Barker's East Main Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1963

142 N.L.R.B. 1194 (N.L.R.B. 1963)

1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. American Bakery and Confectionery Workers' Union , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union membership ; by threatening
them with discharge and other reprisals if they became or remained members of the
Union or gave any assistance or support to it; by requesting employees to engage in
surveillance of union activities of other employees ; and by promising benefits to em-
ployees if they would refrain from union or concerted activities and conditioning
these promises upon such employees influencing other employees to refrain from
union or concerted activities , Respondent has interfered with , restrained , and coerced
them in the exercise of rights guaranteed employees in Section 7 of the Act and has
thereby engaged in unfair labor practices within the meaning of Section 8 (a)( I) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommended Order omitted from publication.]
Barker's East Main Corporation and Barker 's Supermarket,
Inc. and Local 919, Retail Clerks International Association,
AFL-CIO. Case No. 1-CA-3628. June 18, 1963
DECISION AND ORDER
On June 14, 1962, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in certain unfair labor practices alleged in the
complaint and recommending that they cease and desist therefrom and
take certain affirmative action as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondents
had not engaged in certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel, the Charging Party,
and the Respondents filed exceptions to the Intermediate Report and
supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs,,and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, to the extent consistent herewith.
In affirming the Trial Examiner's conclusion that the Respondent
has not violated Section 8(a) (5) of the Act, Chairman McCulloch
and Members Fanning and Brown do not rest their decision upon the
principle laid down in Louis Aiello, et al., d/b/a Aiello Dairy Farms,
110 NLRB 1365.1
3 In addition to those factors relied upon by Chairman McCulloch and Members Fanning
and Brown in affirming the Trial Examiner , Members and Rodgers and Leedom would adopt
in toto the Trial Examiner 's explication of and reliance upon the principle expressed in the
Aiello Dairy Farms case
142 NLRB No. 132.
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 1195
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner? However, in order to conform the Order and the
Appendix to the Trial Examiner's findings which we have herein
adopted, we modify paragraph 1 (a) of the Order to read :
Ordering employees to impose burdens or hardships upon other
of their employees in order to discourage membership in, or ac-
tivities on behalf of, the Union.
Accordingly, we also modify the first paragraph of the Appendix
to read:
WE WILL NOT order employees to impose burdens or hardships on
other of our employees in order to discourage membership in or
activities on behalf of Local 919, Retail Clerks International
Association, AFL-CIO, or any other labor organization.
The next to last sentence of the Appendix is also amended to read : "This notice must
remain posted for 60 consecutive days from the date of posting . . ." instead of stating
"60 days from the date hereof."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on November 3, 1961, by Local 919, Retail Clerks Inter-
national Association, AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board issued a complaint on December 15, 1961,
against Barker's East Main Corporation and Barker's Supermarket, Inc., herein
referred to collectively as Respondents, alleging violations of Section 8(a)(1), (3)
and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151,
et seq.), herein called the Act.
With respect to the alleged unfair labor practices, the complaint charges that
Respondents (1) on or about July 15, 1961, discharged Ronald Belcourt and de-
creased the rate of pay of five named employees because they engaged in union
activities, (2) engaged in other specifically alleged conduct which interfered with,
restrained, and coerced their employees in the exercise of rights guaranteed in
Section 7 of the Act, and (3) refused, on and since August 7, 1961, to bargain
collectively with the Union, alleged to be the representative of their employees in
any appropriate unit. By its answers duly filed, Respondents denied the com-
mission of any unfair labor practice.
Pursuant to notice, a hearing was held before Trial Examiner David London at
Meriden, Connecticut, on various days between February 13 and 28, 1962. All
parties were represented at the hearing by counsel and were afforded full op-
portunity to be heard, to introduce relevant evidence, to present oral argument,
and to file briefs. Briefs filed by the General Counsel, Respondents, and the
Charging Union have been duly considered.
