Allied Supermarkets, Inc.

National Labor Relations Board - Board DecisionsFeb 19, 1968

169 N.L.R.B. 927 (N.L.R.B. 1968)

ALLIED SUPERMARKETS, INC. Allied Supermarkets , Inc. - Allied Discount Foods Division and Retail Clerks Union , Local 1557 Amalgamated Meat Cutters and Butcher Workmen of North America , Local 405 (Allied Supermarkets Inc. - Allied Discount Foods Division) and Retail Clerks Union , Local 1557. Cases 26-CA-2729 and 26-CB-369 February 19,1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On October 24, 1967, Trial Examiner John G. Gregg issued his Decision in the above-entitled proceeding, finding that Respondents had not en- gaged in the alleged unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that the complaint be dismissed, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Coun- sel and the Charging Party filed exceptions to the Decision and supporting briefs, and the Respondent Employer filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case 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 hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent that they are consistent herewith. We cannot agree with the Trial Examiner's findings and conclusions which resulted in dismissal of the complaint. Unlike the Trial Examiner, we do not believe the Keller Plastics' principle is here ap- plicable to immunize the Respondent Employer and the Respondent Union from the violations alleged in the complaint with regard to their entering into a contract on March 24. In that case we held that a validly recognized union is entitled to continuing representative status for a reasonable period of time during which it may negotiate a contract, not- withstanding the fact that it may have lost majority 1 Keller Plastics Eastern, Inc., 157 NLRB 583 2 The Trial Examiner found that there were 76 employees in the unit he found appropriate. It would appear that employees Jerry Guy, David Parkhurst, and Annette Keck should have been added to this number The evidence also indicates that Guy's card should have been counted toward the Respondent Union's majority by the third-party consultant Thus the Respondent Union should have been credited with 43 rather than 42 validly signed authorization cards. 927 status during this interim period. Furthermore, in Keller Plastics there was no petition filed by a rival union prior to the execution of the contract as in the present case, and the holding was, of course, based upon a valid recognition in the first place. Inasmuch as we do not believe the Respondent Employer's recognition of the Respondent Meat Cutters Union on March 14 was in fact a valid one, it follows that Keller Plastics is inapplicable and would not insu- late the Respondents from the violations alleged re- garding the execution of the contract of March 24. More specifically, the recognition of March 14 was based on a card check made by a labor-rela- tions consultant hired by the Employer. Of the 45 signed authorization cards submitted by the Respondent Union, the consultant found 42 as valid in the broad wall-to-wall unit involved, which was determined at that time to encompass 78 em- ployees. However, the record discloses, and we so find, that on the critical recognition date there were actually 79 employees in this broad wall-to-wall unit and there were 43 signed authorization cards rather than 42.2 As of this date, 27 employees in this same unit had signed authorization cards with the Charging Party, 15 of which duplicated cards signed for the Respondent Meat Cutters Union. Under well-established principles,3 the 15 cards submitted by the Respondent Union, which were duplicated by the Charging Party, are not reliable evidence of the signers' selection of the Respondent Union as their exclusive bargaining representative, and as a substantial number of these cards were necessary to support the Respondent Union's claimed majority status, it follows that the Respond- ent Union was not the duly designated representa- tive of the Respondent Employer's employees within the meaning of Section 9(a) of the Act. It was in fact a minority union. It may be true that Respond- ents were not aware that some of the employees who had signed cards for the Respondent Union had also signed cards for the Charging Party and that the demand for an extension of recognition was undertaken in entire good faith. However this may be, it is clear that the grant of recognition to a minority union violates the Act without regard to the parties' good or bad faith.4 Moreover, it is true that Respondent Employer, at least, was aware of the Charging Party's organizing efforts amongst its grocery and food department employees at the time recognition was extended, and that the Charging Party had filed a representation petition for a unit of grocery and food department employees, excluding 3 J. W Martell Company, 168 NLRB 435; Bendix-Westinghouse Au- tomotive Air Brake Co., 161 NLRB 789, 1 Posner, Inc, 133 NLRB 1573, International Metal Products Company, 104 NLRB 1076, Weirton Ice and Coal Supply Company, 103 NLRB 810 4International Ladies' Garment Workers' Union, AFL-CIO [Bernard-Altmann Texas Corp.] v. N L R B., 366 U S. 731,738 169 NLRB No. 135 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in violation of Section 8(b)(1)(A) of the Act, and we will likewise order Respondent Union to cease and desist therefrom and take affirmative action neces- sary to effectuate the policies of the Act. We have found that the Respondent Meat Cut- ters Union accepted exclusive recognition from the Respondent Employer on March 14, 1967, at a time when it had not been designated as the exclu- sive representative by a majority of the employees involved, and thereafter entered into a collective- bargaining agreement with said Employer on March 24, 1967, at a time when there existed a real question concerning representation of the em- ployees covered thereby. By such conduct, the Respondent Meat Cutters Union has restrained and coerced the employees in the exercise of their right freely to select their own bargaining representative. In order to dissipate the effect of Respondent Meat Cutters Union's unfair labor practices, we shall order said Respondent to cease maintaining or giv- ing effect to its current recognition and collective- bargaining agreement with the Respondent Em- ployer to the extent they cover the Employer's food and grocery department employees, or any renewal or extension thereof, until such time as the Re- spondent Union shall have been certified by the Board as the exclusive representative of the em- ployees in question. