Store Manager Bruns
to see whether the notice of election was properly posted . Rose Sweezy, a meat wrapper at
store No . 3 testified she saw Pfarrer and Pieotrowski in the store with Manager Bruns
checking the election notice and that neither Pfarrer nor Pieotrowski talked to her nor did
she see either of them talk to any other employee . Pfarrer testified that he never entered
store No . 3 on any other occasion nor did he ask permission to enter on any other occasion.
Earl Woodey testified he never saw Pfarrer in store No . 3, but that he did see Walter
Pieotrowski in the store a couple of weeks before the election . The undersigned credits Iman's
testimony insofar as it relates to seeing Pfarrer in the store , and also credits Pfarrer's
testimony that the only occasion he was in the store was on January 5, 1953 . The undersigned
credits Woodey's testimony that he never saw Pfarrer in the store but that he did see
Pieotrowski in the store a week or two before the election.
Louella Iman testified that she never saw any of Petitioner 's literature being passed out
in the store although she found a handbill on the meat counter which announced a meeting to
be held on January 7 , 1953 , and urged the reader to vote for the Petitioner . The handbill
also contained a sample ballot with instructions "mark your 'x' in the first square on the
left." Iman also testified that sometime prior to the election she asked Everett Burger,
meat department manager, about the coming National Labor Relations Board election, and
he said it was immaterial to him which way it went or which way she voted . He also testified
that she frequently argued back and forth with Bill Sullivan , Intervenor 's steward, about the
Union. The undersigned credits Iman 's testimony above.
4Jung was a meat cutter at store No . 8 who was on leave from his job several days imme-
diately preceding the election during which he was campaigning for the intervenor.
5 All parties stipulated that Scott was Intervenor 's steward at store No. 8.
THE LIBERAL MARKET , INC. 1497
Everett Burger , meat department manager at store No . 3, testified that on two occasions
between November 10, 1952 , and the election Robert Bruns , manager of store No . 3, asked
him if he would talk to the employees to see which way they leaned . Burger testified he
told Bruns on both occasions that it was none of his (Burger's ) business and that if Bruns
wanted the information of that type from the employees it was Brun 's place and not his to
get it. Burger could not recall ever seeing a representative of Petitioner in the store nor did
he ever see Lawrence Ilgen , Intervenor 's president , in the store . Burger also testified that
he was never told of any rule prohibiting solicitation of employees in the store , and that he
never told any employee how to vote nor did he ever hear anyone connected with management
tell any employee how to vote . Bruns was not called as a witness . The undersigned credits
Burger 's uncontradicted testimony as set forth bove.
Earl Woodey testified that on January 5,1953 , he had a conversation with Intervenor's store
steward , Bill Sullivan , during which Sullivan said that Harold Caplinger , personnel manager,
had told hun to inform all meat department help that Eugene Schear , director of operations,
had said in effect he would top anything that Petitioner could get for them . Woodey testified
that Christine Bell was present during his conversation with Sullivan . Christine Bell corrob-
orates the above testimony of Woodey . There is no evidence that any of the Employer's
supervisory personnel were present during the conversation . Sullivan was not called as a
witness . The undersigned credits the above testimony of Woodey . However, in view of the
hearsay nature of the testimony no finding willbe made on the basis of the conversation.
4. Store No. 4
Clara Smith , a meat wrapper at store No . 4, testified that on January 5, 1953 , the Monday
before the election , Lawrence Ilgen, president of the Intervenor , John Jung , a meat cutter
at store No . 8, and an employee from one of the Employer 's other stores , who Smith described
as "a bushy -haired fellow " and brother of one of the union representatives , engaged in a
conversation with employee Bessie Sugler at the other end of the counter where Smith was
wrapping meat . These three individuals came over to Smith behind the counter and asked her
what she thought of the Union and how she felt. Smith testified that "Jung was talking for the
Independent Union and he wanted to know how I felt . Well, I am interested in the money, I
have to work hard for it. " Smith also testified that Ilgen asked her what she thought would be
a right salary and she told him about $ 1.30 which is the amount the rest of the stores in town
were paying . Thereupon Ilgen said , "Well, we will just ask for about $1 .35 and that will top
anything in town." Jung then told Smith that the AFL did not take anyone in without an
initiation fee and that she should not be fooled by that because if the AFL got in she would
have to pay a $ 25 initiaton fee.
Smith testified that during the above conversation she saw an individual who she knew to
be an AFL representative put some handbills on the counter near where Bessie Sugler was
working . Ernie Mmniear , the store manager , picked up all but 1 of the handbills and that
1 was picked up by 1 of the girls and read to Smith and 2 other employees.
