Buckeye Tempo Gamble-Skogmo, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 12, 1979240 N.L.R.B. 723 (N.L.R.B. 1979) Copy Citation BUCKEYE TEMPO GAMBLE-SKOGMO 723 Buckeye Tempo Gamble-Skogmo, Inc. and Retail Store Employees Union, Local 11, Retail Clerks In- ternational Union. Cases 7-CA 14501 and 7 -RC 14544 February 12, 1979 DECISION. ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBFRS JNKINS ,AN[) PNEIItO On November 16, 1978, Administrative Law Judge William F. Jacobs issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Buckeye Tempo Gamble- Skogmo, Inc., Alpena, Michigan. its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the representation elec- tion conducted on December 1, 1977, in Case 7 RC- 14544 be, and the same hereby is, set aside and that Case 7-RC-14544 be, and the same hereby is, re- manded to the Regional Director for Region 7 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. 11T IS ALSO FURrtHER ORDERED that paragraph 8(c) of the complaint be, and the same hereby is, dismissed. [Direction of Second Election and Excelsior foot- note omitted from publication.] Respondent has excepted to certain credibiliht findings made hb the Administrative Law Judge. It is the Board's established polic? not to oesr- rule an administrative law judge's resolutions with respect to crediblhllt unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr 1/4all Pr-d, iit. , 91 NLRB 544 1 9 50). enfd. 188 F.2d 362 (Id (i r 1951). We ha.e carefulix examined the record and find no hasis for resersing his findings. 240 NLRB No. 110 DECISION SIAt t MIN1 OF Ilit CASI Wt. I AM F JoBS. Administrative Law Judge: These consolidated cases were heard before me in Alpena. Michi- gan, on March 15, 1978. The petition in Case 7-RC-14544 was filed October 3. 1977,' by Retail Store Employees Union, Local II1, Retail Clerks International Association, AFI. ('10. hereinafter called the Union.2 The charge and amended charge in Case 7-CA-14501 were filed by the Union on October 13 and 18, respectively., against Buckeye Tempo Gamble-Skogmo. Inc.. hereinafter called Respon- dent. Complaint issued November 29. Following an elec- tion conducted by the National Labor Relations Board. hereinafter called the Board, on December 1. objections to said election were timely filed on December 8. On January 30, 1978, the amended complaint, report on objections, or- der consolidating amended complaint and objections cases for hearing, and notice of hearing issued. The allegations contained in the amended complaint parallel the objec- tions filed earlier. In his report on objections, the Region- al Director directed that a hearing be conducted before an administrative law judge to resolve material issues of fact raised by the outstanding objections. It was further direct- ed that Case 7 RC-14544 be consolidated for hearing with Case 7 CA 14501 and that following the issuance of the Administrative Law Judge's Decision. Case 7RC 14544 be transferred to the Board in Washington, D.C. The complaint and objections allege that Respondent in- terfered with, restrained, and coerced its employees in vio- lation of Section 8(a)( I) of the Act and interfered with the conduct of the election by: (a) threatening employees with layoffs and store closure if they selected the Union as their collective-bargaining representative: (b) indicating to em- ployees the futility of selecting the Union as their collec- tive-bargaining representative by advising them that if the Union successfully organized the store, all bargaining con- cerning employees' wages and benefits would begin at zero. and the employees would have to fight just to keep their current level of benefits: (c) threatening employees with more onerous working conditions, including working every night and Sunday., if the Union were selected as their bar- gaining representative and (d) promising to negotiate directly with the employees concerning their terms and conditions of employment, if they would select a local at- torney, rather than the Union, as their bargaining represen- tative. Respondent timely filed its answer to the complaint, denying the commission of any unfair labor practices. All parties were represented at the hearing and were af- forded full opportunity to be heard and present evidence and argument. Respondent filed a brief. Upon the entire record, my observation of the demeanor of the witnesses All dates herein are 1977 unless otherwise ndicated I he name of the nion appears as amended at Ihe hearing. ( unscl for (;eneril ( unnel siaied on the record that the e idence n obhectul.nahle conduct uould he limited to that which is coextenslve with the celtlence upportive of the S(ai)( I complaint allegations 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and after giving due consideration to Respondent's brief and to the oral arguments and cases cited orally by both counsel for the General Counsel and counsel for Respon- dent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation,4 is engaged in the operation of retail department stores throughout the United States, including a store located in Alpena, Michi- gan, the facility involved herein. During the calendar year 1976, a representative period, Respondent's gross revenue from all sources exceeded $500,000. During the same pe- riod, Respondent purchased and caused to be delivered to its Michigan facilities, including its Alpena facility, goods and materials valued in excess