Zinke's Foods, Inc.

National Labor Relations Board - Board Decisions

Oct 7, 1970

185 N.L.R.B. 901 (N.L.R.B. 1970)

ZINKE'S FOODS, INC
Zinke's Foods, Inc. and Retail Clerks Union, Local
No. 1401 , Retail Clerks International Association,
AFL-CIO'. Cases 30-CA-372 and 30-RC-400
October 7, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On December 14, 1966, Trial Examiner Josephine
H. Klein issued her Decision in the above-entitled
proceedings, finding that Respondent Zinke's Foods,
Inc., 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, including an order
directing the Respondent to make whole its
employees for any losses suffered due to its unlawful
refusal to bargain with the Charging Party, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further recommended that the
Union's objections to the conduc of the election
conducted on March 16, 1966, in Case 30-RC-400,
be sustained, that the election be set aside, and that
the proceedings in connection therewith be vacated.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief, the
Charging Party filed a brief in support of that
Decision, and the General Counsel filed a brief in
answer to certain portions of Respondent's
exceptions.
On May 26, 1967, the National Labor Relations
Board, because of the novel and important issues
posed by the compensatory remedy adopted by the
Trial Examiner, granted oral argument in this and
three other cases involving the same or related issues2
and consolidated these four cases for purposes of
oral argument . The Board granted a number of
motions for permission to file briefs" amicus curiae
and invited certain other interested parties to file
briefs and to participate in the oral argument which
was conducted on July 12 and 13, 1967.'
Hereinafter sometimes referred to as the Union, the Charging Party',
or the Retail Clerks
Ex-Cell-O Corporation, 185 NLRB No 20, Herman Wilson Lumber
Company, 185 NLRB No 125; Rasco Olympia, Inc, d/b/a Rasco 5-
10-25c, 185 NLRB No 110
Briefs were received from The Chamber of Commerce of the United
States, the National Association of Retail Merchants , The American
Federation of Labor and Congress of Industrial Organizations, and the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, all of whom participated in the oral argument
Briefs were also submitted by the National Association of Manufacturers,
Preston Products Company, Inc, and the NAACP Legal Defense and
Educational Fund, Inc
901
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 these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs of
the parties and those submitted amicus curiae, the
oral arguments made before the Board, and the entire
record in the proceeding, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial
Examiner to the extent consistent herewith.
There is no dispute as to the relevant facts in
this case. The Charging Party began its organizational
campaign in early February 1966, and demanded
recognition on February 14, 1966. Although, at the
hearing, the Respondent admitted that the Union
possessed valid authorization cards on February 14
and 17 employees in an appropriate unit of 26 employ-
ees, the Respondent refused to recognize the Union.
Thereafter, the Union filed a petition, and a Stipulation
for Consent Election was entered into by the parties
and approved by the Regional Director on March
4. In the ensuing election, which was conducted on
March 16, 1966, a majority of the votes was cast
against the Union, and it filed objections to the con-
duct thereof.
The Respondent does not seriously dispute, and
the Trial Examiner found that, during the period
immediately preceding the election, the Respondent
engaged in repeated acts of interrogation, threats to
close the store, threats of discharge, and threats of
reduction in hours or loss of work. The Trial Examiner
further found that the Respondent sent various letters
to its employees which contained similar threats. The
Respondent also prohibited employee Kallas from
speaking about the Union at any time and in any
portion of its premises. We agree with the Trial
Examiner that the Respondent thereby violated Sec-
tion 8(a)(1) of the Act and we find that such activities
interfered with the conduct of the election.
We further agree with the Trial Examiner, for
the reasons stated in her Decision, that the Respondent
constructively discharged employee Edward Kallas
on April 7, 1966, in violation of Section 8(a)(3) of
the Act.
Finally, we also agree with the Trial Examiner
that the Respondent, by refusing to recognize and
bargain with the Union since February 14, and by
granting unilateral wage increases on June 4, 1966,
violated Section 8(a)(5) of the Act, and the issuance
of a bargaining order is warranted. Respondent's pat-
tern of unlawful conduct, as found by the Trial Exam-
185 NLRB No. 109
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner and as set forth above, was of such a nature
as to have a lingering coercive effect. Therefore, use
of traditional remedies is unlikely to ensure a fair
or coercion-free election. We are persuaded that the
authorization cards executed by a majority of the
employees in the unit represent ^ i more reliable meas-
ure of employee desire on the issue of representation
in this case, and that the policies of the Act will
be effectuated by the imposition of a bargaining order.
N.L.R.B. v. Gissel Packing Company, 395 U.S. 575
(1969).
As noted above, the compensatory remedy adopted
by the Trial Examiner herein raises novel and impor-
tant issues. In our decision in Ex-Cell-O
Corporation,' we set forth our reasons for concluding
that, in that case, a reimbursement remedy such as
the Trial Examiner recommended in the instant
proceeding should not be granted. Those reasons are
equally applicable to the case now before us.
Accordingly, we shall not order such a remedy herein,
and we shall adopt the Remedy recommended by the
Trial Examiner as modified herein to delete such
provision.'
for certification filed by the Union on February 21. Pursuant
to a Stipulation for Certification Upon Consent Election,
an election was held on March 16. The Union lost the
election and thereafter filed objections. Respondent moved
to dismiss the objections. On May 18, the Regional Director
issued his report and recommendation, in which he denied
Respondent's motion to dismiss and recommended that the
objections be set for hearing, in consolidation with the
complaint proceeding. On June 2, the Board issued an
order adopting the Regional Director's recommendations
and ordering that the complaint and representation cases
be consolidated for hearing.
Pursuant to due notice, the consolidated proceedings
were heard by Trial Examiner Josephine H. Klein at Beloit,
Wisconsin, on July 6. All parties appeared and were afforded
full opportunity to be heard and to examine and cross-
examine witnesses . All parties waived oral argument, but
briefs have been received from the General Counsel,
Respondent, and Charging Party.
Upon the entire record, including observation of the
witnesses, and due consideration of the briefs, the Trial
Examiner makes the following:
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the Respondent, Zinke's Foods, Inc., Beloit, Wis-
consin, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified.
1. Delete paragraph 2(c) and renumber remaining
paragraphs as paragraphs 2(c), (d), and (e) respec-
tively.
2. Delete the fourth indented paragraph of the
Notice to all Employees.
Supra
For the reasons set forth in the dissenting opinion in Ex-Cell-O
Corporation, supra, Member Brown would grant the compensatory remedy
and direct that the Respondent herein make whole its employees for
any losses resulting from the unlawful refusal to bargain with the Union
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN,Trial Examiner: Case 30-CA-372
involves a complaint issued on May 16, pursuant to a
charge filed against Zinke 's Foods, Inc. (Respondent), by
Retail Clerks Union, Local 1401, Retail Clerks International
Association, AFL-CIO (Union), on April 1, amended on
April 13, 1966.' Case 30-RC-400 arises out of a petition
' Unless otherwise specifically indicated , all dates herein refer to 1966.
1. JURISDICTION
A. Respondent, a Wisconsin corporation, is engaged in
the retail sale of grocery and related products, with its
principal office and store at Wisconsin Dells, Wisconsin,
and one store, the only store involved in these proceedings,
located at Beloit , Wisconsin. During the past year, a repre-
sentative period, Respondent had gross sales in excess of
$500,000 and during the same period purchased and received
products and materials valued in excess of $50,000 from
firms located in Wisconsin which had received the said
products and materials directly from points outside the
said State. Respondent is and at all material times has
been an "employer" as defined in Section 2(2) of the
National Labor Relations Act, as amended, 29 U.S.C. Secs.
151, et seq., engaged in commerce as defined in Section
2(6) and (7) of the Act.
B. The Union is and at all material times has been
a labor organization within the meaning of Section 2(11)
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Chronology
There is no disagreement among the parties as to any
of the facts. Either by answer to the complaint or by
stipulation in the course of the hearing, Respondent admitted
all the factual allegations in the amended complaint and
objections to the election.' Respondent produced no witness-
' The only witness whom Respondent cross-examined was the union
official whom the Charging Party called to testify in support of the
particular remedy the Union is requesting . The Union's objections to
the election were substantially identical to the allegations in the complaint.