Ilgen testified he was in store No. 4 on January 5, 1953 , at which time he saw Petitioner's
Representatives Kenneth Pfarrer and Walter Pieotrowski in the store . Ilgen said he saw
Pieotrowski walk up to the meat counter and he spoke to him. He also testified that Pieotrowski
and a Mr . Judge6 became involved in a heated argument . Pfarrer testified that he was in
store No . 4 with Manager Mtnttiear 's permission to check to see that the Board notice of
election was properly posted and that he saw Lawrence Ilgen , Intervenor's president, Bob
Pastor,7 and an individual named Judge in the meat department of the store . Pfarrer testified
that after seeing the Intervenor 's representatives in the store , he called Harold Caplinger,
the Employer 's director of personnel , by telephone and notified him that the Intervenor's
representatives were in the store and asked for the same opportunity to talk to the employees
that Intervenor had. Pfarrer testified that Caplinger told hun there was a no-solicitation rule
in effect and that no one was allowed to solicit in the stores . Pfarrer testified that he did not
attempt to enter the stores thereafter . He also testified that this was the first time he had
asked Caplinger for permission to enter the stores . Pfarrer further testified that prior to
this he had been getting phone calls from different stores telling him that the Intervenor's
representatives were soliciting in the stores . Caplinger testified that Pfarrer called hun on
January 5 , 1953 , as Pfarrer stated, and that he informed Pfarrer of the no-solicitation rule
and also told him he would take steps to see that the Intervenor 's representatives were re-
6I1gen denied that Judge had any connection with the Intervenor.
? All parties stipulated that Pastor was a steward for the Intervenor at store No 7
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed of the rule. Caplinger states that he then called IIgen and notified him of the rule
but he does not remember what IIgen said. Caplinger also testified that Ilgen was permitted
to enter the stores because of the contractual relationship between the Employer and Inter-
venor. He further testified that Company's Exhibits Nos. 1, 2, and 3, handbills of the Petitioner,
were found in the stores by the store managers but that the Employer had no objection to
passing out literature in the stores.
Ilgen testified that he came to store No. 4 on January 5 to discuss with Store Manager
Minniear a disagreement over when Lamar Ashe, the store steward, could get 2 days'
vacation pay he had coming. Ilgen testified that after he entered the store, Steward Ashe
informed him that Clara Smith would like to talk to him so he walked behind the meat counter
and talked to her. According to Ilgen, Smith told him she did not understand what the two
unions were fighting about and that he tried to explain it to her. There is no evidence that
Store Manager Minniear or the meat department manager knew that representatives of the
Intervenor were talking about union riatters to Smith.
Clara Smith also testified that sometime within 30 days of the election, Store Manager
Minniear asked her and Ruby Hail, a fellow employee, what the top salary was and when
Hail told Minniear it was $1.10, he said, "Well, I understand there is going to be a dollar
thirty-five." Neither Minniear nor Hail were called as witnesses. The undersigned credits
the above testimony of Smith, Ilgen, Pfarrer, and Caplinger.
Bessie Paskiewicz 8 a scales operator in the meat department at store No . 4, testified
that about a week or so prior to the election, she asked Store Manager Minniear a question
concerning the wages that the employees were to receive and that Minniear replied "that
it was confidential, but that you girls are supposed to get $1.30 or $1.35 per hour" and that
"the new contract with the Independent we'll get is supposed to be the best in the city."
Paskiewicz stated that Minniear was not talking against any union or trying to bribe her
but that she had just asked for the information.
Paskiewicz testified that she saw Larry IIgen, Bob Pastor, and an individual named Judge
in the store prior to the election. The record does not reveal the time they were in the
store. On this occasion, Paskiewicz asked IIgen what the Intervenor could offer and he said
he did not know. Paskiewicz also testified that IIgen was in and out of the store several
times within the 30-day period prior to the election and talked to several of the employees.
There is no evidence that Ilgen was discussing the election with the employees on those
occasions or that the store manager knew that he was in the store . Paskiewicz states that
IIgen never talked to her about the election on these occasions nor did she ever see a repre-
sentative of Petitioner in the store although she saw literature of Petitioner in the store
which she states was brought in by one of the girls. Minniear was not called as a witness.
The undersigned credits Paskiewicz's testimony.
George Fritz, an employee at store No. 4, testified that around November 13, 1952, he
met Eugene Schear, director of operations , in store No . 10 prior to Fritz going to his
regular place of work at store No. 4 at 11 a. m. Fritz testified that Schear told him he
wanted to talk to him outside. They walked outside and engaged in a conversation in the
entrance to the Arcade Building about 15 or 20 feet away from the entrance to store No.
10. Concerning this conversation Fritz testified as follows:
Well, Mr. Schear, we was talking about some other employees, but it led up to the
coming election. He remarked. there would eventually be an election, and he told me
that regardless of what big union we would bring in, he said that we would get a better
contract with the Independent Union [Intervenor] than any big outfit we could bring in
the stores. That was the gist of the conversation in regard to the Union.
Fritz also testified that Schear did not tell him how to vote and that he did not hear anyone
connected with management direct any employee how to vote in the election.
Schear was not called as a witness. The undersigned credits the uncontradicted testimony
of Fritz as related above.
Reva De Boit, a meat hostess at store No. 4, testified that around Christmas 1952, Store
Manager Minniear asked her which union she favored and she told him the union that could
get her the most money. Minniear then told De Boit that the Intervenor could do as much good
as the Petitioner.
Minniear was not called as a witness. The undersigned credits the uncontradicted testimony
of De Boit as related above.
SFormerly Bessie Davis Sugler.
THE LIBERAL MARKET, INC. 1499
5. Store No. 5
On January 5, 1953, Kenneth Pfarrer asked the manager of store No. 5 for permission to
enter to check to see whether the Board's election notice was properly posted and was per-
mitted to do so. This is the only occasion Pfarrer was in store No. 5. There is no evidence
that he attempted to enter on any other occasion.
