14th Street Market

National Labor Relations Board - Board Decisions

Mar 10, 1965

151 N.L.R.B. 560 (N.L.R.B. 1965)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 13, in writing, within 20 days from
the date of receipt of this Decision , what steps Respondent has taken to comply
therewith.?
7In the event that this Recommended Order be 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 MEMBERS OF LOCAL 479 , AMALGAMATED CLOTHING WORKERS OF
AMERICA, AFL-CIO, AND ALL EMPLOYEES OF JAYMAR RUBY, INC.
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 Rela-
tions Act, as amended , we hereby notify our members and employees that:
WE WILL NOT threaten employees of Jaymar Ruby, Inc., with the loss of insur-
ance benefits enjoyed by them as a condition of employment for failing to pay
fines imposed by Local 479, Amalgamated Clothing Workers of America,
AFL-CIO.
WE WILL NOT , by means of the foregoing , or in any like or related manner,
restrain or coerce employees of the above -named company in the exercise of
their rights guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a labor organ-
ization as a condition of employment as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of
1959.
WE WILL notify Peggy Jean Ross and Louise Marian Graham, in writing, that
we will not threaten them with loss of insurance for failure to pay their union
fines.
LOCAL 479, AMALGAMATED CLOTHING
WORKERS OF AMERICA , AFL-CIO,
Labor Organization.
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.
Employees may communicate directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street , Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or compli-
ance with its provisions.
Bernard S. Happach d/b/a 14th Street Market and Retail Clerks
Union , Local 536 (Retail Clerks International Association,
AFL-CIO). Case No. 38-CA-9 (formerly 13-CA-6000).
March 10, 1965
DECISION AND ORDER
On August 3, 1964, Trial Examiner Paul Bisgyer issued his
Decision in the above-entitledd proceeding , finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision . He also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint
151 NLRB No. 68.
14TH STREET MARKET 561
and recommended dismissal as to them. Thereafter, the Respondent
filed exceptions to the Decision and a supporting brief, and the
General Counsel filed an answering brief.
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 Jenkins].
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
Decision, the exceptions, the brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Bernard
S. Happach d/b/a 14th Street Market, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
'In reaching his conclusion that the Respondent had refused to bargain in violation
of Section 18(a) (5) of the Act, the Trial Examiner found , and we agree , that in securing
cards authorizing the Union to act as their bargaining representative, the solicitor of
such cards did not represent that they were to be used only to secure an election. See
Cumberland Shoe Corporation , 144 NLRB 1268.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all the parties represented, was heard before Trial Examiner
Paul Bisgyer on February 10 and 11, 1964, in Pekin, Illinois, on the complaint of
the General Counsel,' and the answer of Bernard S. Happach d/b/a 14th Street Mar-
ket, herein called the Respondent. In issue are the questions (1) whether the
Respondent, in violation of Section 8(a)(5) of the National Relations Act, as
amended, refused to bargain with Retail Clerks Union, Local 536 (Retail Clerks
International Association , AFL-CIO), herein called the Union , as the exclusive
representative of his employees in an appropriate unit; (2) whether the Respondent
discriminated against employee Richard E. Pollock in violation of Section 8(a)(3)
of the Act; and (3) whether by this and other conduct he interfered with, restrained,
and coerced employees in violation of Section 8 (a) (1) of the Act. After the General
Counsel completed his case, the Respondent offered no witnesses or evidence but
rested on his motion to dismiss the complaint in its entirety for insufficiency of proof.
Ruling on this motion was reserved and is now denied in accordance with my findings
and conclusions set forth below. Briefs from the General Counsel and the Respond.
ent were received and given careful consideration.
"The charge herein was filed on November 5, 1963, and a copy was served on the
Respondent the next day.
783-133-66-vol. 151-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and from my observation of the demeanor of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an individual proprietor doing business under the trade name
of 14th Street Market, operates a retail grocery store in Pekin, Illinois. During the
past year, his gross volume of business derived from the sales of groceries and other
products at this store exceeded $500,000. During the same period, he purchased
goods valued in excess of $50,000 which were shipped to this store directly from
points outside the State of Illinois.
I find that the Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and meets the Board's standards for the assertion of juris-
diction over retail enterprises.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed that the Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
1. The Union's appearance at the Respondent's store;
its several requests for recognition
The Union became interested in organizing the Respondent's employees in the
early part of September 1963,2 when Marvin T. Dixon, a stockboy then in the
Respondent's employ,3 communicated with the Union and obtained a supply of blank
cards authorizing the Union to represent the signatory employee for collective-
bargaining purposes. Dixon executed an authorization card on September 18 and
succeeded in procuring signed cards from nine other employees on the same and the
next day. Shortly thereafter, he turned over the cards to Union Organizer Griffith
On or about September 26 or 27, William J. Dryer, secretary-treasurer of the
Union, accompanied by Organizer Griffith and possibly Business Agent Piccioli,
visited the Respondent's store where they met Thomas S Hancock, the manager who
was in complete charge of store operations. Dryer informed Hancock that the Union
represented a majority of his grocery clerks, which he proposed to prove by a card
check,4 and requested recognition. Dryer told Hancock that the Union was not inter-
ested in representing the meat department employees who, to the Union's knowledge,
were already represented by the Meat Cutters Union. Hancock informed Dryer that
he was not the owner and had no authority to discuss the matter with him. When
Dryer asked where he could locate the owner, Hancock replied that the owner was
in another store but probably could not be seen as he was a very busy man. How-
ever, he offered to advise Bernard Happach, who was identified as the owner, of the
visit and have him communicate with the Union.