ZINKE'S FOODS, INC. 903
,es and did not cross-examine any of the General Counsel's
employee witnesses. Respondent admitted several alleged
violations of Section 8(a)(1). As to the remaining allegations,
the present dispute concerns inferences to be drawn from
undisputed facts and two legal defenses interposed by
Respondent.
On February 14 the Union sent Respondent a letter
demanding recognition and bargaining as the representative
of all the employees in Respondent's Beloit market
"excluding janitors, employees in the meat department,
store manager, watchman and guards and supervisor as
defined in the Act." In its letter the Union offered to
prove its majority through a card check by a neutral
party, chosen by Respondent. At the hearing Respondent
stipulated that on February 14 the Union held valid bargain-
ing authorization cards executed by 17 employees in an
appropriate unit of 26.
On February 16, a day after Respondent's receipt of
the Union's demand, counsel for Respondent replied in
pertinent part as follows:
We do not feel that a meeting with you would
be fruitful since we question the appropriateness of
the unit you describe. Furthermore, our client has
been involved in other representational matters wherein
the proving of majority status by authorization cards
has been shown not to be a genuine indication of
the employees' true desires respecting unionization.
Thus, your request for recognition as the sole and
exclusive bargaining agent is refused.
As you know, there are established procedures with
the National Labor Relations Board for the determina-
tion of these issues, and if you care to pursue this
matter, we presume that you will invoke them.
On February 21 the Union petitioned for certification.
Thereafter, pursuant to a stipulation for certification upon
consent election, approved by the Regional Director on
March 4, an election was scheduled for March 16 among-
All full-time and regular part-time
employees . . at [Respondent's] Beloit, Wisconsin
store, excluding meat department employees, store
manager, office clerical employees, guards and
supervisors as defined in the Act.
Respondent thereupon embarked on an antiunion cam-
paign which continued until about March 15, as summarized
under the heading "Section 8(a)(1)," infra.
The Union lost the election on March 16 by a vote
of 10 to 15. On March 21 the Union telegraphed the
Regional Director as follows:
. . .PLEASE BE ADVISED THAT THE UNION
OBJECTS TO THE ELECTION CONDUCTED IN
THE ABOVE MANNER [SIC] ON WEDNESDAY
MARCH 15 [SIC']. DURING THE COURSE OF
THE ELECTION CAMPAIGN THE COMPANY
ENGAGED IN A COURSE OF CONDUCT WHICH
BOTH COERCED THE EMPLOYEES IN THE
EXERCISE OF THEIR FREE CHOICE IN VIOLA-
TION OF SECTION 8(a)(1) AND ADDITIONALLY
THIS CONDUCT UPSET THE "LABORATORY
CONDITIONS" SURROUNDING THE ELEC-
TION. A DETAILED STATEMENT OF POSITION
WILL FOLLOW.
On March 21 the Regional Director wrote to the Union,
inter alia, requesting that it submit "evidence in support
of your objections." The letter concluded:
Unless such evidence is received in this office within
7 days of the date of this letter, we shall assume
that no such evidence is available.
On March 28 the Union filed a detailed statement of
six specific objections.
On April 11, Respondent filed a motion to dismiss the
objections, maintaining that the Union's telegram on March
21 was insufficient to serve as "objections" within Section
102.69 of the Board's Rules and Regulations , Series 8,
as amended, and that the subsequent statement of specific
objections was untimely.
The Union's original charge, filed on April 1, set forth
the same facts as were contained in its objections to the
election. On April 13 it filed an amended charge adding
allegations of refusal to bargain in contravention of Section
8(a)(5) and discriminatory treatment of Edward Kallas,
leading to his constructive discharge on April 8 in violation
of Section 8(a)(3) The complaint, issued on May 16, incorpo-
rated all but one of the allegations in the Union's amended
charge.`
On May 18 the Regional Director issued his report
and recommendation.' In it he ruled that "the objections
were timely filed, and contained the necessary form and
substance to comply with Section 102.69." He further stated
that "it does not appear that the Employer was prejudiced
by the manner of the filing of the objections." Accordingly,
he denied the motion to dismiss the objections. He recom-
mended that the objections be set for hearing in consolidation
with the complaint.
On June 2, 1966, the Board, through its Associate Execu-
tive Secretary, issued an order directing hearing. That order
read in part:
No exceptions to the Regional Director's report
having been filed by either party within the time provid-
ed therefor, the Board hereby adopts the Regional
Director's recommendations as contained in his report.
Accordingly,
IT IS HEREBY ORDERED that a hearing be held
for the purpose of adducing evidence to resolve the
issues raised by the Petitioner's objections, and that
such hearing may be consolidated with any
ihearing on the complaint issued in Case No.
30-CA-372.
IT IS FURTHER ORDERED that the Trial
Examiner. . . designated for the purpose of
conducting such hearing, shall prepare and cause to be
served on the parties a report containing resolutions of
the credibility of witnesses, findings of fact, and
recommendations to the Board as to the disposition of
said objections. . . .
' March 15 , 1966, was a Tuesday. The election here was held on
March 16
' At the hearing the Union withdrew the one objection to the election
which had not been adopted by the Regional Director in the complaint.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By its answer to the complaint and motion to dismiss,
Respondent contends that the refusal to bargain charge
should be dismissed because of the Union's loss of the
election and its failure to file adequate and timely objections.
Additionally, it maintains that the 8(a)(3) charge, involving
Edward Kallas, should be dismissed as moot. It admits
alleged violations of Section 8(a)(1) and, in its brief, in
effect consents to a remedial order based thereon.
B. The Specific Unfair Labor Practices
1. Section 8(a)(1)
Between February 15, when Respondent received the
Union's recognition and bargaining demand, and March
16, when the election was held, Respondent took the follow-
ing action:'
On February 19, Respondent's manager, Tom Kozel,6
coercively interrogated Edward Kallas, produce manager,
concerning his union activities and threatened closure of
the store if the employees chose to be represented by
the Union. And on February 23, Kozel threatened to dis-
charge Kallas for his union activities.' Respondent stipulated
at the hearing that it knew that Kallas was the leading
employee organizer for the Union.
Kozel told employee Barreau that if the Union came
in some of the present employees under 18 years of age
would be fired and stocking would be done by adults
at night.' On March 12, 14, and 15, in individual meetings
' At the hearing , Respondent persistently objected to the admission
of any evidence to prove the commission of unfair labor practices which
Respondent admitted Counsel maintained that "the legal inference to
be drawn doesn 't depend upon the color, so to speak, of whatever
testimony you're going to deduce " When Respondent's counsel declined
to stipulate that the only issue on the 8 (a)(5) phase of the case was
the effect of the election , the Trial Examiner overruled its objections
to the evidence and permitted the General Counsel to present such
evidence in support of allegations under Section 8 (a)(1) as he believed
bore on the alleged violation of Section 8(a)(5) See Joy Silk Mills,
Inc, 85 NLRB 1263, enfd 185 F 2d 732 (C A D C), cert. den 341
U.S 914 , Bernel Foam Products Co. 146 NLRB 1277, Aaron Brothers
Company of California, 158 NLRB 1077, John P Serino, Inc, 155 NLRB
99
It is unnecessary here, however , to review the evidence in detail,
since the admitted allegations are sufficient to dispose of the issues
raised . The nature of the violations alleged and admitted is such that
had the General Counsel moved for "judgment on the pleadings," the
Trial Examiner might well have granted the motion as to the 8(a)(1)
and 8 (a)(5) charges Pioneer Natural Gas Company, 158 NLRB 1052;
Collins & Aikman Corporation , 160 NLRB 1750 In any event, the General
Counsel's undisputed evidence supports the factual allegations admitted by
Respondent
The complaint and the briefs of the General Counsel and the Union
incorrectly spell this name as "Kozol "
7 In its brief, Respondent says "The record evidence would not prove
his allegation of the complaint Although admitted, the lack of
evidence in this regard further supports the conclusion that Respondent
had no intention of embarking upon an illegal campaign to undermine
the Union 's claimed majority . Reference to "lack of evidence" comes
with ill grace from Respondent , which labored diligently to keep out
any evidence whatsoever concerning admitted violations . In any event,
the Trial Examiner finds that the allegation in question was adequately
supported by the testimony of Dons Saladino
' Employee Barreau reported this conversation to at least two of
the young employees . That employee- would discuss such conversations
among themselves is natural and to be expected Even if Respondent
is not directly responsible therefor, the repetition of the threats is material
with three other employees (Bunker,' Saladino, and Haime),
Kozel threatened reduction in hours and/or loss of employ-
ment if the Union won the election.
