Big Bear Stores Co.

National Labor Relations Board - Board Decisions

Oct 8, 1965

155 N.L.R.B. 75 (N.L.R.B. 1965)

BIG BEAR STORES , COMPANY 75
WE WILL, upon request, bargain with the above-named Union
as the exclusive representative of all employees in the bargaining
unit described below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and,
if an understanding is reached, embody such understanding in a
signed agreement.
The bargaining unit is:
All production, maintenance, and shipping and receiving
employees of N. J. MacDonald & Sons, Inc., at its Braintree
plant, excluding office clerical employees, professional em-
ployees, salesmen, installers; guards, watchmen, and super-
visors as defined in the Act.
All of our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization, except as
that right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management.
Reporting and Disclosure Act of 1959.
N. J. MACDONALD & SONS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered; defaced, or covered by any other
material.
Employees may; communicate directly with the Board's Regional
Office, Boston Five Cents Saving Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 223-3358, if they have any ques-
tions concerning this notice or compliance with its provisions.
Big Bear Stores Company and Food Store Employees Union
Local #347, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO. Cases Nos. 9-CA-3273 and
9-CA-3365. October 8, 1965
DECISION AND ORDER
On June 22, 1965, Trial Examiner Thomas A. Ricci issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent has
engaged in and is engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. He also
155 NLRB No. 15.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that the Respondent had not engaged in other unfair labor prac-
tices alleged in the complaint and recommended dismissal of those alle-
gations. Thereafter, the Respondent, the General Counsel, and the
Charging Party filed exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 00(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire
record in these cases, and hereby adopts the fndings,l conclusions,
and recommendations of the Trial Examiner, with the following
modifications :
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner as modified
herein, and orders that Respondent, Big Bear Stores Company, Park-
ersburg, Nest Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
1. Paragraph 1(b) is amended by deleting the clause "creating the
impression that employees are being surveyed," and substituting there-
for the following: "creating the impression that it is engaged in the
surveillance of employees union activities, ..."
2. Paragraph 1(c) is amended by changing the period at the end
thereof to a comma and by adding the following: "except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959."
3. The third paragraph of the Appendix attached to the Trial
Examiner's Decision is amended by deleting the clause "create the
impression that employees are being surveyed" and substituting there-
for the following : "create the impression that we are engaged in the
surveillance of employees union activities,..."
I Many of the exceptions filed by the Respondent , the General Counsel, and the Charging
Party appear to dispute the Trial Examiner' s credibility findings. It Is the Board's
policy, however , not to overrule a Trial Examiner ' s resolutions with respect to credibility
unless, as is not the case here , the clear preponderance of all the relevant evidence con-
vinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB
544, enfd . 188 F. 2d 362 (C.A. 3).
BIG BEAR STORES COMPANY 77
4. The third and fourth paragraphs of the Appendix attached to the
Trial Examiner's Decision are amended by changing the period at the
end of each thereof to a comma and by adding the following : "except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner
Thomas A. Ricci on March 22 through 31, 1965, at Parkersburg, West Virginia, on
separate complaints issued by the General Counsel against Big Bear Stores Com-
pany, herein called the Respondent or the Company. The issues litigated are
whether Respondent violated Section 8(a)(1), (3), and (5) of the Act. Briefs
were filed by all parties.
Upon the entire record, and from my observation of the witnesses, I make the
following. 1
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Big Bear Stores Company is an Ohio corporation engaged in the retail grocery
business with stores in several cities in the States of Ohio and West Virginia, includ-
ing one at Parkersburg, West Virginia, the only one of its local corporations involved
in this proceeding. Starting at the time of certain of the events which gave rise to
the complaint, and ending about 1 month before the hearing, the Respondent oper-
ated this one store under the trade name of Hart's Discount Store. During the
past 12 months, a representative period, the Company sold and distributed, at retail,
products valued in excess of $500,000 from this store. During the same period it
received here products for resale valued in excess of $50,000 shipped directly to
Parkersburg from points located outside the State of West Virginia I find that the
Respondent is engaged in commerce within the meaning of the Act, and that it will
effectuate the policies of the Act to exercise jurisdiction herein.
if. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union Local #347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, herein called the Union, is a
labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
During June and July 1964 the Union conducted an organizational campaign
among the employees of the Parkersburg store; on July 30 union agents advised the
acting store manager of their claim to majority representation status, offered signed
authorization cards for his inspection, and demanded recognition and bargaining
rights. The manager deferred to his superiors Between that day and a week later,
August 7, there was an exchange of correspondence between the parties and several
telephone conversations; the Respondent refused to bargain Three months later,
about October 30, following a sharp decline in the volume of business, 11 employees
were dismissed, and 4 others reduced from full-time to part-time hours. The com-
plaint alleges that certain activities of management representatives immediately fol-
lowing the demand for recognition constituted coercive interference with the rights
of the employees freely to organize, and therefore violations of Section 8 (a) (1) of
the Act, and that the Respondent's failure to extend exclusive recognition as demanded
was a bad-faith refusal to bargain in violation of Section 8(a) (5). The complaint
also alleges that the discharge of six of the employees later released, and the reduc-
1 A typographical error In the record transcript Is hereby corrected by Inserting the
word "not" betore the word "pretty" on page 121, line 12.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in hours of all four who were so affected, was a discrimination in employment
against them grounded on their activities in support of the Union and therefore in
each such instance an unfair labor practice within the meaning of Section 8(a)(3).
The Respondent denies all allegations of illegal conduct . As to the refusal to
bargain its advances several defenses: (1) A bargaining unit limited to the Parkers-
burg store was inappropriate for collective-bargaining purposes; (2) the Union did
not in fact at the time of the refusal represent a majority of the employees properly
included in a single-store unit; and (3) the Company acted in good faith in asserting
the right to a Board-conducted election before bargaining. As to the discharges and
the reduction of hours the Respondent contends that all were compelled by the
drastic loss of business during the preceding 5 or 6 weeks, and that the selection of
individuals to be affected was based on a combination of seniority and operational
needs.
The Refusal to Bargain
Appropriate Unit
The unit in which the Union demanded bargaining and which the complaint
alleges to be appropriate is the usual single-store production and maintenance one,
with standard exclusions. In arguing that such a unit is not appropriate the
Respondent advances the affirmative contention that the employees of the Parkers-
burg store may only be represented as part of a four-store unit including the Com-
pany's stores in Marietta, Ohio, 13 miles distant, and its two stores in the city of
Huntington, West Virginia, 98 miles away. These four stores are included in a
group of 20 which constitute the Respondents southern division; in closer proximity
to Parkersburg than Huntington there are other stores, one in Zanesville, one in
Bridgeport, and two in Lancaster. Moreover, there are 19 stores in Columbus,
Ohio, 119 miles from Parkersburg Supervision above the level of the store man-
ager, the top management representative in Parkersburg, is centered in the main office
at Columbus, and divisional chiefs generally roam about all 20 stores of the divi-
sion in like fashion. To separate the four stores from all others in the chain, Divi-
sional Manager Evans said they use the same kind of advertising and have equal
'vage rates and comparable pricing. There was nothing to indicate, however, that
such prices, wages, or advertising techniques are different from similar matters in
all other stores, or that there is any other characteristic that distinguishes these
four from the rest in any material respect. Indeed, Evans conceded at the hearing
that company policy generally, whatever the phrase "policy" was intended to mean,
is applied everywhere alike. Several management witnesses spoke of changes in
administration that covered broad areas of the overall operation without distinc-
tion, insofar as these particular four stores are concerned.
A final ground urged by the Company for rejection of a single-store unit in this
proceeding is the assertion, supported by some evidence in the record, that while
organizing the Parkersburg employees the Union was also attempting to obtain
union authorization cards among employees of the Marietta and Huntington stores.
This last fact alone, absent any other persuasive indication, does not suffice to sup-
port a conclusion, urged by the Company, that a unit finding limited to this one
store necessarily must be predicated on extent of organization. It is clear that the
Parkersburg store functions as a separate unit of the Company, with separate super-
vision, no interchange of employees with other stores, geographic isolation, sepa-
rate records and profit-and-loss reports, in short, with all those considerations
which normally prove a separate community of interests among the employees so
as to warrant a single-store unit finding.2 Accordingly, I find that all employees of
the Respondent's Parkersburg, West Virginia, store, excluding the store manager
and assistant store manager, office clerical employees, guards, professional employ-
ees, and all 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.
Demand and Refusal
On the morning of July 30 a group of union representatives led by Sherwood
Spencer, secretary-treasurer of Local No 347, visited the store to speak to the
manager. Gerry Benson, assistant manager, was then in charge in the absence of
Store Manager Miller. Sherwood said his union represented a majority of the store
employees, that he wanted recognition and bargaining rights, that he had authori-
zation cards with him signed by the employees, and that Benson could have them
2 Sav-On Drags, Inc., 138 NLRB 1032.
BIG BEAR STORES COMPANY 79
to check the signatures against the payroll. Benson replied he had no authority in
these matters and that later that day he expected his superiors from Columbus who
would consider the demand. Spencer then telephoned Columbus and spoke to a
Mr. Ireland, executive vice president, and repeated his conversation with Benson.
Again Spencer stated the Union represented a majority of the employees, that he
demanded recognition, and that if Ireland wished he could have the signed cards for
personal inspection. Ireland said he would consider the request but could not
extend recognition then. That same day Spencer wrote a letter to the Company's
main office, again relating his earlier conversations with company representatives.
He wrote expressly that the Union offered the authorization cards to be examined
by any company agent for proof of majority, and closed by requesting a meeting for
contract negotiations.
Spencer's demand letter was answered by Personnel Director David Godfrey,
who wrote on August 4 that the Company had "no objection to an election con-
ducted by the National Labor Relation's Board." On the 7th Spencer spoke to
Godfrey by telephone and explained that his earlier letter was for recognition right
away, but Godfrey held firm to a request for an election instead. When Spencer
explained it was too late for an election in view of employee intimidation tactics
already resorted to by the Company, Godfrey said "we always talk to our people."
The Respondent's refusal, upon request, to recognize the Union as exclusive bar-
gaining agent for the employees of the Parkersburg store is clear on the record, and
I so find.
Composition of the Unit
The refusal to bargain first occurred on July 30, was reiterated by letter on
August 4 and reaffirmed in the personnel director's direct denial to the union officer
on the 7th. Therefore the critical period to be considered in testing the Union's
representative strength, and the consequent right to collective bargaining, both in
terms of what employees must be deemed as included within the unit and which of
these had in fact authorized the Union to act on their behalf, is the week span
between July 30 and August 7, 1964, each date close to the end of a pay period.