Not having heard from Happach, Dryer went alone to see Happach at another of
his stores on October 8 or 9. After introducing himself, Dryer informed Happach that
the Union represented a majority of his grocery clerks, both full time and part time,
and wanted recognition as their bargaining representative. Dryer expressly disavowed
interest in the meatcutters in his store. To prove the Union's majority, he proposed
a card check to be conducted by an impartial third party. Dryer also assured Happach
that it was lawful to rely on such a check in granting recognition. In addition to
this method for securing recognition, Dryer referred to two others-"initial election"
and a strike. He discounted the Board election procedures, however, because they
were too protracted and asked Happach to agree to the card check. Without express-
ing any doubt of the Union's majority, Happach made a note of the three methods
and told Dryer he preferred consulting his attorney before making his decision. On
this cordial note the meeting ended.
2 All events mentioned herein occurred In the year 1963.
a Dixon voluntarily quit his job on October 4, 1963.
* This is a common informal procedure for verifying the signatures on union au-
thorization cards usually by a disinterested third party for the purpose of determining
whether the labor organization represented a majority of the employees in the asserted
appropriate unit
14TH STREET MARKET 563
About a week later, probably on a Wednesday, October 16, Dryer returned to the
same store with Business Agent Piccioli and Organizer Griffith for Happach's answer.
Happach stated that he had consulted his attorney and, on his advice, decided not to
recognize the Union. Happach, however, did not voice any doubts that the Union
actually represented a majority of the employees in the proposed unit or give any
reason for refusing recognition. Not only did he not ask the union officials to
produce the cards to support the Union's asserted majority status, but also gave no
indication that any other method of proving majority would be agreeable to him.
Dryer nevertheless attempted to persuade Happach to change his mind, insisting that
he could honestly and legally prove the Union's majority, and that there was no
necessity for any further delay in recognizing the Union, but to no avail. Moreover,
although Dryer also requested the name of Happach's attorney in order to discuss
the matter with him, Happach refused to furnish it.
About the following Wednesday, October 23, the Union made another effort to
secure recognition. This time Dryer, Piccioli, and Griffith, accompanied by the
manager of the Peoria Labor News, the president of the Electrical Workers Union,
and the business agent of the Bartenders Union, visited Happach. Dryer opened up
the conversation with the statement that his associates were surprised at Happach's
refusal to recognize the Union on the basis of a card check and wanted to hear Hap-
pach's position themselves. Happach then repeated his rejection of the Union's
request. In addition, Happach refused to comply with Dryer's reiterated request for
the name of his attorney and stated that his attorney advised him not to talk to
"union men." In answer to a question of the manager of the Peoria Labor News
whether this was his final decision, Happach replied in the affirmative. On this, as
on the previous occasions, Happach did not express any doubt of the Union's majority
or ask for proof of the Union's majority status or give any reason for his refusal to
recognize the Union except that he acted on advice of counsel.
A day or two later, about October 25, the Union posted a picket line in front of
the Respondent's grocery store. The only employee participating in this activity was
Richard E. Pollock who was discharged the following Monday, October 28, under
the circumstances related below.
2. Pollock's union activities; his discharge
Pollock was a schoolboy who was employed at the Respondent's grocery store as a
part-time stock clerk from the early part of September until his discharge on Octo-
ber 28. He usually worked afternoon and evening hours on weekdays and sometimes
on Saturday and Sunday. His duties included, among others, stocking shelves with
merchandise on which he stamped the price. He, like other stock clerks, was perma-
nently assigned a specific aisle to service, his being dogfood and cereal, although all
the stock clerics customarily assisted each other. Pollock candidly admitted that he
made pricing errors. However, such errors were not unusual in the store as virtu-
ally all the stock clerks made them.5 Indeed, Store Manager Hancock, who was
called by the General Counsel as an adverse witness,° admitted that "there was so
much mis-marking [of goods] being done in our store it was pitiful." However, until
the action taken against Pollock, no employee was ever reprimanded, warned, or
disciplined for making a pricing error. The most Hancock did when he discovered
an error was to tell the employee to correct it.
Pollock signed a union authorization card on September 19 and was the only
employee who joined the picket line that the Union posted in front of the store on
or about October 25 in support of its demand for recognition. On that day Pollock,
observed by Hancock, picketed from 11:30 a.m. to 1 p.m. When Pollock reported
for work later in the day, Hancock, visibly angered by Pollock's action, asked him
whether he was aware that the picketing was illegal because it was not authorized
by the National Labor Relations Board and admonished him that it was unlawful to
discuss the Union with the customers on store property. Thereafter, while Pollock
was stocking merchandise in an aisle not regularly assigned to him, Hancock in an
insulting manner called Pollock's attention to the fact that he was mismarking pack-
ages of dry beans 51 cents instead of 15 cents and ordered him to change it. Pollock
explained that he did not do it deliberately but that the price noted on the box in
which the beans were packed looked like 51 cents when the box was inverted. A
little later, while Pollock was stocking coffee, Hancock returned and checked the
price Pollock was stamping on the cans. In reply to Pollock's inquiry whether the
5 Donna Smith , a former employee who was the head checker and also stocked shelves,
testified that Pollock was "just as good a worker as the rest of them."