of $50,000, which goods and materials were transported and delivered directly to its Michigan stores from points located outside the State of Michigan. The complaint alleges, the answer admits, and I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE I.ABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Threats of Layoffs and Store Closure On September 30 Respondent called a meeting of its employees which was attended by between 40 and 52 em- ployees and which lasted approximately 2 hours. It is al- leged by the complaint that during this meeting, Respon- dent, through its agent Dave L. Imrie, threatened the assembled employees with layoffs and store closure if they selected the Union as their exclusive collective-bargaining representative. The General Counsel presented several witnesses con- cerning this allegation: Employee Mae Kasubowski testified to events occurring at meetings allegedly held on September 30, October 16,§ and October 26. She did not mention anything being said by Imrie at the September 30 or October 16 meeting con- cerning layoffs or plant closure except to state that Imrie said that there would be no union. When asked pointblank by the General Counsel with regard to the October 26 meeting,6 "Was anything said about store closure at this 4 The complaint was amended to reflect that Respondent's principal of- fice is located in Minneapolis Minnesota. TIhe allegation. as amended. was admitted by amendment to the answer. Respondent stipulated that meetings were conducted by Imrie on Sep- tember 30 and on October 26 but denied that one was conducted on Octo- ber 16. 6 Since two other witnesses testified that matters of budget were discussed on September 30. not on October 26. 1 find that Kasubowski was probably meeting?" her reply was, "I don't know." She then went on, however, to testify that Imrie stated at this meeting that the store was run on a budget, that the employees could only get so much because it was run on a budget, and that the store would not run over its budget, and if it did, the store would close. Employee Delores Kaiser testified to a number of mat- ters discussed by Imrie at the September 30 meeting, in- cluding his statement that the Union would not come in. After the witness had exhausted her memory, the General Counsel asked, "Do you recall anything else being said at this meeting?" Kaiser replied, "Just offhand, I can't." The General Counsel persisted, "Do you recall anything else being said, about layoffs and the store closing?" Kaiser then testified, "He said that we'd operate on a budget and that if the union came in the budget would not be changed, and that the lower seniority could be laid off . . . because the budget could not be changed." Employee Peggy Kruczynski, like Kaiser, testified on a number of topics discussed by Imrie on September 30, and only after she had exhausted her memory did the General Counsel lead her by asking, "Do you recall anything being said about budget?" The witness replied to this question, "[He] said our budget would not be raised, if the union came in probably there would be layoffs." Imrie testified with regard to the September 30 meeting that at no time during the course of that meeting did he indicate that in the event that the Union got in, there would be layoffs at the store. Similarly, he emphatically denied indicating at any meeting that if the Union were selected as collective-bargaining representative, the Alpena store would be closed. He testified that the subject of store closure was brought up in the form of a question by an employee who wanted to know if any of the stores which the Company had closed in the previous 12 to 18 months had been union stores and that he had replied that some were union and some were not, but that the reason for closing them had nothing to do with the Union but rather with sales, that they were unprofitable stores. Imrie also testified that at the September 30 meeting, during the question-and-answer period, an employee either asked a question about how layoffs would be handled or made a statement concerning the Union protecting em- ployees from layoffs. According to Imrie, he replied that layoffs were determined by sales. Respondent also called as its witness Howard Welch, a rank-and-file employee in the unit as of December 1, the date of the election. He testified that Imrie had discussed layoffs during one or more of the meetings and supported Imrie by testifying that Imrie said that layoffs would be determined by sales, as would be the number of hours worked. Welch testified that Imrie had stated that if there were no sales, there would have to be a cut in hours; that people would have to be cut; and that the company was in business to make money, and if it did not make money, it would have to do something to change it. He specifically denied that Imrie gave any indication that if the Union got in at the Alpena store, it would affect sales. He specifically denied that lmrie said anything about the store closing in honestly mistaken as to the date BUCKEYE TEMPO GAMBLE-SKOGMO 725 the event the Union came in. With regard to the matter of payroll and the store's bud- get, Welch testified that Imrie stated that the store had a specific budget and that whether the Union came in or not, the Company would not increase the budget because it was set. Welch specifically denied, however, that Imrie had stated that the budget provided for so many dollars