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Allied Supermarkets, Inc. - Al- lied Discount Foods Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting or contributing support to the Respondent Meat Cutters Union, or to any other labor organization, by recognizing such labor or- ganization as the exclusive representative of its food and grocery department employees for the purpose of collective bargaining at a time when such labor organization has not been designated by a majority of such employees involved as such ex- clusive bargaining representative. (b) Assisting or contributing support to the Respondent Meat Cutters Union, or to any other labor organization, by entering into a collective-bar- gaining contract with such labor organization as the exclusive representative, for the purpose of collec- tive bargaining, of its food and grocery department employees at a time when there exists a real question concerning representation. (c) Giving effect to its contract of March 24, 1967, with the Respondent Meat Cutters Union to the extent that such contract covers food and 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, in each notice marked "Appendix A" or "B," there grocery department employees or to any renewal, extension , modification , or supplement thereof, un- less and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (d) In any like or related manner interfering with , restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is found will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Respondent Meat Cutters Union as the exclu- sive representative of its food and grocery depart- ment employees for the purposes of collective bar- gaining unless and until the said labor organization has been duly certified by the National Labor Rela- tions Board as the exclusive representative of such employees. (b) Post at their stores located at 1508 Gallatin Road and 4095 Nolensville Road , Nashville, Ten- nessee, copies of the attached notice marked "Ap- pendix A ."5 Copies of said notice , on forms pro- vided by the Regional Director for Region 26, after being duly signed by Respondent 's representative, shall be posted by it immediately upon receipt thereof , and be maintained 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 the Respondent Employer to insure that said notices are not altered , defaced , or covered by any other material. (c) Post at the same places and under the same conditions as set forth in (b), above , as they are for- warded by the Regional Director , copies of the Respondent Meat Cutters Union 's notice marked "Appendix B." (d) Mail signed copies of the attached notice marked "Appendix A" to said Regional Director for posting at the hiring hall operated by Respond- ent Meat Cutters Union , in places where notices to members and employees are customarily posted. Copies of the notice , on forms provided by said Re- gional Director, shall be returned forthwith to the Regional Director after they have been signed by an official representative of the Respondent Employer for such posting. (e) Notify the Regional Director for Region 26, in writing , within 10 days from the date of this Order , what steps have been taken to comply herewith. B. Respondent Amalgamated Meat Cutters and Butcher Workmen of North America , Local 405, its, officers, agents, and representatives , shall: 1. Cease and desist from: (a) Accepting exclusive recognition as the representative of the food and grocery department shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." ALLIED SUPERMARKETS, INC. the meat department, prior to the Respondents' ex- ecution of a contract. In view of these circum- stances, we hold that Respondents acted at their peril in relying on a card check which failed to pro- vide for the participation of the Charging Party and an examination of the cards in its possession. Accordingly, we find that the Respondent Em- ployer recognized the Respondent Meat Cutters Union as the exclusive representative of its grocery and food department employees at a time when the latter had not been designated as their exclusive representative, and that it thereafter entered into a collective-bargaining agreement covering such em- ployees at a time when a question concerning their representation for purposes of collective bargaining existed. We find that by such conduct Respondent Employer violated Section 8(a)(2) and (1) of the Act. We also find that Respondent Meat Cutters Union violated Section 8(b)(1)(A) of the Act by ac- cepting recognition as the exclusive representative of the grocery and food department employees of the Employer and by thereafter dealing and con- tracting with the Employer in the circumstances described above. In view of the foregoing findings, we deem it un- necessary to determine on the basis of the record before us, as did the Trial Examiner, which of the different units sought by the competing unions is the appropriate unit for purposes of collective bar- gaining. That determination can best be made by the Regional Director in the pending representation case. We do not, therefore, adopt the Trial Ex- aminer's findings in this regard. CONCLUSIONS OF LAW 1. Allied Supermarkets, Inc. - Allied Discount Foods Division is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Meat Cutters Union and the Retail Clerks Union are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing the Respondent Meat Cutters Union at a time when the latter was not the exclu- sive representative of its grocery and food depart- ment employees, and by contracting with it at a time when a question concerning the representation of such employees existed, the Respondent Employer thereby rendered and is rendering unlawful assistance and support to a labor organization, and has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(2) and (1) of the Act. 4. By recognizing the Respondent Meat Cutters Union at a time when the latter was not the exclu- sive representative of its grocery and food depart- ment employees and by contracting with it at a time when a question concerning representation of such employees existed, the Respondent Employer has 929 interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Sec- tion 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(2) and (1) of the Act. 5. By accepting recognition as the exclusive representative of grocery and food department em- ployees at a time when it was not the exclusive representative of such employees and by contract- ing with the Employer at a time when a question concerning representation of such employees ex- isted, the Respondent Meat Cutters Union restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Employer has engaged in unfair labor practices in violation of Sec- tion 8(a)(2) and (1) of the Act, we shall order Respondent Employer to cease and desist therefrom and take affirmative action necessary to effectuate the policies of the Act. We have found that the Respondent Employer recognized the Respondent Meat Cutters Union on March 14, 1967, at a time when said Union had not been designated as the exclusive representative for the purposes of