6 Pursuant to rule 43(b) of the Rules of Civil Procedure for the U.S . District Courts.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
price was correct , Hancock answered affirmatively but nevertheless warned him "but
don't let me catch you marking things wrong ." That day Hancock also criticized
Pollock for going to the bathroom during working hours, something Hancock never
did before?
During the next 2 days, Saturday and Sunday,8 Pollock, who was not scheduled to
work in the store, picketed at different times. On Monday, October 28, which turned
out to be his last day in the Respondent's employ, Pollick resumed his picketing activ-
ities from 11:30 a.m. to 4 p.m. and from 5 to 6 p.m., when he reported for work
under the impression that that was his scheduled starting time. Hancock promptly
took Pollock to task for being an hour late and showed him the posted schedules
indicating he was due to report at 5 p.m. Hancock then told Pollock not to begin
work and that he (Hancock ) was going to telephone Happach , the store owner.
Thereupon Hancock made the telephone call during the course of which Donna
Smith, an employee no longer in the Respondent's employ, overheard Hancock asking
the person at the other end of the wire whether he could fire "him" (evidently referring
to Pollock) and hung up. "Right afterwards" Smith overhead Hancock, who was
again on the telephone , repeating that he could fire him and answering , "Yes, I will
fire him." While Hancock was engaged in these conversations , Pollock began unload-
ing a truck which had arrived in the meantime .9 Hancock then returned and told
Pollock he could continue working but admonished him in words to the effect that
he "had been trying to mess him up marking prices wrong and things like that, ever
since the union business started." Pollock denied the accusations , drawing the
response from Hancock that he was a liar.
Later in the evening, while Pollock was engaged in putting dogfood items on the
shelves in his aisle, Hancock approached and told him that he had erroneously marked
the price on a bag of dogfood and to correct it. Pollock made the correction and
resumed stocking canned dogfood and marking prices on the cans. About 9:30 p.m.,
as Pollock was finishing up, Hancock returned and began checking the prices on the
cans of dogfood. After checking three or four different brands without noting any
mistakes, Hancock removed one of the cans of Rival Dog Food from the bottom
tray of a stack of three trays,10 and declared that the entire tray was mismarked.
Pollock insisted that he had only stocked the top tray 11 with half of a case (24 cans)
and stated that the other half of the case was in the backroom. Hancock and Pollock
then went to the backroom to compare serial numbers on the cans. After picking up
three or four cans, Hancock selected one which bore the same serial number as the
can he had taken off the bottom tray and concluded that Pollock was responsible for
the pricing error. Hancock, in the presence of Juchems, Happach's son-in-law, told
Pollock that he was fired, adding that he had set a trap and caught him.
Hancock admitted setting a trap for Pollock but testified that it was necessary to
use that procedure in order to ascertain who was responsible for errors since different
stock clerks may occasionally work in the same aisle. Concerning the circumstances
of laying this trap, Hancock gave the following testimony: He spotted at the check-
out counter a pricing error on a can of wax which did not come from Pollock's reg-
ularly assigned aisle. While investigating the price on other cans of wax on the
shelves, he "happened to go around the dog food aisle there and [saw] ... some things
were wrong. And right then . . . [he] decided something was going to have to be
done because there were too many things being mismarked ." He therefore decided
that Saturday, October 26, to do something about these errors and selected Pollock's
aisle with which to begin. As indicated previously, Pollock was not scheduled to
work that weekend but was engaged in picketing the store. Hancock thereupon
assigned two employees to check each item in Pollock's aisle, which they did and cor-
rected the errors they discovered. On the following Monday morning, Hancock and
Larry Juchems rechecked the items in Pollock's aisle. No one was permitted to work
that aisle until Pollock reported for work in the evening. According to Hancock,
when he discharged Pollock he told him, "I laid a trap for the guy and here it is and
you can't work for the 14th Street Market."
Hancock testified that he did not lay any trap to catch other employees at that
time because "it takes time to check a whole aisle out, item by item." Although
Hancock also testified that ultimately the entire store was checked, there is no clear
7 Employees were not given a regular rest period.
8 The store is open on Sunday.
9 The grocery truck usually arrives about this time Mondays and Thursdays
18 Pollock credibly testified to this, whereas Hancock could not remember which tray
it was.
"Pollock impressed me as a very candid and truthful witness who readily admitted
making other errors. I credit his testimony
14TH STREET MARKET 565
evidence that he used the same careful procedures followed in Pollock's case. Nor is
there any evidence concerning the errors uncovered and what action, if any, was
taken against the employees responsible for them. Indeed, except for the position
taken by the Respondent with respect to Pollock, the record is barren of any evidence
that any employee ever suffered dismissal for mismarking merchandise.