The General Counsel and the Respondent stipulated with respect to 39 employees
and agreed that all of these in fact worked during the week ending July 31, and
should be counted as correctly included in the bargaining unit at that time.3 All
parties also agreed that Assistant Manager Benson, listed in the exhibit, must be
excluded as a supervisor. Apart from the 39 persons thus agreed upon, the General
Counsel would add Darwin Davis, Kenneth McCray, Donald Grant, Juanita Hol-
man, and Helen Hendershot. The Respondent opposes inclusion of any of these
five; in turn it contends, contrary to the General Counsel, that three other persons-
Shakelford, Tallman, and Beatrice Jones-must be included.
Shakelford: This man's name does not appear on the employee list-"as of
August 1, 1964"-prepared by the Company at the request of the General Counsel.
A payroll register, received in evidence, showing weekly hours worked by all employ-
ees beginning Monday, July 20, and through March 20, 1965, first reveals Shakel-
ford as having worked during the week ending September 5. There is indication
Shakelford did work for the Respondent before the organization campaign, but
Personnel Director Godfrey, who urged his inclusion in the unit, testified he had
no knowledge of where the man was before his return to work in September. God-
frey also said that Shakelford was not given any leave of absence in 1964. I find
that this employee was not an employee of the store at the end of July 1964 and
therefore cannot be included in the unit count.
Juanita Holrnan: Holman worked from 1957 and throughout the events. In July
and August she was clerk at the Buckeye counter. At that time the Company dis-
tributed gift trading stamps throughout the chain; they are called Buckeye stamps,
and the administration of this aspect of the Respondent's business-distribution of
stamps and redemption with merchandise gifts of many kinds-is carried on through
a subsidiary corporation having its offices together with the Company's central
offices at Columbus. Both before and after her assignment to the Buckeye counter
Holman had worked in other regular departments of the Parkersburg store; when
assigned primarily to Buckeye she was paid by check bearing the Buckeye corpo-
rate account name. Other store clerks were temporarily assigned to assist her and
supervision over that counter was the same as for all other departments, always
s Thirty-eight of these employees appear named on an employment list entitled "Em-
.ployees as of August 1, 1964," prepared by the Respondent at the General Counsel's
request and received in evidence . The 39th is Hendrickson , a meatcutter who was not
listed because at the time he was on 2 weeks' military duty.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the store manager. When transferred to or from the Buckeye counter Hol-
man never executed new applications for employment; when she was removed from
that counter it was because stamps were discontinued altogether in this store on
October 30; she was placed in other store work on reduced hours, and it was Divi-
sional Managers Evans and Personnel Assistant Ketter, high supervisors of the Big
Bear store, who explained the action to her. There is no substantial evidence that
throughout her work on the stamp counter Holman had anything to do with per-
sons other than the conceded officials of the Respondent Company. For purposes
of this proceeding clearly Holman must be deemed as having been at all material
times an employee of this Company. Accordingly she will be included in the unit
count.
R. W. Tallman and B. G. Jonas: Jonas first started in this store in 1957 and Tall-
man in January 1964. Neither of them worked during the weeks ending July 25
and August 1. In the week ending August 8 Jonas did 32 hours and Tallman 22;
each of them continued to work thereafter. The record is silent as to why they do
not appear to have worked immediately before the start of August, or why they had
left the store or when. Hendershot left the store on June 20 because she was preg-
nant; she never returned.
Davis and McCray: Davis is meat department manager and McCray managed
the home center department. Both men are salaried, receive no overtime, are paid
when absent for illness , attend weekly managers meetings , do not punch the time-
clock, receive higher insurance benefits, and, after 5 years with the Company, par-
ticipate in a companywide profit-sharing plan.4 Davis was paid $20 weekly more
than the salary of Benson, the admitted grocery department supervisor and assistant
store manager. In addition to these objective facts, District Manager Evans testi-
fied, in conclusionary language, that department managers are responsible for run-
ning their departments, assist in scheduling workhours, and have authority to rec-
ommend hire or discharge of employees.
No witness could recall any incident in which either of these two department
managers participated in any way in the hire or dismissal of any employee. Davis
did not appear as a witness. McCray testified that he has no power to hire or dis-
charge, or to recommend such action, and that he was never told of such authority.
He added that at the time of the hearing, after the Buckeye department had been
discontinued, there was only one part-time clerk working with him in his depart-
ment. However, in his earlier affidavit to a Board agent, where he described his
status early in August 1964, McCray stated: "As the home center manager, I run
the sundries department. I have two part-time and one full-time person working
under me. I direct their work. I don't hire or fire, but I was told before I came to
the Parkersburg store, while I was still at the Marietta store, that I had the power
to recommend the firing of anyone. But I never did this. I have the same type of
job at Parkersburg that I had at Marietta, Ohio. I was really in training for this
job while I was at Marietta. I assume that I still have the power to recommend the
firing of anyone under me, but I have never done so. I am paid a salary while the
employees under me are hourly paid."
On the entire record I find that at the time of the events, at least, both Davis and
McCray were supervisors within the meaning of the Act; neither is therefore to be
included in the unit count here.
Grant: This employee is called the head dairy clerk; at one point the Respondent
seemed to contend that he too must be excluded as a supervisor, but its final posi-
tion is not clear. In any event, unlike the department managers, he is an hourly
worker and production timeclerk. Evans said only one employee works in dairy,
apparently Grant. This man's hourly rate was $2.32, less than at least eight of the
rank-and-file store employees. It does not appear therefore that the other preroga-
tives or special conditions of employment attaching to department managers are
enjoyed by Grant. I find that he was not a supervisor as defined in the Act, and will
therefore include him in the unit count.
With Juanita Holman and Grant properly included in the unit, the count reaches
41 employees as a minimum. The total would be raised if, by resolving conflicting
contentions, inclusion or exclusion of Hendershot, Tallman, and Jonas was decided.
There is neither need nor other sufficient justification for setting out here all the
detailed testimony relating to the reasonable expectancy of recall to work of a preg-
nant employee in this store (the issue respecting Hendershot), or for precisely fixing
an exact moment of illegal refusal to bargain so as to determine whether Tallman
4 The record is not clear on whether a department manager must work 5 years as a
manager or have 5 years ' total employment with the Company as a requisite for profit
sharing.
BIG BEAR STORES COMPANY 81
and Jonas returned to work before or after that critical moment. Including for
quick resolution of the principal question of majority status, both Tallman and
Jonas, each of whom the Respondent wishes to include and neither of whom signed
authorization cards, the total count would come to 43 employees in the unit. The
total number of valid cards received in evidence so clearly demonstrates majority
representation by the Union at the time of refusal that no further discussion is war-
ranted respecting these last three persons.
The Authorization Cards: Majority Status
For the 43 employees thus considered part of the unit, 32 signed union authori-
zation cards, adequately authenticated and received in evidence.5 In pertinent part
each card reads: "The undersigned hereby authorized this Union to represent his or
her interest in collective bargaining concerning wages, hours, and working conditions."
At the hearing the Respondent contended that a number of cards may not be
deemed reliable authorizations for immediate bargaining and advanced a variety of
reasons in support of the position. The precise factual basis for the argument that
when employees signed the unequivocally printed authorizations they had some other
purpose in mind does not appear clearly in the record, nor is it explicated in the
Respondent's brief. Nor was there any direct, specific assertion that this or that
employee had withdrawn approval for immediate bargaining previously given, or had
simply changed his mind in the matter and advised either the Union or the Respond-
ent. The facts upon which Respondent seems to rest its attack on certain cards was
stated primarily in leading questions by company counsel in cross-examination of
employees called by the General Counsel to authenticate their signatures and to
testify on other aspects of the case. Apart from the only slightly probative value
of vague agreement expressed by a witness or two in response to extended state-
ments by the lawyer of what was said or done during the organizational campaign,
there is little in the testimony casting substantial doubt on the validity of the cards
as printed and signed.
At one point the Respondent suggested that a card dated July 30 could not be
counted because the initial demand for recognition was made the morning of that
day, and the union agents admitted they had not met with employees during that
morning before calling on the acting store manager. Three of the cards are dated
July 30-those of Headley, Mumaugh, and Snider. Although the refusal to recog-
nize the Union as majority representative first occurred on the 30th, it was repeated
on August 4 and again with deliberate finality by Personnel Director Godfrey on
August 7. As he had done earlier, Union Agent Spencer again on that last day
directly offered all the cards he then had for personal inspection by any representa-
tive of the Company. Godfery refused to look at them; clearly he showed coin-
plete indifference to how many signatures had been obtained or when. And equally
clearly all of these 32 cards had been signed already. As the refusal to bargain
was again reaffirmed on August 7, there is no merit in the contention that cards
dated July 30 must be ignored.
The Respondent also attempted to prove during cross-examination of employees
that in some instances employees intended a purpose other than the clear authori-
zation spelled out on the face of the cards, or after signing them changed their minds
and withdrew their authorizations.
The only testimony out of the mouths of witnesses that could in any substantial
meaningful sense be said to relate to the first of these assertions, was spoken by
Cunningham, Mumaugh, and Fietsam, three of the clerks whose cards were placed
in evidence. Counsel for the Respondent asked Cunningham: "Isn't it correct, Mr.
Cunningham, that it was represented to you at the time you signed the card, that
the purpose of it was to get an election?" and the answer was: "Well, that is what
my understanding was." The employee then immediately added: "No, nobody
mentioned the election to me." Cunningham had had 3 years of college study and
undoubtedly understood what he signed; there is no sufficient reason for ruling his
card to be invalid now.6
6 There were also received in evidence cards signed by Davis and McCray, here not
counted in the unit because of their supervisory status, and by Hendershot, whose unit
placement will not be decided now. These three cards are therefore ignored for purpose
of decision in this report.
6 Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 743 (C A D.C ), cert. denied 341 U S.
914.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marc Mumaugh, a schoolboy clerk, signed his card on July 30 and said he did
read it first. He recalled having attended a union meeting at which Union Agent
Spencer spoke at length of the benefits growing from union representation and used
an A & P contract to illustrate the various working conditions which could be
altered and improved in the Respondent's Parkersburg store. Mumaugh believed
the meeting to have occurred a week before he signed, but he was mistaken, for the
record shows clearly Spencer was present at only one meeting of the employees of
this store, and that one took place on July 29, the day before the first request for
recognition. Mumaugh testified that among other things, Spencer said that night:
He said that if the-as I understand it, that if a card was signed at an earlier
date, prior to or shortly thereafter at that meeting, that I would not have to pay
a larger sum of union dues, that I would have a better chance ... let's see. If
we signed the card earlier, our union dues, I believe it was, would be cheaper
than if we signed at a later date, and if we waited, we would not be able to sign.
Mumaugh added that when he signed a card handed to him by employee Ronnie
Sams, he did so in view of all that Spencer had said the night before.