collective bargaining by a majority of the employees involved, and thereafter entered into a collective-bargaining agreement with the Union at a time when there existed a real question concerning representation of the employees covered thereby. By such conduct, the Respondent Employer has interfered with, restrained, and coerced its employees in the exercise of their right freely to select their own bargaining representative, and has accorded unlawful assistance and support to the Respondent Meat Cutters Union. In order to dissipate the effect of Respondent Employer's un- fair labor practices, we shall order said Respondent to withdraw and withhold recognition from Re- spondent Meat Cutters Union as the exclusive rep- resentative of grocery and food department em- ployees and to cease giving effect to the afore- mentioned agreement to the extent they cover food and grocery department employees, or to any renewal or extension thereof, until such time as Respondent Meat Cutters shall have been certified by the Board as the exclusive representative of the employees in question. Nothing herein shall, how- ever, be construed to require the Respondent Em- ployer to vary or abandon any existing, term or condition of employment. We have also found that the Respondent Meat Cutters Union has engaged in unfair labor practices 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of the Respondent Employer, or any other employer, for the purposes of collective bar- gaining at a time when it has not been designated as the exclusive representative by a majority of such employees. (b) Entering into a collective-bargaining agree- ment with the Respondent Employer, or any other employer, as the exclusive representative of its food and grocery department employees for the purpose of collective bargaining at a time when there exists a real question concerning representation. (c) Giving effect to its contract of March 24, 1967, with the Respondent Employer to the extent it covers food and grocery department employees, or to any renewal, extension, modification, or sup- plement thereof, unless and until it has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (d) In any like or related manner restraining or coercing employees of Respondent Employer in the exercise of the rights guaranteed in Section 7 of the Act. 2. 'ake the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Nashville, Tennessee, copies of the attached notice marked "Appendix B."s Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by the Union's representative, shall be posted by Respond- ent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customari- ly posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Post at the same place and under the same conditions as set forth in (a), above, and as soon as they are forwarded by the Regional Director, cop- ies of the attached notice marked "Appendix A." (c) Mail to the Regional Director signed copies of Appendix B for posting by Respondent Com- pany as provided above herein. Copies of said notice, on forms provided by the Regional Director, after being signed by Respondent Union's represen- tative, shall be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. ' See fn. 5, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT assist or contribute support to the Amalgamated Meat Cutters and Butcher Workmen of North America, Local 405, or to any other labor organization, by recognizing such labor organization as the exclusive representative of any of our food and grocery department employees for the purpose of col- lective bargaining at a time when such labor or- ganization has not been designated by a majori- ty of such employees as their exclusive representative. WE WILL NOT assist or contribute support to the Amalgamated Meat Cutters and Butcher Workmen of North America, Local 405, or to any other labor organization, by entering into a collective-bargaining agreement with such labor organization as the exclusive representa- tive of our food and grocery department em- ployees at a time when there exists a real question concerning representation. WE WILL NOT give effect to our contract of March 24, 1967, with the Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, Local 405, to the extent that it covers food and grocery department employees, or to any renewal, extention, modification, or supple- ment thereof, unless said labor organization has been duly certified by the National Labor Relations Board as the exclusive representa- tive of such employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. All our employees are free to become, or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. ALLIED SUPERMARKETS, INC. - ALLIED DISCOUNT FOODS DIVISION (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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, 562 Federal Courthouse Bldg., 801 Broad- way, Nashville, Tennessee 37203, Telephone 242-5922. APPENDIX B ALLIED SUPERMARKETS, INC. 931 NOTICE TO ALL MEMBERS OF THE AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA , LOCAL 405 Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT accept exclusive recognition as the representative of any of the employees of Allied Supermarkers, Inc. - Allied Discount Foods Division, or any other Employer, for the purposes of collective bargaining at a time when we have not been designated as the ex- clusive representative of such employees. WE WILL NOT enter into a collective-bargain- ing agreement with Allied Supermarkets, Ic.-Allied Discount Foods Division, or any other Employer, as the exclusive representa- tive of any of its employees for the purposes of collective bargaining at a time when there ex- ists a real question concerning representation. WE WILL NOT give effect to our contract of March 24, 1967, with Allied Supermarkets, Inc.-Allied Discount Foods Division, or to any renewal, extension, modification, or sup- plement thereof, unless and until we have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL NOT in any like or related manner restrain or coerce employees of the above- named Company in the exercise of the rights guaranteed in Section 7 of the Act. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 405 (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 562 Federal Courthouse Bldg., 801 Broad- way, Nashville, Tennessee 37203, Telephone 242-5922. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN G. GREGG, Trial Examiner: This consolidated trial took place at Nashville, Tennessee, on July 6, 1967. The complaint alleges that, by certain conduct, Allied Su- permarkets, Inc. - Allied Discount Foods Division, herein referred to as the Respondent Employer, violated Section 8(a)(1) and (2) of the Act, and that the Amalga- mated Meat Cutters and Butcher Workmen of North America, Local 405, herein referred to as the Respondent Meat Cutters Union violated Section 8(b)(1)(A) of the Act. The Respondent and Respondent Meat Cutters Union deny the commission of any unfair labor practices. Upon consideration of the entire record, my observa- tion of the demeanor of the witnesses, and the briefs filed by the parties herein, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS The Respondent Employer is now, and has been at all times material herein, a Delaware corporation engaged in the operation of a chain of retail grocery stores located in 30 separate States of the United States. On or about March 8, 1967 , the Respondent Employer purchased and assumed the operation of two retail grocery stores located at 1508 Gallatin Road and 4095 Nolensville Road, Nash- ville, Tennessee . The Respondent Employer's two Nash- ville stores , during the past calendar year, which period is representative of all times material herein , sold and dis- tributed grocery products at retail, the gross volume of such sales exceeding $500,000. During the same period of time the Respondent Employer received goods valued in excess of $10,000 at its Nashville , Tennessee stores, transported to such stores from suppliers located outside the State of Tennessee . The Respondent Employer is now, and has at all times material herein been an em- ployer engaged in commerce within the meaning of Sec- tion 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Amalgamated Meat Cutters and Butcher Work- men of North America, Local 405, hereinafter referred to as the Respondent Meat Cutters Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The Retail Clerks Union, Local 1557, hereinafter referred to as the Retail Clerks Union, is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The consolidated complaint alleges essentially that the Respondent Employer recognized the Respondent Meat Cutters Union and executed an agreement with the Respondent Meat Cutters Union in regard to wages, working conditions and classifications of the employees notwithstanding the fact that at the time of the said agree- ment a real question concerning representation existed in that a substantial number of the Respondent's employees had designated the Retail Clerks Union as their exclusive bargaining representative in an appropriate unit consist- ing of all grocery clerks and food department employees excluding meat department employees and other statuto- ry exclusions; and notwithstanding the fact that at the time of said agreement Respondent Meat Cutters Union was not in fact designated by a majority of the Respond- ent Employer's employees in the aforesaid unit as their exclusive collective-bargaining representative, and that 350-212 0-70-60 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereby the Respondent Employer rendered and is rendering unlawful assistance and support to a labor or- ganization within the meaning of Section 8 (a)(2) of the Act and interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. The complaint additionally alleges that by such acts the Respondent Meat Cutters Union restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act thereby violating Section 8(b)(1)(A) of the Act. The Respondent Employer and the Respondent Meat Cutters Union deny the commission of any unfair labor practices. A. The Facts The facts herein are essentially undisputed. The Respondent Employer operates approximately 300 retail grocery supermarkets in various States. The record dis- closes that approximately 80 percent of these stores have been organized basically by various locals of the Retail Clerks Union and the Amalgamated Meat Cutters Union. On March 8, 1967, the Respondent Employer assumed the operation of the two Nashville, Tennessee, stores hereinabove mentioned. The predecessor employer, K. G. Food Corporation, had been ordered by a Recom- mended Order of a Trial Examiner in a prior proceeding, K. G. Food Corporation, Case 26-CA-2347, to cease and desist from refusing to bargain with the Respondent Meat Cutters Union herein and to bargain with said Union, on request, as the exclusive representative of the employees in the appropriate unit, which unit was found by the Trial Examiner to be "All meat department em- ployees at the Nolensville and Gallatin Road stores, Nashville, Tennessee, excluding guards and supervisors as defined in the National Labor Relations Act." The two stores were acquired by the Respondent Employer, here- in, prior to compliance by the predecessor corporation with the foregoing decision. The assumption of operation by the Respondent Employer did not result in any physi- cal change or change in the operations or duties of the employees. On March 13, 1967, the Respondent Meat Cutters Union, having begun an organizational campaign among the grocery employees and having obtained employee signatures on 45 union authorization cards, asserted to the Respondent Employer that it represented a majority of all of the employees at the subject stores and de- manded recognition in a broad wall-to-wall unit including all food department employees. The record indicates that a card check requested by the Respondent Meat Cutters Union was initially denied by the Respondent Employer on March 13, but was agreed to under threat of a strike. The March 13 meeting continued through March 14, 1967, when the Respondent Meat Cutters Union presented the Respondent Employer with the 45 signed authorization cards as proof of claim of a majority. When received by the Respondent Employer's personnel director and representative, Mr. Saul, the cards were turned over to Jack Bushkin , a third party labor relations consultant of Detroit, Michigan, for the purpose of checking the cards against the Respondent Employer's payroll records. As a result of the card check, Bushkin advised the Respondent Employer that the Respondent Meat Cutters Union represented a majority of the em- ployees in the broad unit of all food department em- ployees, excluding certain managers, comanagers, management trainees, office clericals, and all guards, professional employees, and supervisors within the mean- ing of the Labor Management Relations Act of 1947, as amended, employed at the Nashville, Tennessee, stores. Bushkin ruled out 3 of the 45 signed cards as invalid and accepted 42 cards as valid in the unit found to encompass 78 employees. Subsequently, that day the Respondent Employer and the Respondent Meat Cutters Union ex- ecuted a memorandum certifying the results of the card check and executed a memorandum agreement recogniz- ing the Respondent Meat Cutters Union as the exclusive bargaining representative of all the food department em- ployees at the subject stores with the exclusions as noted. Subsequently, on March 23, 1967, negotiations for a collective-bargaining agreement were commenced and continued through March 24, 1967. The negotiations produced agreement on the terms and conditions of a