3. The conversation between Manager Hancock and employee Donna Smith
In the first part of November, Donna Smith, who had been in Respondent's employ
as cashier for about 4 years, came to the store 2 days before her vacation ended and
gave Manager Hancock notice that she was leaving because she "couldn't stand the
pressure" and returned the store keys that were in her possession. At some point in
the conversation, she asked Hancock whether the Union would get in and he replied
that he did not know. Smith then inquired what would happen if the Union did.
Hancock answered that he imagined she knew and asked her whether she could tell
him. Smith then answered, "Probably, we will get cut down to part-time" and Han-
cock responded, "That is right."
B. Concluding findings
1. With respect to the refusal to recognize and bargain
a. Appropriate unit; the Union's majority status
The complaint alleges that "All full-time and part-time employees of the 14th
Street Market, Pekin, Illinois, excluding all meat department empoyees, guards and
supervisors as defined in the Act," constitute a unit appropriate for collective-
bargaining purposes within the meaning of Section 9(b) of the Act.12 As indicated
above, this is essentially the same type of unit in which the Union requested recogni-
tion, although Union Secretary-treasurer Dryer in his conversations with the Respond-
ent Happach and Manager Hancock spoke in terms of grocery clerks, excluding the
meat department employees. There is no question in my mind that the Respondent
at all times was fully aware that the employees whom the Union sought to represent
were those included in the unit described in the complaint. If Happach really labored
under any doubt or misapprehension, he never mentioned it to Dryer or asked him
to clarify the composition of the proposed unit.
The Respondent contends that the record does not support the appropriateness of
the unit in question because it excludes the meat department employees. However, it
is undisputed that the Amalgamated Meat Cutters Union has represented the Respond-
ent's meat department for a year or more before the hearing herein-a fact well known
to the Union at the time it requested recognition. In these circumstances, and in
accordance with the Board's long-established policy, I find that the meat department
employees are properly excludable from a unit of store employees. I therefore find
that the unit alleged in the complaint and which the Union sought to represent is
appropriate for collective-bargaining purposes.
It is the General Counsel's position that the Respondent unlawfully refused to
bargain on October 16 when he rejected the Union's request for recognition as the
employees' exclusive representative. On that day there were not more than 15
nonsupervisory full-time and part-time employees in the appropriate unit. The inclu-
sion of one of them, Larry Juchems, the Respondent Happach's son-in-law, is chal-
lenged but the question need not be resolved 13 since, as I find below, the Union's
majority status is not affected either way.
12 Insofar as pertinent , Section 9 ( b) of the Act provides that the "Board shall decide
in each case whether, in order to assure to employees the fullest freedom in exercising
the rights guaranteed by this Act, the unit appropriate for the purposes of collective
bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof ... ...
z3 However , there is convincing evidence in the record that Juchems ' interests are
more closely allied with the Respondent's than with those of the employees sought to
be represented and therefore he should be excluded from the bargaining unit. The
record discloses that: Juchems is the Respondent ' s son- in-law who "helps" Manager
Hancock run the store ; he was brought in to learn all phases of the business ; Hancock
"imagined" Juchems was being trained for a management position ; like Hancock , Juchems
is salaried , whereas all the other employees are paid an hourly rate ; and Juchems
may assign employees from one job to another , although he also performs manual work.
The record further reveals that Hancock apprised Juchems of his plans to trap Pol-
lock and with Juchems checked Pollock's aisle which led to Pollock 's discharge , as will
be fully discussed below. Adam D. Goettl and Gust Goettl , d/b/a International Metal
Products Company, 107 NLRB 65.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To establish that the Union represented a majority of the employees on October 16
as well as before when recognition was first requested, the General Counsel relies
on eight authorization cards signed by employees on September 18 and 19.14 The
cards are entitled "Authorization for Representation" and read in pertinent part:
Desiring to enjoy the rights and benefits of collective bargaining I, the under-
signed employee of the hereby authorize Retail Clerks International
Association, AFL-CIO, or its chartered Local Union to represent me for the
purposes of collective bargaining, respecting rates of pay, wages, hours of employ-
ment, or other conditions of employment, in accordance with applicable law.
The Respondent challenges the validity of the authorization cards to prove majority
on the ground that Marvin Dixon, the employee who solicited the signature, informed
the employees that the cards would be used to secure a Board election.
Dixon testified on direct examination that he obtained from Organizer Griffith
"some cards ... to authorize the Union to represent the employees;" that he there-
after spoke to the employees and gave each of them a card to sign; and that some of
these cards were signed in his presence, while others took the cards which they later
returned executed. On cross-examination by the Respondent's counsel, the following
testimony was elicited:
Q. When you handed these cards out and when you presented them to people
for signature, you told them it would enable the union to what?
A. To represent them.
Q. Did you tell them there would be an election?
A. Yes.
Q. Then, the purpose of signing these cards was to enable the Clerks Union
to get an election among the employees?
A. Right.
Q. And you told these people that the purpose of getting these cards signed
was to enable the union to have an election among the employees, didn't you?
A. So that the union could represent us.
Q. And have an election so they could?
A. Well, not necessarily mean an election.
Q. Well, you said a while ago that you did, didn't you?
A. Well, I guess it was, they said we would have to have an election before
the union comes in, among the employees.
Q. And that is what you told them the card was for, so you could get the
wheels going so you could have an election so the union could come in?