On March 11, Kozel prohibited Kallas from speaking
about the Union to any employees on Respondent's premises,
although there is a non-public portion of the store available
to employees in non-work periods. Such total prohibition
of solicitation, including non-working time and areas, is
clearly violative of Section 8(a)(1). Marvin A. Witbeck,
d/b/a Witbeck's IGA Supermarket, 155 NLRB 40; Mont-
gomery Ward & Co., 145 NLRB 846, 848.
Respondent not only admits the facts stated above, but
concedes that they constitute unfair labor practices under
Section 8(a)(1) Indeed, Respondent's brief concludes, in
effect, with a consent to an 8(a)(1) order.10
The General Counsel and Charging Party also contend
that three letters sent by Respondent to each of its employees
on March 5, 11, and 1211 fell within the ban of Section
8(a)(1). Respondent admits having sent the letters but argues
that they fell within the scope of free speech protected
by Section 8(c).
The letter of March 5 stated, inter alias
A union is not needed to insure fair treatment.
Our business will only be profitable if we have satisfied,
happy, and cooperative employees. . . This atmosphere
has always been, and will always continue to be, the
relationship that we attempt to maintain with each
of you. . . . We can attain that goal only if we
have your cooperation and support The presence of
a union means only that we have to deal through
a third party, an outsider, who has no interest in
our welfare and therefore your job security.
The theme that a union would cause dissension between
Respondent and its employees was amplified in the next
letter as follows:
If a majority of the employees who vote want to
drive a wedge between you and your management
and create the dog-eat-dog atmosphere which union
bargaining usually involves, we will be bound by your
decision.
We do not want a union. You and we have every
reason to work together cooperatively in joint self-
interest. A union cannot grow in an atmosphere of
mutual confidence. Strife and distrust are more to
a union's liking. If you agree with our position, vote
"NO" in the NLRB election on March 16, 1966.
Such statements clearly constituted a threat of worsening,
unpleasant working conditions, and denial of the employees'
right to present grievances to management if the Union
won the election The threat of worsening relations between
at least to the validity of the election N.L.R B. v Staub Cleaners,
Inc., etal., 357 F 2d 1, 3 (C A. 2)
Bunker told at least one other employee of her conversation with
Kozel
10 " it is requested the Trial Examiner recommend an order,
limited in its affirmative portion to the posting of a Notice to the employees
in the usual form, advising the employees that it will cease and idesist from
violations of Section 8(a)(1) of the Act "
ii Apparently Respondent had sent at least one previous campaign letter,
since the letter of March 5 said, in part "As we pointed out in our last
letter 11
ZINKE'S FOODS, INC
employer and employee was particularly coercive in this
case, since, as conceded in Respondent's brief, the evidence
shows that the store manager was already a hard "task-
master" and extremely difficult to work for See infra,
footnote 16
Further, the letters contain only thinly veiled threats
of a loss of security in the event of a union victory.
After stating that the Union had "no interest in our welfare
and therefore your job security," the March 5 letter informed
the employees that theirjob security depended on customers'
continuing to buy at the store, if costs go up, prices must
be raised and customers are lost, and "If we lost customers
we are forced to cut the cost of operation. Obviously,
unions cannot guarantee job security."
In the words of the Trial Examiner in Graber Manufactur-
ing Company, Inc., 158 NLRB 244 (TXD), the Trial Exam-
iner here finds that Respondent's letters to its employees
on March 5, 11, and 12-
. contained veiled threats that a selection by the
employees of the Union as their bargaining representa-
tive would inevitably have adverse economic conse-
quences, including loss of work and jobs, as well as
a loss of employees' statutorily protected right to pres-
ent their own grievances to management
The letters also contained clearly implied promises of
better wages without a union than with one. In its letter
of March 11, Respondent said
.the union leader looks for something to argue
about This, of course, leads either to strikes or to
high costs and higher prices, which our customers
will refuse to pay When that happens we all lose
our only source of security-our customer
Yet the very next day Respondent sent its employees a
letter in which it quoted an item from the Wall Street
Journal headlined "Non-Union Wages Outgain Union Pay,
Federal Officials Find," and added
As we stated in a previous letter-"A union can only
promise, it cannot pay a wage increase It is an employer
who makes wage increases . If an employer is
to have satisfied employees, he must pay the wage
rate which prevails for that type of work in the commu-
nity in which the business is located.""
Thus, the Trial Examiner finds that the letters of March
5, 11, and 12, when read in their entirety, and particularly
against the background of Respondent's other admitted
unfair labor practices (McCormick Longmeadow Stone
Co., Inc , 155 NLRB 577; footnote 1, citing Savoy Leather
Mfg Co , 139 NLRB 425, 426), tended to interfere with,
restrain, and coerce the employees in the exercise of their
rights under Section 7 and were thus violative of Section
8(a)(1) 11
" The evidence shows that Respondent's wage rates were below those
in comparable unionized markets in the area
i' The finding that the letters constituted violations of Section 8(a)(1)
is perhaps unnecessary since they are merely cumulative and do not
affect the remedy to be recommended The letters were outspokenly
antiunion and clearly designed to dissipate the Union's majority Thus,
on the facts of this case, even if the letters by themselves were not
violative of Section 8(a)(1), they would undoubtedly warrant a finding
ofsiolation of Seiuon 5(a)(i) CI laron Brother, (ompant of (altfornt
158 NLRB 1077 " an emploier, had jolt mai also he demonstrated
2. Section 8(a)(3)
905
The complaint charges that Respondent constructively
discharged its employee Edward Kailas in violation of
Section 8(a)(3). It alleges that from the middle of February,
because of his union activities, Respondent made Kailas'
working conditions "so onerous, burdensome, and intolera-
ble that he was forced to quit his employment on April
7."
In addition to denying the charge, Respondent contends
that the Kailas matter is moot because Kailas has been
offered and has refused reinstatement and has received
and accepted $49.35 as "backpay "14 Agreeing with the
General Counsel and the Charging Party, the Trial Examiner
rules that the Kailas matter is not moot because it has
considerable bearing on the refusal-to-bargain charge (infra.
section 3,a); N.L.R.B. v. Superior Sales, Inc., 366 F.2d,
229 (C A 8); and that the backpay claim cannot be preclud-
ed by the employee's "settlement" without Board approval.
(Sehon Stevenson & Co., Inc., 150 NLRB 675, 687, Jaycox
Sanitary Service of Garden Grove, Inc, 161 NLRB 544,
fn 4.)15
The evidence concerning the Kailas matter may be briefly
summarized.
