Tom's Supermarket, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1966

157 N.L.R.B. 1276 (N.L.R.B. 1966)

1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tom's Supermarket , Inc. and Local 25, Retail Clerks Interna-
tional Association , AFL-CIO . Case No. 25-CA-2187. March 30,
1966
DECISION AND ORDER
On January 10, 1966, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. With respect to certain other unfair labor practice
allegations, the Trial Examiner recommended that they be dismissed.
Thereafter, Counsel for the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the General Counsel
filed a brief in reply to that of the Respondent.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Benjamin B. Lipton on Sep-
tember 16 and 17, 1965,1 in Rensselaer, Indiana, upon a complaint by the General
Counsel2 that Respondent violated Section 8(a)(1) and (5) of the Act. At the
hearing, all parties were represented and were afforded full opportunity to present
relevant evidence, to argue orally on the record, and to file briefs. General Counsel
and Respondent submitted briefs which have been carefully considered.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is engaged at Rensselaer, Indiana, in the business of operating a
grocery supermarket. During the year preceding issuance of the complaint, Respond-
ent sold and distributed products valued in excess of $500,000, and received goods
1 All dates are in 1965 except as otherwise specified.
a Issued on May 19 , based upon a charge filed by the Union on April 5 and served upon
Respondent on April 6.
157 NLRB No. 106.
TOM'S SUPERMARKET, INC. 1277
directly in interstate commerce valued in excess of $50,000. Respondent admits,
and I find, that it is engaged in commerce within the meaning of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Local 25, Retail Clerks International Association, AFL-CIO, herein called the
Union, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
Concerning the 8(a)(5) allegation, the General Counsel relies upon alternative
theories: (1) Respondent refused to recognize and bargain with the Union, upon
request, notwithstanding that Respondent was aware that the Union, having signed
authorization cards, was the majority representative in an appropriate unit of employ-
ees; 3 and (2) by engaging in unlawful conduct to undermine the Union and destroy
its majority status, Respondent demonstrated that its refusal to recognize and bar-
gain with the Union was lacking in good faith .4 Independently, a series of violations
of Section 8 (a)( 1 ) are alleged, including coercive interrogation of employees, and
threats of discharge, store closure, and changes in hours, wages, and working condi-
tions if the Union were selected as bargaining representative. Respondent denies
that it committed any of the alleged unfair labor practices.
B. Organizing campaign; bargaining requests and refusals
On March 20, an initial meeting was held at the home of Mary E. Williams
attended by 17 or 18 employees of Respondent and John E. Case, secretary-treasurer
of the Union. Cards were distributed authorizing the Union to act as bargaining
representative for the signatory employees. Among other things, Case told the
employees that if the Union received signed cards from 51 percent of the employees,
it would immediately notify Respondent and request recognition.
At the meeting, 11 authorization cards were signed and returned to Case .5 He
also received at the meeting or shortly thereafter six additional cards which had been
previously executed.6 Still later, five more signed cards, all dated March 23, were
obtained by the Union.7
By letter dated March 22, the Union notified Respondent that it represented a
majority of the employees, demanded recognition, and requested a meeting. It
specified the unit as covering-"all grocery, produce and meat department full-time
and part-time employees, [e]xcluding one Store Manager, one Assistant Store Man-
ager, Guards and Supervisors as defined in the Act, as amended." On March 24,
Case telephoned Respondent's president, Thomas H. Clark, and arrangements were
made for a meeting.
On March 26, Case and Loyce Sanford for the Union met with Clark and Respond-
ent's attorney, Thomas B. Dumas, at the latter's office. Case testified that "Dumas
asked what proof the Union had to support its majority claim, and he was told
`signed card."' He asked if he could see the cards, and the union agents gave him
17 cards.8 Dumas and Clark examined and counted the cards. The Union expressed
its claim on the basis of 27 employees in the unit, while Clark indicated there were
30 employees. Case testified that Dumas asked Clark "if this was the majority of
a Citing Fred Snow, et al ., d/b/a Snow & Sons, 134 NLRB 709.