Apart from his uncertainty as to precisely what the union organizer may have
said respecting the payment of dues at one time or another, Mumaugh had difficulty
recalling anything else that was said during the extended meeting. His testimony
was vague and general in its totality, and it was only by virtue of prodding ques-
tions that he remembered other subjects that were also discussed. It is clear that a
large number of store workers was present at the meeting, and of the 26 employees
who testified in person to having signed cards, not one made any mention of the
union agent's speaking of financial advantages in signing cards then instead of later,
although each of them was questioned by counsel for the Respondent. The Respond-
ent's contention now that the cards as a whole must be rejected on the ground that
the employees were enticed, by a promise of a monetary gain, and therefore did not
really intend to authorize the Union to represent them, is not supported by sufficient,
substantive, credible evidence. There is therefore no occasion to consider-apart
perhaps from Mumaugh's personal understanding of what went on-whether or not
certain court decisions on this subject, at variance with Board holdings, are applica-
ble here.
Fietsam, another clerk, was also present at the July 29 union meeting. Toward
the close of the meeting, Spencer called for a show of sentiment on whether the
cards already signed should be presented to the Company for examination the next
day together with the request for recognition and bargaining. One employee, Flana-
gan, spoke to the group against the proposal, and when a show of hands was taken
all voted favorably except five employees who stood aside as opposed. These were
Flanagan, Fietsam, Packer, Piersol, and Mumaugh. Flanagan, Packer, and Piersol
never did sign union cards.
Fietsam is a 17-year old high school student; his authorization card is dated
July 29. At the hearing he said: "...-when I first signed the card, I didn't know
what it was all about." Twice, in response to questions whether he had thereafter
discussed having signed it with Mumaugh, he answered he could not remember. He
also answered "That is correct" to the following question by company counsel: "Isn't
it correct that you told him you had signed the card but you changed your mind, and
you said, 'I'm not for the Union?"' Asked to make an effort himself to recall what
if anything he had said to the other men, the witness replied, "Well, I couldn't tell
you-all I know, I signed -a letter-when I first signed it, I didn't know what it was
all about, but then we talked it over and we decided it wasn't any good for us."
There then followed a series of leading questions, each injecting a complex set of
of facts on the record, none of which was articulated by the witness himself:
Q. Dave, you said that you and Marc Mumaugh and some of the other fel-
lows talked about this, was that as a group?
A. Well, yes, I would say so. We didn't really assemble, we just happened
to-you know.
Q. Yes.
Actually, among a group-they were maybe not all there at the same time,
but fellows you talked with and they told you about the other fellows that they
had talked with, probably 8 or 10 of you altogether that had discussed it, isn't
that right?
A. Yes.
TxiAI. EXAMINER: Where did that story come from?
Mr. Balm: He answered yes.
BIG BEAR STORES COMPANY 83
TRIAL EXAMINER : I mean the whole story that you just related , Mr. Britt,
who is testifying here?
Mr. BRIrr : This is cross-examination.
TRIAL EXAMINER: Please, now, let's have-
Mr. GORE: I move to strike the last answer.
TRIAL EXAMINER: Let's have no more of that. Ask him questions, but really
don't tell the whole history.
Q. [By Mr. BRITT .] : Now, as to that group , isn't it correct that all of them
expressed the same sentiments as you, to the effect that they had signed it but
they had changed their minds and were not for it now?
Mr. ROTHCHILD: Objection, your Honor.
TRIAL EXAMINER : Sustained.
Q. Who all did you discuss this with, Dave?
A. Many of the boys are away at college and they don't work there now.
Q. But there were between 8 and 10 altogether?
Objection.
Sustained.
* * * * * * *
Q. How many were there altogether, Dave?
A. Maybe 8 or 10.
Q. All right, thank you.
Now of the 8 or 10 that you discussed this with, did you tell them that you
had changed your mind about the union9
Objection.
After all this Fietsam gave vague, indefinite, and vacillating testimony of con-
versations with other employees, in which they spoke of not wishing to be repre-
sented by any union, or of having changed their minds. He said this first happened
3 or 4 days after July 29, that some of them had always refused to sign cards, that
he could not recall the names of the others, that he was not really sure what any
of the group had said, that he could not remember who among those he talked to
had signed cards. At one point the witness qouted the other employees-still with-
out pinpointing anyone in particular-as saying , "They didn't think there was much
in it for them." After much further repetition by Fietsam that he could not recall
any of all this clearly, either as to when, or who, or what, Respondent's counsel
called off the names of every employee who had signed a card received in evidence
and asked if the witness could then recall which had "discussed" the matter with him.
In this fashion Fietsam answered, "Yes" as to Sams, Sole, Mumaugh, Flanagan,
and Schlag. Fietsam did say unequivocally that he never told either a company or
union representative of his change of mind after signing his own card.
For the purpose of invalidating the authorization cards, clear on their face, and
unquestionably signed by the employees, Fietsam's total testimony is not of suffi-
cient probative value. Something more definite and reliable is required to offset the
clear proof of intent to be represented by the Union evidenced by written cards.
In any event, even assuming that the cards of Mumaugh and Fietsam, who stood
aside when it was agreed to submit the cards to the Company directly, and of Sams
and Sole, who were mentioned so indirectly and passmgly by Fietsam at the hearing,
ought not be counted-a finding which I do not make-there remain 28 authori-
zation cards that must be counted as valid. As the total number of employees in
the bargaining unit at the time of the demand and refusal was 43, the Union's major-
ity status is clear. Accordingly, I find that during the first week of August 1964, and
at all times since, the Union was and has been the exclusive representative of all the
employees in the bargaining unit for collective-bargaining purposes within the mean-
ing of Section 9(a) of the Act.
Interference, Restraint , and Coercion
Gerry Benson , assistant manager in charge of the store in Miller's absence , testi-
fied he learned of the union activities as early as Monday of the week ending
August 1-this was July 27-and that in talking about the Union to Patricia Mills
that day he called it "kind of a low blow." He saw a notice of union meeting for
Wednesday, July 29, and quickly called the home office in Columbus to report what
he knew to Division Manager Evans. Evans told Benson "not to discuss union
activity at all with the employees . . . not to bring the Union-the word `Union' up
212-809-66-vol 155-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the employees ... not to mention the word," and that he, Evans, would be in
Parkersburg during the coming weekend. The next morning Flanagan and Fietsam
reported to Benson what had happened at the union meeting the evening before.
Benson also testified that between the time he called Evans on Wednesday and
Spencer's visit on Thursday, he talked to a number of the employees individually to
inquire what their "problems" were.
After Spencer and his associates, on Thursday, came to the store and "told me
that they had some kind of a card," Benson called Columbus again to report, and
by 2 30 that afternoon Evans had reached the store. He immediately began to
speak to employees one at a time to inquire what the "trouble" was, or what their
"problems" were The next day Personnel Director Godfrey arrived in the after-
noon and that evening, Friday, called a meeting of all the store employees to hear
a speech from him. The employees were paid time and one-half for attending after
store hours, and when a large group adjourned afterwards to a nearby drugstore for
coffee, both Godfrey and Evans joined them and continued to discuss at some lengths
what had caused the employees to turn to the Union and the possibilities of resolving
some of the "problems," even to the extent of removing Store Manager Miller if
necessary.
Godfrey was back in the store again Saturday, August 1, and spoke to a number
of employees, in the office, in the lounge, still checking on their personal reasons
for the concerted activities. He returned agam on Monday, continuing this same
sort of interrogation. During the rest of that week and the following one there were
further personal talks between individual clerks and company representatives, a con-
tinuing pattern of personal efforts to combat the union movement
There is much detailed testimony on the conversations between employees and the
various supervisors; the variances in the stories go mostly to the question whether
the company agents attempted to ascertain the union leanings of particular clerks,
and whether they promised to take action to resolve the "problems" that were
voiced. Some employees testified they were told of dire things to come in the event
the Union should succeed; generally there were denials of any promises of benefits
or threats. However, it is clear, on the record as a whole and on the basis of admis-
sions of supervisory witnesses, that they did carry out a general campaign designed
to dissuade the entire group from their prounion resolve.
A good part of the speech which Godfrey gave on the 31st is in evidence, in the
form of a document which he prepared and said he read. He started by saying his
reason for "reading" the presentation was that he might later "be asked to repeat
verbatim what I said," and then added he preferred "just talk, and maybe we can do
that later." The speech, as written, is temperate; it details the benefits being enjoyed,
the Company's desire to continue direct dealings with the employees, the onerous
burden of paying union dues to receive only what the Company could do, had
always done, and would continue to do voluntarily, the danger of economic loss
resulting from strikes which unions call, and the disadvantage of having to do with
"strangers" instead of old friends like the personnel manager. The Company's desire
that the employees abandon all thought of bargaining through a union is repeated
again and again. Godfrey also testified that he deviated from the prepared speech,
and the document shows, at more than one point, reminders to himself to make
additional comments.
When the employees adjourned to the drugstore next door after Godfrey's speech
on Friday night, there must have been 15 or 20, and perhaps more of them, sitting
around having coffee; Godfrey and Evans sat in a nearby booth. The employees
called them over, and there ensued a general discussion on the topic of the speech.
Among the things that were said, Garland Cheuvront voiced the complaint that
newer employees were being given more hours of work than the older ones, and
Evans replied he "was going to look into it" According to Donald Grant, Godfrey,
speaking to the entire group, was "begging us for another chance ... he said he
would call Mr. Miller up right then, tell him never to come back, if we would drop
the whole thing." A pertinent excerpt from the testimony of Personnel Director
Godfrey, as to what took place during this extended general conversation that eve-
ning, is: ". . . I felt that if all these problems that they had brought out existed, I
said if there had been errors made in their pay, or in their raises, or in their work-
ing conditions, and so forth, that I would check into them, that I had no records
with me and could not check into them there "
On the subject of what the personnel director said to individual employees in
"just talk ... later," their testimony, in substance, is as follows- Godfrey asked
Patricia Mills on August 1 why she "thought everybody wanted the Union," and she
said she could not speak for others but personally was interested in "job security";
BIG BEAR STORES COMPANY 85
Godfrey then asked why she had not brought her problem to him first, because if
she had he "could have straightened everything out, even if it meant removing
Gerry Benson, the Assistant Manager, and Miller, the store manager, out. . "
Godfrey also asked Lee Latham, the janitor, if he had any "problems"; the man said
no. Shortly after signing her card, dated July 15, Maxine Barnett told Godfrey that
in her opinion she had not received proper vacation based on employment time; he
said he would look into it, and in consequence the following month Godfrey told
her "it was an oversight on the Company's part" and she was paid 20 hours addi-
tional vacation. On the morning followed his speech, Godfrey started talking of
the Union to Sandra Merrill "in the back room," "he kept saying he was the per-
sonnel manager, we should bring our problems to him, that the Union was trying to
be the middle man ...... On Saturday morning, August 1, Godfrey was talking to
two employees in the backroom, again about the Union, and Edward Harper asked
what assurance he would have against discharge if he did quit the Union; Godfrey
replied "be would give his word I wouldn't be fired," and to prove it offered to take
employees to other stores of the Respondent where, although organizational cam-
paigns had failed, the employees were still at work.