col- lective-bargaining agreement covering all of the bargain- ing unit employees and a memorandum agreement was executed by the Respondent Employer and Respondent Meat Cutters Union on March 24, 1967. In the meantime, however, the Retail Clerks Union had commenced an organizing campaign. After securing one card on March 4, 1967, the Retail Clerks Union on March 6, 1967, directed a telegram and letter to the Respondent Employer as follows: THIS IS TO INFORM YOU THAT LOCAL 1557 RETAIL CLERKS UNION, NASHVILLE, TENNESSEE, HAS AN IN- TEREST IN THE TWO NASHVILLE K-MART FOOD STORES WHICH YOU HAVE ACQUIRED AND ARE AS- SUMING OPERATION OF THIS WEEK. WE WOULD EX- PECT TO BE CONTACTED BY YOUR COMPANY IN THE EVENT ANOTHER LABOR ORGANIZATION EXPRESSES AN INTEREST IN OR SEEKS RECOGNITION FOR THE CLERKS IN THESE STORES. LETTER TO FOLLOW. E. L. COLLINS, SECRETARY- TREASURER RETAIL CLERKS UNION LOCAL1557 404 TUCK BUILDING NASHVILLE, TENNESSEE Registered-Return Receipt Requested Mr. Robert Hilliard, Allied Food Company 8711 Meadowdale Detroit, Michigan 48228 Dear Mr. Hilliard: We have been informed that you are presently acquiring the K-Mart Food Stores located at 1508 South Gallatin Road and 4095 Nolensville Road, Nashville, Tennessee. This is to inform you that we are presently engaged in an organizing campaign for the clerks in these stores, excluding the meat department employees and supervisors. At present, we have an interest in these clerks which we can show. We expect to be notified in the event any other labor organization claims to have an interest in or seeks to represent the employees in these stores other than meat department employees. Yours truly, E. L. Collins, Secretary- Treasurer ALLIED SUPERMARKETS, INC. The record reflects a postal receipt indicating that the letter was received by the Respondent Employer on March 8, 1967. There was no response to the foregoing communications. In the meantime, the Retail Clerks Union continued its organizing campaign by securing ap- proximately 26 additional cards thereafter between March 8, 1967, and March 13, 1967. Following the recognition on March 14, 1967, by the Respondent Em- ployer of the Respondent Meat Cutters Union, and prior to the execution of the agreement relative to wages and conditions of employment, the Retail Clerks Union on March 17, 1967, filed a petition with the National Labor Relations Board for certification as representative of the employees of the Respondent Employer in a narrow unit excluding the meat department employees and other statutory exclusions. 1. The telegram and letter Concerning the receipt of the telegram, testimony by E. L. Collins, secretary-treasurer of the Retail Clerks Union, was as follows: A. The notation says "Delivered 1:50 p.m. to Robert Hilliard." Q, Do you know how that happened to be put there? A. My secretary put this on there when the phone company called back and verified it or when Western Union called back and verified delivery of the tele- gram and her initials are marked there. As to the receipt of the registered letter, Collins testified as follows: A. Well, one attachment is the receipt for the re- gistered article which is the letter, the other one is the return receipt that was requested along with it signed-well, I can't make out the name but it is signed by Allied Food and stamped March 8, 1967. Collins testified additionally as follows: Q. Did your union take any other steps to become the employee representative with the Respondent Company's grocery department employees? A. On March 17, 1967, we filed a petition for a representation election among the employees. On cross-examipation E. L. Collins testified as follows: Q. Mr. Collins, at any time prior to the filing of your petition on March 20, 1967, did you offer to the Employer to examine your representation cards? A. We offered proof of our interest in the stores. Q. How did you offer such proof? A. Through the telegram and letter. Q. Did you in so many words at any time prior to the filing of the petition contact any official of the Employer and say here are my cards? A. No, sir. Testimony by Lawson Saul, director of personnel for the Respondent Employer, was as follows: Q. Directing your attention to the telegram and registered letter sent to your Mr. Hilliard on March 6, 1967, did that ever come to your attention? Did you ever see the letter and the telegram? A. Yes, as, a matter of fact that type of communi- cation as it would affect our division is automatically sent to me by' Mr. Hilliard. The telegram was sent to my office through our office mail and I actually didn't see that telegram until March 13, the morning of March 13, because I was out of town. The letter dated March 6 was a registered letter which did not 933 appear on my desk until March 22, however, in ex- amining the signed receipt, I recognize that it was in our office some place. I'll have to excuse our office mail for not getting it to me, but I did not receive it until March 22. On the basis of the foregoing, I find that at the time the Respondent Employer recognized the Respondent Meat Cutters Union on March 14, 1967, the Respondent Em- ployer knew that the Retail Clerks Union had commu- nicated with it by way of the telegram expressing an in- terest in the grocery store employees in the Respondent Employer's two Nashville stores. While the Respondent Employer claims that it did not acquire actual knowledge of the registered letter until March 22, on the basis of the testimony and exhibits of record, particularly the postal receipt initiating delivery on March 8, 1967, I charge the Respondent Employer with receipt and knowledge of the letter prior to March 14, 1967. 2. The question of the appropriate unit Turning to the question of the appropriate unit, the complaint herein alleges that all grocery clerks and food department employees employed by the Respondent Em- ployer at its Nolensville Road and Gallatin Road stores, Nashville, Tennessee, excluding meat department em- ployees, stores managers, comanagers, management trainees, office clerical employees, all guards, profes- sional employees, and supervisors 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. By its answer, the Respondent Employer denied that this is an appropriate unit and affirmatively declared that the aforesaid bargaining unit is inappropriate and that the only appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act in- cludes all meat, grocery, and produce department em- ployees employed by the Employer in the subject stores, excluding the store managers, comanagers, manager trainees, office clerical employees, all guards, profes- sional employees, and other supervisors as defined in the Act. On the other hand, in its answer, the Respondent Meat Cutters Union admits the allegation of the com- plaint dealing with the appropriate unit, but asserts in its brief that although