' Citing Joy Silk Hills, Inc. v. N.L.R.B ., 185 F. 2d 732 (C.A.D.C.).
e James F. Miller, Charles S. Reed, Anna E. Hood, Judy Lane, Delmar Curtis, Phil
Dick, Phil A. Berg, Mary E. Williams, Donna Torbet ( Moore ), Shela B . Murphy, and
Russell Sullivan. The card from Sullivan is undated , and the remainder are dated
March 20.
5 From Judy Rosenkranz , Case received her own card ( dated March 16 ), and those of
Phyllis Kuyrkendall ( card dated March 15 ) ; Don Tweedie ( card dated March 18) ; Lots
Cady ( card dated March 18 ) ; Robert Burman (card dated March 18) ; and Bonnie J.
Battleday ( card dated March 18 ). Tweedie, Burman , and Battleday were present at the
March 20 union meeting.
7 At an unspecified date, Case received from James Miller the cards of Wayne Steffen,
John R . Michael , Dick Hamer, and Virgil Daniels. Judith Anne Millikan authenticated
her own card but it was not disclosed to whom she gave it.
$ As Identified , these were all the cards dated on or before March 20 , and Sullivan's
undated card.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-]his people, and he said' "yes.' " 9 The Union requested that Respondent; sign a
rrecognition' agreement and Dumas refused. 'Dumas stated that he was not a labor
lawyer and would recommend that Respondent retain such counsel. A discussion
ensued, in which the Union participated, concerning the names of labor attorneys,
upon which note the meeting concluded. Earlier, Sanford requested that Clark
stop having meetings with the employees, and. Dumas commented upon Respondent
having rights in the matter.
By letter dated March 27, Respondent informed the Union that, after further
consideration, it believed recognition of the Union should be based on the results
of an election conducted by the Board.
On April 1, a second meeting was held in Dumas' office, attended by Case, Sanford,
Clark, Dumas, and Palmer C. Singleton, Jr., Respondent's counsel herein. Singleton
referred to the Union's specification of 27 employees in the unit and stated that
Respondent's payroll contained 31 employees. He inquired whether the Union
sought the four employees in the meat department, and received an affirmative
response .10 He mentioned that Clark received expressions from certain employees
of "a change of heart." 11 Singleton said that Respondent had a good-faith doubt
of the Union's majority, desired a Board election, and was ready to enter into a
stipulated or consent election.
On April 2, Clark, in the company of Store Manager Weiss, separately interviewed
in the privacy of the produce room 30 individuals currently employed.12 For each
such person, a written interview sheet had been prepared for Clark by Attorney
Singleton , as follows:
RE: INTERVIEWS OF EMPLOYEES TO DETERMINE MAJORITY
STATUS OF THE UNION
1. Employee should be interviewed by Tom Clark and his manager; the inter-
view should take place in the storeroom or other facility within the store except
it should not be conducted in the manager's office.
2. The interview should be conducted on company time and employees
should be paid for the time spent in the interview.
3. The questions asked of employees should be those questions listed hereon,
and only the questions listed hereon.
4. A record of each employee's interview should be maintained.
5. Each employee should be advised as follows:
(a) I want to determine how many authorization cards have been signed
by employees.
(b) Your job is not in danger. You may speak freely. If you desire
you are free to go at anytime.
(c) I am not inquiring into how you feel for or against the Union and
you are under no obligation to discuss the Union.
6. The questions to be asked are these:
A. Did you sign an authorization card wherein you requested that Local
No. 25-AFL-CIO of the Retail Clerks Union was to represent you as
the bargaining agent of Tom's Super Market?
B. Did you voluntarily sign this card? , -
9 Dumas denied that there was any conversation in which Clark said "that this Union
had a majority of the employees ." Clark was not questioned on the point.
