Clermont's, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1965

154 N.L.R.B. 1397 (N.L.R.B. 1965)

CLERMONT'S, INC. 1397'
industry affecting commerce , other than Joseph Mohamed , Sr., d/b/a Joseph's-
Landscaping Service, where in either case an object thereof is : ( 1) to force or-
require Joseph Mohamed , Sr., d/b /a Joseph 's Landscaping Service, to enter-
into an agreement which is prohibited by Section 8(e) of the Act ; ( 2) to force
or require Joseph Mohamed , Sr., d/b /a Joseph 's Landscaping Service, to recog-
nize or bargain with the undersigned labor organizations as the representative
of his employees unless the undersigned labor organizations have been certified
as the representative of such employees under the provisions of Section 9 of the
National Labor Relations Act; or ( 3) to force or require Sunset International
Petroleum Corporation or King Brothers Masonry to cease doing business
with Joseph Mohamed , Sr., d/b /a Joseph's Landscaping Service.
NORTHERN CALIFORNIA DISTRICT COUNCIL OF HODCARRIERS
AND COMMON LABORERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
CONSTRUCTION AND GENERAL LABORERS UNION
LOCAL No. 185, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Information regarding the provisions of this notice in compliance with its terms
may be secured from the Regional Office, 450 Golden Gate Avenue, Box 36047,
San Francisco , California , Telephone No. 556-3197.
Clermont 's, Inc. and Amalgamated Meat and Food Store Em-
ployees, Local 592, AFL-CIO. Case No. 1-CA-4709. Septem-
ber 22, 1965
DECISION AND ORDER
On February 23, 1965, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices, and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not engaged in cer-
tain other unfair labor practices and recommended that these allega-
tions of the complaint be dismissed. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief ;
the General Counsel filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Exam-
154 NLRB No. 111.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner's Decision, the exceptions, the briefs, and the entire record in the
case , and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner only to the extent that they are consistent
with the Decision herein.
1. The Trial Examiner found that Respondent transferred employee
Pauline Pomerleau from store No. 6 to store No. 7 in violation of Sec-
tion 8 (a) (3). We disagree.
The facts surrounding this transfer are set out fully in the Trial
examiner's Decision. In brief, the Clermont brothers,2 Roland and
Leo, operate four grocery stores (known as stores Nos. 1, 6, 7, and 8) 3
in the Billerica-Lowell, Massachusetts, area. In the first part of
August 1964, Pauline Pomerleau was employed as a meatwrapper in
store No. 6. She was an active union supporter and not only signed a
union card herself but distributed cards to at least three other employ-
ees in store No. 6. In fact, she asked Meat Manager Pacquin if he
would like to join the Union.
On August 15, Meat Manager Pacquin told her that she was being
transferred to store No. 7 which is about 4 miles from store No. 6.
When she asked Pacquin why she was being transferred, he told her
that he didn't know. She then asked Leo Clermont (who was mainly
responsible for the operation of store No. 6) why she was being trans-
ferred, and he stated that it was a surprise to him, that his brother
Roland had made the decision, and that he didn't know how long the
transfer would last. The transfer took place on August 17 and did
not result in a loss of pay or a change in her hours of work.
Two days after Pomerleau was transferred to store No. 7, she heard
that she was being watched for union activities. She questioned Meat
Manager Parent about such surveillance. Parent admitted that he had
been told to watch her for union activities. She next questioned Store
Manager Breton who admitted that he had told Parent to watch her,4
but then apologized and stated that he thought it was the wrong thing
to do. Roland Clermont, upon being confronted by Pomerleau With
Breton's admission, told her that he had nothing to do with such sur-
veillance, that it was Breton's idea, and that if "anything else came up
like this, he [Roland] would take care of it."
1 Respondent excepted to many of the credibility findings made by the Trial Examiner.
It is the Board 's established policy not to overrule a Trial Examiner's resolutions as to
credibility unless the clear preponderance of all the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products , Inc., 91 NLRB 544, enfd.
188 F. 2d 362 (CA. 3). Such a conclusion is not warranted here.
2 Each of the Clermont brothers owns 49 percent of the stock of Respondent Clermont's,
Inc. ; each of their spouses owns 1 percent.
3 Store No . 8 is not involved in this proceeding since it was not opened until after the
Union demanded recognition.
A We agree with the Trial Examiner that such surveillance violated Section 8(a) (1) of
the Act.