in wag- es and that this amount would not be changed for the year whether or not the Union came in. Rather, he testified that Imrie had stated that the budget reflected sales; that the higher the sales, the more of the budget was for wages; and that if the store had a good year, if sales were higher, there would be more money budgeted for wages. Welch testified that the company drew up a new budget every 3 months. The testimony of the General Counsel's witnesses was to some extent rather sketchy; their memories were something less than photographic, and there may have been some un- certainty on their parts as to dates. Nevertheless, all of them impressed me as straightforward, honest, and credi- ble witnesses who did their very best to be candid and truthful. I am totally convinced that their description of what they heard is accurate and that the statements attrib- uted by them to Imrie were in fact made. To some extent their testimony was also supported by that of Welch, Re- spondent's own witness. An analysis of the individual testimony of the General Counsel's witnesses and a composite view of the same indi- cates that Respondent, through its regional operations manager, Imrie, who is in charge of budgeting, personnel, and labor relations among other things, presented the fol- lowing argument to its employees on September 30 con- cerning the advent of the Union and its attempts to orga- nize Respondent's employees: I. There would be no union in the store.7 2. The store is on a fixed budget which was set and could not be raised or changed even if the Union came in.8 3. If the Union did come in, probably there would be layoffs of employees with the least seniority. 9 Al- though the testimony of the General Counsel's wit- nesses was somewhat sketchy as to Imrie's argument on this point, it seems clear that what he was saying was that if, on the fixed budget, the same amount of cash was allocated for wages after the Union came in as before with no possibility of an increase in that allocation and if the Union succeeded in obtaining wage increases, then the same amount of money bud- geted for wages would have to be split up among fewer people, and therefore it would be necessary to lay off the least senior employees.' ° 4. If the store did run over its budget (because it See the testimony of Kasubowski Kaiser, and Rlsteau. 8See the testimony of Kasubowski, Kaiser. Kruczqnskl and \Welch. See the testimony of Kaiser and Kruczxnski. i This precise argument was utilized by Respondent during a union orga- nizing campaign at its Traverse Cit store in 1975 and was found to be violative of the Act. Gamble-Skogmo, Inc. d b a Tempo Discounr C(ener 226 NLRB 40 (1976). Though Imrie was not the member of management involved who utilized this argument at Traverse Cint. he :as otherwise involved in that case and occupied the same position then as he did In the instant case. was forced to do so by union demands), it would close. " Thus, the picture as drawn by Imrie is one where the employees could not possibly gain anything by bringing in a union, because if the preordained, adamantly fixed bud- get were challenged by the Union, such challenge could only result in layoffs or store closure. But Imrie's forecast of dire consequences was clearly premature. The Union had not as yet made any economic demands as of the time of Imrie's speech, and assuming that when it did so, after first succeeding in obtaining recognitional status, Respon- dent would negotiate with it in good faith, there was no way for Imrie to determine beforehand what the results of those negotiations might be. Imrie could not, at the time of his speeches in September and October, legitimately fore- see what the Union's future demands might be or what Respondent might offer in return. Certainly there was no basis for him to conclude that those demands and Respon- dent's reaction to them would automatically result in lay- offs or store closure, again assuming good faith on the part of the parties. There is no indication in the record that Imrie's superiors, in the face of union demands for in- creased benefits, would automatically begin a reduction in force or close the store rather than authorize an increase in the payroll budget. Therefore it cannot be said that Imrie's forecast of the dire consequences enumerated by him as the necessary result of union representation equated to: a "prediction . . . carefully phrased on the basis of objective fact" conveying "an employer's belief as to the demonstrably probable consequences beyond his control . . . or a management decision already arrived at," such as was held permissible by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 12 Here, as in the case cited, "the advent of the Union would have meant only that the Respondent had to bar- gain over wage demands, not that it had to grant increas- es. I find, therefore, that Respondent's unfounded economic forecast of layoffs and store closure if the Union obtained representational status was coercive in nature and violative of Section 8(a)(1).13 B. Statements Concerning Bargaining During the meetings which occurred on September 30 and October 26, it is alleged in the complaint, Respondent, through its agent, David Imrie, indicated to its employees the futility of selecting the Union as their collective-bar- gaining representative by advising them that if the Union successfully organized the store, all bargaining concerning