10 While Clark initially testified that there was strong disagreement on the unit, he con-
.ceded on cross -examination that the only difference was whether there were 27 or 31 em-
ployees.j Although repeatedly questioned on the point , Clark failed to indicate that, in
any of the conversations with the Union , Respondent took the position that the requested
unit was inappropriate.
n Clark testified that, on March 30 , Battleday voluntarily told him she had signed a
card and that she did not know why she did, or "some such thing.". Battleday testified
for the General Counsel, inter aha, that she knew the purpose of the card was to "have
a union at Tom's ." She was not questioned by Respondent concerning a March 30 con-
versation with Clark. Clark stated that there were "lots of other conversations" with
employees , but specified no other instances which would show "a change of heart."
19 As stipulated , Respondent ' s payroll for the week ending March 24 contained 31 names,
excluding Store Manager Weiss. Of these, all were interviewed on April 2 , with the ex-
ception of David Shaw . Respondent contends Shaw was then on a leave of absence, an
issue discussed infra.
TOMS SUPERMARKET, INC . 1279
The testimony reveals that the interviews were conducted substantially in accordance
with the specified format. The following results were obtained: 13
In response to question "A," 21 answered "yes," and 8 answered "no." One
employee, Anna Hood,14 inquired whether she had to answer. Clark again read
from the script that her job was not in danger and she was free to go at any time.
She asked, "Does that mean I am fired?" Clark said it meant she was free to leave
the room. Thereupon she left.
Those employees who answered "yes" were asked question `B"-whether they
had signed the card voluntarily. All but five again answered "yes" to this question.
According to Clark's notes, more elaborate replies were given by the five employees,
viz:
CHARLES REED-Yes, I guess so. I figured when voting comes up my vote
would change.
RUSSELL SULLIVAN-Yes. On second thought I would not have done it again.
I feel that this should have been discussed with Tom.
ANNE MILLIKAN-I signed a card March 23, 1965, with the intention of help-
ing to promote negotiations or discussions. I did not attend the meeting. How-
ever due to the fact that my family is moving I will be quitting in the near
future. If I were staying I would definitely give my vote more consideration
and thought. I feel that to the above fact that I am moving to Bloomington, I
feel that the person who takes my place should have a say or decision about this.
BONNIE BArFLEDAY-Yes I did but I regret it now. It was in such a rush I
did not have time to think.
JOHN MICHAEL-Yes. At the time it was voluntary but it was premature
because I didn't know what the implications were at the time. More than half
the reasons I signed the card was to conform to the rest of the employees action.
Respondent contends that these five employees 15 indicated that they had changed
their minds in support of the Union. The form of the interview and the questions
posed were confined and controlled by Respondent. In the circumstances, Respond-
ent had the burden of establishing with clarity the employee responses on which it
intended to rely. Generally it is noted that the comments of these employees were
not responsive to the question-whether they had signed voluntarily. Sullivan is
found, infra, to be a supervisor and further need not be considered. Reed's remarks
are ambiguous. No election was pending. Clark testified that "to the best of his
knowledge" Reed said his vote "would change," but conceded that Reed might have
said that his vote "could change." Battleday's comment that she "regret[s] it now,"
while somewhat cryptic, does impliedly show a change of attitude. However, regard-
ing Millikan and Michael, there is simply no reasonable basis for Respondent to
infer that these employees reversed their indicated designation of the Union. As to
Hood, in no sense could Respondent count her as among those opposed to the Union.
It is apparent that she chose not to answer Clark's interrogation because of her own
feeling of restraint and fear of reprisal. Viewed realistically, Hood's reaction to
the interrogation could only convey to Respondent the conclusion that she was one
of the card signers and that she would not disavow it.