Upon the entire record,' the briefs of the parties, and my observation of the
witnesses as they testified, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Barker's East Main Corporation and Barker's Supermarket, Inc., are, and at
all times material herein have been, affiliated corporations with common officers,
' The General Counsel's unopposed motion, dated March 30, 1962, to correct the transcript
of hearing as described in said motion is hereby granted.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ownership, directors, and management, and constitute a single integrated business
enterprise and a single employer within the meaning of Section 2(2) of the Act.
The said directors and management formulate and administer a common labor
policy for the aforementioned companies affecting the employees of both com-
panies. At all times relevant herein, Respondent Barker's East Main Corpora-
tion has maintained its principal office and place of business at 1099 East Main
Street, Meriden, Connecticut, and is now and continuously has been engaged at
such store in the retail sale and distribution of groceries, foodstuffs, and related
products. During the same period, Respondent Barker's Supermarket, Inc., has
maintained its principal office in Meriden, Connecticut, and is now and continu-
ously has been engaged at such store in the retail sale and distribution of groceries,
foodstuffs, and related products. Respondents, in the course and conduct of their
business, causes, and continuously have caused at all times herein mentioned, large
quantities of groceries, foodstuffs, and related products used by them in their
business to be purchased and transported in interstate commerce from and through
various States of the United States other than the State of Connecticut. In the
course and conduct of their business operations, Respondents sell and distribute
-groceries, food products, and related items, the gioss value of which exceeds
$500,000 annually Respondents admit, and I find, that at all times material herein,
they were, and presently are, an employer engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background and Sequence of Events
Organization among Respondents' employees began with the efforts of Union
Organizer Robert J. Ryan on April 25, 1960 On this occasion, Ryan met with
.several employees in the home of employee Gagne, where one of the employees
had arranged the attendance of one of Respondents' supervisors, John Valariay,
under an assumed name. Organizing continued throughout the summer and fall
of that year, with a number of employees soliciting union membership both on and
off the company property.
In addition to Supervisor Valariay's prearranged intrusion into the organizing
conference referred to above, Respondents, through their officers and supervisors,
admittedly engaged in incidents relating to the employees' organizational efforts.
Thus, on June 21, 1960, Store Manager D'Agostino told an employee that he would
be fired if he signed any union card; on September 2, Earl Barker, vice president of
Respondents, told an employee that it was store policy not to have an employee
who wanted a union; on the same day, Joseph Barker, president of Respondents,
told another employee they would consider rehiring him if he withdrew from the
Union; and on the same day, both Barkers and Store Managers D'Agostino and
Beal interrogated employees concerning their union affiliations and activities and
about the activities of other employees, on this date, D'Agostino likewise told an
employee that he would make a deal with the employee if he told him what other
employees had signed union cards and told another employee he would be fired
if he did not tell him what other employees had signed union cards; on the same
date, Store Manager Beal told an employee that he was being discharged because
he had joined the Union or because of his union activities On September 3, 1960,
Store Manager D'Agostino again interrogated an employee concerning his union
affiliations and activities; and on the same day and again on September 6, D'Agostino
threatened an employee that he would be discharged if he did not withdraw from
the Union.
Concurrent with the foregoing incidents, Respondents discharged employees
Richard D. Tompkins, Real Charpentier, John E. White, Russell Bridgett, and
Ronald D. Bridgett on September 2, 1960, and George Bartholomew on Septem-
ber 6. Tomkins, Charpentier, White and Bartholomew were thereafter rehired
on September 21. Respondent again discharged Tompkins on September 27, 1960,
and White on September 29. Thereafter, pursuant to a settlement agreement, ap-
proved by the Board's Regional Director, Respondents posted appropriate notices
and rehired those employees who had been discharged and not previously taken
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 1197
back, namely Russell Bridgett on October 31 and Ronald Bridgett on November 2,
together with White and Tompkins who had each been discharged a second time.