On August 1, Assistant Manager Benson took Ann Plants aside to ask if she had
any "problems"; she said she had two-that her rate was too low and that she had
been receiving only 1 week's vacation where she was entitled to 2. Benson said
Godfrey was in the store and he would check with him. Godfrey told Plants that
she was going to receive the extra week's vacation and a week later Manager Miller
told her the error had been found and she would receive a second week's vacation
that year; she did receive it early in September. Godfrey also asked Plants whether
she had received 2 weeks' vacation the year before, in 1963. Plants said she had
the same complaint as to the year before, when she had also received only 1 week
instead of 2. Godfrey then said it would be "made up to her"; Plants received cash
payment for this additional week, over and above the 2 weeks in 1964, retroactively.
As to Evans' personal chats with employees in the store, there is this employee
testimony. Upon his first arrival on the afternoon of July 30, he spoke to Kenneth
McCray: "He stopped me and wanted to talk to me and asked me what the trouble
was in the store and if I felt that I needed someone to represent me. At that time
I told him I thought I had been putting in too many hours for the amount of pay I
was getting and he also wanted to know some of the feelings of the other people
and he said he would like to know if I would be on the Company's side." 7
Richard Vogel, assistant divisional manager, visited the Parkersburg store because
Personnel Director Godfrey had told him "the Unions were working on us." Accord-
ing to Patricia Mills, he spoke to her on Monday, August 3, ". . . he asked me why
everybody wanted the Union ... he said the Union was not the answer to our prob-
lems ... believe me, I know . . . he thought the whole thing was highly unfair and
juvenile." Two days later Vogel, again in the store, spoke to Donald Grant, who
testified Vogel said: "Don, I hear you are one of the leaders of this Union ... it is
a matter of faith, whether you had more faith in me, which you have known better
than 3 years, or the union representatives, which you have only known for a couple
of weeks ... even though the Union does go through, I can still find things to fire
you over ... it was a dirty back handed way to get even with Mr Miller, our store
manager, for the things he had done to us ... I know you have been cheated out of
a 15¢ raise on the hour, but I will promise that you will get this . .' Grant also
testified Vogel said "he would get rid of Mr. Miller, our store manager, if it would
help things."
Wayne Sharron is a meat supervisor who also travels from store to store; he
appeared at Parkersburg the week after Godfrey's speech. He spoke to employee
Edward Harper for about half an hour on August 7; the employee testified; ". . . he
asked me why I wanted the union and I told him I wanted job security ... he said
that if we got a union in the store, it would hurt more people than it would ever
help, and even if we were successful in getting the union, that Big Bear would make
it so rough that we couldn't take it, and we would have a lot of problems . . . he
said he would be fair and straighten this out if we dropped it "
7 McCray is found to have been a supervisor at the time of these events, and no finding
of illegal restraint and coercion against the Company is based upon whatever may have
been said to him. However, for purposes of resolving the issue of creditability over what
the visiting company representatives said to the employees in the store , any disagree-
ment between the testimony of McCray and Evans or others is pertinent.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Store Manager Miller returned from vacation the weekend of August 7; he was
quoted as follows by employee witnesses: he told McCray, then a department man-
ager, that in that position the employee was building up the right to participation in
the profit-sharing plan, but "if this goes through ... I would not be eligible for it."
On August 4, Miller asked Harper ". . . if I had any personal grudges toward him
connected with any of the goings on, he wouldn't say the word "union," but I knew
what he was talking about, and I told him No, that he and I had never locked horns,
that I had signed up for the Union for job security. He then went on to explain in
great detail how the profit-sharing plan worked and that from reports he had on
me and the work he had seen me do, that I would make a good meat manager, but
that if I was a member of the union, I would be on the timeclock and I wouldn't be
eligible for the profit-sharing plant."
As to the activities of Assistant Store Manager Benson, the employees testified as
follows: On July 29, the day of the union meeting, Benson told Grant: "Don, I
don't know what you are doing, or what type of literature you are passing out, but
if I catch you, I will throw your ass right out the front door " (Grant said Benson
was referring to the notice of union meeting he had just given the office girl; this
was the day Benson telephoned Columbus to report he had heard of the planned
union meeting.)
On August 1, Benson called Garland Cheuvront to the office to ask "why I would
want the Union"; Cheuvront said because newer part-time employees were enjoying
more hours than the older ones. Benson also talked to Plants, who, in response to
his question whether she had any problems, spoke of receiving less vacation time
than she deserved; he told her he would check into it, and, as stated above, she
received additional vacation benefits in consequence. Benson called Virginia Lay-
field into the office for a 45-minute chat ". . . and just talked in general about but
he didn't exactly use the word `union,' he just referred to it as a thing, this thing that
we were engaged in, and if I felt that they were going to do the things for me that
they promised . . . he said that if I thought that by joining the union, and wanting
a union that I was going to get a full-time job, that I was being misled, that the
Company would hire as many as 10 or 12 more girls and put them on and give all
of us as little as 10 hours a week, or whatever the required hours would be in order
to keep from putting us on a full-time job." Layfield recalled clearly that Benson
spoke only of "this thing," but that theie was no question he was talking about the
Union. Larry Pierce said that Benson spoke to him of "thing"; had Pierce "heard a
rumor about this thing that was going around . . . if this thing got in, that the 15
hours that the employees were guaranteed a week would be the minimum they could
keep, and they could keep it at that minimum by hiring extra employees so that it
wouldn't raise any ... that if it did get in, that he thought that the company would
probably make things harder on the ones that had signed for it. If you went to
college in the evening or something like that, they would probably work you during
those hours when you was supposed to be going to college." In the backroom of
the store Benson also spoke to Latham: "... he asked me did I know what was
going on in the union and I told him I didn't ... also he asked me had I signed a card.
I told him I had. He wanted to know why " On August 1 Benson called Marshall
Cunningham to the office, said he was "scared" of the Union, and that he would try
to get 12 to 16 hours per week for Cunningham, who was then doing only 10 As
early as July 8, approximately the very start of the organizational campaign, Ben-
son asked Ronald Sams whether he "knew anything about the Union", Sams said
he did not, and the assistant manager then "said he would like to know something
about it . . . if I heard anything about it to let him know ...." On August 15
Benson told Mills, in a group of employees, "when the Union went in things were
.going to be different"; he then took her to the lounge and continued with: ". . . the
-union would never get in, that the Company wouldn't hold still for it, that they would
either close the store down, or move Hart's in . . . if the union did get in, there would
be one of the biggest house cleanings that there ever was, . . . they wouldn't have to
fire anybody, that they would just make it so rough on them that they would gladly
walk out the door "
A more revealing story was told by William Hendrickson, a full-time meatcutter
who aspired to become meat department manager. He signed a union card on
July 15; toward the end of the month he went on 2 weeks' military leave and reached
home on Sunday, August 16. He said he found a message to call Miller, the store
manager, and when he did so was asked «o meet him downtown in the town where
he lives. Together they sat in Miller's car where ". . . . he [Miller] proceeded to tell
BIG BEAR STORES COMPANY 87
me that they were forming a union at the Big Bear store ... I was brought up to date
on the things that had happened ... he just told me that the majority of the people
signed up . . . he asked me if there was . . . if I knew what the cause of it was."
They talked for quite a while.
The next afternoon, still according to Hendrickson, John Anderson, then meat
supervisor over many stores, called him from Columbus, said he wanted to talk,
and arranged to meet Hendrickson at Athens, a midway point between the two cities.
This was Monday and Hendrickson was scheduled to ieturn to work the next day.
They met in a cafe where the two sat and talked of the Union for 3 or 4 hours "We
... discussed things in general, but what the question was that was on Mr. Ander-
son's mind was the meat department, he thought that they were very unhappy and
he wanted to know why they wasn't satisfied . . . before this, a meat manager in
Huntington shot himself, and I thought maybe I was in line for manager's job, and
felt that maybe I should have got it. I questioned about that over a period of time,
and then, of course, we discussed our gross profit and our sales, and if I had any
idea of where it was going and so forth and so on." Hendrickson told Anderson he
had signed a union card, and they continued to talk Asked whether during their
conversation there was any "talk about your becoming meat manager," Hendrickson
replied. "He said in time, maybe in the future for me "
At this point in his recital Hendrickson became vague as to what happened next.
He did say that there was a union meeting that Wednesday, the day atter he went
to work, that he did not attend, and that the employees in the meat department took
a critical attitude toward him. On Saturday, he said, while Personnel Director
Godfrey was in the store, he asked that Godfrey and Store Manager Miller join him
in a talk with Kay Bartell and Sandra Merrill, the only other two employees then in
the meat department. With the five of them gathered so "in the backroom and
upstairs," Hendrickson told "to the two parties on both sides of the fence" that he
was "withdrawing my support from either side, that I would be completely out of it."
Cross-examination of Hendrickson was deferred at the close of the first day's hear-
ing to the following morning. At that time he started by saying he had carefully
thought the matter over in the evening in view of the importance of his conversation
with Anderson, and that in order to be sure to tell an accurate story he had prepared
a statement concerning his testimony. On the witness stand he then iead from a
prepared statement Now he testified that in the cafe that Monday Anderson had
asked him "could I run the meat department without any friction between store man-
agement and if I had any influence in changing the employees' minds about the union
and I told him I in no way did I want to stay in the store 28 [Parkersburg] " He also
said he repeated all this to the meat department employees the next day. That
Anderson had asked him to attempt to dissuade the employees from their union
resolve became clear toward the close of his testimony. "He asked me if 1 had any
influence on help in the meat department." "Q : Did he suggest that you intend to
influence them not to be in favor of the Union9 A.• Well, he had already said that
to me prior to what I just told you."