It can scarcely be doubted that Respondent was made directly aware from the
results of the interviews that the Union was authorized by a majority of the unit
employees to act as representative. Even assuming, as I do not, that Reed and
Hood are to be excluded, there were clearly 17 employees who expressly reaffirmed
their designation of the Union. The Union's majority is evident, whether the appro-
priate unit consisted of 31 employees as contended by Respondent, or 28 employees
as contended by the General Counsel and as found infra.16
Subsequent to April 2, William H. Wynn, an official of the Union's district council,
called and spoke by telephone with Clark. Wynn testified in substance as'follows:
Clark agreed that Respondent recently met with the Union; that a recognition request
was made; that Respondent asked to see proof of the Union's majority; that author-
>s On the bases of Clark's testimony ; a written report submitted by Respondent to the
Board's Regional Office prior to the hearing ; and the handwritten answers appearing on
the interview sheets, stipulated as accurately reflecting the notes taken by Clark at the
time.
14 She bad signed an authorization card on March 20.
is Millikan gave testimony substantiating Clark 's notes at the Interview . The others
were not called or questioned on the subject.
16 The sole unit dispute involves Russell Sullivan and Cora George, who are held to be
supervisors, and David Shaw, who is excluded as a casual employee.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ization cards were shown; and that Clark "checked" the cards and said "it was a
majority of his people." Wynn told Clark he understood that Respondent "Inter-
rogated the people since that time and that they had also told you that they signed
the cards"-which Clark admitted. Wynn then asked how Respondent could have a
good-faith doubt that the Union represented the majority of the employees, and Clark
could not answer. Wynn stated that unless Respondent recognized the Union,
charges would be filed with the Board.17
As of April 5, Respondent filed an election petition with the Board; as earlier
noted, the Union's charges were filed on the same date.18
C. The appropriate unit
The complaint alleges , and Respondent admits, that a unit appropriate for collec-
tive bargaining consists of:
All full-time and part-time grocery, produce and meat department employees at
the Rensselaer, Indiana, store , excluding the store manager, assistant manager, and
all guards, professional employees, and supervisors as defined in the Act.
Russell Sullivan is the head of the meat department. Only he and Store Manager
Weiss receive, in addition to salary, a bonus based on a percentage of sales.19
Clark "would never think of hiring anybody [for the meat department] without con-
sulting him"; normally wants Sullivan to have final say on hiring; and wants the
employees "to have that feeling" that they were hired by Sullivan and that they are
working for him. Among other things, Sullivan independently schedules the work
of the employees in the department. It is sufficient on these facts that Sullivan is
represented to the employees to be, and does exercise authority as, a supervisor under
the Act. He is therefore excluded from the unit.
Cora George is the head cashier or checker. Her main working functions are to
balance the cash registers and to count receipts. She schedules the hours of the
five female cashiers, assigns overtime work, reassigns particular check-out stands,
and grants time off. Store Manager Weiss does not hire the cashiers and exercises
"not much" control over them. Clark himself assumes that responsibility; but the
head cashier is his "contact with the girls," and he lets George take as much authority
as she can absorb. In all the departments, including the cashiers, Clark "likes" to
have the approval of the department head in the hiring of a new employee. George
initially interviews applicants for a job as cashier, is consulted for a hiring recom-
mendation and for an opinion as to what the applicant is worth in salary. Clark
makes the final decision. On the evidence in this case, particularly of the manner
in which Clark operates this store, I find that Cora George, like Russell Sullivan,
is held out to the employees as a management representative and is vested with certain
of the supervisory powers defined in the Act. Accordingly, she is excluded from
the unit.