CLERMONT'S, INC. 1399
Pomerleau also told Roland that she wanted to be returned to store
No. 6 because of the 4 miles she had to travel to get to store No. 7; she
lived only a few blocks from store No. 6. Two days later Roland
offered her a more responsible job in the meat department of store No.
7 with a raise in pay. She accepted and was still working in store No.
7 as of the date of the hearing.
Roland Clermont testified that a meatwrapper at store No. 7 had left
because of pregnancy and that he had selected Pomerleau to replace
her because Pomerleau was the last meatwrapper hired at store No. 6
with sufficient experience to handle the job at store No. 7. Because
there were three other meatwrappers at store No. 6 who had been hired
after Pomerleau, the Trial Examiner found that "the reason advanced
for selecting her for transfer is patently unpersuasive." We disagree.
It is true that upon cross-examination Roland stated that only two of
the three meatwrappers hired after Pomerleau at store No. 6 were less
experienced ; however, he had earlier testified that the other meatwrap-
per had been transferred to the grocery department prior to the time
that Pomerleau was transferred. Thus, we find, contrary to the Trial
Examiner, that Pomerleau was in fact the least senior meatwrapper at
store No. 6 qualified to handle the wrapping job at store No. 7, and that
Roland's explanation for her transfer was neither self-contradictory
nor otherwise unpersuasive. Therefore, a finding that Pomerleau was
transferred because of her union activities must be inferred not from
Roland's explanation, but from Respondent's entire course of illegal
conduct, viz, Leo Clermont's coercive statements to the employees in
store No. 6 in June,8 the unlawful surveillance of Pomerleau by Meat
Manager Breton, and the coercive statement to Ronald Beaudoin by
Store Manager Breton.° With respect to the statements by Leo Cler-
mont, we note that they were made 2 months before Pomerleau's trans-
fer. And with respect to the surveillance of Pomerleau and the
statement made to Beaudoin, both were minor supervisors of the
Respondent and, in the case of the surveillance of Pomerleau, the
Respondent, upon being advised of it, immediately disavowed such
surveillance and stated that he would "take care of it" if it happened
again.
5 The Respondent admits, except for the dates , that Leo Clermont stated to the em-
ployees in store No. 6 that "they wouldn't allow the union , they would have their family
come in . . they would close down the store and burn It" Like the Trial Examiner,
we find that these statements are violative of 8(a )( 1) and occurred early in June 1964.
Ronald Beaudoin , a meatcutter , was transferred from store No. 6 to store No. 7 on
the same date as Pomerleau . On his first day there , Store Manager Breton asked him
"how the union was doing" and then stated, "If there's any union talk around here . . .
I'll fire them ." Like the Trial Examiner , we find such statements are violative of 8(a) (1).
The Trial Examiner, however, found , and we agree , that the record evidence does not
warrant the inference that Beaudoin was transferred because of union activities. Also,
the General Counsel did not except to the Trial Examiner 's finding and recommended dis-
missal of this portion of the complaint.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not consider such evidence substantial enough to support an
inference of discriminatory motivation in the transfer of Pomerleau
in view of Roland's uncontradicted and not unreasonable explana-
tion for the transfer and the facts that Pomerleau suffered no mone-
tary loss and only slight inconvenience as a result therof. We find that
the General Counsel has not satisfied his burden of showing that Pom-
erleau was transferred because of her union activities. Therefore, we
shall dismiss that portion of the complaint which charges the Respond-
ent with transferring Pomerleau in violation of Section 8 (a) (3).
2. The Trial Examiner also found that by refusing to extend recog-
nition to the Union, the Respondent refused to bargain in good faith
with the Union in violation of Section 8(a) (5). We disagree.
In the spring of 1964, the Union commenced an organizational drive
in store No. 6 apparently with the intent of organizing all the store
employees. In June, Leo Clermont made the coercive speeches men-
tioned above. On August 5, the Union wrote to Respondent demand-
ing recognition "on behalf of a majority of the employees in the Meat
Department of Clermont's Market" at store No. 6. This letter was
received by Respondent on August 10. On August 11, the Respond-
ent advised the Union in writing that it doubted the "claim that an
uncoerced and informed majority of its employees in an appropriate
unit has designated your union as their representative" and suggested
that the Union arrange fora, Board-conducted election. On August 11,
the Union filed a representation petition seeking to represent the
employees in the meat department of store No. 6. The Respondent
transferred employees Pauline Pomerleau and Ronald Beaudoin from
the meat department of store No. 6 to the meat department of store
No. 7 on August 17. The next day, the Union filed unfair labor prac-
tices charges alleging that Respondent had violated Section 8(a) (1),
(3), and (5) of the Act.