the unit requested by the Retail Clerks Union is an appropriate unit, it is not, in the circum- stances of this case, the appropriate unit, in view of the recognition extended to the Respondent Meat Cutters Union in the larger but equally appropriate unit consisting of all employees of the Respondent Employer in the grocery and meat department, with statutory exclusions. The Board, in a recent representation case involving the Respondent Employer at another location, held that a separate unit of grocery employees, excluding meat de- partment employees, may constitute an appropriate bar- gaining unit. As in other industries, the appropriateness of such unit depends upon analysis of all relevant factors. The Board indicated that "upon such analysis, we are satisfied that there are sufficient differences between the grocery store and meat department employees in this case to support the appropriateness of a separate unit limited to grocery employees. Thus, the two departments are physically and functionally separate, there is very little in- terchange of employees between them, and each is sub- ject to separate immediate supervision. Meat department employees wear uniforms to distinguish them from other employees, and, in general, they have skills which differ 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from those of grocery department employees. Moreover, the general bargaining trend in the retail food store indus- try supports separate representation of meat and grocery department employees. Accordingly, we find that a unit of full-time and regular part-time grocery store em- ployees, excluding meat department employees, con- stitutes a separate appropriate unit. We note, however, that although community of interest among all employees supports the appropriateness of a storewide unit as well, no question concerning intervenors representation of meat department personnel has been raised on the present record ...... (Emphasis supplied.) Allied Super- markets, Inc., 167 NLRB 361. It is clear therefore that in the Board's view any one of at least three units might be appropriate here. In the cir- cumstances of this case, considering the fact that on March 14, 1967, the Respondent Meat Cutters Union possessed an uncoerced majority of the employees in the broad unit, I find that an overall broad unit as requested by the Respondent Meat Cutters Union and as accepted by the Respondent Employer herein is an appropriate unit. B. Discussion The General Counsel contends that this case is con- trolled by the rule in Midwest Piping and Supply Com- pany, Inc., 63 NLRB 1060, wherein it was established that an employer faced with conflicting claims of two or more rival unions, which give rise to a "real question con- cerning representation," may not recognize or enter into a contract with one of these unions until its right to be recognized has finally been determined under the special procedures provided in the Act. A review of the decision of the Board in Midwest Piping indicates that the Board found that the Respondent knew at the time of the execu- tion of the contract that there existed a real question con- cerning the representation of the employees in question. "The record shows that both the Steamfitters and the Steelworkers had vigorously campaigned in the plant, had apprised the Respondent of their conflicting majority representation claims, and had filed with the Board peti- tions, which were still pending alleging the existence of a question concerning the representation of the employees covered by the agreement." The Board in Midwest Piping went on to state that in that case the Respondent elected to disregard the orderly representative procedure set up by the Board under the Act for which both unions had theretofore petitioned the Board, and to arrogate to itself the resolution of the representative dispute against one union and in favor of the other. The Board found that by executing an agreement with one union in the face of representation proceedings pending before the Board, the Respondent accorded that union unwarranted prestige, encouraged membership therein, discouraged member- ship in the other union and thereby rendered unlawful assistance to one union which interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The rule in Midwest Piping is now settled. In Novak Logging Company, 119 NLRB 1573, the Board found a question concerning representation to exist when the Employer recognized one union in the face of recent bargaining negotiations with another union which had been the contractual representative of the employees in question during the preceding 4 years, holding that the Employer could not assume to judge for itself upon a showing of authorization cards which of the contending unions was the statutory representative of the employees. In a more recent case, B. M. Reeves Company, Inc., 128 NLRB 320, the Board reviewed the Midwest Piping doctrine, adverting to its decision in William Penn Broadcasting Company, 93 NLRB 1104, wherein the Board held that Section 8(a)(2) is not violated by an employer's execution of a contract with an incumbent union unless there existed at the time a real question concerning representation as ultimately decided by the Board on the basis of the same criteria uniformly applied in determining whether such a question existed before proceeding to an election under Section 9(a). In William Penn the Board stated that in the interest of industrial stability the employer may continue to deal with an incumbent so as not to deprive the employees of the benefits of uninterrupted collective bargaining, when- ever a clearly unsupportable or specious rival claim is made on the employer. It is well established that an em- ployer does not violate the Act by extending recognition to one of the competing unions where the rival union's claim is clearly unsupportable or specious, or otherwise not a colorable claim. The Boy's Market, Inc., 156 NLRB 105. In the case at hand it is asserted by the Respondent Employer that the rule in Midwest Piping is inapplicable because the Retail Clerks Union did not specifically state its claim to representation, but advanced merely an ill- defined and bare claim insufficient to create a real question concerning representation which is a necessary element in the Midwest Piping rule. The General Counsel contends that the fact competing unions do not specifically state their claims to representa- tion does not prevent the existence of a question concern- ing representation, citing The Wheland Company, 120 NLRB 814. I do not find that case applicable herein for in Wheland the facts showed that the Respondent Em- ployer granted recognition to one union with full knowledge of the claims of both unions to represent em- ployees in a newly created unit, the Board stating that under these circumstances the fact that