These discharges, thus remedied by reinstatement under the agreement, Respondents
-conceded, were effected for the reason that the employees concerned had joined
or assisted the Union or had engaged in other concerted activities for the purpose
of self-organization. On January 20, 1961, Respondents again discharged Ronald
Bridgett, one of the Union's most active proponents, because of his union activities.2
The campaign to organize Respondent's employees was intensified in the summer
of 1961. Most active in the campaign at that time were Ryan and employees
Robert Crane and his brother, Richard Crane. Collectively, these 3 men obtained
the signatures of approximately 60 employees to cards designating the Union as
their collective-bargaining representative.
Interference, Restraint, and Coercion
In June 1961, Ronald Belcourt, assistant manager of the produce department, and
employee Robert Crane were called to Earl Barker's office where Barker told both
men that he wanted them "to work Ruth Kelley harder, so maybe she would get
disgusted and quit, because she was signed up with the Union " Belcourt com-
plied with Barker's request. A couple of weeks later, Barker again called Robert
Crane to his office. There he told Crane that "he had ideas" that Walt Kogut
and Eddie Witkovak, two boys employed in the produce room, had signed up
with the Union and asked Crane to "talk them out of it, there would be a raise for
,them after the business was over."
After Richard Crane left Respondents' employment on July 3, 1961, his brother
Robert had a conversation with Earl Barker during which the latter asked Robert
whether he had signed a union card, told him that Richard and Anthony Gwara were
"very foolish for engaging in union activities" and asked Robert to talk to his brother
and Gwara "about stopping their activities." During the same conversation, Barker
told Robert that he "could put [him] back in jail" and that if Richard thought
anything of Robert, he would "stop his activities." This last threat was occasioned
by the fact that Robert had been released from a State reformatory and was then on
parole, a status he maintained only because he was given and retained in employment
by Respondents It was because he "didn't feel like going back to jail" that he lied
to Barker with regard to his own interest in the Union. About this time, Robert Crane
saw George Hall, his parole officer, go into Earl Barker's office following which
Barker told him that Hall wanted to talk to him. The two men went to the lunch-
eonette for coffee where Hall told Robert he "shouldn't have anything to do with
the Union, because Mr. Barker had been good to [him], and he shouldn't go against
them."
Early in August 1961, Earl Barker told employee Suzanne Mekis that Dominic
D'Agostino, a brother of the store manager, told him that she had "signed for the
Union" and asked her why she had done so.
By (a) Barker's instructions to Belcourt and Robert Crane concerning Ruth Kelley;
(b) his promise of benefits to employees to induce them to withdraw their support of
the Union; (c) his interrogation of Robert Crane and Mekis concerning their union
membership or activity; and (d) his instructions to Robert Crane to induce his
brother Richard to stop his union activities, Respondents violated Section 8(a) (1) of
the Act.
On or about August 21, Harriet Pratt asked employee Betty Passarelli how she
was going to vote at the Board election scheduled for-August 24, but the record
fails to establish by a preponderance of the evidence that Pratt was a supervisor with-
in the meaning of the Act so as to make Respondents responsible for the interroga-
tion. Though the complaint alleges that other conduct by Respondents was violative
of Section 8(a)(1) of the Act, I find these allegations not sustained by a pre-
ponderance of the evidence.
The Alleged Discrimination
As previously indicated, the complaint also alleges that on or about July 15, 1961,
Respondents discharged Ronald Belcourt and decreased the rate of pay of five named
4 The findings contained in the preceding three paragraphs are based on the decision of
the Board in an earlier proceeding against the same Respondents reported in 136 NLRB
494, of which I have taken official notice These findings were first made by Trial Examiner
Maher in that proceeding and concerning which Respondents took no exceptions. They
have, however, been noted for background purposes only. -
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and provided them with less employment than they normally would have
received, because they joined or assisted the Union. The allegation petraining to the
discharge of Belcourt was dismissed by me during the course of the hearing because
his own testimony disclosed that he voluntarily terminated his employment, and the
General Counsel conceded, both during the hearing and in his brief, that the rates
of pay of the five employees referred to above were not lowered. Accordingly, there
remains for consideration on this phase of the case only the issue of whether or not
the number of hours worked by the five employees was reduced during the summer
of 1961, because of their union membership or activities.