employee wages and benefits would begin at zero, and the employees would have to fight just to keep their current level of benefits. I See the testinlmon of Kasubowhski. Go ( lhleS. .korno. In .. upanl at 42. " Ihrd Inasmuch as I hase found that these particular iolations occurred on September 30 and the petition n Case 7 R( 14544 was not filed until Oclober 3. the do not constitute bjectionahle conduct. (;oodear lire and Ruhh, ('t/tolpnil 138 NRB 453 (19621 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel presented several witnesses who testified with respect to this allegation: Employee Risteau testified that at the September 30 meeting and at other meetings, Imrie stated that he would do the negotiating of the contract for Respondent and that the employees "would start at zero." Kasubowski con- firmed Risteau's testimony that Imrie stated that bargain- ing would start at zero. Kaiser testified that Imrie stated, with regard to bargaining, that he "was aggressive, very aggressive," that employees "would be seeing a lot of him," and "that the union would not come in." According to Kaiser, mrie stated that when they started negotiations, "it would be at zero, and 'I mean zero.'" and this referred to not only wages but also other benefits. Kaiser stated that the statement that negotiations "would begin at zero" was made not only at the September 30 meeting but several times and that the matter of negotiations was brought up at most of the meetings. Kaiser testified that Imrie stated, at either the September 30 meeting or some other meeting, that in the event that the Union were successful in obtain- ing representative status, all benefits would be subject to negotiations. Employee Kruczynski testified, as did other of the General Counsel's witnesses, that Imrie stated that if the Union came in, bargaining would begin at zero and added that what the employees then had, they would have to fight for. She testified that these statements were made both at the September 30 meeting and at a later meeting in October.' 4 Respondent's witnesses, Imrie and Welch, testified with regard to this allegation. According to Imrie, he told the employees on September 30 and/or October 26 that the Company was required by the Board to bargain in good faith, but there was no requirement for the Company to agree to anything or sign anything that it deemed was not in its best interest. He told them that bargaining meant that the negotiators "wipe the slate clean and begin at zero." and then "the employees may get some things and they may lose some things." He added that history demon- strates that unions will trade away existing benefits to get union-security clauses and union-dues-checkoff provisions in contracts. He told the employees that they and the Com- pany were entering into an unknown area, where neither of them really knew what was going to happen, that that was something that had to be negotiated. When asked specifi- cally about wages on October 26, Imrie replied that he did not know, that wages would have to be negotiated. Imrie testified that at the meetings there were question- and-answer periods with the answers to potential questions already worked out and printed. Imrie stated that to the question "Will the Union get us additional benefits, better security and wages, or is it possible for us to lose ev- erything we now have?" he may have read off the answer: The union may tell you that you have everything to gain and nothing to lose. But this may not be true. Unions cannot guarantee you anything. They can't 14 Although Kruczynski testified that this second meeting occurred on October 12. Imrie testified convincingly that he was not in Alpena on that date, but was in Alpena on October 26. 1 credit Imrie in this instance and find that the statements attributed to him were. in fact. made by him. but on October 26 rather than on October 12. even guarantee that in a contract you willget the benefits you now have. [Emphasis supplied.] If the union gets in, and a contract is negotiated, the union can only give you the benefits the company agrees to and no more. If the demands of the union would prevent the effi- cient operation of your company, then your company would be justified in demanding a reduction in wages and benefits in order to operate in the black. Whether you still have the benefits you now have after a con- tract is negotiated will depend entirely on what takes place in the negotiations. The union just can't guaran- tee the results no matter what they now say. Actually, they can only guarantee one thing, and that is their right to strike to force their demands and that they will collect fees, dues, fines and assessments. Imrie acknowledged that in addition to possibly reading off this answer, he may have made additional comments. Welch testified that Imrie did, in fact, state that all nego- tiations would start at zero, and then through negotiations the parties would arrive at a contract which they would then have to live by. The subject of negotiations starting at zero, according to Welch, came up many times. He quoted Imrie as stating that where a store has not previously been represented, bargaining starts at zero and the union gener- ally tries to gain things while the company tries to generally hold things down. From an analysis of the testimony of all witnesses, there appears no very serious conflict affecting their credibility. I believe that Imrie made