Relying on the Joy Silk decision,'' the Trial Examiner found that
Respondent's refusal to bargain with the Union was based on a bad-
faith rejection of the collective-bargaining principle. In making this
finding, he relied on Leo Clermont's expressed opposition to the Union
uttered 2 months before the refusal to bargain, and Respondent's al-
leged uncertainty as late as the hearing as to the proper scope and
composition of the unit.
In Joy Silk, the Board held that an employer violated Section 8(a)
(5) where it insists on a Board election as proof of a union's majority
and such insistence is motivated not by bona fide doubt as to the union's
majority in an appropriate unit but rather by a rejection of the col-
lective-bargaining principle or by a desire to gain time within which
to undermine the union. But the test of whether an employer, who
7Joy Silk Milla, Inc., 85 NLRB 1263, enfd. as modified , 185 F . 2d 732 (C.A.D.C.), cert.
denied 341 U.S. 914.
CLERMONT'S, INC. 1401
commits violations of 8 (a) (1) , refuses to bargain because of an intent
to undermine the union, or otherwise defeat the employees' unioniza-
tion, is not a mechanical one; all the circumstances of the case and the
sequence of events must also be considered.8
As noted above, Respondent's coowner, Leo Clermont, did commit
serious violations of 8 (a) (1) by making coercive speeches about 2
months before the Union's request for recognition. But these speeches
appear to have been an emotional outburst on first learning of the
union organizational efforts; they were never thereafter repeated in a
like or related form. We are not warranted in inferring on a per se
basis that the earlier attitude reflected in the speeches persisted and
motivated the refusal to bargain. The only unfair labor practices
which we have found that Respondent committed after these speeches
consisted of the coercive statements made to employee Beaudoin and
the illegal surveillance of employee Pomerleau by minor supervisors
after Respondent's refusal to bargain with the Union. There is no evi-
dence that these minor supervisors were acting at the instigation or
with the approval of the Clermont brothers. In fact, Respondent's im-
mediate disavowal and condemnation of the surveillance of Pomerleau
indicates that these minor supervisors were acting on their own respon-
sibility. Although, under the doctrine of respondent supervisor, Re-
spondent is nevertheless responsible for the conduct of these minor
supervisors, the incidents themselves are hardly serious enough to sup-
port a finding that Respondent had earlier refused to bargain with the
Union on request in order to gain time to undermine the Union by un-
lawful means.9 Moreover, there is other evidence which tends to sup-
port Respondent's claim that it had a good-faith doubt that the Union
represented a majority of employees in an appropriate unit. There
is a very close question whether, in the circumstances of this case, a
unit limited to the employees of one store is appropriate.
Thus, as previously noted, Roland and Leo Clermont not only oper-
ate but are the chief owners of the grocery stores."' The stores are
located within a 4.5 mile radius; stores Nos. 1 and 7 are located in the
city of Lowell, Massachusetts, and store No. 6 is located in the adja-
cent town of Billerica, approximately 4 miles from Lowell. The
only evidence developed at the hearing shows that the stores are run
as a family business with Leo and Roland exercising close control
over all stores. For example, although each store has a manager, only
Roland and Leo have the authority to hire, discharge, or transfer
employees. Employees interviewed and hired at one store may be
assigned to another store by the brothers. They establish the wage
rates for all employees and decide who shall be given a raise and when.
8 Cameo Lingerie, Inc., 148 NLRB 535.
0 Caldwell Packaging Company, 125 NLRB 495.
10 Two brothers-in-law have an interest in store No. 7.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All stores have the same starting rates of pay and the same fringe
benefits such as health insurance, vacations, holidays, sick leave, and
bonuses. General policy is set for all stores at a weekly meeting
attended only by the brothers and their brothers-in-law. Together
they decide on common advertisements, determine what purchases
need to be made, and transfer supplies and merchandise among the
various stores. The same type of displays and signs are used in all
stores, and all stores run the same specials.
The Respondent contends that these facts establish that only a mul-
tistore unit is appropriate, and, therefore, its refusal to recognize the
Union as the bargaining representative only for the meat department
employees in store No. 6 was not violative of Section 8 (a) (5) of the
Act.