David Shaw was a student in Rensselaer . In September 1964, he worked 17 hours
in 1 week as a stockboy at Respondent' s store. He next worked a total of 47 hours
in a 2-week period ending March 27, and again about 4 hours in May. These 68
hours constituted the sum total of his employment. About April 1 or 7 (after the
Union's bargaining request), Clark learned from Shaw that he was now a student
at an art school in Chicago. Clark testified that Shaw asked him what will "this
Union thing" do for him and whether he will be able to come back. Clark sug-
gested that, if Shaw so desired , a notation could be made on the payroll that Shaw
requested a leave of absence. Shaw's response was not indicated, but thereafter he
was noted as being on a leave of absence . Clark indicated that "apparently it didn't
work out for him to come back to us." There was no agreement for Shaw to return
to work at any specific time. No reasonable basis appears to justify a leave-of-
17 Clark testified that the conversation , which lasted about a minute , took place on
March 80, and that the "tenor" of his answer to Wynn was that he had retained counsel
and a meeting was scheduled within a day or two. He denied any agreement on his
part that the Union represented the majority. He did not specifically deny or mention
the reference by Wynn to the employee interviews on April 2 . While the conflict is not
critical , I credit Wynn , and place the telephone conversation sometime between April 2
and 5.
19 The Union and Respondent had two additional meetings , at the end of April and
early May, apparently resulting in no change of position.
18 Sullivan requests payment of the bonus about every 4 to 6 weeks ; his last bonus check
amounted to $500.
TOM'S SUPERMARKET, INC . 1281
absence status in the sense of establishing or preserving a sufficiency of interest by
$haw for inclusion in the unit. From Shaw's work history it is evident that the
nature, of his employment was sporadic and occasional, and not that of a regular
part-time employee. He is therefore excluded.
D. The Union's majority status
As of March 20, the Union had 15 valid authorization cards, excluding that of
Russell Sullivan, a supervisor, and of Don Tweedie, whose signature on the card
was not authenticated by any witness. When offered, Tweedie's card was rejected,
subject to reconsideration. Subsequent motion by the General Counsel for admission
of the card in evidence is hereby granted. Tweedie was present at the March 20 union
meeting when his signed card, with others, was delivered by Rosenkranz to Union
Agent Case. At the interview on April 2, Tweedie told Clark he had voluntarily
signed a card. In addition, Tweedie's signature, as authenticated,- was affixed to a
"petition" signed by 17 employees sometime in April indicating their desire for
immediate negotiations and not for a representation election 20 On his authorization
card and on the "petition," I find Tweedie's signature is identical.
At the March 26 meeting, these 16 valid cards from the Union were taken and
examined by Respondent. Additionally, the Union obtained five valid cards dated
March 23. Thus, it had a total of 21 cards of 28 employees in the unit, a clear
majority 21
Respondent has attempted to raise issues concerning the propriety of the unit
requested by the Union. In its initial demand letter of March 22, the Union plainly
defined the same unit which is found herein to be appropriate. At no time was the
Union advised, directly or indirectly, that Respondent refused to bargain because
the unit requested was inappropriate. Yet Respondent in its brief "insists" that
until after the second meeting, on April 1, "there was a doubt as to the unit sought
by the Union." I find the position devoid of any merit. Even if there were a
variance between the proposed unit and the appropriate unit, as argued by Respond-
ent, it would only be minor and subject to modification by the parties.22 It would
not affect the Union's majority status, and not excuse Respondent from its statutory
obligation to bargain.
E. Conclusion on refusal to bargain
At the March 26 meeting, Respondent declined the Union's recognition request.
It did not question the genuineness of the cards, nor seek any further opportunity in
which to examine the signatures, nor express doubt of the Union's majority. How-
ever, the meeting ended on a tacit understanding that nothing further would be done
by Respondent until it retained a labor attorney.
At the April 1 meeting, Respondent insisted upon a Board election as a condition
to recognition. Then Respondent undertook the April 2 interviews. Respondent
now states that the results thereof established the basis for its good-faith doubt of
the Union's majority status. The converse is plainly the case, as already appears.