A. Right.
To obtain a clarification of the above testimony, the Trial Examiner questioned the
witness, as follows:
TRIAL EXAMINER: Suppose you tell us exactly what you told employees when
gave them these cards, General Counsel's Exhibit 3(a) through 3(j)?
The WITNESS: I told them that it gave the union the authority to represent
us, to get the union in the store.
TRIAL EXAMINER: What else did you say?
The WITNESS: That is about-I told them that the union would take the
cards and show them-or they wouldn't show them they would tell Mr. Happach
that we had a majority and then they would offer a card check and then if they
agreed to that, then they would hold an election in the store and then the majority
would rule if they wanted the union, and that is it.
Employees Smith and Pollock, who had signed authorization cards, testified that
they did not recall Dixon mentioning anything about an election when he handed
them the cards to sign. Pollock further testified that Dixon told him at the time
Dixon handed him a card that the purpose was to authorize the Union to represent
the employees. Kenneth Mayberry, another employee who had signed a card, testi-
fied that at the time when Dixon gave him the card he asked Dixon "what it was for
14 Also in evidence are 2 other cards signed on September 18 by employees Marvin
Dixon and Larry Hyatt, making a total of 10 cards from employees in a unit which con-
sisted of not more than 17 employees at that time and on September 26 or 27, when
Dryer first spoke to Manager Hancock about recognition. Dixon and Hyatt, however,
voluntarily left the Respondent's employ on October 4 and 5 , respectively.
14TH STREET MARKET 567
and he told me that ... if we had the majority, have an election for the union. But
if Tom [Hancock] didn't want the election, we would just go ahead and have the
union." 15
It is true, as the Respondent argues, that authorization cards obtained under the
representation that they were to be used for the sole purpose of securing a Board
election are ineffective designations of the Union as the employees' bargaining repre-
sentative.16 However, I am not satisfied that the foregoing testimony of Dixon and
Mayberry, ambiguous at best, is sufficient to establish that such was the nature of
Dixon's statements to the employees, particularly in light of the plain and unequivocal
language of the cards themselves authorizing the Union "to represent me for the
purpose of collective bargaining." At most, the quoted testimony suggests that the
employees were told that the cards were to be used to secure voluntary recognition
from the Respondent or, if denied, to obtain an election. Statements of this type,
under settled law,17 do not impair the validity of the cards as designations of the
Union as the signatories' bargaining representative. As the Board so aptly observed
in another case 18 in language equally applicable to the present case:
While it is true ... that 17 of the signatories testified that they were told that a
purpose of the cards was to secure a Board election, it does not appear that they
were told that this was the only purpose of the cards. In this case the cards,
on their face, explicitly authorized the Union only to act as bargaining agent of
the employees, and . . . the failure of the Union's solicitors to affirmatively
restate this authorization does not indicate that it was abandoned or ignored.
Thus, there is no evidence here to negative the overt action of the employees in
signing cards designating the Union as their bargaining agent, and the instant
situation is not one in which the Union has beguiled employees into signing
union cards.
In sum, I do not believe that, on the record before me, it can reasonably be said
that the employees, by signing the authorization cards did not manifest an intention
to designate the Union as their collective-bargaining representative. Accordingly, I
find that both at the time when the Union requested recognition and when the
Respondent declined to grant it, the Union was the exclusive bargaining representative
of the Respondent's employees in an appropriate unit whom the Respondent was
obligated to recognize, unless there were other reasons excusing him from doing so.
I find below no such reasons presented.
b. The Respondent's rejection of the Union's request
for recognition and bargaining
As previously discussed, the Union on four separate occasions informed the
Respondent of its majority status and requested recognition but to no avail. On Sep-
tember 26 or 27 Union Secretary-Treasurer Dryer spoke to Manager Hancock about
recognition and Hancock stated he would convey the request to the owner, Happach.
Not hearing from Happach, Dryer, on October 8 or 9, went to see Happach person-
ally. On this occasion Dryer made it lucidly clear that he desired a card check by a
neutral third party to prove majority, although he mentioned an election as another
means of proving majority and securing recognition. However, he eliminated this
latter method because it would take too long. The other means to which he referred
was a strike which apparently was a last resort. Happach's response to Dryer's
request was that he would consult his attorney. When Dryer returned the following
week for his answer, he received an unequivocal "no," despite Dryer's efforts to con-
vince him to change his mind and agree to a card check. Dryer's next attempt on
>s On cross -examination by the Respondent's counsel , Mayberry gave the following
testimony:
Q. . . . Now, as I understand it, what Marvin Dixon said to you was that if
you signed this card, then the union could have an election here, but if Tom
[Hancock] doesn ' t insist on an election, maybe we can just have the union anyway,
is that right?
A. Yes.
There is no evidence in the record that either Hancock or the Respondent Happach
at any time proposed to the Union that an election be held to prove its majority status.
16 Englewood Lumber Company, 130 NLRB 394.
17 See, for example, Cumberland Shoe Corporation, 144 NLRB 1268; Peterson Brothers,
Inc., 144 NLRB 679.