6. Store No. 6
Kenneth Pfarrer testified that he was in store No. 6 on 3 occasions. The first 2 occasions
occurred sometime between December 1, 1952, and January 1, 1953, and the third on January
5, 1953. On the first occasion Pfarrer entered the store and asked one of the girls to relay a
message to one of the meat cutters to meet him next door and then left. On the second
occasion Pfarrer, Pieotrowski, and "Woody" Manuel9 entered the store to pass out literature
and were ordered by Assistant Manager Willis Hackney to leave. According to Pfarrer, they
left without passing out any literature. Pfarrer testified that on the third occasion he was in
the store, he was given permission by the store manager to enter the store to check to see
whether the Board's election notice was properly posted. Jan Kasperski, a meat cutter at
store No. 6, testified that several weeks before the election Pieotrowski visited him in the
cooler in the store and, among other things, asked him to come to a union meeting and
Kasperski said he would if he had time. Pieotrowski was not called as a witness. The under-
signed credits Kasperski's testimony and finds that Pieotrowski talked to Kasperski about
the union meeting on the occasion that Pfarrer states he, Pieotrowski and Manuel were in
the store.
Willis Hackney, assistant manager of store No. 6, testified that on 2 occasions, the first
time a month before the election and the second time about 3 days before the election, 2
individuals whom he knew to be representatives of Petitioner, entered the store and he told
them that they could not solicit or pass out literature in the store and that they should leave.
According to Hackney, Petitioner's representatives did not pass out any literature the first
time they entered the store but did pass out handbills on the second occasion and on both
occasions they left the store when he requested them to leave. Hackney testified he had never
been notified or informed by the Employer of any rule prohibiting solicitation or passing out
of literature in the store, and that he put the rule into effect of his own accord because he
did not want the employees disturbed while they were working.
There is little, if any, contradiction in the testimony of Pfarrer and Hackney. The under-
signed credits the testimony of Hackney that on two occasions he asked representatives of
Petitioner to leave the store, but finds that on one of those occasions Pieotrowski was not
present. The undersigned also credits Pfarrer's testimony regarding his visits to the store
and finds that on his second visit he was asked to leave by Assistant Manager Hackney, and
on January 5, 1953, was given permission by the manager to check the Board's election
notice.
Jan Kasperski testified that a week or two prior to the election Lawrence 11gen came into
the cooler and talked to Jim Allen, a fellow meat cutter. Kasperski states that Allen became
very excited and Ilgen asked him (Kaspers:a) what was wrong with Jim and he said he did not
know. Personnel Manager Caplinger testified that he remembered receiving a call from
Manager Critchfield of store No. 6 informing him that Ilgen and John Judge were in the store
talking to the employees in the meat department and that there had been a row, and Critchfield
asked what he should do, and Caplinger told him to tell them to leave. Ilgen testified that
Jim Allen had called him on the phone several evenings prior in connection with a matter
involving a negotiating committee and that he stopped in store No . 6 to "explain a few things
to him, and a discussion about the unions came up." According to Ilgen, Allen became very
excited and said that he didn't want to discuss either union and that Allen told him to get out
and let him alone. llgen states that he then asked Jan Kasperski what was wrong with Allen
and Kasperski said that he did not know but that he had been upset all day. Ilgen testified that
when he came out of the cooler after talking with Allen, Manager Critchfield asked him what
he was doing. Ilgen testified that when he told Critchfield he was talking about unions,
Critchfield asked him to leave the store and he did. Assistant Manager Hackney testified that
he did not recall ever seeing any representative of the Intervenor in the store but does recall
Manager Critchfield telling him that he had asked Intervenor's representatives to leave the
store.
9 All parties stipulated that Manual , nicknamed Woody, was a business agent for Petitioner.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned credits the testimony of Kasperski, Ilgen, and Hackney and finds that about
a week or so before the election Ilgen and John Judge were in store No. 6 talking to Jim
Allen about union matters, other than a grievance, and that when Manager Critchfield became
aware of this fact he asked Ilgen and Judge to leave the store, and they left.
Mary Ellen Byers, employed as a scales girl in the meat department in store No. 6, testified
that Israel ScottWcame in the store on Tuesdayprior to the election and while she was working
asked her to vote for the Intervenor and then left. Byers testified that Scott had been in the
store on prior occasions but not since the election, and that he only talked to her about the
union at the time related above. There is no evidence that either the store manager, assistant
store manager, or meat department manager observed Scott talking to Byers. Scott was not
called to testify. The undersigned credits the testimony of Byers.
Kasperski testified that shortly after January 1, 1953, Assistant Store Manager Hackney
came into the cooler where he was working and asked him if he knew there was going to be
an election, and when he said that he did, an argument about low wages followed. Kasperski
was unable to recall anything more about the Conversation with Hackney. Kasperski also
testified that a few days before the election he was cutting chickens outside the cooler when
Hackney came up to him and said, "Do you know, Jan, that AFL took twenty-five dollars
dues? " Kasperski said that Hackney's statement made him mad because he did not like
anyone making propaganda for a union. Hackney, although called as a witness, did not deny
Kasperski's testimony. The undersigned credits Kasperski's testimony.
Hackney testified that about a week before the election he asked a group of 3 or 4 employees
in the meat department what their feelings were about the union and some said they were in
favor of the Petitioner and others said they were in favor of the Intervenor. The undersigned
credits Hackney's uncontradicted testimony.