Tom Kozel, manager of Respondent's Beloit market,
is a difficult man to work for. The undisputed evidence
establishes that, in supervising the store's employees, he
is a chronic faultfinder I6
Kailas, produce manager in the market, had gone to
work for Respondent in October 1964. On January 23,
1966, Kailas quit when a fellow employee reported that
Kozel had said that Kailas was the worst produce man
by a course of conduct which does not constitute an unfair labor practice "
Where, as here (see infra section 3, a), an employer has no good-
faith doubt as to the Union's claimed majority status, he is not entitled
to insist on an election for the purpose of gaining time to dissipate
that majority See NLRB v Superior Sales, Inc, 366 F 2d 229, (C A
8)
" Respondent offered, and the Trial Examiner rejected, four exhibits
to establish the offer of reinstatement, its rejection, and the payment
and receipt of the $49 35 as "backpay " While objecting to the admission
of these exhibits, the General Counsel stipulated to the facts which
they were offered to prove
i' Without prejudging any backpay claim, the Trial Examiner points
out that Kallas testified that he did not work at all during the week
he quit or the following week He was paid only $49 35 in "backpay,"
while the record shows that his hourly wage rate in February was $2 10
" In its brief, Respondent states the matter somewhat more euphemisti-
cally, as follows "By Kailas' own admission, Kozel as a store manager
must ohsiou,h be ,1 task-niast,r ohuou,h Kozel deniaiid. peak
performance from his emrloiee, Ths qu,ihtu c,peualh in ih,.se
tortes is uinimendable Kailas ,III III i..i' Ills uiii rmna hoii dilliLult it is to
work for Korel tandme alone s,tahli,h lh,u K,tlla, o,i, not heine
diummnated a__'ain,t
Concerning an argument he had had with Kozel before the advent of the
Union. Kailas testified as follows "I told him that he had had 150 peiple
working in the store since I came that have gone and left and that he found
faults with every one of them until they either quit or were Fired He said
'There may have been 150. but there were 150 that weren't anv good ' I said,
'No. it wasn't that they weren't any good ' Then I said he wasn't any good
not the employees, and it was he who was ruining his own business
Kozel did not testify
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had ever had." Kailas then worked for another market
for a few days. On January 28 he telephoned Kozel and
the same day went back to work for Respondent.
The Union's organizing campaign began early in Febru-
ary. Kailas attended a union meeting on February 8 or
9 and thereupon became an active union proponent. It
was he who collected the 17 authorization cards on which
the Union's original claim of a majority was based. At
the hearing Respondent stipulated that it had had full
knowledge that Kailas was the leading employee organizer
for the Union. Additionally, as previously stated, Respond-
ent admits having interrogated Kailas concerning his union
activities and having threatened him with discharge therefor
in contravention of Section 8(a)(1).
The evidence shows that Kailas was subjected to virtually
constant and unwarranted fault finding, with the result
that he became nervously ill and unable to continue in
Respondent's employ. Respondent presented no evidence
whatsoever and in its brief makes only a token denial
of this fact. Its basic defense on the merits to the 8(a)(3)
claim appears to be that Kailas was not subjected to any
worse treatment than were other employees or than he
himself was before the advent of the Union. In its brief,
Respondent states its position as follows:
Kailas' admissions concerning how difficult it is to
work for Kozel, standing alone, establish that Kailas
was not being discriminated against . It is reasonable
to conclude from the record that union or no union,
Kailas would have ultimately quit for the same reason
he had quit previously.
After briefly mentioning some of the incidents of unjustified
criticism to which Kailas had been subjected," Respondent's
brief continues-
. even if these things made Kailas quit a second
time, it does not follow that the incidents which
occurred were because of Kallas' membership in and
activity on behalf of the Union.... Based on Kailas'
testimony concerning his quit on January 23, it is
reasonable that this type of thing could have happened
irregardless [sic] of Kailas' membership in and activity
,on behalf of the Union.
Kailas' uncontradicted evidence, corroborated in substan-
tial measure by a fellow employee, shows that Kozel's
faultfinding and unwarrantedly critical supervision of Kailas
increased considerably after Kailas became active on behalf
of the Union. Both Kailas and Dons Haime , a fellow
employee, quoted Kozel as having indicated that he consid-
ered Kailas' union activity "a dirty trick to pull" in view
of Kozel's having taken him back after his prior quit.
They also testified, again without contradiction or impeach-
ment, that the frequency of Kozel's unwarranted criticism
and supervision of Kailas increased after the union campaign
began. Haime testified that:
. . . after the cards that were circulated were sent
around, that we were sent around, that we were to
sign whether we wanted a union to negotiate for us
for better working conditions. [Mr. Kozel] seemed
to find more fault with things on the display case,
with Mr. Kailas
. . .it was done more often after. . .the word of
union was out.
Kailas testified as follows:
Q. . . from the middle of February to the time
you quit, were there any incidents involving spoiled
food in the produce department with Mr. Kozel?
A There was always this, all the time, but after
they were notified of the union it only increased con-
stantly.
A. Well, I didn't do anything right any more, and
[Tom Kozel] found fault with everything that was
being done. I was no longer spoken to decently and
as a matter of fact, I wasn't spoken to at all.
*
*
Moreover, Kailas is either an unbelievable witness in
view of his characterization of the situation as it existed
in the store prior to his January 23 quit or in fact
the situation was so bad that it is unreasonable to
conclude that the frequency could have been increased.
[Footnote omitted.]
' Concerning his quit in January, Kallas testified, in part " Tom
Kozel came down and asked me if I was going to stay or not, and I replied
that I could not stab after having been told I was the worst produce
manager he ever had He said, 'I did not say that ' He said, 'I only added
you were not the worst, you were the second worst' Then I became angry
and said a lot of things "
18 There was considerable evidence of specific instances of humiliating and
unwarranted mistreatment of Kallas by Kozel No useful purpose would be
served by reciting them here, since they are not denied Respondent's
position seems to be simply that "probably incidents of this nature were
common" and there is no evidence that Kallas "was treated differently
regarding them as to other employees "
A. Matters that should have been discussed weren't.
The only thing was the faults . I didn't know what
was going to be in the paper , the sales, I wasn't
told, I was never spoken to . If I said "Good morning"
I was never answered. I was only 'found fault with,
talked to in a harsh way, continuing more and more
so, and finally I quit.
Q. Were there more problems with spoiled fruit and
vegetables?
A. Yes, that increased , everything increased each
day.
On Thursday , April 8 , after not having worked at all
that week , Kailas advised Otto Stahl , assistant store manag-
er, that he was quitting . According to Kailas, he "was
of ill health which was brought about because of pressure
that was put on [him] because of the union in those weeks
and [he] could no longer take it . [He] was sick." He
ZINKE'S FOODS, INC. 907
so advised the assistant store manager and "said it was
no longer worthwhile fighting for to keep [his] job."
As previously noted, Respondent presented no testimony
and did not cross-examine any of the General Counsel's
employee witnesses. Respondent's failure to adduce any
evidence in connection with the alleged 8(a)(3) violation
which it did not admit, warrants the inference that any
evidence available to it was unfavorable to its position.
Bechtel Corporation, 141 NLRB 844, 852, footnote 9;
N.L.R.B. v. Sam Wallick, et al., d/b/a Wallick & Schwalm-
Company, et al., 198 F.2d 477, 483 (C.A 3). Specifically,
Kozel's version of the Kallas history would have been
illuminating.
On all the evidence, the Trial Examiner finds that displeas-
ure with Kallas' leading role in the Union's organizational
campaign was a significant and substantial motivating factor
in Kozel's conduct which made working conditions intolera-
ble for Kallas, leading to his quitting on April 8. It is
a matter of pure speculation whether, as Respondent main-
tains, "Kallas would have ultimately quit" because of
Kozel's conduct even without the union issue. However,
it is not speculative, but here found as a fact, that Kallas
quit when he did because of mistreatment dealt him in
substantial part because of Kozel's displeasure with Kallas'
union activities. Kallas' quit, therefore, amounted to a
constructive discharge in violation of Section 8(a)(3). Spring-
field Garment Manufacturing Company, 152 NLRB 1043,
1059; Saxe-Glassman Shoe Corporation, 97 NLRB 332,
351, enfd., 201 F.2d 238, 243 (C.A. 1); Burlington Industries,
Inc., et al., 144 NLRB 245, 258.
3. Section 8(a)(5)
a. Refusal to recognize the Union
As previously stated, Respondent has stipulated to the
authenticity and validity of union authorization cards execu-
ted before February 14 by 17 out of the 26 employees
in the appropriate bargaining unit. Although Respondent's
reply to the Union's demand for recognition and bargaining
asserted a doubt as to the propriety of the unit which
the Union claimed to represent, the appropriate unit has
never been a matter of dispute between the parties. Respond-
ent does not now assert any such doubt in defense against
the present complaint."