the both unions did not specifically state their claims to representation is of no significance. It was a relatively simple matter for the Board in that case to recognize the existence of a real question concerning representation in the face of clear underlying claims by the contending unions, and actual statements by the Respondent Employer, therein, to representatives of both unions assuring them that the question of representation would be resolved by a Board election, a case clearly distinguishable from the one at hand. Examining the case at hand, and the situation as it existed on the critical date of March 14, 1967, in order to determine whether or not there existed' at that time a genuine question concerning representation, it is clear from the record that at that time the Respondent Em- ployer had before it an unmistakable claim by the Respondent Meat Cutters Union to represent all the food department employees in an appropriate, broad, wall-to- wall unit which included both grocery and meat depart- ment employees with appropriate statutory exclusions. At the same time it was presented with proof, confirmed by an independent third party check, of the majority status of the Respondent Meat Cutters Union in the unit claimed. Was there in existence at that time a conflicting claim sufficient to raise a real question concerning representa- tion? At that time the Respondent Employer was in receipt of the Retail Clerks Union telegram of March 6, ALLIED SUPERMARKETS, INC. 1967, and based on the findings hereinabove was charged with notice of the Retail Clerks Union registered letter of March 6, 1967. An analysis of the telegram and letter reveals that no assertion is made by the Retail Clerks Union of majority status nor is there, in fact, any demand for recognition contained in these communications. The telegram and letter undoubtedly placed the Respondent Employer on notice of the fact that the Retail Clerks Union had an "interest" in the employees which they could show. A reading of the letter and telegram at best would advise the Respondent Employer that the Retail Clerks Union was initiating an organizing campaign for the clerks in those stores and had an interest of an undis- closed and undefined extent. There are no circumstances herein, on the critical date, as in the Midwest Piping and Novak Logging line of cases, such as the existence of petitions for election by the competing unions or an in- cumbent union, or a history of prior discussions or bar- gaining between the Respondent Employer and each of the competing unions. In Midwest Piping and Novak Logging the existence of the conflicting claims is ap- parent and unquestionable, whereas in the case at hand it is not. On the contrary, the telegram and letter to the Em- ployer herein, at a time when the Respondent Employer was in the process of assuming the operation of the stores for the first time, making no assertion of majority status nor in any way demanding recognition, would not, in my opinion, place the Respondent Employer in the position of being faced with conflicting claims of such nature as to raise a genuine question concerning representation. This view finds support in the record which clearly indicates that at the time the telegram and letter were dispatched the Retail Clerks Union had, in fact, secured only one authorization card. While the record does indicate that the Retail Clerks Union in the week preceding the critical date of recognition conducted an organizing campaign and secured additional authorization cards, the record also discloses that this was not communicated to the Respondent Employer and that no further action was taken by the Retail Clerks Union to establish a claim or otherwise communicate with the Respondent Employer until after recognition had been accorded to the Respond- ent Meat Cutters Union. At this time the Retail Clerks Union, was not an incumbent, had not filed a petition, and had not, in my view, indicated to the Respondent Em- ployer any more than an interest in organizing some of its employees, Under these circumstances, I find that on March 14, 1967, there did not exist a "real question con- cerning representation" within the Midwest Piping rule mnd that the Respondent Employer herein was ac- cordingly free to recognize the Respondent Meat Cutters Union as the exclusive bargaining representative of the -mployees, in the appropriate unit claimed, on the basis A a clear showing of majority status certified to through mn independent third party check. Measuring the situation from a different perspective, and generally applying the yardstick suggested by the Board in R. M. Reeves Company, supra, that is, the :riteria uniformly applied by the Board in determining whether such a question exists before proceeding to an election under Section 9(a) of the Act, we find that on the sate of recognition the claim by the Retail Clerks Union foes not equate to an active and continuing claim within he ambit of Novak Logging, and that while the claim in- volved an appropriate unit it was not supported by an 935 adequate showing of interest. I do not find in the telegram and letter herein a clear claim of representation which was active and continuing when recognition was ac- corded the Respondent Meat Cutters Union. I find an absence of an adequate showing of interest in behalf of its claim by the Retail Clerks Union, for while it is true that the Retail Clerks Union had secured a number of authorization cards in the interim between the telegram and letter and the date of recognition, it is clear from this record that this fact was not communicated to the Respondent Employer and the Respondent Employer had no notice or knowledge thereof. Even measured by this yardstick, the circumstances of this case do not clearly establish the existence of a conflicting claim of such nature as to raise a "real question concerning representation." I find therefore that the recognition of the Respondent Meat Cutters Union by the Respondent Employer on March 14, 1967, was valid. The General Counsel argues that the recognition on that date was not valid, since on that date the Respondent Meat Cutters Union did not, in fact, enjoy majority status. The record discloses that on March 14, 1967, the total number of employees as reflected on the payroll of the next nearest date is 80. With the deletion of 4 super- visors the total number in the overall unit is 76. The testimony of record fails to establish that the Respondent Meat Cutters Union did not, in fact, enjoy majority status in the broad wall-to-wall unit on March 14, 1967. The General Counsel argues that the lack of majority is evidenced by the mere existence on March 14, 1967, of 15 duplicate cards, that is, cards signed for the Retail Clerks Union by employees who prior to that time had signed for the Respondent Meat Cutters Union, thereby, according