7. Store No. 7
Kenneth Pfarrer testified that he was in store No. 7 on the last Thursday in December 1952
and asked one of the girls to relay a message to Doerner, a meat cutter, to meet him for lunch.
Pfarrer stated that this was the only time he was in store No. 7. Pfarrer also testified that
when he wanted to contact Doerner he would call him on the phone but that on the occasion
referred to above, he went directly to the store because the Employer cut off Doerner's
incoming calls. Pfarrer also testified that on prior occasions when he called Doerner at the
store he talked to him about union matters. The undersigned credits the above testimony of
Pfarrer.
8. Store No. 8
Kenneth Pfarrer testified he was never mstoreNo. 8 for the purpose of solicitation.
Vivian Nelson worked as a meat wrapper at store No. 8. The store manager is Louis Dumas,
and the meat department manager is Jerry Witwerd. Nelson testified that about 3 or 4 days
before the election she had a conversation with Witwerd which lasted about 15 or 20 minutes.
In connection with this conversation Nelson testified as follows:
Q. And what did he say to you
A. Well, he just asked me, says,,-"Well, how do you feel about the election " I says,
"Well, I don't know just how I am going to feel about it but I know how I am going." He
says, "You do know? " and I says "Yes." I says "What do you think about it? " And he
says, "Well, I've not got a word to say." He says, "It is just up to you girls whichever
way you do, that is your own say. You have your own thoughts and your own ideas." So
he said, "I am not telling you anything." So far as talking to us about it, he never did
talk any personal conversation, anyway, either way.
Q. Did you mention the name AFL when you were talking, do you remember?
A. Yes, I told him I was AFL. He knew I was AFL when I went there to work.
Q. Did he tell you what his feelings were?
A. Yes, hesaidhewas onceAFL,buthe got a rotten deal and he withdrew from the AFL
at some later time. I don't recall the name of the town where he went to work for these
people, they were independent and he worked independently too.
10 All parties stipulated that Scott was Intervenor's steward at store No. 6.
THE LIBERAL MARKET, INC. 1501
Nelson testified that John Jung was a meat cutter in the cooler at store No . 8 who was on
leave from his job several days immediately preceding the election and that Israel Scott
was a steward for the Intervenor at store No . 8. Nelson testified that either the day before
or 2 days before the election Jung , although not working , was in the store off and on all day
talking to employees . Jung didn 't talk to Nelson other than to pass the time of the day and
tell her he was taking the day off . Israel Scott , who worked in store No . 8, talked with Nelson
for a few minutes a day or two before the election . The record does reveal what Scott said to
Nelson.
Nelson also testified she saw an individual named Woody ,who she knew to be a repre-
sentative of Petitioner , in the store on two occasions within a period 3 or 4 weeks prior to
the election but that he spoke to her only once and then only to say "hello Vivian." She
also testified she saw Pieotrowski , another representative of Petitioner , in the store on one
occasion prior to January 1 , 1953 , at which time he said no more than "hello ." There is no
evidence that either the store manager , assistant store manager , or meat department manager
knew that either Scott . Jung, or Woody were in the store on the occasions related by Nelson.
The undersigned credits Nelson 's testimony.
Janet Sute , a scales girl in the meat department in store No . 8, testified that on Monday
prior to the election Jerry Witwerd , meat manager , came to her while she was working and
told her that someone wanted to see her in the backroom . Sute went to the backroom where she
found Lawrence Ilgen , Intervenor 's president , and Is raelScott , store steward , waiting for her.
Ugen and Scott told Sute it would be much better to have people that they knew and worked with
representing them rather than outsiders they knew nothing about , and that they would be
quicker to take care of grievances than outsiders . According to Sute, either Ugen or Scott
then told her that they were positive the employees would get $ 1.30 per hour and were trying
to get $ 1.35. Sute testified that they talked to her about 45 minutes or an hour . At this time
Ilgen , although an employee at store No . 8, was on leave of absence because of a back injury.
Ugen testified that he stopped in store No. 8 to buy his groceries as he had always done and
was informed by Scott that Janet Sute wanted to talk to hun. Ugen testified , "Anyway, I
walked into the back room . Janet Sute came back . I don't know who asked her to come back
or anything about it. I walked in the back room and she came back . I asked her what she
wanted . I didn't have any idea what she wanted . She informed me that she would like to talk
to me about the unions , and she asked a half -dozen questions about the union , both unions,
not only Independent , the AFL too. I tried to give her the answer to the best of my knowledge.
I imagined I talked to her approximately 15 minutes , and I left the store ." Neither Scott
nor Witwerd were called as witnesses.
Sute further testified that the day before the election Meat Manager Witwerd again came to
her while she was working and told her she was wanted in the backroom . Sute went to the
backroom and found John Judge ii waiting for her. Judge talked to Sute for about lZ hours.
Sute testified that Judge explained to her how much better off she would be to vote for the
Intervenor because the Petitioner was just a bunch of waterfront gangsters and wouldn't
do anything for the employees because Petitioner was an outsider . He also told Sute how
much better off the butchers would be with the Intervenor than Petitioner . Sute had never
before been asked to go intothebackroomto talk to anyone . Judge was not called as a witness.