Respondent's first, and apparently principal, defense to
the refusal-to-bargain charge is based on the Union's loss
of the election on March 16. As grounds for a motion
to dismiss made at the hearing and by way of answer
to the complaint, Respondent maintains that the election
10 Respondent's answer admitted the appropriateness of the unit described
in the Complaint but denied that it was the same unit which the Union
originally sought to represent The difference between the two definitions was
the exclusion of "janitors" from the unit defined in the Union's letter At the
hearing there was no evidence as to the number of janitors, if any, employed
at the market Respondent has not contended that the difference is material
Since the total unit consisted of only 26 employees and the Union admittedly
had 17 valid authorization cards, the difference in the descriptions of the unit
could not be significant. CF Wausau Steel Corporation, 160 NLRB 635,
footnote I; American Tea & Coffee Co, Inc, 160 NLRB 1783, fn 42 In any
event, Respondent appears to have taken no steps to clarify the matter,
which it could easily have done
results are conclusive and cannot be set aside because
the Union's objections to the conduct of the election were
either too late or inadequate.
The Trial Examiner is of the opinion that such issue
is not within her jurisdiction to decide. This issue was
previously presented to the Regional Director, who ruled
against Respondent and recommended that a hearing be
held on the objections. The Regional Director's ruling,
adopted by order of the Board (supra), is equivalent to
"law of the case" and thus is binding on the Trial Examiner.
The Board order specifically directed "a hearing . . . for
the purpose of adducing evidence to resolve the issues raised
by the Petitioner's objections." The Trial Examiner,
therefore, is not at liberty to pass on the issue raised by
Respondent but is limited to consideration of the objections
on the merits.20
At the hearing Respondent's only defense on the merits
was counsel's bare assertion of a good-faith doubt on
Respondent's part as to the Union's majority on the demand
date.
Respondent produced no witnesses to rebut the inference
of bad faith arising from the undisputed facts. On the
contrary, it persistently maintained that no evidence was
admissible as to undisputed facts, the Trial Examiner being
required to make the "good faith" determination solely
by inference from the pleadings and stipulations of fact
made during the hearing. See footnote 5.
The only step Respondent took to support its protestation
of a good-faith doubt as to the Union's majority was
to request that the Trial Examiner take notice of Board
Cases 13-RC-9259 and 30-RC-344. Respondent maintains
that these cases justify its asserted skepticism as the reliabili-
ty of card checks as a means of determining employees'
true wishes as to representation and that this skepticism
alone proves Respondent's good-faith doubt of the Union's
majority in the present case. The two representation cases
cited involve the meat department in Respondent's market.
Case 13-RC-9259 involved unit of three employees. The
Union made no demand on Respondent for recognition
or bargaining but apparently submitted four authorization
cards21 to the Board on March 18, 1963. A consent election
held on April 5, 1963, resulted in a two-to-one defeat
for the union, Local 444 of the Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO. The
petition in Case 30-RC-344 was filed by the same union
on October 15, 1965. At this time the unit consisted of
five employees and the union submitted five authorization
cards to the Board . A consent election held on November
3, 1965, resulted in a unanimous victory for the Union.
It is difficult to understand how this history could reasonably
create in Respondent's mind such doubt as to the reliability
of card checks as to warrant its position in the present
20 Issues litigated in the representation proceeding cannot be relitigated in
a related complaint case L L Glascock, Inc, 160 NLRB 922 fn 1, S H
Lynch and Company, Inc, 160 NLRB 113, and cases cited in fn 4, Heights
Funeral Homes, Inc, 159 NLRB 723 American Oil Company, 160 NLRB
541 Presumably this rule is applicable to the present situation even though
the ruling in question was interlocutory rather than part of a "final" decision
in the representation case
21 The fourth card apparently was that of a nonregular part-time employee
who was held not properly included in the unit
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, where the Union offered to submit the cards to
a third party chosen by Respondent. See N.L.R.B. v. Econo-
my Food Center, Inc., 333 F.2d 468, 472 (C.A. 7); N.L.R.B.
v. Elliott- Williams Co., Inc., 345 F.2d 460 (C.A. 7). While
the Meat Cutters, Union did lose the 1963 election despite
its apparently having secured cards from all three employees
in the unit, the 1965 case completely corroborated the
reliability of authorization cards as indicia of the employees'
desires.
In any event,
A union's unsuccessful attempts at organizing other
branches of a company's operations may not be relied
upon by an employer to refuse at a different branch
either to recognize the union or at least to undertake
some inquiry into the actual extent of the union's
representation. [N.L.R.B. v Overnite Transportation
Company, 308 F.2d 279, 283 (C.A. 4)]
In the Overnite case the company claimed a good-faith
doubt on the basis of 13 incidents within the preceding
2 years in which a union had claimed a majority which
it could not later support 22 Cf. American Tea & Coffee
Co., supra; N.L.R.B. v. Philamon Laboratories, Inc., 298
F. 2d 176, 180 (C.A. 2).
Equally unpersuasive is Respondent's contention that:
The successful organization of the meat department
employees in Case No. 30-RC-344 which culminated
in a collective bargaining agreement illustrates the
Respondent's adherence to the principles of collective
bargaining and further supports the bona fide doubt
of the Respondent in the instant case.
It is not clear to the Trial Examiner how the existence
of a collective-bargaining agreement with the Meat Cutters,
bargained after that union won an election and was certified,
would tend to establish that Respondent had a good-faith
doubt as to the present Union's majority on February
14.21 Respondent's claim of a good-faith doubt "is negated
by its course of unlawful conduct following the demands
for recognitions." National Can Corporation, 159 NLRB
647. Had Respondent actually adhered to the principles
of collective bargaining and refused to bargain with the
present Union solely because of a genuine doubt as to
the Union's majority, it would have permitted its employees
to express their desires freely, uninfluenced by the "persua-
sion" of Respondent's unlawful preelection campaign.
In further defense on the merits, Respondent's brief
argues:
. . .the record evidence does not suggest nor show
that the Respondent's good faith doubt was not bona
fide but prompted by hostility toward unionization.
In this regard, it is pointed out that the Union claimed
majority status on February 14 and that the election
was conducted on March 16. Excluding consideration
of the letters, all the conduct alleged to have violated
Section 8(a)(1), with two exceptions, occurred subse-
quent to March 11, only five days before the election
.. This is almost one month after the Union claimed
majority status. This establishes that Respondent was
not buying time to destroy the claimed majority status.
The record shows a continuing antiunion campaign shortly
after the union demand, continuing and intensifying until
shortly before the election. The Trial Examiner will not
labor the obvious fact that the disruptive effect of unfair
labor practices increases rather than decreases in proportion
to their proximity to the election. That Respondent contin-
ued its antiunion campaign up until a few days before
the election hardly tends to show that its insistence on
an election was not motivated by a desire to gain time
to undermine the Union or dissipate its majority.
The Trial Examiner accordingly finds, as the Board did
in Lake Butler Apparel Company, et al., 158 NLRB 863,
that.
...Respondent engaged in an "open gauged campaign"
of flagrant 8(a)(1) conduct which was calculated to
undermine the Union's position with the employees
so as to dissipate its majority status. This conduct
refutes the existence of a good-faith doubt of the Union's
majority status and establishes the illegality of Respond-
ent's refusal to bargain. Accordingly, Respondent Com-
pany refused to bargain collectively within the meaning
of Section 8(a)(5) of the Act.24
See also Vinylex Corporation, et al, 160 NLRB 1883.
The refusal to bargain after February 16, 1966, when
Respondent rejected the Union's demand for recognition
and bargaining, continues to be violative of Section 8(a)(5)
despite the Union's loss of the election on March 16.