Against the foregoing testimony of all these employees, the company representa-
tives, admitting a number of critical statements attributed to them and contradict-
ing others, in general addressed their total testimony toward altering the cast or the
tenor of their conversations with the store personnel. Among other admissions is
the fact that in many instances it was they who approached the workmen and invited
discussion, the fact that their expressed concern was to inquire as to what condi-
tions of employment the employees wished to alter, the fact that they promised to
look into the demands made by some of them, and the fact that as to some of the
complaints relating to pay or other employment benefits, the Company gave indi-
vidual employees what they wanted. The substantive and direct contradictions go
to the specific question whether the company agents directly asked employees had
they signed union cards, or were they personally in tavor of the Union. A more
pervasive but vague difference between the testimony of the employees and that of
the supervisors-a shadowy conflict suggested by the general language of the latter
group at the hearing-is whether they talked of the Union at all with the employees,
or whether-an impression which they indirectly sought to create-their talks were
only the normal interests of any management in the routine affairs of business. In
the light of the timing of the related events, the significance of the admissions made,
the only oblique denials in many specific instances, the patently implausible expla-
nations offered of words used by the supervisors-"problems," "trouble," "this thing,"
etc -where the word "union" logically applied instead, and the evasiveness, incon-
sistency, and demeanor generally of the management witnesses, I credit the substance
of the testimony given by the employee witnesses.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, Personnel Director Godfrey, called by the General Counsel on the first day
of the hearing, started by testifying he did not recall whether, when he went to
Parkersburg for the purpose of giving his speech on July 31, he knew a demand for
recognition had been received by the Company. He then added that before leaving
Columbus he had been told of the store manager's report of the union agents' visit
to the store and also of Spencer's telephone call repeating the message directly to
the main office. Godfrey's early testimony was generally to the effect that he always
knew of union activities and that all this was nothing out of the ordinary. Recalled
by the Respondent later, he admitted flatly, as on the record then there could be no
question, that he did know that evening that he was reacting to a clear demand for
recognition.
That his overall purpose, in his speech and in the talks with employees during the
immediately following workdays and even later, was to dissuade them from adher-
ence to the Union, is admitted. Godfrey recalled having asked Barnet and Plants
of their problem, and having adjusted their vacation pay with retroactive benefits.
Patricia Mills said he offered to discharge the manager if it would satisfy the employ-
ees; Godfrey's version of this is that someone else made the suggestion on the eve-
ning of his speech, and that the next morning he simply asked Mills "if she felt
that was the answer to the problem." Describing the intimate gathering at the
drugstore after his speech, he recalled: "I said if there had been errors made in
their pay, or in their raises, or in their working conditions, and so forth, that I would
check into them, that I had no records with me and could not check into them
there." But all this direct dealing with the employees, appearing clearly as a response
to the bargaining demands, reveals a straight program to bypass the Union, negoti-
ate with the employees themselves and satisfy their individual demands, and thereby
effectively avoid the statutory obligation to bargain with their chosen representa-
tive. Against such background, Godfrey's denial that he interrogated individual
employees about their personal attitudes cannot be believed.
Assistant Divisional Manager Vogel also was in the store on Monday, August 3,
because, as he said, Godfrey had told him "the union was working on us " He was
called to rebut the testimony of Mills, who said he asked her why the people wanted
the Union which Vogel did not deem an answer to their problems " Vogel's descrip-
tion at the hearing of this talk with Mills that day is typical of the evasive character
of the company witnesses generally:
She said-well, I don't remember the exact words that she did say, and I
started to talk to her about things in the store, and she said that things were a
mess and I said, "What do you mean?"
She started-she elaborated on it a little bit, and so I said to her that if any-
thing-that the substance of my discussion with her was the fact that Dave and
I were a little disappointed in the fact she had not confided in us; in other words,
there is a girl I have known, as I said, for seven years, almost eight years, the
length of time the store has been open, and she has always come to me with her
problems and-
The only coherent, tangible thought in all this language is that Vogel called the
girl aside to express his disappointment that she had not come to him with whatever
she had in mind. With this his denial of having spoken of the Union to her at all is
unpersuasive.
Vogel's story of his chat with employee Don Grant that day is no more convinc-
ing, and equally revealing. He is in authority over Assistant Store Manager Benson.
Vogel started by saying the reason why he spoke to Grant was because Benson
reported to him that the man "was passing out cards in the store and they were
having a hard time keeping him in the department, his work wasn't getting done,"
and that therefore Vogel should talk to the clerk. Vogel was clear Benson had said
Grant was distributing "union" cards. Despite this, Vogel testified he said nothing
to Grant about distributing cards or about neglecting his work; indeed he insisted
he did not mention the Union at all, but that Grant spoke about it instead. Accord-
ing to Vogel he started by telling Grant, "I understand that you were a little upset
because of things going on in the store," and that by "things" he meant "the union
trouble." Vogel admitted also that before the conversation ended he had related to
the clerk his own experiences in the past with unions, and that he was opposed to
them. He also admitted that when Grant complained of his wage rate, he promised
to look into the matter and to discuss it with Godfrey Vogel made no attempt to
explain why, if his purpose in speaking to Grant was to reprimand or warn him for
distributing literature instead of tending to his work, he spoke of something else
instead. In fact, his total testimony is a virtual admission that the talk was entirely
BIG BEAR STORES COMPANY 89
about the Union, which he chose to call "the thing " I do not credit his denial of
having called Grant "a union leader," or of promising to discharge Store Manager
Miller to resolve the "thing."
The testimony of Divisional Manager Evans paralleled that of his subordinate,
Vogel He first learned of union activity from Benson at the start of the week and
came to the store on Thursday, the 30th, the day before Godfrey's speech, but after
telling Godfrey that "we did have some dissatisfied people in the Parkersburg store,
because we had union activity...." He denied having asked whether anyone signed
union cards . One of the first employees ht talked to was McCray; according to
Evans, he only asked how things were, and when McCray complained generally, he
asked him, "why the situation was not good," and at this point the employee first
mentioned the Union. Evans then expressed disappointment because "if he wanted
representation that he should have come to someone in supervision.... . Evans
later testified. "I could have, yes," asked McCray about the feelings of other
employees in his department , ". . I possibly could have asked him if the people
were unhappy." Evans also recalled he discussed matters with Meat Manager Davis
in the lounge , that Davis started the conversation, and that the talk centered upon
the difficulty Davis, and maybe others, were having with the store manager. Evans
said he could not recall had he asked whether Davis had signed with the Union, but
that "I asked him why the people were unhappy or dissatisfied."
Meat Supervisor Sharron admitted he sat and talked with Harper after work one
day, he could not recall how long, but for an hour according to Harper's uncontra-
dicted testimony. Sharron said the employee invited the discussion and that he
started by asking Harper what "his problem was." This was the synonym alternative
for word "union" used by the other supervisors throughout the store, and clearly the
device for avoiding the word itself in accordance with the initial instructions of
Divisional Manager Evans in Columbus. I do not credit Sharron's denial of having
said the Company would make it "rough," and create "problems" for the employees
if a union prevailed. He denied having spoken of the Union at all with Harper. In
the context of all that was going on during that very first week in August in this
store , with managers and visiting officials carrying out a widespread interrogation of
the "problems" of all employees caused by this "thing," I cannot believe that Sharron
spoke with Harper for an hour, after work, with no reference being made to the
very subject which had the entire company up in arms.
Store Manager Miller did not testify, and therefore there is no contradiction of
Harper's testimony that on August 4 Miller asked him about "grudges" connected
with "any of the goings on," and then spoke of the profit-sharing plan, Harper's
good prospects for promotion to department manager, and the chances that as a
union member he would not be eligible for such advancement.
John Anderson, the meat buyer, was called by the Respondent to counteract
Hendrickson's testimony that Anderson called him before the end of his military
leave to enlist his assistance in combating the union drive. According to Anderson
it was the employee who called on the telephone and invited him to a meeting miles
away where they talked over 2 hours. Hendrickson's purpose, as Anderson said,
was to discuss the advisability of his quitting the store because he was opposed to the
Union and "had been given the cold shoulder" by the employees in the meat depart-
ment. But Hendrickson had been on leave from work since July and never returned
to the store until Tuesday, August 18, the day after sitting with Anderson in the
Athens Cafe. He could not have been speaking then of the attitude of employees
revealed after his return to work. Anderson also started his testimony by being very
evasive on the entire subject of his talk with Anderson, and it was only after direct
questions that he admitted what they really discussed was the Union's organizational
campaign . Before he finished Anderson had recalled he asked Hendrickson had he
signed a union card himself and why did the other employees feel they needed a
union. At that time Anderson was direct meat supervisor over the Parkersburg
store, yet he said the first he heard of union activities there was in the August 17
conversation with Hendrickson. In the light of the widespread activities of all the
company representatives throughout the store for the entire 2 preceding weeks, I
find his story incredible.
Three days later, with Godfrey in the store, Hendrickson asked to speak to him,
to the store manager, and to two meat department employees in a single group. He
wanted to withdraw and to wish a plague on both their houses. Kay Bartell and
Sandra Merrill, the two employees, testified Hendrickson told them then and there
he had been requested by the Company to use his influence to convince other employ-
ees to abandon the Union and that he had decided not to do so. There is no contra-
diction of this testimony, although both Godfrey and Store Manager Miller were
present. Merrill 's further testimony that during that talk Godfrey said the Union
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was only after the employees' money and "that the Company would do anything for
us that the union could," also stands uncontradicted on the record. I credit Hendrick-
son's recollection of his talks with both Miller and Anderson.
Finally, Assistant Store Manager Benson also denied, with specific reference to
the testimony of several employee witnesses, that he asked had they signed union
cards and why they wanted a union, or that he said card signers would be released
first or promise them anything. He conceded however that he was opposed to the
Union and that he initiated conversations with a number of employees to inquire
what their "problems" were, that in a number of instances he agreed to look into
their complaints or matters of wage rates, insurance benefits, and hours of work.
Despite his denials, the record shows clearly that Ann Plants complained to him of
her vacation privileges and that as a direct result of Benson's interest the Company
paid her retroactive benefits shortly thereafter. After denying that he told Mrs.
Mills there would be a big housecleaning, it would be so "rough that everybody
would walk out the door," he was asked by Respondent's counsel "was there any
talk to that effect" Benson answered- "Yes, sir, there could have been. I don't
recall the exact conversation, but there could have been something about that."
Benson generalized that he "always" talked to employees about problems, and then
admitted that in speaking with Larry Pierce he started with what he called "the
thing," and then proceeded to discuss the employees' request for more hours of work.
No purpose would be served by detailing further the testimony of the employee
witnesses and that of the supervisors. The assistant manager's answer to the ques-
tion "what was `the thing"' will suffice.
Like I said before, I was in the process of taking over a new job. My job was
to speak with each employee about it, if they had any problems in the store, talk
to them about their problems, and if there was any way, to find the answer for
them. If I didn't have an answer, I should get an answer for them, and if I saw
them, I asked them if they had any problems.
The question came up about him not getting enough hours. I don't suppose
anyone was getting enough hours, and he told me that with the Union, that he
would be guaranteed 15 hours per week, when he was already getting 15 hours.