The Union's bargaining requests were continuing, and were in fact repeated after
April 2 and rejected by Respondent. Having itself invoked and controlled the pro-
cedure for systematically interrogating the employees on April 2, Respondent is
confronted with unambiguous results of a majority designation of the Union which
it cannot successfully avoid.23 It is therefore found and concluded that, on and
after April 2, Respondent was fully aware that the Union represented the majority of
employees in the appropriate unit, and that in the absence of good faith it refused
to bargain with the Union, in violation of Section 8(a)(5) of the Act.
so It appears that the petition , as such , was never shown to Respondent. However,
Rosenkranz testified that Clark showed her a newspaper clipping which referred to the
petition.
n It is not disclosed whether at the March 26 meeting the Union also had the cards
dated March 23 but failed to show them to Respondent . The point is not material. I
find no merit in Respondent 's vague contentions that only yellow authorization cards
were displayed to Respondent by the Union , whereas the cards on which the Union relies
consist of both yellow and white.
22Mrs. Homer V. Ash, at at ., d/b/a Ash Market and Gasoline, 130 NLRB 641, 642;
The Hamilton Plastic Molding Company, 135 NLRB 371, 373.
29 E.g., Snow f Sons , 134 NLRB 709 , enfd . 308 F. 2d 687 ( C.A. 9) ; Greyhound Terminal,
137 NLRB 87 ; llilsn8ki Sausage Mann facturiny Company, Inc., 132 NLRB 229.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Restraint and coercion
The 'complaint contains various allegations of coercive conduct practiced by
Respondent upon employees before and after the April 2 interviews. On these issues,
the testimony of the General Counsel's witnesses is substantially undenied and uncon-
tradicted by Respondent.
1. On March 30, Clark discussed the subject of the Union with seven or eight
stockboys assembled in the stockroom at the back of the store.24 Clark had with
him two of the Union's contracts covering "grocery stores," 25 and he referred to
these instruments in replying to various questions of employees as to how repre-
sentation by the Union would affect their working conditions. Respondent's policy
was to accommodate students who participate in extracurricular activities at the
school, such as football and other sports, by allowing them special working hours.
Clark said that the contracts would not permit such scheduling of hours for football
players, and that the use of the "split shift" was specifically forbidden. As Clark
testified, he told the employees that both contracts required a schedule to be posted
on Friday for the following week, and in effect that he would not be able to give
them time off for practice in a sport, to play in a game, to do homework, or to have
a "date." He also indicated that their hours would be cut, particularly on their long
days, Friday and Saturdays, because the Union contract required overtime pay at
time and a half for work in excess of 8 hours. He thought their work would be
"stepped up." Concerning wages, Clark answered that he did not know or was
not sure.
Clark's advice to the employees clearly carried the message that they would seri-
ously suffer detrimental changes in working conditions under a contract with the
Union. It is no defense that his statements were promoted by questions from the
employees, particularly as he had expressly encouraged the employees to discuss with
him matters relating to card signing and union activity. Regardless of motive, Clark
acted at his peril by engaging in such discussions. As I find, however, his conversa-
tions with the employees on March 30 weie calculated to discourage their adherence
to the Union. The two contracts he had obtained 26 furnished no valid basis for
his representations to the employees. Indeed, Clark testified that he had previously
asked the Union what it wanted in the way of a contract and was told he was
premature. Moreover, he had inquired and was specifically advised by the Union
that Respondent was not expected to sign a contract "as expensive or glorious" as
that in effect at the "A & P" store in Rensselaer.27 The particular contract conditions
to which Clark adverted in his conversations with the employees on March 30 were
matters subject to collective bargaining and to a substantial degree within Respond-
ent's control. I find that Clark's conduct at such time was intended to, and did,
have a coercive effect on the employees in the exercise of their self-organizational
rights, and that Respondent thereby violated Section 8 (a) (1) of the Act.