Borden Cabinet Corporation, 159 NLRB 1373.
b. Unilateral wage increases
22 N L R B v Johnnie's Poultry Co , 344 F 2d 617 (C A 8), and N LR B
v Hanaford Bros Co , 261 F 2d 638 (C A 1), cited by Respondent, are
factually so entirely different from the present case as to require no extended
discussion Among the most obvious differences are the facts that the
employers there presented considerable affirmative evidence Ln their "good-
faith doubt" defenses and there were present substantial questions as to the
propriety of the bargaining units which the unions sought to represent
Nothing in the opinion in either of those cases would remotely support
Respondent's contention that its prior experience with the Meat Cutters
Union was sufficient to create a good-faith doubt as to the Retail Clerks'
majority in the present case
21 The existence of a collective-bargaining agreement covering
Respondent's meat department was asserted as a fact in Respondent's brief
While the Trial Examiner has no reason to doubt the truth of this assertion,
she doubts whether she could "take judicial notice" thereof, as requested in
Respondent's brief The Trial Examiner cannot resist wondering why
Respondent did not produce a company representative to testify if it believed
the meat department bargaining was relevant In any event, the Trial
Examiner deems the "fact" irrelevant to the issues raised in the present case
At the hearing the General Counsel, with Respondent's
consent , amended the complaint to add an allegation that
Respondent violated Section 8(a)(5) on June 4, 1966,25
by unilaterally granting wage increases to 15 employees
without advising or consulting with the Union. Respondent
has admitted the facts stated but denies that the alleged
24 Even if Respondent had shown a good-faith doubt as to the Union's
majority status when it first refused to bargain, a bargaining order would be
appropriate because of Respondent's "course of unfair labor practices
directed at destroying that majority " Bryant Chucking Grinder Company,
160 NLRB 1397 Cf Luisi Truck Lines 160 NLRB 4,85
25 The General Counsel's motion, contained in his brief, to correct the
transcript (p 19, I 14) to show this date as "1966" instead of "1965" is
hereby granted His further motion to amend p 70, 1 3, by the addition of
the word "shot" is also granted
ZINKE'S FOODS, INC. 909
conduct constituted a violation of Section 8(a)(5), since
Respondent was not obliged to recognize or bargain with
the Union.
The Trial Examiner's previous decision that Respondent
was legally obligated to bargain with the Union necessarily
entails the further decision that the admitted unilateral
wage increases constituted unfair labor practices under Sec-
tion 8(a)(5). That the Union had lost the election before
the wage increases were granted does not alter this fact.
Having undertaken to dissipate the Union's majority,
Respondent cannot be heard to complain when required
to assume the consequences of having the election set
aside and the union majority status accepted as of the
date on which it has been proved to have existed. Consolidat-
ed Rendering Co., d/b/a Burlington Rendering Company,
161 NLRB 1, footnote 1.
CONCLUSIONS OF LAW
1. Zinke's Foods, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act
2. Retail Clerks Union , Local No. 1401, Retail Clerks
International Association , AFL-CIO, is a labor organization
with the meaning of Section 2(5) of the Act.
3. By interfering with , restraining, and coercing its
employees in the exercise of the rights guaranteed in Section
7 of the Act, Respondent has engaged in unfair labor
practices with the meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to terms or conditions
of employment of Edward Kallas, thereby discouraging
membership in the Union , Respondent has engaged in
an unfair labor practice within the meaning of Section
8(a)(3) and (1) of the Act.
5. All full-time and regular part -time employees of the
Respondent at its Beloit, Wisconsin, store, excluding meat
department employees, store manager , office clerical employ-
ees, guards and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining.
6. At all times since at least February 14, 1966, the
Union has been the representative chosen for the purposes
of collective bargaining by a majority of the employees
in the appropriate bargaining unit and by virtue of Section
9(a) of the Act has been and is now the exclusive representa-
tive of all the employees in the said unit for the purpose
of collective bargaining.
7. On February 14, 1966, the Union requested Respondent
to bargain collectively with the Union.
8. By refusing at all time since February 16, 1966,
to bargain collectively with the Union , Respondent has
committed unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) of the Act.
9. By increasing the wage rates of some of its employees
on June 4, 1966 , Respondent has also committed unfair
labor practices affecting commerce within the meaning of
Section 8(a)(5) of the Act.
THE REMEDY
Having found that Respondent has engaged in flagrant
unfair labor practices violative of Section 8(a)(1), (3), and
(5) of the Act, the Trial Examiner will recommend that
it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies
of the Act. The nature of the unfair labor practices is
such as to warrant a broad order and the Trial Examiner
will so provide. MacMillan Ring-Free Oil Co., Inc., 160
NLRB No. 70.
Since the General Counsel concedes that Edward Kallas
has rejected an offer to full reinstatement, the affirmative
order with respect to his discriminatory constructive dis-
charge will provide only for backpay, to be computed
in accordance with the formula and method prescribed
by the Board in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co, 138 NLRB 716,
subject, however, to deduction of the amount of "backpay"
already received by him and tolling' of interest thereon.
Ohio Scientific Products Corporation, 151 NLRB 460, 465.
Under well-established authority a bargaining order is
required and the Trial Examiner will so provide. N.L.R.B.
v. Frantz and Company, Inc., 361 F.2d 180 (C.A. 7);
Bernard Happack v. N.L.R.B., 353 F.2d 629 (C.A. 7);
N.L.R.B. v. Mid-West Towel and Linen Service, Inc., 339
F.2d 958 (C.A. 7); Vinylex Corporation, et al., 160 NLRB
1883; Lincoln Manufacturing Co., Inc., 160 NLRB 1866.
Additionally, the Trial Examiner will recommend that
the Union's objections to the conduct of the election be
sustained and the petition in Case 30-RC-400 be dismissed
and proceedings held in connection therewith be vacated
Borden Cabinet Corp., 159 NLRB 1373.
More difficulty is encountered in considering the Union's
request for additional remedial action. In reading multitudi-
nous Board and court decisions, the Trial Examiner has
come across few, if any, cases of the present type in which
the employer's unfair labor practices were as flagrant and
there was a similar virtually total absence of any defense
or attempted explanation or justification. The fact is, as
shown by the Union's loss of the election, that Respondent's
misconduct has undermined the Union seriously. In its
brief, the Union soundly discusses its own "institutional
needs" as a factor which should be given careful consider-
ation in devising an adequate remedy With the Union's
prestige among the employees substantially lessened,26 its
bargaining position is certainly less favorable than it would
have been had Respondent bargained when it was obligated
to. See, e.g., Royal Plating and Polishing Co., Inc., 160
NLRB 990
Additionally, and perhaps more important, the employees
have already been denied the benefits of bargaining for
over 9 months. While it perhaps cannot be said with
absolute certainty that bargaining would have resulted in
26 In its brief, the Union says "It is clear that even with a bargaining order
remedy the union is in a vulnerable position with the employees following the
impact of serious 8(a)(I) and 8(a)(3) violations, and perhaps a three year
delay in resolution of the dispute The Union, in a real sense, has caused the
employees a great deal of trouble If, on the other hand, the return of the
union to the bargaining table is correlated with a compensatory payment to
the employees, the union can start from a fair position in its attempt to
persuade the persons who once `signed up' that it can adepuately service their
needs Frank Bros v N L R B, 321 U S 702 (1944)"
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits to the employees, the probabilities certainly favor
such conclusion.27
One suggestion that has frequently been made to prevent
an employer's reaping benefit from the delay occasioned
by unlawful refusal to bargain is a Board order requiring
that any contract eventually reached be made retroactive.
Recently, however, the Board rejected this suggestion, appar-
ently ruling that it was without authority to take such
action. Saks and Company, 160 NLRB 682, affirming the
decision of the Trial Examiner, who had said:
I am aware of no case where the Board has ordered
benefits which have not been bargained by the Union.
If and when the Union negotiates a contract, presuma-
bly it will negotiate for retroactivity in such respect
as it then feels retroactivity is necessary. The Board
processes may not be substituted for the collective
bargaining of the parties."
Even if we were to assume that in appropriate circum-
stances the Board could order that any contract bargained
be made retroactive, such action might well be undesirable
from the point of view of the employees, the injured parties.
Such a condition might well serve seriously to restrict
the benefits to which an employer might otherwise agree
for the future. To the extent possible, collective bargaining
should be free to any externally imposed restrictions.
In the present case the Union has recommended as
a remedial measure that Respondent be required to compen-
sate the employees involved by payment of amounts meas-
ured by the difference between the compensation actually
received by them and the median compensation received
by employees in comparable units under union contracts.
This "compensation," according to the Union, would include
fringe benefits, such as, for example, the value or cost
to the employer of insurance benefits provided under union
contracts.