In Saiv-On Drugs, Inc.," the Board revised its appropriate unit
criteria for retail chainstore operations and held that the same unit
policy factors would be applied to chainstore operations as are appli-
cable to multiplant enterprises in general. In P'risch's Big Boy Ill-
Mar, Inc.,12 the Board stated that "a single-plant unit is presump-
tively appropriate unless it be established that the single plant has
been effectively merged into a more comprehensive unit so as to have
lost its individual identity." In those cases, the Board found that the
substantial authority of the store managers (in charge of day-to-day
operations, authority to hire and discharge, and to purchase merchan-
dise), the minimal interchange of employees, the geographic separa-
tion of the stores, the absence of a bargaining history for any of the
employees, and the fact that no labor organization was seeking to rep-
resent employees on a broader basis, established that single-store units
were appropriate. But these cases do not stand for the proposition
that a single-store unit is appropriate in all circumstances.13 Thus,
there are factors here, such as the close proximity of the stores and the
retention of practically all operational authority by the Clermont
brothers, which suggest that a single store unit may not be appropri-
ate. We need not decide the unit question here since we are satisfied
U 138 NLRB 1032.
3-2147 NLRB 551 (Members Leedom and Jenkins dissenting).
'a Brown Bros. & Sons, Inc., Case No. 6-RC-3345, presented facts very similar to those
in this case . There, the employer operated two stores which were approximately
11/2 miles apart The employer was wholly owned by the Brown family, and only mem-
bers of the Brown family had the authority to hire and discharge. Members of the
Brown family were also in charge of the day-to-day operations of both stores and met
regularly to determine labor policies for both stores. The stores had uniform job
classifications and were generally open the same hours and days. Both stores had the
same fringe benefits. On these facts, the Regional Director found that both stores com-
prised an appropriate unit "and that a unit composed solely of employees of [one store was]
not appropriate." The Board denied the union's request for review of the Regional Di-
rector's Decision. Similar facts were presented in Dr. D's I(IA, Case No. 17-RC-4095,
and the Regional Director there found likewise that a single-store unit was not appropriate.
Again , the Board denied the union ' s request for review.
CLERMONT'S, INC. 1403
that Respondent's doubt about the Union's majority status in an
appropriate unit was expressed in good faith and not for the purpose
of delaying recognition in order to destroy the Union's majority.14
In such circumstances, the Respondent was entitled to have its doubt
resolved by a representation proceeding. We conclude, accordingly,
that the alleged violation of Section 8(a) (5) has not been proved and
shall dismiss that part of the complaint which alleges such a violation.
AMENDED CONCLUSIONS OF LAW
A. Delete paragraphs 3 through 6 of the Trial Examiner's Conclu-
sion of Law.
B. Delete paragraph 7 and substitute the following therefor as
paragraph 3:
"3. By telling their employees that they are being watched in their
union activities, they would be discharged for talking about the
Union, that Respondent would close the store, burn it, or replace
employees with relatives of the owners before dealing with a 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 unfair labor practices within the meaning of Section 8(a)
(1) of the Act."
C. Renumber paragraph 8 as paragraph 4.
D. Add the following as paragraph 5:
"5. By transferring Pauline Pomerleau and Ronald Beaudoin, the
Respondent did not engage in and is not engaging in unfair labor
practices within the meaning of Section 8(a) (3)."
E. Add the following as paragraph 6:
"6. By refusing to recognize and bargain with the Union as the
representative of the employees in the meat department of store No. 6,
the Respondent did not engage in and is not engaging in unfair labor
practices within the meaning of Section 8(a) (5) of the Act."
F. Add the following as paragraph 7:
"7. By interrogating (by Respondent's attorneys) employees as to
their purpose in executing union cards, the Respondent did not engage
in unfair labor practices within the meaning of Section 8(a) (1) of
the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Clermont's Inc., Billerica, Massachusetts, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Telling employees that they are being watched and watching
employees in their union activities.
'A Cameo Lingerie, Inc., supra.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening employees with discharge for talking about the
Union.