2. Respondent had no immunized right to engage in the interrogation and polling
of employees on April 2 because it purportedly sought to verify the Union's majority
claim. Respondent had only recently engaged in unfair labor practices of a coercive
nature and, as indicated infra, it continued to commit such violations in the immedi-
ately ensuing period. Nor can Respondent's stated purpose of interrogating the
employees be regarded as intended in good faith, as it gave no effect whatsoever to
the clear results of poll showing that the majority of employees desired representation
by the Union. In light of all the circumstances it is found that such conduct by
Respondent reasonably tended to restrain and interfere with the employees in the
exercise of their guaranteed rights in Section 728
2 'James Miller testified that one of the boys had asked Clark a question , and before
answering , Clark told Miller to bring all the boys in the back room, with the remark
that, "Maybe we can get things straightened out a little this way."
He had obtained from Attorney Singleton one contract , otherwise unidentified, and
the other contract was mailed to him by a friend involving a store in a different city.
° They were not offered in evidence by Respondent or further described beyond the
general testimony , supra.
27Clark attempted , unsuccessfully , to secure from the Union a copy of the "A & P"
contract.
24E.g., Joy Silk Mills, Inc . v. N.L.R .B., 185 F. 2d 732 ( C.A.D.C.), cert. denied 341
U S. 914 ; N.L.R.B. v. Camco , Inc. 340 F. 2d 803 (C.A. 5 ) ;' N.L.R.B. v. The Lorben Corp,
345 F. 2d 346 ( C.A. 2) ;-International Union , of Operating Engineers, Local 49, AFL-CIO
(Struksnes Construction Co , Inc ) v. N L.R.B , 353 F 2d 852 (C A D C , Blue Flash
l;xpress, Inc., 109 NLRB 591 ; Cannon Electric Co.. 151 NLRB 1465
TOM'S SUPERMARKET, INC. 1283
3. Phil Berg gave uncontradicted testimony of a conversation he had with Clark
in the store a week or two after Respondent received the Union's March 22 letter.29
Clark in effect related the consequences of representation by the Union. He indi-
cated that "working conditions would have to be changed," and that the number of
boys needed would be reduced because each boy would be required to do more work.
I find the alleged violation of Section 8 (a) (1) .
4. Approximately in April, Store Manager Weiss spoke to Berg in the stockroom
concerning the Union. Berg testified, "he asked me if I was in favor of the Union
and I asked him if it would be held against me, he said no, and I said, `Yes,' I was."
A few minutes later, Weiss told him that Clark said "that for two cents he would
sell out and move back to Wisconsin." 30 The latter threat is found to violate
Section 8 ( a) (1).
5. At the end of April, during a conversation in his office concerning the Union,
Clark told Mary Williams that "he knew what he could pay without going into the
red and it wasn't Union wages." Clark had previously told the stockboys he did
not know or was not sure what the Union's wage demands would be. It is my view,
upon consideration of all the evidence, that Clark's statement to Williams was not a
reasonable prediction based upon fact but that it carried the implication, as intended,
of coercively dissuading employees from their allegiance to the Union. The state-
ment, I find, was violative of Section 8(a) (1).
6. About mid-April, a rumor was circulating that Mrs. Clark (wife of Respondent's
president), who had some years back performed various jobs in the store, including
that of produce manager, would be brought in again to work in the event the
Union's efforts were successful. Mary Williams, who currently managed the produce
section, asked Weiss if Mrs. Clark was coming back to work, and he stated that
Clark "was thinking about it." When Judy Rosenkranz asked the same question of
Weiss, he said "there was a possibility of that happening." 31 I find the evidence
entirely too fragmentary and vague to support the allegation of a threat to Williams'
job or other violation.