Although, so far as the Trial Examiner is aware, the
Board has never ordered "compensatory damages" as a
remedy (other than backpay), in litigation it has taken
. the position that the compensatory damages remedy
requested by the Union. . .was not. . `patently-outside
the orbit of [t'he Board's] authority...' (N.L.R.B. v. Cheney
California Lumber Co., 327 U.S. 385, 388) . ." Response
of the N.L.R.B. to Petition for Rehearing in Banc in
International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America. UAW-AFL-CIO
v. N.L.R.B., No 20,137 (C.A.D.C.).
The Trial Examiner is not prepared to express any opinion
as to the practicality or advisability of the suggested remedy
as one of general applicability. Suffice it to say that it
avoids the legal pitfall of having the Board dictate the
terms of a collective-bargaining agreement. Under the sug-
27 To predict in advance that no benefits would be received through
bargaining would be tantamount to assuming;that the employerwould enter
upon bargaining with a firm and adamant resolve not to reach agreement on
a satisfactory contract in the present case Respondent 's unilateral grant of
wage increases in itself demonstrates that good-faith bargaining undoubtedly
would have realized benefits for the employees
28 But see H K Porter Co v N L R B , 363 F 2d 272, cert denied 385
U S 851, in which the Court of Appeals for the District of Columbia appears
to have held that in appropriate circumstances the Board may order contract
terms to which one of the parties has not agreed in collective bargaining
gested remedy, the parties would be free of any restrictions
on the scope of bargaining for the contract to govern
their relationship in the future. The compensation would
not be contractual but rather in the nature of "compensatory
damages" for the past.
The first superficial objection which could be raised
to the Union's suggestion is that it in effect involves a
determination that if the employer had bargained it would
have agreed to the median wages paid by similar employers
under union contracts, whereas such determination is unwar-
rantedly "speculative." The Trial Examiner rejects this argu-
ment as a general principle. The law has always operated
on the basis of "probabilities," refusing to deny relief to
an injured party simply because of his inability to prove
the nature and extent of his injury with mathematical
precision and beyond all possible doubt. See, for example,
Harvey Ward Locke v. United States, 283 F.2d 521, 524
(Ct. C 1 ):
If a reasonable probability of damage can be clearly
established, uncertainty as to the amount will not
preclude recovery.... The amount may be approximat-
ed if a reasonable basis of computation is afforded.
. .. All that the law requires is that such damage
be allowed as, in the judgment of fair men, directly
and naturally resulted from the breach of the contract
for which suit is brought."
As the Supreme Court said in Bigelow, et at v. RKO
Radio Pictures, Inc., 327 U.S. 251, 264, 265:
...even where the defendant by his own wrong has
prevented a more precise computation, the jury may
not render a verdict based on speculation or guesswork.
But the jury may make a dust and reasonable estimate
of the damage based on relevant data, and render
its verdict accordingly. In such circumstances "juries
are allowed to act upon probable and inferential as
well as [upon] direct and positive proof." . . . Any
other rule would enable the wrongdoer to profit by
his wrongdoing at the expense of his victim. It would
be an inducement to make wrongdoing so effective
and complete in every case as to preclude any recovery,
by rendering the measure of damages uncertain. Failure
to apply it would mean that the more grievous the
wrong done, the less likelihood there would be of
a recovery.
The most elementary conceptions of justice and pub-
lic policy require that the wrongdoer should bear the
risk of the uncertainty which his own wrong has created.
. . . That principle is an ancient one. . .and is not
restricted to proof of damage in antitrust suits.. .
"The constant tendency of the courts is to find
some way in which damages can be awarded where
a wrong has been done. Difficulty of ascertainment
is no longer confused with right of recovery" for
a proven invasion of the plaintiffs rights.
See also, e.g., The Haverhill Gazette Company v. Union
Leader Corporation,333 F.2d 798, 806-807 (C.A. 1); Kelite
Products. Inc. v. Albert J. Binzel, Jr. t/a Kehte Products
of Alabama, 224 F.2d 131, 144-145 (C.A 5); Brink's Inc.
v. Hoyt, 179 F.2d 355, 360-361 (C.A. 8).
It would be anomalous indeed if the law required a
greater degree of proof of damages in administrative proceed-
ZINKE'S FOODS, INC. 911
ings arising from violation of rights guaranteed by the
remedial National Labor Relations Act than is required
in courts of law. As said by the Board in H. W. Elson
Bottling Company, 155 NLRB 714.
The Board has a particular duty under Section 10(c)
to tailor its remedies to the unfair labor practices
which have occurred and thereby effectuate the policies
of the Act. Thus, "depend[ing] upon the circumstances
of each case," the Board must "take measures designed
to recreate the conditions and relationships that would
have been had there been no unfair labor practice."
[Footnotes omitted.]
While it cannot be assumed that a union would necessarily
have successfully bargained for the benefits it may claim
in a particular case, similarly it cannot be assumed that
the union would have been unsuccessful. General Finance
Corporation v. Dillon, 172 F.2d 924, 929 (C.A 10). The
Union (and/or the General Counsel) should be afforded
an opportunity to show what it and/or the employees
would probably have gained if Respondent had fulfilled
its legal obligations. United Mine Workers of America v.
Patton, et al., 211 F.2d 742, 752 (C.A. 4), cert. denied
348 U.S. 824. Such evidence would, in general, appear
to provide a reasonable basis for assessing damages. Howev-
er, the compensation would not constitute "backpay" as
such: Conceivably the injury sustained might consist of
factors other than loss of probable wage increases Thus,
in holding that the Union should be permitted to show
the probability that wage increases would have resulted
from bargaining, the Trial Examiner does not mean to
suggest that this would be the only relevant evidence or
that "damages" would necessarily be measured by the stand-
ard here proposed by the Union.
With these general considerations, the Trial Examiner
turns to a consideration of the Union's position and evidence
in this particular case . Briefly summarized, the testimony
of the Union's secretary-treasurer and business representa-
tive was as follows: 20 to 30 employees is the usual size
of the food market covered by contracts it has.29 It usually
takes "three or four months at the most, from date of
recognition" for the Union to secure a contract with a
food market. Although the Union has an individual contract
with each employer, it bargains simultaneously with all
employers by whom it is recognized. The only individual
bargaining the Union carries on is for first contracts with
employers by whom it is recognized during the term of
outstanding agreements . At present the Union has no such
separate contracts. Among the stores with which the Union
now has contracts is a market representing the same distribu-
tor as does Respondent.3°
The Union introduced in evidence the wage schedule
which is incorporated in each and every contract it has
with food markets within its jurisdiction. It provides wages
as of April 17, 1966, with, generally, 5-cent-per-hour increas-
es on October 16, 1966, and April 16, 1967. The union
representative testified that:
In Beloit or Janesville they are under the exact same
contract, every employer that's under contract is on
the wage schedule right there."
He further testified that all the employers under contract
contributed $16 per month per employee to a health and
welfare insurance fund.
The union representative then testified concerning possible
variation from the general wage scale in the case of a
newly organized store. He said:
When there possibly would be a new employer,
an independent such as the example here, our first
request from an employer then is his present wages
that he is paying his employees. We can then compare
the difference of what the area scale is and what
he is paying his employees and we generally negotiate
to where the employer has up to one year to catch
up to the rates that are the area rates. It gives an
employer time to adjust his pay roll and depending
on the amount of difference between what they're
receiving and what they should be receiving how fast
their raises come.
The parties stipulated as to the wages paid by Respondent
on February 14 and the increases granted in June.
The Trial Examiner is not ruling that the Union's evidence
in this case would be sufficient to establish a measure
of "damages" arising from Respondent's refusal to bargain.
As the General Counsel observed in another connection
at the hearing, the present proceeding was not concerned
with enforcement or compliance. As a corollary, Respondent
was not adequately on notice so as to meet any evidence
concerning the "measure of damages." If the employees
are to be "made whole," the amount necessary to achieve
that result should be determined in a supplemental proceed-
ing in accordance with the established procedure in 8(a)(3)
cases.