I find, upon the credible testimony of the employee witnesses as set out above, that
by each of the following statements and acts of company agents the Respondent
restrained and coerced its employees in their right freely to engage in self-organiza-
tional activities and thereby violated Section 8(a)(1) of the Act-
1. Divisional Manager Evans' statements to Cheuvront that he would look into
the employees' complaint that older workers were assigned less hours than junior
clerks.
2. Personnel Director Godfrey's statements to the assembled employees that he
would remove Store Manager Miller from the store if the employees agreed to dis-
continue union activities; his statement that he would check into their economic
demands relating to rates of pay, raises, or other conditions of employment; his
statement to Patricia Mills that if she had come to him instead of joining the Union
he would have satisfied her demands; his payment of additional vacation benefits to
Maxine Barnett and to Ann Plants.
3. Assistant Divisional Manager Vogel's statement to Donald Grant that he was a
reported union leader and his promise that Grant would receive a 15-cent-per-hour
wage increase.
4. Meat Supervisor Sharron's statement to Harper that if the Union came to the
store the Respondent would make working conditions very onerous, and that if the
employees abandoned the Union he would satisfy their demands.
5. Store Manager Miller's statement to Harper that union membership would
prejudice his chances for advancement with the Company.
6. Assistant Store Manager Benson's statement to Grant that he would expell him
from the store if the employee were caught distributing union literature; his state-
ment to Layfield that he would hire more clerks in order to afford less work for the
present complement of employees; his statement to Pierce that if the Union pre-
vailed the Company would hire additional clerks to keep the hours of present
employees at a minimum; his inquiry whether Latham had signed a union card; his
invitation to Sams to report on the union activities of other employees; and his
statement to Mills that the Respondent would close the store before dealing with a
union.
7. Meat Supervisor Anderson's inquiry whether Hendrickson had signed a union
card, and his request that the employee attempt to dissuade other employees from
their union resolve.
BIG BEAR STORES COMPANY 91
Violation of Section 8(a) (5) of the Act
In his brief the General Counsel correctly argues that the refusal-to-bargain issue
in this case must be governed by the principle of Joy Silk Mills, Inc. v. N.L.R.B., 185
F. 2d 732, 741 (C.A.D.C.), where the court stated: "It has been held that an
employer may refuse recognition to a union when motivated by a good faith doubt
as to that union's majority status .. . When, however, such refusal is due to a
desire to gain time and to take action to dissipate the Union's majority, the refusal
is no longer justifiable and constitutes a violation of the duty to bargain set forth in
section 8(a)(5) of the Act." The eventual test, here as in all proceedings under
this section of the Act, is whether there is sufficient substantial evidence on the
entire record to support the complaint allegation that in refusing to bargain when
requested the Respondent was motivated by a bad-faith rejection of the statutory
obligation to bargain with the majority representative of its employees.8
The Respondent's only answer to the Union's request for recognition was that it
had no objection to a Board-conducted election, and the sole explanation offered
throughout the long hearing is that it is the Respondent's "policy" to require elec-
tions. Various other defenses to the complaint, advanced at the hearing, are not
only without merit in fact, but were not urged in reply to the recognition request
when it was made. Management representatives said nothing then about possible
inappropriateness of the single-store unit proposed, nor did they question the authen-
ticity or validity of the authorization cards in possession of the union's agents.
Rather, they scorned repeated offers to inspect them, and the record shows affirma-
tively that some company agents at least were convinced of the Union's majority
strength at the time.9
Had the Respondent rested upon an honest conviction that only a secret election
provides a fair test of union representation, and not engaged simultaneously in
improper conduct to persuade the employees to abandon all thought of collective
bargaining, a different question would be presented. Conceivably it could have sim-
ply asked the Union to file a representation petition with the Board, or itself made
a similar request for an election, and awaited the outcome without muddling the
waters with promises of a raise here and there, a retroactive money benefit where it
found a disgruntled employee, or outright threats to alter employment conditions
adversely to the employees' interests if they persisted in their prounion determina-
tion. Instead, as clearly shown, even before the first demand for bargaining arrived
high officials from the home office began to converge upon the Parkersburg store
with an unquestionable intent of assuring that in the event there ever should be any
kind of election the employees would vote against the Union. The Respondent's
sudden reaction, immediately as it learned of the union campaign, fits this case into
the language of Joy Silk Mills, Inc. v. N.L.R B , supra, 741, which ruled: ". . it
is not one of the purposes of the election provisions to supply an employer with a
procedural device by which he may secure the time necessary to defeat efforts
toward organization being made by a union " As the Board stated in its own deci-
sion in Joy Silk Mills, Inc.: "In cases of this type the question of whether an employer
is acting in good or bad faith at the time of the refusal is, of course, one which of
necessity must be determined in the light of all relevant facts in the case, including
any unlawful conduct of the employer, the sequence of events, and the time lapse
between the refusal and the unlawful conduct." 10 [Emphasis supplied.]
Here there was no "time lapse," nor indeed any "sequence of events." During the
very week when Union Agent Spencer was attempting to obtain a coherent response
from various company spokesmen-between July 30 and August 7-extraordinary
measures were being taken among the employees to learn what their "problems"
were, to adjust them where possible, to promise more generous consideration, and
to intimidate, where necessary, all aimed at ridding the Respondent of "this thing."
I find, upon the record as a whole, that the principal allegation of the complaint
is supported by the evidence and that by its refusal to bargain with the Union dur-
ing the week of July 30 to August 7, 1964, the Respondent did act in bad faith and
thereby violated Section 8 (a) (5) of the Act.
0 N.L.R.B. v. American National Insurance Co., 343 U.S. 395; N.L.R.B. v. Insurance
Agents' International Union (Prudential Ins. Co.), 361 U S. 477.
0In its brief the Respondent says: "There can be no dispute that at the time the bar-
gaining requests were made the union did in fact have signed authorization cards from
a majority of Respondent's employees . . . . However, how can the Respondent contend
that had a 'good-faith doubt' as to the Charging Party's majority status when it refused
to accept the Charging Party's offer to produce authorization cards
10 85 NLRB 1263, 1264.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discharges and Reduction of Hours of Work
During the month of August there were 51 persons working in the store. Among
these were the four supervisors-Miller, Benson, Davis, and McCray-and four
clerks hired that month. The number also includes Hendrickson, Holman, Shakel-
ford, Tallman and Jonas, who were not listed on an agreed-upon exhibit received in
evidence but who definitely worked for the Company. A 52d person-a clerk-
was hired on September 7, 1964. From that time up through the start of the hearing
in this proceeding on March 22, 1965, no other person was hired.
Starting in September and continuing through the month of October the volume of
business in the Parkersburg store fell off drastically. Apace with the decline in busi-
ness there came a reduction in the work force. By the last day of October eight
employees had left the Company-seven voluntarily (Flanagan, Knopp, Graham,
Sole, Cagle, Schlag, and Stephen Smith) and one (Cozzens) by discharge on Sep-
tember 9. This shrinkage left 40 rank-and-file employees in the store. On or about
October 31 the Respondent discharged 11 of these, all part-timers. It also reduced
the hours of four full-time clerks to part-time status. This move left the total com-
plement at 29. One other left the Company voluntarily later- Weekley quit in
January. Between that time and the day of the hearing the Company continued to
operate the store with only 29 rank-and-file workers. That there was a causal rela-
tionship between loss of business and reduction in staff from 48 to 28 clerks is so
obvious as to require no further comment here. Occasional suggestion by counsel
for the Charging Party during the hearing that there was no need or other justifica-
tion for the Company to release any employees or to reduce the hours of any is
entirely unwarranted in the light of these objective facts.
The complaint selects 6 of the 11 employees discharged and alleges that they
were released to further an antiunion objective and not for economic reasons; it
also states that the reduction in hours of the four was illegal discrimination in
employment. The General Counsel rests upon the sole contention that the entire
decline in the volume of sales in this store, and the consequent loss of employment
to the employees, was consciously planned and intended by the Respondent for the
express purpose of punishing them for having joined the Union and to discourage
such attempts in the future. He directly disavowed any contention that it is in the
selection of the individual employees for lay off or reduction in work that the anti-
union motivation is shown. Of the 15 employees whose work ceased or was cur-
tailed only 10 had signed union cards; the General Counsel made no attempt-
either at the hearing or in his brief-to explain why, if in fact the total reduction
in force was illegally inspired, only some of the employees who thereby suffered
should be named in the complaint.
In direct conflict with the General Counsel the Union argues instead that the
illegal motivation stated in the complaint is proved by the particular choice made
by the Company from among the entire complement when it came time to discharge
or reduce some Repeatedly during the hearing the General Counsel objected to
attempts by counsel for the Union to prove this assertion. Toward the close of the
trial the General Counsel halfheartedly seemed to adopt this further position; he
did not refer to it at all in his brief.
To prove the assertion that the Respondent deliberately set out to reduce the vol-
ume of sales in the store the General Counsel proved the following facts-
(1) At each of the 40 grocery stores it operates the Respondent furnishes carry-
out service for customers; certain "carry-out" clerks bring the shoppers' bags to the
cars parked in the general area in the shopping center. On September 19 it dis-
continued this service only at the Parkersburg store. Thereafter it furnished only
what is called "parcel pickup," assistance by store clerks carrying bags to the front
of the store, or to the customers' autos at the very entrance.
(2) At every one of its grocery stores the Respondent distributes gift trading
stamps (called Buckeye stamps), redeemable by the customer at gift counters in the
store. On September 19 it discontinued distribution of such stamps only at the
Parkersburg store; between September 19 and October 31 the Respondent continued
to maintain the Buckeye gift counter in this store for convenience of customers who
wished to exchange stamps already accumulated, and also sold Buckeye stamps to
such customers as wished to meet requirements for particular gift merchandise. On
October 31 both the sale of Buckeye stamps and the gift counter were discontinued
altogether.
(3) In the shopping center where this store is located the only grocery store com-
petitor to the Respondent is a Kroger supermarket, where gift stamps and carry-out
services were always given customers and where neither practice has ever been
discontinued.
BIG BEAR STORES COMPANY 93
(4) There is rio union representation at any of the Respondent's other locations.
To offset the inference of a planned injury to its business suggested by these facts,
the Respondent offered testimony intended to support its contrary assertion that the
changes thus made were caused by a long continuing drop in business here and
aimed at increasing sales.
(1) Divisional Manager Evans said at the hearing that since its opening in 1957
this store has been "in the red" and that some time in August 1964 management
decided to convert it into a "Hart's Discount Store " The Respondent owns and
operates four other stores called "Hart's Discount " It was not shown that any of
these sell groceries-the primary merchandise at Parkersburg, they appear to be
variety stores instead.