Though the record establishes that the overtime previously worked by these em-
ployees was reduced, the General Counsel has failed to establish that the cuts were
imposed for the reasons alleged in the complaint. Instead, I find that the reductions
were brought about for economic reasons in the sound exercise of Respondents' busi-
ness judgment and were announced and made effective at a meeting of the grocery
department employees as early as April 11, about 3 months before the approximately
60 employees signed cards designating the Union as their collective-bargaining repre-
sentative. At that meeting, Joseph Barker discussed the problem of excessive over-
time with the employees and announced that working schedules would be reduced
"in an effort to curtail overtime pay."
Many of the employees in the grocery department, especially the stockboys who
replenished the shelves, were high school boys who worked part time after school
hours. When school closed for the summer, and older boys returned to Meriden from
college, the working hours of the schoolboys were increased and the college boys
were given employment. The result was that the overtime previously enjoyed by
full-time employees was reduced or entirely eliminated, thereby substantially reduc-
ing Respondents' Labor costs. I find no credible, probative evidence that these reduc-
tions were imposed for the reasons alleged in the complaint and will therefore recom-
mend that they be dismissed.
The Alleged Refusal To Bargain
As previously indicated, upwards of 60 employees signed cards in July 1961, desig-
nating the Union as their collective-bargaining representative. It is conceded, how-
ever, that no request for recognition of the Union was made until Friday, August 4,
1961, when its attorney wrote Respondents requesting a conference, which request
Respondents received in the ordinary course of mail on Saturday, August 5. Without
awaiting a reply thereto, the Union, at 3:39 p.m. on August 4, filed its petition in
Case No. l-RC-6576, seeking certification as collective-bargaining representative by
the Board. That petition, a copy of which was mailed to Respondents on August 4,
recited that a demand for recognition was made on August 4, but that Respondents
had made no reply thereto.
Without any unseeming or unreasonable delay, the Union and Respondents, on
August 14, entered into a consent election agreement for an election among Respond-
ents' employees to be held on August 24 to determine whether or not they desired rep-
resentation by the Union. At that election, 25 votes were cast for, and 94 against, the
Union, with 9 ballots being challenged. On August 31, the Union filed its objections
to conduct affecting the results of that election and seeking to set its results aside.
After investigation, the Board's Regional Director, on October 5, 1961, filed his report
overruling those objections and certifying the results of the election as reported above.
On November 2, the Union filed a motion with the Regional Director seeking re-
consideration of his report of October 5 on the ground that evidence in support of its
earlier objections, not available when it filed those objections, had "recently" become
available to it. This alleged evidence consisted of affidavits of James D'Agostino, Jr.,
and Dominic D'Agostino, containing damaging charges against Respondents. Rely-
ing, in part, on the representations contained in these affidavits, the Regional Direc-
tor, on December 28, 1961, in a supplemental report on objections, granted the
Union's motion of November 2 to revoke his earlier report on objections. On Jan-
uary 2, 1962, the Union requested withdrawal of the petition in the representation
proceeding which request was granted on January 3, 1962 .3
8 The facts pertaining to the representation proceeding have been officially noticed by
me from the Board's file in 1-RC-6576. The affidavits of the two D'Agostinos also served
as a basis for the General Counsel's motion, made on or about December 21, 1961, to reopen
the record in the unfair labor practice case against these Respondents mentioned in footnote
2, supra, for the purpose of taking the oral testimony of the two D'Agostinos in that pro-
ceeding. On January 9, 1962, the Board granted this motion. Both D'Agosttnos also
testified before me in February 1962 and, after invoking constitutional immunity against
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 1199
Having lost the election , and withdrawn its petition for an election and certifica-
tion, the Union now seeks to establish its alleged majority status, and the right to
be recognized as the collective-bargaining representative in the instant proceeding,
by reliance on written designations executed by a claimed majority of the employees
in the appropriate unit.