to the General Counsel, revoking their prior designation of the Respondent Meat Cutters Union as their exclusive bargaining representative. I do not so find. The total number of cards secured on'behalf of the Retail Clerks Union was approximately 27. Objections were made to the admissibility of many of these cards and as to the weight to be accorded them, particularly in view of testimony by Lee which indicated that cards were sol- icited by him with the statement that "This was the only way it could be used, there was two unions involved, was for an election." Aside from the fact that some of these cards would therefore appear to be invalid,' in my view the existence of these duplicate cards, some tainted in their solicitation, is of questionable value in establishing a clear revocation of the prior authorizations, and does not affirmatively provide a preponderance of evidence of probative value sufficient to establish the fact that the prior authorizations were, in fact, revoked and that the Respondent Meat Cutters Union did not enjoy majority status in the broad wall-to-wall unit on March 14, 1967. I therefore find that the Respondent Meat Cutters Union did enjoy majority status in the broad wall-to-wall unit on the date of recognition, March 14, 1967. Finally, examining the situation following the recogni- tion, the record discloses that the petition filed by the Retail Clerks Union bears the date of March 20, 1967. Concerning its receipt, the record discloses uncon- tradicted testimony by Saul, on behalf of the Respondent Employer, that at the time of the execution of the contract he had not been served with the petition, that the petition was served on the store managers on Saturday, March 25, 1967, but did not come to his attention until his return Cumberland Shoe Corporation, 144 NLRB 1268 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Louisville on Monday, May 27, 1967, subsequent to the execution of the contract. The record contains no proof of the date of forwarding of notice nor receipt of notice except that as testified to by Saul. Under these cir- cumstances, and crediting Saul's testimony, I find that on March 24, 1967, the Respondent Employer had no knowledge of the filing of the petition herein. In any event, having found the recognition accorded to the Respondent Meat Cutters Union by the Respondent Employer on March 14, 1967, to be valid and in good faith, I would apply the decision of the Board in Keller Plastics Eastern, Inc., 157 NLRB 583, wherein the Board stated, "With respect to the present dispute which involves a bargaining status established as the result of voluntary recognition of a majority representative, we conclude that, like situations involving certifications, Board orders, and settlement agreements, the parties must be afforded a reasonable time to bargain and to ex- ecute the contracts resulting from such bargaining. Such negotiations can succeed, however, and the policies of the Act can thereby be effectuated, only if the parties can normally rely on the continuing representative status of the lawfully recognized union for a reasonable period of time-" In Keller Plastics the Board found to be reasonable a 3-week period, from February 16, the date recognition was lawfully accorded, to March 10, the date the contract was executed. I would find herein that the period March 14 through March 24 to be a reasonable period. I am not unmindful of the recent pronouncement of the Board in Superior Furniture Manufacturing Company, Inc., 167 NLRB 309, wherein the Board stated that the recognition agreement therein accorded to the Union on the basis of signatures on authorization cards was not considered a bar within the rule announced in Keller Plastics. That case is distinguishable from the case at hand not only on the basis of the fact that a petition had been filed backed up by a showing of interest of 33 cards out of approxi- mately 45 employees contemporaneously with recogni- tion, but the petitioner therein had apparently secured a majority of the cards at the time it filed its petition, all contemporaneous with the recognition. In the case at hand, at the time of recognition no petition had been filed and no claim raising a real question concerning represen- tation was in existence. Following the past pronounce- ments of the Board, the burden of establishing the facts to support the violations alleged in the complaint rests upon the General Counsel, who must prove that a real question concerning representation existed when the Respondent Employer herein recognized and contracted with the Respondent Meat Cutters Union. In my view, the record does not establish this by a preponderance of the evidence, nor does it establish that the Respondent Em- ployer rendered unlawful support to the Respondent Meat Cutters Union as alleged in the complaint. Ac- cordingly, I recommend dismissal of the complaint herein insofar as it alleges violations by the Respondent Em- ployer of Section 8(a)(1) and (2) of the Act. For the reasons explicated hereinabove and in view of the findings herein that no real question concerning representation existed on the critical dates, and that the Respondent Meat Cutters Union enjoyed majority status on the date of recognition, I also recommend dismissal of those portions of the complaint alleging violations by the Respondent Meat Cutters Union of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Allied Supermarkets, Inc. -Allied Discount Foods Division is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Meat Cutters Union and the Retail Clerks Union are labor organizations within the meaning of Section 2(5) of the Act. 3. All meat, grocery, and produce department em- ployees employed by the Employer in the Employer's Gallatin and Nolensville Road, Nashville, Tennessee, stores, excluding the store managers, comanagers, manager trainees, office clerical employees, all guards, professional employees, and other supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent Employer did not render nor is it rendering unlawful assistance and support to a labor or- ganization, and has not engaged in nor is it engaging in un- fair labor practices affecting commerce within the mean- ing of Section 8(a)(2) and Section 2(6) and (7) of the Act. 5. The Respondent Employer did not interfere with, restrain, or coerce its employees in the exercise of rights guaranteed in Section 7 of the Act and did not engage in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 6. The Respondent Meat Cutters Union did not restrain and coerce the employees in the exercise of rights guaranteed in Section 7 of the Act and has not engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER In view of the foregoing conclusions of law and based upon the entire record herein, it is recommended that the complaint be dismissed in its entirety.