the comments attributed to him but that they were made in the context to which he testi- fied. If the comments made had been made in the context claimed without any additional 8(a)(1) violations or objec- tionable conduct, there would be no problem with Imrie's statement concerning the necessity of "starting from zero," once bargaining commenced. For, as stated in Host Inter- national, Inc. 15 The Board, in considering the impact on employee free choice of "bargaining from scratch" statements like those here involved, has distinguished circum- stances in which such remarks could reasonably be read in context as a threat to discontinue existing ben- efits from instances in which such remarks are merely descriptive of the employer's bargaining strategy, de- signed to let employees know that unionization does not mean automatic increases in benefits. In the in- stant case, we find no background of employer con- duct that might give a threatening color to the remarks made. Accordingly, the objections are overruled and the results of the election are certified. Now. were there no background of employer conduct in the instant case to give a threatening color to the "starting from zero" remarks made, I would certainly find them in- nocuous in the context in which they appear. However, there is the problem created by Imrie's remarks of Septem- ber 30 which I have found violative of Section 8(a)(1), yet not objectionable since they were uttered prior to the filing of the petition. The question before me is whether the pre- t 195 NlRB 348 (1972). I consider "bargaining from scratch" the same as "starting from zero." BUCKEYE TEMPO GAMBLE-SKOGMO 727 petition 8(a)( 1) violations were of such a nature as to give a threatening color to the postpetition "start from zero" re- marks.'6 I find that the answer to this question should be in the affirmative. For, as noted earlier, Imrie. during his speech on September 30, advised employees that the store had a fixed budget, a set amount which would not be raised or changed even if the Union came in, and if the Union did succeed in obtaining representational status and bargained wage increases, the additional moneys required to pay such wage increases would have to come out of the fixed budget, thus resulting in layoffs to less senior employ- ees since there would be nothing left in the fixed sum allo- cated to payroll to pay their wages. Having already been advised of Respondent's anticipated fixed budget/layoff/ closure plan for bargaining with the Union, there is no way employees could give objective, withdrawn consideration to Imrie's remarks of October 26 concerning "bargaining from zero," as though the remarks were made in a vacuum, untainted by earlier remarks intended to convey to the as- sembled employees the futility of choosing union represen- tation. Far from being merely "descriptive of the employer's bargaining strategy, designed to let employees know that unionization does not mean automatic increases in benefits," Imrie's "starting from zero" pronouncement. when considered in light of his earlier threats of layoffs and possible plant closure, could very reasonably be read in such context as a threat to discontinue existing benefits. The statement is therefore both objectionable and violative of Section 8(a)(l). Textron, Inc., 199 NLRB 131 (1972). Moreover, the "starting from zero" statements are fur- ther contaminated by the additional 8(a)( 1) violation, found infra, concerning Imrie's offer to engage in direct negotiation with the employees. C. Threats of More Onerous Working Conditions During meetings on October 12 and 26, it is alleged, Respondent, through David L. Imrie. threatened its em- ployees with more onerous working conditions, including the necessity of having to work every night and ever), Sun- day, if the Union were selected as their collective-bargain- ing representative. The General Counsel produced three witnesses to testify concerning this allegation: Employee Risteau testified that at the second meeting 17 called by the Company, Imrie told the employees that if the Union came in, working hours would be assigned in accordance with seniority and that newer employees, those who had been working there for only a couple of years, "would be working all nights." Employee Kasubowski testified that during the meeting on September 30, Imrie stated that if the Union won the election and gained representational status, younger em- 16 Consideration as to prepetlion conduct ma;l he utilized to decide the seriousness of postpetition activitlN. Dreir Indlutrire In, , 231 NLRB 591 (1977). I Risteau testified that the first meeting was n September 30 lnid that II had nothing to do with the Union. It is clear from other tesilmons howeer. that the first meeting was held on September 28 and did not concern the Union. the September 30 meeting was the second meeting and was the first at which the Union was discussed ployees would probably work on the late shift or the af- ternoon shift. Employee Kaiser stated that at the September 30 meet- ing. Imrie told the employees that "if the union came in. the morale of the store would be very bad and all of the employees would have to work nights, Sundays and week- ends." At a later meeting, probably on October 26.18 Imrie allegedly told the employees that they would not have Sat- urdays and Sundays off in a union store, but would receive other days off. He stated. according to