While it is true that a union may establish its status as the duly designated bar-
gaining representative either by means of a Board-conducted election or by written
designations, it may not, absent circumstances not present here, have "two bites at
the apple." Louis Aiello, et at., d/b/a Aiello Dairy Farms, 110 NLRB 1365. The
Board there held that "where the complaining union previously lost a Board election
in which it participated with knowledge of antecedent unfair labor practices on the
part of the employer, the Union will not be allowed to assert the same conduct in
an unfair labor proceeding for the purpose of a redetermination of its bargaining
rights." 4 Here, the Union deliberately first sought the election method to establish
the desired status and, having lost therein, now seeks the second bite aforementioned.
The General Counsel, in his brief, concedes that "the Board has consistently fol-
lowed" the rule laid down in Aiello but seeks to avoid the result reached therein, or
to distinguish the instant proceeding therefrom, on the ground that here, prior to
the election, the Union "had no evidence (as distinguished from provable knowledge)
of any of the unfair labor practices which were committed and alleged in this case-
[and that it only had] rumor or hearsay that these things were transpiring " Though
I am unable to understand the significance of the distinction between "evidence" and
"provable knowledge," the remainder of his brief indicates that he contends that
Aiello is not applicable because here, the Union only had "rumors or hearsay" con-
cerning Respondents' unfair labor practices and not the knowledge thereof of which
Aiello speaks. I cannot give credence to this assertion or sustain such a contention.
At the hearing before me, the General Counsel asked that I take official notice
of the prior unfair labor practice proceeding against Respondents heard by Trial
Examiner Maher and I have done so.5 That proceeding was heard on March 27,
28, 29, and 30, and July 25, 1961. Ryan, the Union's business agent, and the
same attorney for the Union who appeared before me, also participated in the
earlier proceeding. No contention can, therefore, be advanced that the Union,
on August 14, 1961, had no knowledge of those unfair labor practices. Aiello,
therefore, forecloses reliance on those unfair labor practices as a basis for sus-
taining the refusal-to-bargain allegations of the instant complaint.
There remains for consideration on this phase of the case what effect is to be
given to the unfair labor practices found herein and which were committed during
the course of, or after the close of, the earlier proceeding before Trial Examiner
Maher and before August 14, 1961. Falling in this category are (a) Barker's
instructions to Belcourt and Robert Crane to work Ruth Kelley harder because she
had signed up with the Union; (b) Barker's instructions to Robert Crane to induce
two employees to withdraw from the Union upon promise of a raise in pay; (c)
Barker's threat to Robert Crane that he could put him "back in jail" unless his
brother Richard stopped his union activities; and (d) Barker's interrogation of
Mekis concerning her union activities. All of these events, however, occurred prior
to August 14, 1961, the date the Union agreed to go ahead with the election.
The contention of the General Counsel that the Union had no "evidence" or
"provable knowledge" of these unfair labor practices, and that it only had "rumors
or hearsay" concerning them, cannot be sustained as to items ( a), (b), and (c),
immediately above. Robert Crane, who was directly and personally involved in
all three of these incidents, was one of the most active union proponents and
procured the signatures of eight other employees to union designation cards. His
brother Richard was even more active in behalf of the Union, having induced about
30 employees to sign such cards, some of them in company with Ryan , the union
organizer.
selt-incrimination, repudiated their affidavits aforementioned and confessed to perjury.
On March 12, 1962, after the hearing before me had been concluded, the General Counsel
moved the Board to vacate its eider of January 9, 1962, in the earlier unfair labor prac-
tice proceeding because of the aforementioned repudiation which motion was granted by
the Board . See footnote 2 of the Board 's decision in the earlier proceeding against Re-
spondents reported in 136 NLRB 494
Twentieth Annual Report of the Board , page 92.