Sute impressed the undersigned as a truthful and honest witness and accordingly credits
her testimony . Ugen , having a definite interest in the outcome of the hearing , had every
reason to slant his testimony in favor of the Intervenor . Certainly , Witwerd knew on both
occasions who was waiting for Sute in the backroom . There is no evidence that a grievance
existed involving Sute . In the absence of testimony by Witwerd , the undersigned finds that
Witwerd knew on both occasions who wanted to see Sute in the backroom and what they wanted
to see her about.
9. Store No. 9
Don Reisenbeck , a meat cutter at store No . 9, testified that during the 3 or 4 weeks'
period immediately prior to the election , but not during election week , Kenneth Pfarrer,
Woody Manuel , and .Walter Pieotrowski , all representatives of Petitioner, came into store
No. 9 at least 6 times and talked to him about the coming election and asked him to solicit
ii The evidence reveals, and the undersigned feels that judge campaigned on behalf of the
Intervenor.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
votes for Petitioner. Generally, all 3 came in together but at tunes either 1 or 2 came in
and talked to Reisenbeck. Reisenbeck worked in the cooler about three-fourths of the time,
but his conversations with Pfarrer, Manuel, and Pieotrowskiall took place outside the cooler.
Pfarrer testified that he was in store No. 9 only once and that was on January 5, 1953. On
that occasion, according to Pfarrer, he was accompanied by Pieotrowski and they met
Eugene Schear, director of operations, who took them back in the store to check to see
whether the Board's election notice was properly posted. Pfarrer testified he never saw or
met Donald Reisenbeck. The undersigned credits the testimony of Reisenbeck and finds that
Petitioner's representatives were in storeNo.9onseveral occasions and talked to Reisenbeck
about the election and asked him to solicit votes for Petitioner.
Reisenbeck testified that about a week before the election Lawrence Ugen came into the
cooler and talked to him about the election. During the conversation, Ilgen mentioned the
Intervenor's campaign to win the election and informed Reisenbeck that the Intervenor had
a letter concerning the election that it was going to mail out to the employees . IIgen told
Reisenbeck that the letter would be in the office of David Weinberg, attorney for the Intervenor,
if he cared to sign it. Reisenbeck said this was the only tune he saw Ilgen in store No. 9
during the preelection campaign. ligen testified that he stopped at store No. 9 to discuss a
grievance concerning a heater which was to be put in the backroom and that while there,
he talked to Reisenbeck in the cooler. Ilgen testified that Reisenbeck asked him to see if
he could get a guard puton a meat grinder. IIgen, however, didn't deny Reisenbeck's testimony
concerning the conversation regarding the election. The undersigned credits Reisenbeck.
10. Store No. 10
Vivian Turner was employed at store No. 10 and worked in the meat department located
in the basement . The meat manager and meat cutters work in the basement and go up on the
main floor in the store only on occasions when they have to check the meat counter. On
occasions she replaced the meat hostess who serviced the meat counters located on the main
floor of the store. Sometime during the first 2 weeks in December 1952 , Turner was engaged
in a conversation with Ed Mitchell , meat department manager, relative to Turner 's quitting
her job and Mitchell was trying to talk her into remaining . During the conversation , Mitchell
told Turner that he felt sure that after the election Liberal --apparently referring to the
Employer--would have a good or the best contract , and that the employees would make as
much or more money than employees in other markets . Mitchell did not mention the name
of either Petitioner or Intervenor during his conversation with Turner. The aforementioned
conversation is based upon the uncontradicted testimony of Turner which is credited by
the undersigned.
Turner testified that on two or three occasions she saw Lawrence Ilgen in store No. 10.
Turner testified that on the second occasion she saw Ilgen in the store he was accompanied
by Bob Pastor , the Intervenor 's store steward, and they entered the cooler, located in the
basement. where they engaged in a conversation with John Jung , a meat cutter. She did not
hear what was said. Neither Ilgen nor Pastor talked to Turner and she did not see them talk
to any employees other than Jung. Pastor 's wife was working in store No. 10 at this time.
There is no evidence that either the store manager, assistant store manager , or meat
department manager saw Ilgen or Jung on these occasions . Although . Ilgen testified at the
hearing, he did not deny Turner's testimony concerning his visits to the store. The under-
signed credits Turner's testimony.
Turner testified that a week or two before the election Walter Pieotrowski came in the
store and handed her several printed sheets of paper pertaining to a forthcoming meeting
of Petitioner and asked her to pass them out among the employees. Turner put the literature
in her pocket and read it on the way home but did not pass it on to her fellow employees.
Turner did not see Pieotrowski talk to anyone else on this occasion. Turner testified that
she had seen Pieotrowski in the store about three or four times before the election at which
times he walked and looked around the store. On these occasions Pieotrowski would say
hello to Turner and ask her how she was getting along . Turner never saw a representative
of Petitioner in the basement of the store . There is no evidence that the store manager,
assistant store manager, or meat department manager ever saw Pieotrowski in the store.
The undersigned credits Turner 's uncontradicted testimony . Kenneth Pfarrer testified
he never tried to enter store No. 10 because the meat department is in the basement.