18 Cumberland Shoe Corporation, supra.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 23 to secure recognition was similarly futile. It is undisputed that on none
of these occasions did Happach question the Union's asserted majority, request Dryer
to produce the authorization cards, propose any method to prove majority, give any
reason , other than advice of counsel, for refusing to grant recognition, or even furnish
the name of his attorney which Dryer requested so that he could discuss the matter
with him.
The Act, as is well known, imposes the obligation on the employer to recognize
and bargain upon request with the representative designated by his employees in an
appropriate unit , unless he has a good-faith doubt that the representative enjoys major-
ity support. It can hardly be said that the foregoing evidence establishes that the
Respondent honestly entertained such a doubt when it summarily rejected the Union's
request for recognition, without explaining his reason, questioning the validity of
the cards, or indicating what proof of majority would suffice.19 For all that appears
in the record, the Respondent's action was prompted by a complete disregard of his
bargaining obligation.
I further find that the Respondent's reliance on the principle of Summit Mining
Corporation v. N.L.R.B.20 to relieve him of this statutory duty was misplaced.
There, the court of appeals held that where an employer chooses one of two alterna-
tives proposed by a union for proving majority-a card check or a Board election-
the employer does not violate the Act by selecting one of them. In the present case,
the record is devoid of any evidence that the Union had offered the Respondent any
method other than a card check or that the Respondent proposed one "suggested by
and acceptable" to 21 the Union.
Finally, the Respondent seems to argue that it was privileged to refuse to recognize
the Union so long as it did not utilize the opportunity to take steps to dissipate and
undermine the Union's majority. However, the Board has held that such conduct is
not a prerequisite to a finding that an employer did not entertain a good-faith doubt
of a union's majority status.22 In any event, as I find below, the Respondent discrim-
inatorily discharged employee Pollock for picketing the store in support of the
Union's request for recognition, and thereby undermined the Union's majority status.
Certainly, this conduct, which "goes to the very heart of the Act," 23 can by no
means be viewed as a sincere acceptance of the collective-bargaining mandate of the
Act.24
Accordingly, I find that the Respondent, in disregard of his statutory obligation,
refused to recognize and bargain with the Union as the exclusive representative of his
employees in an appropriate unit and thereby violated Section 8(a)(5) and (1)
of the Act.
2. With respect to Pollock's discharge
Pollock's discharge presents a familiar factual question whether it was motivated by
his picketing activities which the Act protects or whether it was for "mis-marking can
goods" as Manager Hancock testified.
As indicated above, it was not uncommon for employees to make pricing errors in
marking merchandise they stocked on shelves. Hancock himself characterized the
situation throughout the store as "pitiful." However, no employee was ever repri-
manded for his errors or warned against their repetition but was simply told to correct
them. It was not until Pollock started to picket in support of the Union's request for
recognition on Friday, October 25, that pricing errors assumed new importance and
then only insofar as Pollock was concerned. Thus, when Pollock returned to work
later that day and stamped a wrong price on some packages of dry beans, Hancock
insultingly called his attention to the error. Shortly thereafter, while marking cans of
coffee, Hancock returned and checked the stamped price and, although finding it
correct, nevertheless warned Pollock not to "let me catch you marking things wrong."
It appears to be more than a strange coincidence that the next day (Saturday) when
Pollock, who was not scheduled to work, resumed picketing, Hancock should under-
take to lay a trap to uncover pricing errors solely in Pollock's aisle. Not only was
Pollock the lone employee-picket, but the mismarked can of wax which ostensibly
precipitated the laying of the trap for Pollock came from an aisle that was not even
19 N.L.R.B. v. Economy Food Center, Inc., 333 F. 2d 468 (C A. 7), 56 LRRM 2263, 2264.
260 F . 2d 894 (C.A. 3).
u Id. at 900.
22 Fred Snow et at., d/b/a Snow & Sons, 134 NLRB 709, 710, enfd 308 F. 2d 687
(C.A. 9) ; Bernet Foam Products Co., Inc., 146 NLRB 1277.
21 N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C A. 4).
2'Joy Silk Mills, Inc, 85 NLRB 1263, 1264, enfd. 185 F. 2d 732 (C.A.D.C.), cert.
denied 341 D.S. 914.
14TH STREET MARKET 569
his regular assignment. Moreover, the record is far from clear that Hancock also
subjected at a later date other employees to the same trap-setting procedures to which
he subjected Pollock. Nor did the Respondent adduce any evidence concerning the
results of such investigation, if indeed he had one, and the action taken by him
against any employee. In these circumstances, it seems reasonable to infer that the
idea of trapping Pollock was conceived, not so much as a means of ascertaining those
responsible for pricing errors throughout the store, as a vehicle for finding a basis for
discharging a prominent union supporter. Significantly, only a day before Hancock
unsuccessfully attempted to dissuade Pollock from picketing by advising him that the
picket line was unlawful. Hancock also revealed his resentment to Pollock later in
the day when, contrary to past practice, he criticized Pollock for going to the bathroom
during working hours.