Kaiser, that ev- eryone would work nights and Sundays. Respondent's witnesses testified with regard to this alle- gation also. Imrie stated that he was not in Alpena at all on October 12, but he admits holding employee meetings on September 30 and October 26. I credit Imrie's testimony with regard to this matter, since Kaiser's memory concern- ing particular dates appeared shaky, whereas Imrie's recall with regard to the dates, as supported by his calendar. which he referred to in his testimony, was quite definite. According to Imrie, the question concerning what would happen to scheduling if the Union became the bargaining representative of the employees came up on September 30 and on October 26. Imrie's reply was that in Respondent's eight stores where employees were represented by the Union. scheduling was done in accordance with seniority. In those stores, the least senior employees are assigned the most undesirable hours, namely, evenings and weekends. Imrie told the employees that they should contact employ- ees working in union stores and find out how scheduling worked there. He added that he had no idea how schedul- ing would be done at the Alpena store if the Union won, however, because it was subject to negotiations. At one of the later meetings, the operations manager and the head cashier from one or more of Respondent's Ohio stores were invited to attend and were asked about scheduling at their stores, and they replied in accordance with Imrie's expla- nation as to how scheduling was arranged. With regard specifically to Sunday work, Imrie told the employees that at union stores employees had an opportunity to volunteer for Sunday work, but if there were no volunteers, employ- ees were rafted for Sunday work in inverse order of se- niority. Both on September 30 and on October 26 Imrie advised those present at the meetings how scheduling was arranged at union stores and stated that there was no way of knowing how it would be arranged at Alpena, because that was something that had to be negotiated. Employee Howard Welch testified that Imrie, when dis- cussing scheduling, a subject which was brought up at all meetings, advised the employees that in the union stores with which he was familiar, scheduling was arranged on the basis of seniority and that "the lower seniority people got the stinky jobs." The lowest employees in seniority would have to work Sundays if that was the way the con- tract was written. He added, however, that scheduling at the Alpena store would be subject to negotiations. In comparison with the testimony of Imrie, as supported by that of Welch. the testimony of the General Counsel's t he complaint fixes the date sh October 12. Kaiser's ffidasii fixes the date as around the week of November 2 Kaiser's notes taken at the meeting are dated October 26. and these notes coer the subject matter discussed herein 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses on this subject was superficial and incomplete. The General Counsel's witnesses appear to have taken bits and pieces of Imrie's speeches and answers to questions and ignored the entire picture which he clearly attempted to portray. Whereas he attempted to show that employees with less seniority would fare less well than employees with more seniority under certain union contracts and that for them the flexibility of a nonunion shop would be prefera- ble, certain of the General Counsel's witnesses came to the unwarranted conclusion that Imrie was saying that ev- eryone would have to work Sundays and evenings, a state- ment that lmrie denies making and which I will not attrib- ute to him, partly because it is patently ridiculous and partly because his description of his discussion of schedul- ing is in part supported by the testimony of some of the General Counsel's own witnesses as well as by that of Re- spondent's supporting witness, Howard Welch. Thus, Ris- teau and Kasubowski testified that Imrie discussed sche- duling in terms of the least senior employees being required to work the less desirable hours, whereas only Kaiser testified in terms of all employees having to work Sundays and evenings. In short, with regard to allegation 8(c), wherein Respondent is charged with threatening em- ployees with more onerous working conditions, including the necessity of working every night and Sundays, I credit the testimony of Imrie as to the content of his speeches and answers to questions posed on the subject, and I find no evidence of objectionable conduct or violation of the Act and recommend dismissal of the allegation. D. The Promise To Negotiate Directly With Employees During the October 26 meeting, it is alleged, Respon- dent, through Dave L. Imrie, promised to negotiate directly with its employees concerning their terms and conditions of employment if they would select a local attorney, rather than the Union, as their bargaining representative. The General Counsel presented three witnesses who tes- tified on this matter as follows: Employee Kasubowski testified that Imrie. at a meeting on October 12, talked about union dues amounting to $10 per month which could be changed by the Union at any time. According to Kasubowski, Imrie had a blackboard with him at the meeting which he used to draw diagrams. He told the employees present that if they put all of their money together which they would otherwise put into union dues, they could hire their own lawyer. Employee Kruczynski testified