Harold Caplinger , personnel director , testified that he had knowledge that representatives
of both unions were making visits to the stores but that whenever it was called to his attention
THE LIBERAL MARKET, INC. 1503
he called the store manager to correct it. Caplinger also testified that the Employer took a
hands-off policy during the election . Caplinger testified thata meeting of the managers some-
time in November or December 1952, he told the managers that no one connected with manage-
ment was to take any action one way or another in the campaign . There is no evidence that
the employees were notified of the Employer 's hands -off policy.
Kenneth Pfarrer testified that in past elections the Employer permitted the Petitioner
to visit the stores prior to opening - -between 8 and 9 a. m.--to talk to the employees in the
meat department but that was prior to the Intervenor 's contract with the Employer . He also
testified he never asked for the same privilege this election.
II. Conclusions
A. With respect to Incidents at store No. 1: The undersigned has found that the Employer
had a rule prohibiting solicitation of employees in the store but had no rule prohibiting the
distribution of literature in the stores . While it is true that Petitioner 's representatives
were denied access to store No. 1 on one or more occasions between the latter part of
November and late December 1952, there is no evidence that Intervenor 's representatives
were permitted to enter the store for campaign purposes . Thus, the undersigned finds that
the Employer did not discriminate in the application of its no-solicitation rule at store No. 1
and that objections based upon incidents at this store are without merit.
B. With respect to incidents at store No. 2: Petitioner was not permitted to enter store
No. 2 on one occasion on January 7, 1953, to distribute literature . Although the Employer
did not have a rule prohibiting the distribution of literature in its stores , there is no evidence
to show that the unidentified individual who denied Petitioner the right to enter knew that
Petitioner 's purpose was to distribute literature and not to solicit employees. Petitioner did
not request permission to enter to distribute literature . Had such a request been made, it
may have been granted as evidenced by the fact that Petitioner's request to enter on January
5, 1953, for the purpose of checking the Board 's election notice was granted. Moreover, there
is no evidence that Intervenor 's representatives were permitted to enter the store to either
distribute literature or solicit employees . Thus, the undersigned finds that the Employer did
not discriminate against Petitioner in the application of its no-solicitation rule, or in any
other manner , at store No . 2 and that objections based upon incidents at this store are
without merit.
C. With respect to incidents at store No. 3: With respect to Ilgen's appearance at store
No. 3 on Tuesday , before the election , the undersigned finds that Ilgen , as president of the
Intervenor , was there .with the knowledge of the Employer for the purpose of handling a
grievance . In connection with Ilgen 's appearance in the store the day before the election the
undersigned finds that Ilgen informed Store Manager Bruns that he was there to discuss a
grievance in the meat department. Moreover, the contract between the Employer and Inter-
venor provides that the Intervenor shall have access to the stores for the purpose of policing
the contract. As regards the appearance of Intervenor 's representatives , Jung and Scott, in
the store on the day before the election, there is no evidence to show that anyone connected
with management knew of their presence in the store. It appears that Intervenor 's repre-
sentatives , Kenneth Pfarrer and Walter Pieotrowski, were in the store on January 5, 1953, with
the manager 's permission to check the election notices. It also appears that Pieotrowski was
in the store a couple of weeks before the election but there is no evidence to show that anyone
connected with management knew of his presence. In view of the fact that the Intervenor's
representatives were either in the store to process a grievance or their presence was not
known to the Employer, and the fact that the Petitioner's representatives were either in the
store with the Employer 's permission to check the election notice or their presence was
not known to the Employer , the undersigned finds that the Employer did not discriminate
in the application of its no-solicitation rule and therefore an objection based upon the above
incidents is without merit.
With respect to Store Manager Bruns ' a conversation with Louella Iman on Tuesday, prior
to the election , the undersigned finds that Bruns ' statement that "Well, from what I hear,
you will be making more money , around $1.35 " contains no threat of reprisal or promise of
benefit but is rather an expression of oplmon privileged under Section 8 (c) of the Act. This
is particularly true here where Bruns and Iman had been discussing working conditions and
n As heretofore stated, all parties stipulated that the store managers, assistant store
managers , and meat department managers were supervisors within the meaning of the Act.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, raised by Iman, and no mention was made of either union. The undersigned finds no
merit to an objection based upon Bruns' statements to Iman on Tuesday prior to the election.
At the close of a meeting of the meat department employees in the bakery on the day
before the election, Manager Bruns told the employees they could vote the way they wanted
and when he was asked by an employee what would happen if the Intervenor did not win the
election, he replied in substance that if the election went the way he thought it would go,
there would be no change in hours but if it went the other way, he had no way of telling. The
undersigned finds that Bruns' statement contains no threat of reprisal or promise of benefits
but is rather an expression of opinion privileged under 8 (c) of the Act. This is especially
true here where the remark was in a sense prompted by a question from an employee and
no mention was made of either union. The undersigned finds no merit to an objection based
upon Bruns ' statement referred to above.
In connection with the two occasions between November 10, 1952, and the election when
Store Manager Bruns asked Meat Department Manager Burger if he would talk to the employees
to see which way they leaned, the undersigned finds that the Employer interfered with the
employees' right to self-organization. The Board held that a similar request by a superintend-
ent of two supervisors to be violative of Section 8 (c) (1) of the Act. ii Accordingly, the under-
signed finds that Bruns' asking Burger to find out which way the employees leaned, interfered
with and prevented the exercise of a free choice of a bargaining representative by the
employees of the Employer and that objection based thereon has merit.