G. Ultimate finding of refusal to bargain
Respondent's contention of a good-faith doubt that the Union represented a
majority of the employees is further effectively refuted by the evidence that it con-
currently engaged in violations of Section 8(a)(1), as found. Its refusal to bargain
with the Union while it committed these acts of coercion against the employees
sufficiently indicates that Respondent was merely seeking to gain time within which
to dissipate the Union's majority 32 Accordingly, it is further concluded that, by
its overall conduct, Respondent refused to bargain in good faith, in violation of
Section 8(a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully refused to bargain with the Union
as the exclusive representative of its employees in an appropriate unit. It will
therefore be recommended that Respondent, upon request, bargain collectively with
the Union, and in the event that an understanding is reached, embody such under-
standing in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
20 Berg added that "it might not have been that long." Thus, the conversation might
well have occurred before the April 2 Interviews.
90 Weiss was not called to testify.
As of September, Mrs. Clark had returned to'work in the store "taking care of
the payrolls."
'Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 (CAD.C.).
221-374-66-vol. 157-82
1 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
'(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. Since March 20, 1965, the Union has been the exclusive representative of all
employees in the following appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and part-time grocery, produce, and meat department employees of
Respondent at its Rensselaer, Indiana, store, excluding the store manager, assistant
manager, and all guards, professional employees, and supervisors as defined in
the Act.
5. By refusing to bargain collectively with the Union as the exclusive representative
of its employees in the appropriate unit, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce withing the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Respondent, Tom's Supermarket,
Inc., Rensselaer, Indiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 25, Retail Clerks International
Association, AFL-CIO, as the exclusive representative of all employees in the appro-
priate bargaining unit described hereinabove.
(b) Interrogating or polling employees in a coercive manner concerning their
union sentiments and preference.
(c) Threatening employees with changes in their working schedules and condi-
tions, reduction in working hours, closing down the store, or other reprisal, if they
selected the Union as their bargaining representative.
(d) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all the employees in the appropriate unit, and embody
in a signed agreement any understanding reached.
(b) Post at its Rensselaer, Indiana, store and warehouse, copies of the attached
notice marked "Appendix." 33 Copies of said notice, to be furnished by the Regional
Director for Region 25, shall, after being duly signed by Respondent, be posted
immediately upon receipt thereof, in conspicuous places, and be maintained for a
period of 60 consecutive days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith 34
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
13 If this Recommended Order be adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
84 If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 25, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
B. J. CARNEY COMPANY 1285
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT refuse to recognize and bargain with Local 25, Retail Clerks
International Association , AFL-CIO, as the exclusive representative of the
employees in the appropriate bargaining unit described below.
WE WILL NOT coercively interrogate or poll our employees concerning their
union sentiments ; threaten to change their working schedules and conditions,
to reduce their working hours , close down our store , or other reprisal , because
they selected the Union as their bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain or coerce
employees in the exercise of the right to self organization , to form labor orga-
nizations , to join or assist the above-named, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in any other concerted activities for the purpose of collective bargaining
,or other mutual aid or protection , or to refrain from any and all such activities.
WE WILL, upon request, bargain collectively with the above -named Union as
the exclusive representative of all employees in the bargaining unit with respect
to rates of pay, wages , hours of employment and other conditions of employ-
ment, and if any understanding is reached , embody such understanding in a
signed agreement . The bargaining unit is:
All full-time and part-time grocery, produce , and meat department
employees at the Rensselaer , Indiana, store , excluding the store manager,
assistant manager, and all guards, professional employees, and supervisors
as defined in the Act.
TOM'S SUPERMARKET, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. 633-8921.
B. J. Carney Company, Petitioner and Local Union No . 3-10, In-
ternational Woodworkers of America , AFL-CIO. Case No. 19-
UC-4. March 30,1966
DECISION AND REVIEW
On October 14, 1965, the Acting Regional Director for Region 19
dismissed a petition filed by the Employers to clarify the existing
certified unit represented by the Union by excluding therefrom tem-
porary employees. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Regulations, Series
8, as amended , the Employer filed with the Board a timely request for
review of the Acting Regional Director's Decision on the ground,
inter alia, that the disputed employees, students employed during
157 NLRB No. 105.