that during the first or second meeting in October, mrie stated that union dues were $10 per month and that instead of paying union dues, the employees could pool this money, and if they did so the sum would amount to $6,000. With this, he stated, they could hire a local attorney to solve their problems. Employee Kaiser stated that at the October 12 meeting Imrie told the employees that they could pool the money that they might pay for union dues and hire a local attor- ney with whom, Kaiser testified she felt, he would negoti- ate. Kaiser, like Kruczynski, recalled Imrie calculating the amount available as $6,000 by multiplying the $10 dues by the number of employees and then multiplying that figure by 12.'9 Imrie testified that on October 26 he did discuss union dues during his speech. He pointed out how much the em- ployees would be paying out annually and then projected this amount over a theoretical 3-year contract period. Imrie specifically denied that he promised to negotiate directly with employees concerning their terms and conditions of employment if they would select a local attorney rather than the Union as their bargaining agent. He admitted, however, that in discussing the dollar amount of union dues, on that occasion he told the employees that if they just figured it out, they would see that if they voted the Union in, they would be paying in excess of $6,000 to Lo- cal 11. He stated that $6,000 was a lot of money, and if the employees really felt that they had "all kinds of problems" at the store which were insurmountable, they could take the $6,000, go down and hire the best attorney in town, and "he could come up and yell at Stan Dziesinski 20 everytime it got cloudy." Imrie testified that he was being facetious when he made the statement. Employee Welch, called as witness for the Respondent, testified that Imrie stated that he had figured out that if the Union won the election, employees at the store would pay $6,000 per year in union dues. According to Welch, Imrie told them that $6,000 was a lot of money and that if they had a lot of serious problems they could take the $6,000 and buy themselves a pretty good lawyer. Welch consid- ered the remark to have been made in jest. The testimony of witnesses for the General Counsel and for Respondent clearly reflects that Imrie suggested to the employees, gathered at the behest of the employer during the critical period, that they pool their resources, collect $10 from each of them each month, and with the collected sum hire an attorney to represent them as a group rather than pay these moneys in the form of dues to the labor organization then in the process of organizing them. Though neither the term "committee" nor the term "inde- pendent union" was specifically used, this attempt at influ- encing these employees cannot be read in any way other than as a suggestion that the employees act in concert, as a group, committee, or independent union, and have this en- tity represent them in place of the Union through a hired attorney. Such a suggestion, occurring, as it did herein, during an organizing campaign, implies that after the em- ployees vote against the Union, Respondent would then be free to negotiate with this committee, independent union, or entity through its attorney. In turn, such an implication assumes that Respondent would, in fact, at the appropriate time, bargain with this entity through its attorney. It fol- lows, moreover, that Respondent would not make such a proposition if it did not mean to grant benefits following such negotiations. For inasmuch as the record indicates that Imrie first criticized the employees for failing to give the store manager sufficient time to resolve their problems before they they opted for union representation and there- after indicated to them that unionization would result either in no benefits or in a decrease in employment for the 1 According to Kaiser's affidavit, this discussion concerning dues oc- curred on October 26 rather than October 12. The affidavit does not men- tion the hiring of an attorney. 2 The store manager. BUCKEYE TEMPO GAMBLE-SKOGMO 729 least senior employees, thus preaching the futility of union representation, his suggestion to them to act in concert and hire an attorney in lieu of union representation clearly im- plies a promise of benefits. namely, that the problems which the employees felt they had would be resolved with- out the need for union representation. Winter Garden. In., 235 NLRB 19 (1978). It has long been held that it is a violation of Section 8(a)( I ) for an employer, during a union organizing campaign, to urge or suggest the formation of a committee or independent union. Baker Manufacturing Co., Inc., 218 NLRB 1295 (1975), enfd. 564 F.2d 190 (5th Cir. 1977). Similarly, such activity has been found suffi- cient interference with the free choice of employees in rep- resentation elections to warrant the setting aside of the election. Faribo Turkeys. Inc.. 140 NLRB 1397 (1963). 