In addition to singling Pollock out as the subject for the trap, there is also uncon-
tradicted testimony that even before Hancock uncovered the pricing errors which
purportedly led to Pollock's discharge on Monday, October 28, the Respondent had
already decided to terminate Pollock. Thus, when Pollock reported for work at
6 p.m. Monday, presumably an hour late, Hancock did not let him begin work until
he (Hancock) telephoned the Respondent to ascertain whether he could fire Pollock,
and shortly afterward in another telephone conversation Hancock stated that he was
going to fire him. However, Hancock did not thereupon discharge Pollock for his
alleged tardiness 25 but, after warning Pollock that he "had been trying to mess him up
by marking prices wrong ... ever since the union business started," deferred taking
his action until later when he charged Pollock with mismarking a tray of dogfood,
which Pollock credibly denied doing,26 and declared that Pollock was caught in the
trap.
I am keenly aware of management's prerogative to discharge an employee for any
reason provided it is not for union membership or activities. I am also mindful of
the established law that the mere existence of a justifiable ground for a discharge "is
no defense if it is a pretext and not the moving cause." 27 From my evaluation of
the evidence recited above, I am led to the inescapable conclusion that Pollock's
discharge was prompted, not by his asserted pricing errors, but by the Respondent's
desire to get rid of the only employee who joined the Union's picket line in support of
its demand for recognition as the employess' majority representative. Plainly,
Pollock's activities were protected by the Act and his termination for this reason
violated both Section 8(a)(1) and (3) thereof. Even if these activities only con-
tributed to the Respondent's decision to discharge Pollock, the discharge would
nonetheless be violative of the Act.28
3. Alleged independent acts of interference, restraint, and coercion
The General Counsel urges that various remarks Manager Hancock made to
Pollock independently constituted interference, restraint, and coercion of employees
prohibited by Section 8(a)(1) of the Act. Specifically, they are Hancock's warning
to Pollock on October 25 against being caught making pricing errors; criticizing
Pollock the same day for going to the bathroom during working hours; and on October
28 reprimanding him for trying "to mess [Hancock] ... up by marking prices wrong
. ever since the union business started." I have considered these statements in
finding discrimination against Pollock and find it unnecessary to determine whether
they were independently violative of the Act.
The General Counsel also contends that on or about November 11 Hancock, in
violation of Section 8(a)(1) of the Act, threatened Donna Smith with less pay if
the Union came in. In support of this contention, the Respondent relies on the
25 It may well be questioned whether the Act permitted Pollock's discharge for that
reason as he was at that time engaged in picketing, a statutorily protected activity.
sa Although I have credited Pollock's denial that he was responsible for those errors,
it is not necessary to determine whether those errors were "planted," as the Genearl
Counsel urges, in view of my finding that the Respondent was searching for a reason
to discharge a prominent union supporter because his picketing activities displeased
the Respondent. The Respondent also alludes to other pricing errors allegedly made
by Pollock and discovered after his discharge. Assuming, but not deciding, that Pol-
lock was responsible for them, they obviously could not have entered into the Respond-
ent's discharge decision.
n N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 525 (C.A. 8) ; N L.R.B. v. Economy
Food Center, Inc., 333 F. 2d 468 (CA. 7), 56 LRRM 2263, 2265; N.L.R.B. v. James-
town Sterling Corp., 211 F. 2d 725, 726 (C.A. 2).
° N.L.R.B. v. Jamestown Sterling Corp., supra
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith-Hancock conversation, discussed above, in which Hancock agreed with Smith's
opinion that if the Union got in the employees would probably "get cut down to part-
time." In view of the fact that the subject of the Union was brought up by Smith
in a private conversation after she had quit her employment, I find Hancock's remark
too inconsequential to amount to a violation of Section 8(a) (1) of the Act.
Accordingly, I shall recommend the dismissal of the Section 8(a)(1) allegations
of the complaint relating to the foregoing conduct.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with its operations 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 its free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and
desist from engaging in the unfair labor practices found and take certain affirmative
action designed to effectuate the policies of the Act.
To remedy the Respondent's unlawful refusal to fulfill his statutory bargaining
obligation, I recommend that he bargain on request with the Union as the exclusive
representative of his employees in the unit found appropriate herein. Since the
Respondent discriminatorily discharged employee Pollock, I recommend that the
Respondent offer him immediate and full reinstatement to his former or a substan-
tially equivalent position, without prejudice to his seniority or other rights and privi-
leges. In addition, I recommend that the Respondent make him whole for any loss
of earnings he may have suffered by reason of the discrimination against him by
payment to him of a sum of money equal to that which he normally would have
earned from the date of the Respondent's offer of reinstatement less his net earnings
during the said period. Backpay shall be computed with interest on a quarterly basis
in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294, and Isis Plumbing & Heating Co., 138 NLRB 716. To facilitate the compu-
tation , as well as to clarify Pollock's right to reinstatement, the Respondent shall
make available to the Board, upon request, payroll and other records necessary and
appropriate for that purpose. I further recommend that the Respondent notify
Pollock of his right to reinstatement on application if he is serving in the Armed
Forces of the United States. The posting of an appropriate notice is also
recommended.
In view of the nature of the unfair labor practices herein found, including dis-
crimination which "goes to the very heart of the Act," 29 there exists the danger of
the commission by the Respondent of other unfair labor practices proscribed by the
Act. Accordingly, I recommend that the Respondent be directed to cease and desist
from in any other manner infringing upon the rights guaranteed employees in Section
7 of the Act.30
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The 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 discriminating in regard to the hire and tenure of employment of Richard E.