(2) On September 19 the Company placed new signs on the store, calling it
"Hart's Discount Store," and publicizing the new policy by newspaper and radio
announcements . Evans also testified that on a number of its products for sale prices
were reduced simultaneously with elimination of the carry-out service and the
Buckeye stamps.
(3) In the spring of 1964 the Respondent learned that immediately adjacent to
its store in this shopping center a new discount store was being built-called Arlan's.
This store in fact opened at about the time the Respondent changed the appearance
at least of its own operation.
(4) Evans also testified that the largest food store in Parkersburg, called Ralph's,
does not give trading stamps, and that surveys respecting other supermarket food
outlets in other parts of the country show that removal of trading stamps resulted
in increase in business and that certain other chain stores were also eliminating them.
(5) Evans then went on to testify, as the record otherwise directly shows any-
how, that the expected increase in sales did not materialize and that instead volume
continued to fall off. There were received in evidence certain company records
which reflect that the average percentage of payroll cost to sales volume in the
Respondent's stores is between 7 and 71/z percent, and that at Parkersburg it had
consistently increased from August 1, 1964, through the end of October, showing
8.64 percent for the week of August 1, and 8.52 percent for the week of October 31,
with the figure at times in the interval hovering well over 9 percent and once reach-
ing over 10 percent. Evans pointed to these figures as pressing need for reducing
the payroll at the end of October.
The only truly significant fact objectively proved by the Respondent supporting
the assertion that what change was made in September was based upon economic
considerations is the payroll cost in the Parkersburg store compared to its general
overall multistore operation . An authentic extract from its records, received in
evidence, does show that of the 40 stores it operated during both the year ending
November 1964 and in the preceding year," 8 showed an increase in payroll cost
and a 1964 picture of payroll percentage in excess of 8 percent, whereas all otner
stores operated at less than that figure. One of the group of eight was Parkersburg.
Beyond this, the repeated statements by Evans that Parkersburg had always been
losing money, that it showed the "worst" financial picture of all the stores, that it
compared unfavorably with all the other stores, and particularly with respect to
three others which he selected arbitrarily and without logical purport, stand entirely
unsupported by probative evidence on the record Admitting that its records reveal
these matters unequivocally, the Respondent chose not to produce them, despite
clear statements by me that conclusionary testimony of its officials were purely sec-
ondary, and, in the absence of the records themselves which must be available, could
not be relied upon.12 In fact, the Respondent moved to revoke a subpena served
by the Charging Party to produce those very records, on the ground that such data
was immaterial . Moreover, while the testimony of a number of employee witnesses
establishes that from September, when the Buckeye stamps and carry-out services
were discontinued, business did decline, there is practically no other evidence that
it also had declined before those changes were made.
Evans' further oral testimony to the effect that it had been reported to him that
other chain stores were discontinuing stamps while improving business, and that
the largest market in Parkersburg also never gave stamps, suffers from like indirect-
ness and lack of objective documentary support, although he may well have been
correct on these matters. And even the fact of the abnormally high payroll cost at
Parkersburg serves only as a weak prop for the affirmative contention that this
inspired the revised system, for Evans admitted that at the other stores where payroll
costs were as high, or even higher, no such changes were made. This may have
31 Two stores apparently were started as new ones during the year 1964.
12 See 8 Wigniore, Evidence § 291 (3d 1940), pp. 180-188, at 187.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been due to the fact that the percentage profits were greater elsewhere, but the
important point here is that there has been no definite showing of why Parkersburg
was selected for the experiment.
The Respondent having chosen to prove its affirmative defense in this way, it
must be found that economic explanation for the September changeover to Hart's
Discount Store has not been established. From this statement, however, it does not
necessarily follow that business reasons unrelated to union activities were not the
provoking cause. In these proceedings the primary burden of proof always rests
upon the General Counsel, and unless it can be found affirmatively that the reasons
for the action were in fact to counter upon activities, the essential allegation of the
complaint must be dismissed.
The pertinent facts advanced by the General Counsel certainly give rise to a grave
suspicion of ulterior motive. The gift stamps were discontinued only here, and it
was only here that union organization reared its unwelcome head. On the face of
things, curtailing customer service and holding back gifts must necessarily have
tended to send customers elsewhere, especially where the neighboring competitor
continued the courtesies. Further, the Respondent's opposition to dealing with the
Union is clear.
There are other aspects of the total picture which tend to weaken the ultimate
adverse conclusion sought by the complaint. Evans did say, and no employee con-
tradicted him, that prices were in many instances lowered, and it is common knowl-
edge that buyers will accept inconveniences in return for better prices. The Com-
pany hired additional clerks in August, a step it was not likely to take if its strategy
were to decimate the staff. And 6 months-September through March-is a long
time to absorb a deliberate continued loss for any business enterprise.
In October, during the very period when the reduction in business was becoming
marked, the Company instituted a companywide policy of increased wage rates; it
extended the benefits to the Parkersburg store also. The General Counsel argues
this shows that payroll cost was not excessive. The raise could as well indicate con-
tinued hope that business would improve. In any event, it does seem inconsistent
with any plan to make employment undesirable, or to cause the employees to leave.
There is a final matter that cannot be ignored. When, at the end of October, the
Respondent chose 15 employees of the remaining complement of 40 nonsupervisory
workers for discharge or reduction in hours, it did not weed out a disproportionate
number of prounion clerks. Of the 15, 10 had signed union cards and 5-Tollman,
Stephens, Whipkey, Lott, and Alkire-had not. But the Respondent then knew which
of the group had signed, for the Union had furnished copies of the cards to company
counsel on October 26. The percentage of nonunion as against prounion employees
so selected is exactly one-third, and it virtually matches the percentage of the total
complement which had signed union cards. Of course, had the Respondent delib-
erately selected only employees who favored the Union, the General Counsel's argu-
ment now would be immeasurably strengthened. But he could hardly contend that
inclusion of just so many nonunion clerks was a calculated deception designed to
defeat a contrary conclusion. Suspicion apart, I conclude that the record does not
support the assertion that the Respondent maliciously set out to destroy its own
business to defeat the employees' organizational campaign
The Government's charge that the mass layoff was illegally motivated having failed
of proof, the event must be viewed as a normal incident of regular business opera-
tions There remains to be considered the contention of the Charging Party that the
Respondent seized upon the opportunity to rid itself of the known union adherents.
Again an inference if illegal purpose must stand or fall depending upon whether
appraisal of all relevant factors affirmatively warrants the conclusion An inference
it would have to be, for there is no direct proof that card signers or prounion employ-
ees were singled out When informed of the layoffs or reduction in hours, the
employees were told it was because of business reverses, and each was given a super-
ficially plausible reason for his or her particular selection The argument made by
counsel for the Union is a broad, all inclusive theory-that the total picture builds
up to a pervasive scheme. The complaint does not purport to allege that perhaps it
can be found one or two of the discriminatees suffered illegally while the rest did
not. Either all 10 employees listed in the complaint were the victims of a single act
of reprisal, or the entire allegation of illegal discrimination fails.
A number of facts of record upon which the Union relies in its brief are there-
fore of little persuasion Daisy Porter was reduced in hours on November 14. the
day after counsel for the Respondent interviewed her in his investigation of this
proceeding. The case as to her is not appreciably strengthened by the fact of her
having spoken to the lawyer about her union card, for the Company knew this a
BIG BEAR STORES COMPANY 95
month earlier. Juanita Holman was very vocal at the drugstore gathering back on
the night of July 31, after Personnel Director Godfrey had given his speech to the
employees. The Union would have it that this proves why she was included among
the persons affected by the reduced work hours. But there were perhaps as many
as 20 or 25 employees sitting and arguing with Godfrey and Manager Evans that
night; others were equally outspoken on the matter, including a number whose union
sentiments the Company later learned anew by virtue of the cards, but who were not
affected by the layoffs.
The overall picture must be studied in broad strokes, and the most significant of
these is the way the heavy hand of economic adversity fell upon the employee group
as a whole. There were 40 employees among whom the selection had to be made-
28 had signed cards, 12 had not. Of the 28, 10 were caught in the net; of the 12, 5
were caught The percentages were precisely 36 and 42, respectively. A random
hand, seeking to weed economically unnecessary persons from any crowd would have
fallen in substantially the same ratio upon union and nonunion employees alike in
the Parkersburg store at that time.13 This fact alone is very persuasive indication
that the selection was not based upon union activity considerations. In fact the
evidence upon which the Union relies to prove a contrary intent can be evaluated in
terms of whether or not it suffices to offset an inference or regularity arising from
the numei ical picture.
To a very substantial extent the selection followed seniority, with the later hirees
leaving, or becoming part-timers. None of the full-time clerks-and they held the
greatest seniority-was released; only part-timers, including virtually all of the last
group hired, were laid off. The Union makes much of the fact that seniority was
not strictly followed with absolute consistency. There is nothing to show, however,
that in disregarding length of employment in two or three instances, the Respondent
did anything contrary to a past practice. There is no evidence of any prior reduc-
tion in force during the 8 years that this store has been in operation. In fact, there
is uncontradicted evidence that a mass layoff of this kind never happened at any of
the Respondent's many stores. In short, it cannot be said that in contrast to an
established seniority practice the Company in this instance did something special,
and therefore probably had a hidden reason.
Divis..,i,al Manager Evans stated that in deciding which employees to lay off, or
reduce, he considered several factors in combination-a company rule to favor more
senior clerks, the necessity of covering work schedules with competent workmen,
and a requirement for a certain number of male employees for the heavy work, such
as unloading trucks and other chores. There were two instances where seniority
was bypassed: Cunningham, a student who described himself as a "carryout" boy
and who had been doing about 20 hours weekly, had been hired 3 years before, and
Pierce, also a clerk, who did not appear on the payroll at all during the last few
weeks in October, had worked since September the year before Evans said Cun-
ningham was let go because he was essentially a carryout boy, and had two other
part-time jobs anyway, and Pierce because he was deemed unsatisfactory in work
performance.
The essential burden of the Union's brief, iepeating the same contention again
and again and pointing to the same basic store practice from many pinpointed
aspects, is that Evans could have accomplished this same seduction of total hours
worked in the store in some other way and therefore should not have done it the
way he did. It is clear that apart from meat department employees-cutters and
wrappers-the clerks all perform a variety of functions, from department to depart-
ment, and have many times been changed from one duty to another. Witness after
witness related how he or she had been shifted about the store. This being so, the
Union argues that operational needs or particular experience in the various employ-
ees could not have been of moment. A further contention is that the Respondent
could as well have released more part-timers and thereby avoided reducing any of
the full-time employees. And it seems true Evans could have done this. But he
"Compare Great Eastern Color Lithographic Corp., 133 NLRB 911.