By pars. 21 and 23 of the complaint herein, the General Counsel sought to rely on
those earlier unfair labor practices to sustain the refusal -to-bargain charge aginst Re-
spondents.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the close relationship between these three men, I find it inconceivable
that Ryan, and thereby the Union, were not made aware of the three unfair labor
practices directed to, or committed in the presence of, Robert Crane. Indeed,
Ryan did not deny having knowledge thereof but claimed only that he "couldn't
get any affidavits to support the unfair labor charges." Why he could not get such
an affidavit from Robert Crane was not explained. In any event, Aiello does not
require that the knowledge of unfair labor practices must be substantiated by
affidavit. On the entire record, and my observation of Ryan as he was testifying
on this phase of the case, I find that the Union had knowledge of incidents (a),
(b), and (c) but nevertheless agreed to go ahead with the election.
The General Counsel is, therefore, left only with incident (d) of which the
Union allegedly had no knowledge, the interrogation of Mekis, as a basis for
now allowing the Union a second opportunity to establish its claimed majority
status However, in determining what effect must be given to that incident, the
remainder of the record cannot be ignored. Thus, that record discloses that the
Union, prior to August 14, had knowledge of the most serious unfair labor practices
committed by Respondents, including the discharge, and threats of discharge, of
employees for engaging in union activities-conduct which has universally been
recognized as the most effective weapon an employer has to discourage union member-
ship or activities. Nothwithstanding knowledge of these unfair labor practices, the
Union chose, nevertheless, to proceed with the election. In that state of the record, it
stretches credulity to the breaking point to now assume, or suggest, that if the
Union had knowledge of the interrogation of Mekis it would not, or might not,
have gone ahead with the election.
In sum, therefore, I conclude that the Union, having deliberately chosen to sub-
mit the question of its majority status to an election with knowledge of serious prior
unfair labor practices by Respondents, is now foreclosed from seeking a second
opportunity to do so in this proceeding. Aiello Dairy Farms, supra; S. Frederick
Sansone, d/b/a S. Frederick Sansone Co., 127 NLRB 1301.
There is, however, another reason why the refusal-to-bargain allegations of the
complaint cannot be sustained herein. It is now well established that, absent
special circumstances not present here, a prerequisite to a finding of refusal to
bargain by an employer is a clear and unequivocal demand for bargaining by the
claimed bargaining representative. N.L R.B. v. Columbian Enameling & Stamping
Co, Inc., 306 U.S. 292. I find no such demand here.
The General Counsel conceded that the only such demand made by the Union
herein was contained in its letter of August 4, 1961, which read as follows-
AUGUST 4, 1961.
BARKER'S EAST MAIN CORPORATION,
1099 Fast Main Street,
Meriden, Connecticut.
BARKER 'S SUPERMARKET, INC.,
392 Colony Avenue,
Meriden, Connecticut.
GENTLEMEN: This is to advise you that Retail Employees Union, Local 919,
Retail Clerks International Association, AFL-CIO, represents a majority of your
employees in the following unit, for purposes of collective bargaining with re-
spect to wages, hours, and other conditions of employment: all employees at
your Meriden, Connecticut stores, excluding office clerical employees, guards,
professional employees and supervisors.
We are prepared to meet with you at your earliest convenience to discuss these
subjects. Please let us know when you are available to meet. Please do not
deal with any other labor organization which may claim to represent these
employees.
Kindly address your reply to the Union at its office, 86 Pratt Street, Hartford,
Connecticut.
Very truly yours,
GRANT , ANGOFF , GOLDMAN , & MANNING,
(S) Warren S. Pyle,
WARREN H. PYLE,
Attorneys for Local 919,
Retail Employees Union,
R.C.I.A., AFL-CIO.