Pollock as to discourage membership in, or activities on behalf of, the Union, the
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (3) of the Act.
4. All full-time and regular part-time employees at the Respondent's 14th Street
Market, Pekin, Illinois, excluding all meat department employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
5. At all times material herein, the Union has been the exclusive bargaining repre-
sentative of the employees in the aforesaid appropriate unit within the meaning of
Section 9(a) of the Act.
6. By refusing on and after October 16, 1963, to recognize and bargain collectively,
with the Union as the exclusive representative of the employees in the aforesaid appro-
m N.L.R B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4).
30 N.L.R.B. v. Empress Publishing Company, 312 U.S. 426, 433.
14TH STREET MARKET 571
priate unit, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
7. By reason of the foregoing conduct, the Respondent has interfered with,
restrained, and coerced employees in the exercise of their statutory rights within the
meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
9. The Respondent did not violate Section 8(a)(1) of the Act except as found
above.
RECOMMENDED ORDER
Upon the foregoing 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 ordered that the Respondent, Bernard S. Happach, d/b/a 14th
Street Market, Pekin, Illinois, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Clerks Union, Local 536 (Retail Clerks
International Association, AFL-CIO), or in any other labor organization, by dis-
charging employees or discriminating against them in any other manner in regard to
their hire or tenure of employment or any term or condition of employment, except
to the extent that their rights in that regard may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized by
Section 8(a) (3) of the Act.
(b) Refusing to recognize and bargain collectively with the above-named Union
as the exclusive representative of all full-time and regular part-time employees at
his 14th Street Market, Pekin, Illinois, excluding all meat department employees,
guards, and supervisors as defined in the Act, concerning rates of pay, wages, hours,
and other conditions of employment.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist the above-named Union or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condition
of employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all the employees in the unit described above, concerning rates
of pay, wages, hours, and other conditions of employment and, if an understanding is
reached, embody such understanding in a signed agreement.
(b) Offer Richard E. Pollock immediate and full reinstatement to his former or a
substantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings suffered by reason of the
discrimination against him, as provided in the section of the Trial Examiner's Deci-
sion entitled "The Remedy."
(c) Notify Richard E. Pollock, if he is serving in the Armed Forces of the United
States, of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the right to reinstatement, under the terms of this
Recommended Order.
(e) Post at his 14th Street Market, in Pekin, Illinois, copies of the attached notice
marked "Appendix." 31 Copies of said notice, to be furnished by the Regional
Director for Region 13, shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt thereof and main-
"In the event that 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. In the further event that the Board's Order be
enforced by a decree of 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."
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained by him for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Regiotn 13, in writing, within 20 days from
the receipt of the Trial Examiner's Decision, what steps the Respondent has taken
to comply herewith 32
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar
as it alleges that the Respondent has engaged in interference, restraint, and coercion
in violation of Section 8 (a) (1) of the Act except as found above.
as In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
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 discourage membership in Retail Clerks Union, Local 536
(Retail Clerks International Association, AFL-CIO), or in any other labor
organization, by discharging employees or discriminating against them in any
other manner in regard to their hire or tenure of employment or any term or
condition of employment except to the extent that their rights in that regard
may be affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section 8(a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named Union or any other labor organi-
zation, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized by Section
8(a)(3) of the Act.
WE WILL bargain collectively, upon request, with the above-named Union
as the exclusive representative of all our employees described below with
respect to rates of pay, wages, hours, and other conditions of employment and,
if an understanding is reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time employees at our 14th Street Market,
Pekin, Illinois, excluding all meat department employees, guards, and
supervisors as defined in the Act.
WE WILL offer Richard E. Pollock immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of earnings suffered
by reason of the discrimination against him, as provided in the section of the
Trial Examiner's Decision entitled "The Remedy."
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of the above-named Union, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8 (a) (3) of the Act.
BERNARD S. HAPPACH d/b/a 14th STREET MARKET,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NoTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
SATILLA RURAL ELECTRIC MEMBERSHIP CORP. 573
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.
Employees may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572 , if they have any questions concerning this notice or com-
pliance with its provisions.
Satilla Rural Electric Membership Corporation and Interna-
tional Brotherhood of Electrical Workers, AFL-CIO. Case
No. 10-CA-5569. March 10, 1965
DECISION AND ORDER
On December 10, 1964, Trial Examiner Laurence A. Knapp issued
his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety. The General Counsel thereupon filed exceptions
to the Trial Examiner's Decision and a brief in support thereof.
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 Jenkins].
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 hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the
entire record in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order the Order recommended by the Trial Examiner, and
orders that the complaint herein be, and it hereby is, dismissed
in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Following prehearing procedures in compliance with the Act,' this case came on for
hearing before Trial Examiner Laurence A. Knapp on July 7, 1964, at Waycross,
Georgia. During the hearing, Respondent moved to dismiss the complaint for failure
1 Following a charge filed on December 16, 1963, by the labor organization named
in the caption , herein called the Union , the complaint issued on March 20, 1964, Re-
spondent answered on March 27 , 1964, and filed an amended answer on June 24, 1964.
151 NLRB No. 64.