For purposes of this mathematical calculation two employees-Fietsam and I%fumaugh-
have been counted as card signers , although the Respondent learned at the end of July
that at a union meeting they , together with a few who never signed cards, voted against
immediate delivery of the authorization cards to the Company to support the bargaining
demand. Against the possibility that the Company might have considered this as evidence
the two clerks were opposed to the Union-they never advised company or union agents
of a change of heart-there is the further fact that when Union Agent Spencer sent
authorization cards to the company lawyer on Otcober 26 , be forwarded at least two
cards signed after the refusal to bargain but which were not identified on the record.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not, and the issue here is not whether he acted in keeping with the judgment of
any union representative, or of a Trial Examiner, but only whether what he did do
proves an illegal intent.
Had the various factors which the Respondent says it considered-more diversi-
fied experience, greater physical strength in male as against female clerks, the fact
that one part-timer had other employment and others perhaps not, outright incom-
petence in another-led substantially to a disproportionate selection of union-minded
employees and favored treatment of the nonunion group, a contention that the
asserted reasons were deviously conceived would carry strength. They did not bring
about this result. In criticizing the basis assertedly used in some instances by the
Company, the Union impliedly suggests other, unarticulated distinctions among
employees which in its opinion would have been more reasonable, or more defensi-
ble, or more acceptable. Apparently the change of ulterior motive could have been
avoided by a selective process ending with exclusive, or at least top-heavy hurt to
the nonunion group. An employer is not required to, indeed he may not thus favor
the union-disposed employees. Nor may the union, in circumstances like these,
insist that its judgment supplant that of the employer.14
The evidence in its entirety does not suffice to prove affirmatively that the
Respondent deliberately selected prounion employees for layoff or reduction in hours.
In its brief, the Charging Party points to further evidence of illegal discrimination
based on the employees' timecards covering the period November 1, 1964, through
March 1964. It appears that during certain weeks of February and March some of
the part-time employees worked more hours than before, while the original full-time
clerks who had been reduced were not brought back to their original full-time, or
almost full-time, status. The point is also made that during certain later weeks the
part-time employees worked during those store hours when the old full-timers were
off duty. The Respondent could have restored the latter to full-time duty and
reduced the part-timers. It did not do so and this fact is now said to prove an illegal
intent back in October 1964. I have not considered this belated evidence in evaluat-
ing the record proof. The timecards were produced pursuant to a subpena by the
Charging Party and placed in evidence, without objection, at the close of the hearing,
and without analysis, comment, or argument. There is no allegation in the com-
plaint of any improper conduct by the Respondent after the late October events, and
it was given no opportunity to rebut any contention that might be urged on the basis
of these later events. Inquiry might well reveal all sorts of explanations for what
took place months later, and the idea that the Company should have restored full-
timers to their old status is only a reiteration of the original argument that Evans
had no business reducing the hours of some employees so long as he could have
discharged more part-timers.
I find the complaint allegation of violation of Section 8(a)(3) of the Act by the
Respondent to be unsupported by the record in its entirety, and I shall therefore
recommend dismissal of that part of the complaint.
Prehearing Restraint and Coercion
There is a final allegation in the complaint to the effect that counsel for the
Respondent, Britt, coercively interrogated employees in advance of the hearing. In
support two clerks gave the following uncontradicted and credited testimony: Ann
Plants said that about November 13, 1964, the store manager took her to the lounge
where she met two lawyers-Britt and Minor. Britt asked her if she had signed
"for the Union," where, and by whom had she been solicited. He then asked her
why she thought she needed a union, and she answered, "For job security." The
lawyer then told her: "Well, if you have been employed 7 years, why would you be
worried about your jobs" She answered he would have to see how people were
,discharged to understand.
U A revealing example of the character of the Union's criticism of the selection made
concerns Barnett of the meat department. When the reduction-in-force was made there
were five employees there, all of whom had signed union cards Barnett was reduced to
part time although she was senior to Hendrickson. Hendrickson is the man who was
asked to assist the Company influence the employees against the Union and who openly
refused to do so, in the presence of both management and employees. The Union does
not contend Hendrickson should have been reduced in Barnett's place ; instead it argues
no one should have been affected in that department at all, and it rests this criticism
upon the fact that in some of the other stores there was a higher percentage payroll cost
in the meat departments.
BIG BEAR STORES COMPANY 97
That same day the manager brought Daisy Porter also to see the lawyer in the
lounge. Britt asked had she signed a union card, had she attended union meetings,
when and where she had signed her card, and why. When Porter replied affirma-
tively to all this, Britt added: "I bet you was the easiest person to ever sign up for
the Union." The lawyer then asked her where her husband worked, and was he a
union member; Porter told him.
I find that in each of these instances the attorney illegally interfered with the
employeees' right to engage in union activities free of employer restraint. There is
no evidence that in this instance the investigator set the employees' minds at rest
as to the purpose of his interrogation so as to assure them that revelation of their
union activities and inclinations would not prejudice their employment position with
the Company. Neither information concerning the employment and union mem-
bership of Porter's husband, nor critical comment upon Plants' justification for wish-
ing to be represented by a labor organization, have any relationship to a proper
concern Respondent's counsel might have had with respect to any of the allegations
of the complaint in this proceeding. The balancing of a respondent's right to pre-
pare its defense in a proceeding of this type against the employees' statutory privi-
lege against improper intrusion into their union activities, requires certain safe-
guards which the attorney saw fit to disregard.15 Accordingly I find that by his
questioning of employees Porter and Plants, counsel for the Respondent committed
unfair labor practices in violation of Section 8(a) (1) of the Act for which the
Respondent is accountable.is
IV. TIDE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set out in section III, above, occurring in con-
nection with the operations of the Respondent set out in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has committed certain unfair labor practices, I
shall recommend that it be ordered to cease and desist from such conduct and to
take certain affirmative action designed to dissipate the effect thereof. The Respond-
ent having refused to bargain in good faith with the Union upon request, it must be
ordered to do so, and, if an agreement is reached, to sign a contract. In view of
the nature of the unfair labor practices committed, the commission of similar and
other unfair labor practices reasonably may be anticipated. I shall therefore rec-
ommend that the Respondent be ordered to cease and desist from in any manner
infringing upon the rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within 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. All employees of the Respondent's Parkersburg, West Virginia, store, exclud-
ing the store manager and assistant store manager, office clerical employees, guards,
professional employees, and all 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. Food Store Employees Union Local #347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, was in the week of August 7, 1964,
and at all times since has been, the exclusive representative of all employees in the
aforesaid unit for the purposes of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By refusing to recognize and to bargain with the Union as the representative
of the employees in the aforesaid unit, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (5) of the Act
6. By the foregoing conduct, by offering to adjust employee demands for improved
working conditions while attempting to dissuade them from union activities, by
offering *n remove company managers, granting improved working conditions, and
'$ Compare Montgomery Ward & Co., Incorporated, 146 NLRB 76.
16 The Bab3oek and Wilcox Company, 114 NLRB 1465, 1474-1475, G-raber Manufacturing
Company, 11.. NLRB 167.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promising increased rates of pay as inducements for discontinuing union activities,
by interrogating employees concerning their union activities, by creating the impres-
sion that employees are being surveyed, by threatening them with undesirable work-
ing conditions, the closing of the store, or the hire of additional employees to deprive
the present complement of hours of work-all in order to induce them to abandon
union activities-and by requesting employees to attempt to influence other workmen
to abandon the Union, the Respondent has interfered with, restrained, and coerced
employees in their rights guaranteed in Section 7 of the Act, and thereby has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(l)
of the Act.
7. 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
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that the Respondent, Big Bear Stores
Company, Parkersburg, West Virginia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Food Store Employees Union Local
# 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, as the exclusive representative of all employees in the appropriate unit, with
respect to rates of pay, wages, hours of employment, or conditions of employment.
(b) Offering to adjust employee demands for improved working conditions while
attempting to dissuade them from union activities, offering to remove company man-
agers, granting improved working conditions, and promising increased rates of pay
as inducements for discontinuing union activities, interrogating employees concern-
ing their union activities, creating the impression that employees are being surveyed,
threatening them with undesirable working conditions, the closing of the store, or
the hire of additional employees to deprive the present complement of hours of
work-all in order to induce them to abandon the union activities-and requesting
employees to attempt to influence other workmen to abandon the Union
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of a right to self-organization, to form labor organizations, to join or
assist Food Store Employees Union Local #347, Amalgamated Meat Cutters and
Butchers Workmen of North America, AFL-CIO, or any other labor organization to
bargain collectively through representatives of their own choosing, and to engage in
concerted activities for the purposes 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.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request bargain collectively with Food Store Employees Union Local
# 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, as the exclusive representative of all employees in the above appropriate unit,
and, if an understanding is reached, embody such understanding in a signed agreement.
(b) Post at its supermarket store in Parkersburg, West Virginia, copies of the
attached notice marked "Appendix." 17 Copies of said notice, to be furnished by
the Regional Director for Region 9, shall, after being duly signed by the Respondent's
representative, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of this Decision, what steps the Respondent has taken to comply herewith.18
17If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "a Decision and
Order."
181f this Recommended Order is adopted by the.Board, this provision shall be modified
to read: "Notify the Regional Director for Region 9, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
JOHN P. SERPA, INC. 99
It is hereby ordered that the complaint be dismissed to the extent that it alleges
unlawful discrimination in employment against employees in violation of Section
8(a)(3) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Food Store Employees Union
Local #347, Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO, as the exclusive bargaining representative of all employees in
the appropriate bargaining unit described below.
WE WILL, upon proper request, bargain collectively with Food Store Employ-
ees Union Local # 347, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, as the exclusive representative of all employees in
the bargaining unit described below, and, if an agreement is reached, sign such
an agreement. The bargaining unit is:
All employees in our Parkersburg, West Virginia, store, excluding the
store manager, the assistant store manager, office clerical employees, guards,
professional employees, and all supervisors as defined in the Act.
WE WILL NOT offer to adjust employee demands for improved working condi-
tions while attempting to dissuade them from union activities, offer to remove
company managers, grant improved working conditions, or promise increased
rates of pay as inducements for discontinuing union activities, interrogate employ-
ees concerning their union activities, create the impression that employees are
being surveyed, threaten employees with undesirable working conditions, the
closing of the store, or the hire of additional employees, to deprive the present
complement of hours of work-all in order to induce them to abandon union
activities-request employees to attempt to influence other workmen to abandon
their union, or in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any or all
such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of any labor organization.
BIG BEAR STORES COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200.
John P. Serpa, Inc. and Retail Clerks Union, Local No. 1179,
Retail Clerks International Association , AFL-CIO. Case No.
fO-CA-3283. October 8,1965
DECISION AND ORDER
On May 5,1965, Trial Examiner Wallace E. Royster issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
155 NLRB No. 12.
212-809-66-vol. 155-8