At this point the Trial Examiner observes only that
the evidence produced by the Union in the present case
is sufficient to indicate that in a supplemental proceeding
evidence may well be produced to prove with the requisite
degree of legal certainty the damages which have been
sustained by the employees as a result of Respondent's
unfair labor practices. Accordingly, the Trial Examiner
will recommend that the order to be issued in this case
contain a requirement that Respondent make its employees
whole for the loss caused them by Respondent's unfair
labor practices, the amount of such loss, if any, to be
determined in a supplemental proceeding.
"Effectuation of the Act's policies.. .requires that the
employees whose statutory rights were invaded by reason
of the Respondent's unlawful. action, and who may
have suffered losses in consequence thereof, be reimbursed
for such losses until such time as the Respondent remedies
its violation by doing what it should have done in the
first place." Winn-Dixie Stores, Inc., 147 NLRB 788, 792,
affd. in pertinent part 361 F.2d 512 (C.A. 5); Royal Plating
and Polishing Co., Inc., 160 NLRB 990; Cities Service
Oil'Company,158 NLRB 1204 The Trial Examiner, there-
29 " we have maybe one or two stores where there would be ten or
twelve employees and there may in one store, I think, be as high as in the
forties But, the bulk of them run in the twenty to thirty members in food " Because of this uniformity, there is no occasion to consider the Union's
stores in this area " argument that generally "median" wages paid by , comparable employers
11 The Milwaukee local has a contract with another such market under union contracts should set the measure
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, will recommend that the "damage" period commence
on February 16, 1966, when Respondent first rejected the
Union's demand, and continue until (1) the date Respondent
commences to bargain in good faith with the Union, or
(2) the failure of the Union to request bargaining within
5 days of this Decision, or to commence negotiations within
5 days of the receipt of Respondent's notice of its desire
to bargain with the Union, or (3) the subsequent failure
of the Union to bargain in good faith.
This delineation of the "damage" period is different
from, and essentially inconsistent with, that implicit in the
Union's specific request in this case The Union does not
claim that any payment is now due the employees under its
proposed remedy. In this connection it says in its brief-
Adjustments can be made for the length of time
required to negotiate a first contract, and if there
is an industry rate with long historical career, the
length of time permitted to a "newcomer" to come
up to scale. In the instant case, no liability would
accrue until 16 months from date of demand. . .
Thus, the Union would, in effect, grant Respondent
16 months' "free time" from the date on which its legal
obligation to bargain arose. Although the Union has not
specifically spelled out all the implications of its position,
presumably it would then allow Respondent such additional
"free time" as was entailed in the bargaining conducted
after issuance of the present Decision. Although only some-
thing over 8 months has now passed since Respondent's
violation commenced, further litigation could postpone the
commencement of bargaining for a period considerably
more than 16 months from February 16, 1966 Then the
bargaining process itself will necessarily consume some
time and the exact results cannot at this time be predicted.
Such delay is inherent in the bargaining process and would
have occurred if Respondent had voluntarily assumed its
bargaining obligation when it was supposed to. But, had
Respondent acted properly, it would not have had two
"free" periods. To adopt the Union's apparent view that
Respondent should be "exonerated" for 16 months from
the date when it should have commenced bargaining would
leave Respondent with a considerable portion of the fruits
of its misconduct. It would also tend to substitute contractual
provisions for remedial processes of the law. As previously
stated, the Trial Examiner believes that the future should
be left to the processes of free collective bargaining, the
past is a matter for remedial action by the Board This
view conforms with the general principles applied by the
Board in 8(a)(3) cases, namely, that because backpay is
ordered not only to compensate employees discriminated
against but also, and most importantly, to vindicate the
public interest , its amount cannot be decisively determined
or compromised by the parties without Board approval.
The Trial Examiner further believes that the view here
taken would result in less restriction , express or implied,
on the bargaining process than would the Union's suggested
approach.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that Respondent Zinke's Foods,
Inc , its officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Interrogating its employees coercively concerning their
union sympathies and activities
(b) Threatening to close its Beloit, Wisconsin, store if
the Union becomes collective-bargaining representative of
the employees.
(c) Threatening its employees with economic reprisals,
including loss of employment or reduction in hours, because
of their support of the Union
(d) Discouraging membership in the Retail Clerks Union,
Local No. 1401, Retail Clerks International Association,
AFL-CIO, or any other labor organization, by harassing
its employees, by forcing them to leave their employment,
or by otherwise discriminating against them in regard to
their hire or tenure of employment of any term or condition
of their employment
(e) Promising its employees economic benefits in order
to induce them to refrain from supporting the Union
(f) In any other manner interfering with , restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act, except as permitted by Section
8(a)(3) of the Act.
(g) Refusing to bargain collectively with the Union as
the exclusive bargaining representatives of its employees
in the following unit:
All full-time and regular part-time employees of
Respondent at its Beloit, Wisconsin, store, excluding
meat department employees, store manager, office cleri-
cal employees, guards and supervisors as defined in
the Act.
2 Take the following affirmative action which is necessary
to effectuate the policies of the Act-
(a) Bargain collectively, upon request, with Retail Clerks
Union, Local 1401, Retail Clerks International Association,
AFL-CIO, as the exclusive representative of all the employ-
ees in the appropriate unit described above, with respect
to rates of pay, wages, hours of employment and other
conditions of employment; and, if an understanding is
reached , embody such understanding in a signed agreement.
(b) Make Edward Kallas whole for any loss of earnings
he may have suffered as a result of the discrimination
against him in the manner provided in the section of
this Decision entitled "The Remedy."
(c) Make its employees in the appropriate unit described
above whole for any loss or damage they may have suffered
as a result of Respondent's refusal to bargain collectively
with the Union in the manner provided in the section
of this Decision entitled "The Remedy."
(d) Preserve and, upon request , make available to the
National Labor Relations Board or its agents , for examina-
tion and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary or useful in checking compliance
with this Order.
ZINKE'S FOODS, INC. 913
(e) Post at its store in Beloit, Wisconsin, copies of the
attached notice marked "Appendix."" Copies of said notice,
to be furnished by the Regional Director for Region 30,
shall, after being duly signed by Respondent, be posted
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 30, in writing,
within 20 days from the date of this Decision, what steps
it has taken to comply herewith."
The Trial Examiner further recommends that the election
held on March 16, 1966, in Case 30-RC-400 be set aside
and that proceeding be vacated.
11 In the event that this Recommended Order shall 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 in the further
event that the Board's Order be enforced by a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
11 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL bargain, upon request, with Retail Clerks
Union, Local No. 1401, Retail Clerks International
Association, AFL-CIO, as the exclusive representative
of:
All full-time and regular part-time employees at
our Beloit, Wisconsin, store, excluding meat
department employees, store manager , office cleri-
cal employees, guards and supervisors as defined
in the Act, and we will embody any understanding
reached in a signed contract.
WE WILL make Edward Kailas whole for any loss
of earnings he may have suffered as a result of the
discrimination against him.
WE WILL make all our employees in the above-
described unit whole for any loss they may have suffered
as a result of our failure to bargain, in the manner
and for the period required by the recommended order
of a Trial Examiner
WE WILL NOT refuse to bargain collectively with
the above-named Union as the exclusive bargaining
representative of all the employees in the bargaining
unit described above.
WE WILL NOT coercively interrogate our employees
concerning their union sympathies and activities.
WE WILL NOT threaten to close our store if the
Union is designated as the exclusive bargaining agent
for the employees
WE WILL NOT threaten our employees with adverse
economic consequences, including loss of employment
or reduction in hours, or with loss of their right
to talk with management about their grievances, if
the Union is designated as exclusive bargaining repre-
sentative of the employees in the above-described unit.
WE WILL NOT grant or promise economic benefits
for the purpose of influencing our employees to induce
them to refrain from supporting the Union.
WE WILL NOT discourage membership in or activities
on behalf of the above-named Union, or any other
labor organization, by discharging employees or other-
wise discriminating in regard to hire or tenure of
employment or any term or condition of employment
of any of our employees.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the
extent that those rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act.
Dated By
ZiNKE'S FOODS, INC.
(Employer)
(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 provisions , they may communicate
directly with the Board 's Regional Office , Second Floor
Commerce Building , 744 North Fourth Street, Milwaukee,
Wisconsin 53203, Telephone 272-8600.