1 find, herein, that Imrie did, in fact, suggest that the em- ployees act in concert by pooling their dues money to hire an attorney to represent them instead of the Union and thereby suggested the formation of a committee, indepen- dent union, or similar entity and thus both violated the statute and engaged in objectionable conduct. The fact that his activity may or may not have been taken seriously by some of the employees present does not detract from the illegal character thereof. American Casting Service, Inc.. 151 NLRB 172 (1965), enfd. 365 F.2d 168 (7th Cir. 1966). The Objections Having found that Respondent engaged in certain con- duct which constituted interference, restraint, and coercion which is violative of Section 8(a)( I) of the National Labor Relations Act, as amended, and that certain of Respon- dent's 8(a)(1) activity occurred within the critical period following the filing of the petition by the Union, I find that such activity interfered with the exercise of free choice among the employees in the election and is sufficient to warrant the setting aside of the election. Consequently. recommend that the election in Case 7-RC 14544 be set aside and that a rerun election be conducted. CON(I USIONS OF LAW I. By threatening employees with layoffs and store clo- sure if they selected the Union as their exclusive collective- bargaining representative; by indicating to its employees the futility of selecting the Union as their collective-bar- gaining representative by advising them that if the Union successfully organized the store, all bargaining concerning employee wages and benefits would begin at zero and the employees would have to fight just to keep their current level of benefits: and by promising to negotiate directly with its employees concerning their terms and conditions of employment if they would select a local attorney, rather than the Union, as their bargaining representative, Re- spondent has interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(I) of the Act. 2. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not engaged in the unfair labor prac- tices alleged in paragraph 8(c) of the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER 2 The Respondent, Buckeye Tempo Gamble-Skogmo. Inc.. its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening employees with layoffs and store clo- sure if they selected the Union as their exclusive collective- bargaining representative. (b) Indicating to its employees the futility of selecting the Union as their collective-bargaining representative by advising them that if the Union successfully organized the store, all bargaining concerning employee wages and bene- fits would begin at zero and the employees would have to fight just to keep their current level of benefits. (c) Promising to negotiate directly with its employees concerning their terms and conditions of employment if they would select a local attorney, rather than the Union. as their bargaining representative. (d) In any like or related manner interfering with, re- straining. or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its Alpena, Michigan. facility copies of the attached notice marked "Appendix." 22 Copies of said no- tice on forms provided by the Regional Director for Re- gion 7. after being duly signed bv an authorized represen- tative of Respondent. shall be posted b Respondent immediately upon receipt thereof. and be maintained by it for 60 consecutive days thereafter. in conspicuous places. including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered. de- faced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. It Is FRTrHER ORDERED that the representation election conducted on December 1., 1977, in Case 7-RC 14544 be. and the same hereby is, set aside, and that Case 7-RC- 14544 be, and the same hereby is, remanded to the Region- al Director for Region 7 for the purpose of conducting a new election. It is F RIHER ORDtF:RF: that paragraph 8(c) of the com- plaint be, and the same hereby is. dismissed. ' In the ecnrt no exceptions are filed .si prolided h\ Sec. 10' 46 of the Rule, and Regulations of he at.ional .ahbor Relaiions Board. he findings. cncluins, and recommended Order herein shall. i, prorided In Sec 10248 of the Rule, and Regulhitionns he doped hb the Board and hecome it findings. cnclusin s, and Order. and a1ll obhecrlon thereto hhll he deemzed ualed for all purpose,, - In the icil that this Order is enforced h a judgment oIf a nited SI:ale ( ourl of Appeals. the w ord, in the notice reading "Posted h Order of the National I abolr Relltions Board" shall read "P.. ted Puruan to a Judgmenit of the I nlred Stes (Court of Appeal frinforcing an Order of the N.ilton.lIl lahor RelahIon Board" 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOICE To EMPLOYEES POSTED BY ORDER OF THE NArIONAL. LABOR RL.AIIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence and arguments, it has been decided that we have violated the National Labor Relations Act. We have therefore been ordered to post this notice and to carry out its terms. WE WILl NOT threaten employees with layoffs and store closure if they select the Union as their exclusive collective-bargaining representative. WE WILL NOT indicate to our employees the futility of selecting the Union as their collective-bargaining rep- resentative by advising them that if the Union success- fully organized the store, all bargaining concerning employee wages and benefits would begin at zero and the employees would have to fight just to keep their current level of benefits. WE WILL NOT promise to negotiate directly with our employees concerning their terms and conditions of employment if they would select a local attorney, rath- er than the Union, as their bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under the Act. BUCKEYE TEMPO GAMBLE-SKOGMO, INC Copy with citationCopy as parenthetical citation