It must be noted that the foregoing letter advised Respondents that the Union was
"prepared to meet with [Respondents] ... to discuss [the] subjects" mentioned in
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 1201
the first paragraph of that letter. One of those subjects for discussion was the
asserted but unsubstantiated claim that the Union represented a majority of Re-
spondents ' employees . Though the parties conferred promptly thereafter , the record
is barren of any evidence that the Union during those meetings asserted any right
to proceed with bargaining because of its alleged majority status . The only con-
cern of the parties was to reach agreement on the time and place of the Board elec-
tion which Respondents demanded Indeed , during the hearing before me, it was
conceded by the General Counsel that the Umon at no time offered the designa-
tion cards to Respondents for count or vertification , and yet it must have been aware
that until the Union 's majority was established , or acknowledged by Respondents,
there could be no collective bargaining.
Except for the letter under consideration , "the record contains no other evidence
of a request to bargain , and [I ] cannot find in its letter of [August 4] that kind of
clear and unequivocal request by the Union essential to the conclusion that the
Respondents refused to bargain." John Waford, d/b/a WafJord Cabinet Com-
pany , 95 NLRB 1407; Joseph Solomon, d/b/a The Solomon Company, 84 NLRB
226; Longview Furniture Company , 100 NLRB 301.
By reason of all the foregoing I conclude that the record does not establish that
Respondents refused to bargain with the Union in violation of the Act as alleged
in the complaint , and will therefore recommend that those allegations be dismissed.
In view of the conclusion just announced , I find it unnecessary to consider Re-
spondents ' attack on the validity of approximately 20 of the designation cards upon
which the General Counsel sought to rely in order to establish the Union 's alleged
majority status . To prepare for that attack, however , Jay S. Siegel , counsel for
Respondents , during a recess while the hearing was in progress , deemed it neces-
sary to interview and question at least 16 of Respondents ' employees whose cards
designating the Union as their collective -bargaining representative had been re-
ceived in evidence.
The General Counsel, contending that Siegel 's interrogation of these employees
went beyond the bounds of legitimate inquiry, made a motion, after the testimony
pertaining to that interrogation was completed and on which ruling was reserved,
that the complaint herein be amended to additionally charge that Siegel 's conduct
under consideration interfered with , restrained , and coerced employees in the
exercise of their guaranteed rights and was therefore violative of Section 8(a) (1)
of the Act. The motion is hereby granted.
Approximately 16 employees testified that shortly before being called as witnesses
herein by Respondents , they were summoned to the office of Joseph Barker for
the purpose of being interviewed by Siegel. Eleven of them testified that, after
being shown a photostatic copy of the card that each had signed , each was asked
by Siegel why he or she had signed the card designating the Union as collective-
bargaining representative . In addition , Marion Lesse was asked "how many other
people, or if any other people, signed the cards , or if it was the majority."
While an employer , or his counsel , is privileged to interview employees for the
purpose of discovering facts within the limits of the issue raised by the complaint,
"this rule means that an employer may question his employees in preparation for a
hearing but is restricted to questions relevant to the charges of unfair labor practice
and of sufficient probative value to justify the risk of intimidation which interroga-
tion as to union matters necessarily entails . [Siegel 's interrogation , as found
above], would yield little in the way of proof as to whether or not unfair labor
practices have been committed . This is especially true of those [questions] which
deal with the employee 's subjective state of mind , . . . [ his] thoughts (or after-
thoughts ) as to why he signed a card, and what he thought that card meant, [all of
which] cannot negative the overt action of having signed a card designating a
union as bargaining agent." Joy Silk Mills, Inc. v. N .L.R.B., 185 F. 2d 732
(C.A D.C.) and cases cited therein ; cert. denied 341 U S. 914.