D. With respect to incidents at store No . 4: With respect to the representatives of Petitioner
and Intervenor soliciting in store No. 4 on Monday, prior to the election, the evidence reveals
that Intervenor 's representatives were in the store discussing a grievance with Store Manager
Mmniear concerning employee Ashe's vacation pay. There is no evidence that Minniear or
the meat department manager knew that the Intervenor's representatives talked to Smith about
union matters. In fact, the evidence reveals that when Petitioner notified the Employer of
the presence of the Intervenor's representatives in the store, the Employer took immediate
steps to remfcrm the Intervenor of the no-solicitation rule. Moreover, the evidence shows
that Petitioner's literature was distributed in the store while its representatives were there
checking the Board's election notice and that Pieotrowskiwas at the meat counter and became
involved in a heated argument with one of the Intervenor's representatives. In view of the
above, the undersigned finds that the Employer did not discriminate in the application of
its no-solicitation rule on Monday prior to the election and that an objection based thereon
is without merit.
With respect to Store Manager Mutaiear's asking Clara Smith and Ruby Hail what the top
salary was and his reply, when informed it was $1.10, that "Well, I understand there is going
to be a dollar thirty-five," the undersigned finds that the remark is an expression of opinion
privileged under Section 8 (c) of the Act and contains no threat of reprisal or promise of
benefit. Accordingly, an objection based on the statement is without merit.
About a week prior to the election, Bessie Paskiewicz asked Store Manager Minniear a
question concerning wages that the employees were to receive and Minniear replied that "it
was confidential, but you girls are supposed to get $ 1.30 to $ 1.35 per hour" and that "the
new contract which the Independent will get is supposed to be the best in the City." Although
Paskiewicz stated that Mmniear was not talking against any union or trying to bribe her, the
undersigned finds that Minmear's statement contained an implied promise of a raise to $1.30
or $1.35 if the Intervenor won the election and thus is coercive in character and so related
to the election in time as to have a probable effect upon the employees' action at the polls,
particularly if the information is passed by word of mouth from one employee to another.
Accordingly, the undersigned finds merit to an objection based upon Minniear's statement to
Paskiewicz.
The testimony of Paskiewicz relating to the presence of Ilgen, Pastor, and Judge, repre-
sentatives of the Intervenor, in the store prior to the election talking to employees, in the
absence of evidence that the Employer knew they were there soliciting employees is, in the
opinion of the undersigned, insufficient to warrant a finding of a discriminatory application
of the no-solicitation rule by the Employer. The undersigned accordingly finds that an objec-
tion based upon the presence of Ilgen, Pastor, and Judge in the store as related by Paskiewicz
is without merit.
Around November 13, 1952, Eugene Schear, director of operations, told George Fritz
that regardless of what big union they would bring in, the employees would get a better
contract with the Intervenor than any big outfit they could bring in the stores. The undersigned
i3H N. Thayer Company, 99 NLRB 1122.
THE LIBERAL MARKET, INC. 1505
finds Schear's statement to Fritz to be a promise of benefit and coercive in character and
can be reasonably calculated to have affected the results of the election. Accordingly, the
undersigned finds merit to an objection based on Schear's statement to Fritz.
Around Christmas 1952, Store Manager Minniear asked Reva De Boit which union she
favored and when she told him the union that could get him the most money he replied that
the Intervenor could do as much good as the Petitioner. The Board has consistently held that
interrogation of employees concerning their union views or sympathies has restraining and
coercive tendencies and therefore is per se violative of Section 8 (a) (1) of the Act.14 The
undersigned thus finds that Minmear's interrogation of De Boit is coercive in character.
The undersigned also finds that the statement by Minmear that the Intervenor could do as
much good as Petitioner, when coupled with the prior interrogation, is a veiled promise of
benefit also coercive in character thereby tending to interfere with and prevent the exercise
of a free choice of a bargaining representative by the employees. Accordingly, the undersigned
finds merit to an objection based upon Minnear's statements to De Boit.
E. There were no incidents at store No. 5.
F. With respect to incidents at store No. 6: With respect to Assistant Manager Hackney's
requesting Petitioner's representatives to leave the store and Store Manager Critchfield's
requesting Intervenor's representative to leave the store, the undersigned finds that the
Employer was enforcing its no-solicitation rule without discrimination and that there is no
merit to an objection based upon these incidents.
Although Israel Scott, Petitioner's representative, entered the store on Tuesday prior to
the election and asked Mary Ellen Byers to vote for the Intervenor, and had been in the store
on prior occasions, there is no evidence that his presence was known to management. Thus,
the undersigned finds no discrimination in the Employer's application of its no-solicitation
rule and that objections based upon these incidents are without merit. The undersigned also
finds that Assistant Store Manager Hackney's statement to Jan Kasperski in the cooler
shortly after January 1, 1953, "Do you know, Jan, that AFL took twenty-five dollars dues,"
to be noncoercive and without merit as a basis for an objection.
About a week before the election, Assistant Store Manager Hackney asked a group of 3 or
4 employees in the meat department what their feelings were about the union. Inasmuch as
interrogation of employees concerning their union views and sympathies has restraining and
coercive tendencies and is therefore per se violative of Section 8 (a) (1) of the Act,15 the
undersigned finds Hackney's interrogation of the employees coercive in character thereby
tending to interfere with and prevent the exercise of a free choice of a bargaining repre-
sentative by the employees. Accordingly, the undersigned finds merit to an objection based
upon Hackney's interrogation of employees.