The existing background and the circumstances under which the interrogation
took place furnish additional reason for concluding that Siegel 's conduct was viola-
tive of the Act. Most of the employees so interrogated had never before been
called to Barker 's office. Irene Pancerio testified she "was in shock" when she
saw her card in Siegel 's possession . Cynthia Twist reacted similarly when she
was shown her card s Patricia Halloran and Alexander Kawczynski , who were
interviewed by Siegel, knew or had heard that employees had been discharged be-
cause ^ of union activity . James Magruder , who also was asked by Siegel why he
9 A number of the employees testified that they were told, when they signed these cards,
that they would be kept in confidence and shown only to the Board.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had signed the union card, testified that "everyone knew that Mr. Barker didn't want
a union ." Several others, who were similarly questioned, testified to the same effect.
Though Siegel was engaged in a lawful task when he interviewed the prospective
witnesses, his inquiry seeking to determine why they signed the union cards could
and undoubtedly was, whether so intended or not, reasonably construed by the
employees as an attempt by Respondents to ascertain their interest in, or activity
on behalf of, the Union. By that interrogation, Respondents violated Section 8
(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
ection with their 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 the
free flow thereof.
V. THE REMEDY
As the unfair labor practices found above evince an intent to thwart the rights
of employees in freely selecting their collective-bargaining representative, a broad
8 (a) (1) cease-and-desist order will be recommended.
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. Barker's East Main Corporation and Barker's Supermarket, Inc., constitute a
single employer with the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing their employees in the exercise
of rights guaranteed by Section 7 of the Act, Respondents have engaged in unfair
labor practices within the meaning of Section 8(a)(1), and Section 2(6) and (7)
of the Act.
4. Respondents have not refused to bargain with the Union as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Respondents Barker's East Main Corporation and Barker's Super-
market, Inc., their officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Imposing burdens or hardships upon their employees in order to discourage
membership in, or activities on behalf of, the Union.
(b) Interrogating employees concerning their union membership or activities.
(c) Promising benefits to their employees to induce them or others to withdraw
their support or activities on behalf of the Union.
(d) In any other manner interfering with, restraining , or coercing their em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist any labor organization, to bargain collectively through rep-
resentatives of their choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act, 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 in conformity with Section 8(a) (3)
of the Act as modified by the Labor-Management Reporting and Disclosure Ac.
of 1959.
2. Take the following affirmative action which I find will effectuate the policier
of the Act:
(a) Post at their supermarkets in Meriden , Connecticut, copies of the attached
notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional
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 "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant
to a Decision and Order."
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 1203
Director for the First Region, shall, after being duly signed by Respondents'
representative, be posted by Respondents immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereafter in conspicuous places,
including all places where notices to their employees are customarily posted. Rea-
sonable steps shall be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the First Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps have been taken to
comply herewith.
It is further recommended that, unless Respondents shall, within the prescribed
period, notify the Regional Director that they will comply with the foregoing recom-
mendations, the Board issue an order requiring Respondents to take the aforesaid
action.8
'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 Respondents have 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
Relations Act, we hereby notify our employees that:
WE WILL NOT impose burdens or hardships on our employees in order to
discourage membership in, or activities on behalf of, Local 919, Retail Clerks
International Association, AFL-CIO, or any other labor organization.
WE WILL NOT interrogate our employees concerning their union member-
ship or activities.
WE WILL NOT promise benefits to our employees to induce them or others
to withdraw their support, or activities on behalf of the above-named, or any
other, labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Local 919, Retail Clerks International Association,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other concerted activities
for the purpose of mutual aid or protection, and to refrain from any or all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
All our employees are free to become or to remain members of Local 919, Retail
Clerks International Association, AFL-CIO, or any other labor organization, or
to refrain from such membership except to the extent that this right may be affected
by an agreement authorized by Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
BARKER'S EAST MAIN CORPORATION AND
BARKER'S SUPERMARKET, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 24 School
Street, Boston , Massachusetts, 02108, Telephone No. Lafayette 3-8100, if they
have questions concerning this notice or compliance with its provisions.
712-548--44-vol. 142-77