G. With respect to incidents at store No. 7: Although the Employer may have cut
off Doerner's incoming telephone calls, there is no evidence that the Employer knew that the
calls were from Petitioner. Assuming the Employer knew that the calls were from Petitioner,
in cutting off thecalls itwas enforcing its no-solicitation by prohibiting an attempt to indirectly
evade the rule. Moreover, there is no evidence that the Employer permitted the Intervenor to
solicit employees by telephone. Accordingly, the undersigned finds that the Employer did not
discriminate in the application of its no-solicitation rule by cutting off Doerner's calls and
that there is no merit to an objection based thereon.
H. With respect to incidents at store No. 8: The undersigned finds that Meat Department
Manager Witwerd's asking Vivian Nelson, 3 or 4 days before the election, as to how she felt
about the election to be noncoercive. Witwerd's subsequent remarks, that he wasn't interested
in which way the girls voted and that it was up to them what they do or say, negates any
restraining or coercive effect his question may have had. Accordingly, the undersigned finds
no merit based upon Witwerd's remarks.
There is no evidence to show that the Employer knew that John Jung was in the store off
and on either the day before or 2 days before the election, nor is there any evidence to show
that the Employer knew that Petitioner's representatives, Woody and Pieotrowski, were in
the store on the occasions testified to by Nelson. While Store Steward Scott talked to Nelson
a day or two before the election, there is no evidence that he talked to her about union matters.
In view of the above, the undersigned finds no discriminatory application of the no-solicitation
rule in the above instances.
With respect to Meat Manager Witwerd's sending Janet Sute in the backroom to talk to
Intervenor's representatives on Monday prior to the election and again on the day before the
i4Standard-Coosa- Thatcher Company, 85 NLRB 1358.
s Standard-Coosa-Thatcher Company, supra.
339676 0 - 55 - 96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, the undersigned finds that the Employer discriminated in favor of the Intervenor in
the application of its no-solicitation rule and thereby materially interferred with the election.
Accordingly, the undersigned finds that an objection based upon Witwerd's sending Sute in the
backroom to talk to Intervenor 's representatives has merit.
1. With respect to incidents at store No . 9: Although Petitioner 's and Intervenor 's repre-
sentatives were in store No. 9 talking to Don Reisenbeck about the election , there is no
evidence that the Employer knew they were there soliciting the employees . Thus, the under-
signed finds that the Employer did not discriminate in the application of its no-solicitation
rule and that an objection based thereon is without merit.
J. With respect to incidents at store No. 10: With respect to Meat Department Manager
Mitchell's statement to Vivian Turner, that he felt sure that after the election the employees
of the Employer would make as much or more money than employees in other markets and
that they would get a good contract or the best contract , the undersigned finds it to be an
expression of a view or opinion privileged under Section 8 (c) of the Act , particularly where,
as here, the statement was made during a discussion about Turner 's quitting her job. At
this time, Mitchell-was attempting to persuade Turner from quitting her job. Accordingly, the
undersigned finds no merit to an objection based on Mitchell 's statements to Turner.
With respect to the Intervenor 's and Petitioner 's representatives soliciting in store No. 10,
there is no evidence that the Employer was aware of the presence of either the Intervenor's
or Petitioner 's representatives being in the store on any occasion . Accordingly , the under-
signed finds that the Employer 's application of its no -solicitation rule in store No. 10 was
not discriminatory and that an objection based thereon is without merit.
It is the function of the Board to provide a forum in which an election can be conducted
under conditions as ideal as possible. Itis concluded that the Employer's promises of benefits,
interrogation of employees concerning their union views and sympathies , and its disparate
application of its own no-solicitation ruleunder allthe circumstances involved herein rendered
it impossible for the Board to fulfill its functions in accordance with the strict standards
designed to assure that the participating employees have the opportunity to register their
free choice for or against a bargaining representative.
RECOMMENDATIONS
Upon all of the foregoing , the undersigned recommends that the results of the election of
January 8, 1953, be set aside and a new election ordered by the Board.
As provided in the order directing hearing on objections , within ten (10) days from the
issuance of this report, any party may file with the Board in Washington, D. C., an original
and 6 copies of exceptions thereto. Immediately upon the filing of such exceptions , the party
filing the same, shall serve a copy thereof upon each of the other parties , and shall file a copy
with the Regional Director , Ninth Region, National Labor Relations Board, Cincinnati 2, Ohio.
ABE MELTZER, INC.and MORRIS ZWEIG
FURRIERS JOINT COUNCIL OF NEW YORK AFFILIATED
WITH INTERNATIONAL FUR & LEATHER WORKERS UNION
OF THE UNITED STATES AND CANADA and MORRIS Z WEIG.
Cases Nos. 2-CA-2987 and 2-CB-920. June 28, 1954
DECISION AND ORDER
On October 15, 1953, Trial Examiner Arthur Leff issued his
Intermediate Report in the above-entitled proceeding, a copy
of which is attached hereto, finding that the Respondent
Company had not engaged in any unfair labor practices with-
in the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act,
that the Respondent Union had not engaged in any unfair labor
108 NLRB No. 218.