(c) Telling employees that the Respondent will close the store, burn
it, or replace employees with relatives of the owners before dealing
with a union.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist Amalgamated Meat
and Food Store Employees, Local 592, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act, or to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its supermarket stores in Billerica, Massachusetts, and
Lowell, Massachusetts, copies of the attached notice marked "Appen-
dix." 15 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 1, shall, after being duly signed by the Company's rep-
resentative, be posted by the Company 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 Company to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 1, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges that Respondent has engaged
in any unfair labor practices in violation of Section 8(a) (1), except
as specifically found above, and insofar as it alleges that Respondent
engaged in any unfair labor practices in violation of Section 8(a) (3)
and (5) of the Act.
is In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals , Enforcing an Order".
CI1ERMONT'S, INC. 1405
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT tell our employees that they are being watched or
watch them in their union activities.
WE WILL NOT threaten our employees with discharge for talk-
ing about the Union.
WE WILL NOT tell our employees that we will close the store,
burn it, or replace employees with relatives of the owners before
dealing with any union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Amal-
gamated Meat and Food Store Employees, Local 592, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act, or
to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
CLERMONT 'S, 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 Savings Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 523-8100, if they have any
questions concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner
Thomas A. Ricci on November 23 and 24, and on December 7 and 8, 1964, at
Boston, Massachusetts , on complaint issued by the General Counsel against Cler-
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mont's, Inc., herein called the Respondent or the Company. The issues litigated are
whether the Respondent violated Section 8(a)(1), (3 ), and (5 ) of the Act. Briefs
were filed by the General Counsel and the Respondent.
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
Clermont,'s , Inc., owns and operates a retail food store in Billerica , Massachusetts.
The gross annual sales of this store are in excess of $500,000, and its annual indirect
purchases from out of State are in excess of $50,000. 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.
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat and Food Store Employees , Local 592, AFL-CIO, herein
called the Union , is a labor organization as defined in Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
The Issues
In the spring of 1964 the Union started organizational activities among the employ-
ees of the Billerica store , a general food supermarket . The campaign culminated in
a written demand for recognition "on behalf of a majority of the employees in the
meat department of Clermont's Market" in Billerica, dated August 5, but received
by the Respondent on August 10, 1964. The request was answered by the Com-
pany's lawyers, who rejected the demand on the ground that the "Company doubts
your claim that an uncoerced and informed majority of its employees in an appro-
priate unit has designated your union as their representative." At no time did the
Respondent advise the Union of its conception of the scope of an appropriate bar-
gaining unit.
As the hearing progressed, and as the General Counsel proceeded to offer proof
of the appropriateness of a unit limited to the meat department of this one super-
market, of union authorization cards signed by employees, and of the fact of
majority status in such unit, various more precise defense contentions emerged.
Directly or indirectly the Respondent suggested varied and sometimes inconsistent
positions. It argued that in no event may a unit smaller than one inclusive of all the
employees in the Billerica store, or one joining employees of three or four stores,
or one combining the employees of seven stores, be deemed appropriate. The
Respondent also contends that what authorization cards were signed ought not be
accepted at their face value because the employees intended a purpose other than
the authorization expressly stated on the cards themselves. And, finally, there is
much dispute as to exactly which individual employees, at the critical time of the
demand and refusal, were in fact included in the Billerica store meat department,
although on this point too Respondent's counsel was feeling his way during the
hearing.
The last essential allegation of the complaint, that the Respondent was funda-
mentally opposed to any union activities by its employees and adamantly determined
not to bargain with any union of their choice, is openly conceded by the Company
in its failure to controvert a very pointed paragraph of the complaint.
In addition to the essential allegation that the refusal to bargain was an act of
bad faith in violation of Section 8(a)(5) of the Act, the complaint also alleges
that on August 17, 1964, the Respondent transferred two employees away from the
Billerica store in order to curb their prounion activities, this in violation of Section
8(a)(3).
A. Union animus
Except for the dates the following complaint allegation was admitted to be true
by the Respondent's counsel at the hearing:
In or around the week commencing June 1, 1964 and June 15, 1964, through
Respondent's General Manager Leo Clermont, in the speeches to its employ-
ees, threaten[ed] to operate the store with relatives, close or burn down the store.
I The commerce facts set out below are based on a letter filed with me after the close
of the hearing. The letter is hereby made part of the record as Trial Examiner's Ex-
hibit No. 1.
CLERMONT'S, INC. 1407
Leo Clermont was general manager and owner of the Billerica store. The employ-
ees variously recalled his statements during the speeches as including words such as
"they wouldn't allow the Union; they would have their family come in . . . they
would close down the store and burn it"; "he had a piece of paper, and he told us
that he didn't want to see the Union come in. He said he'd have his relatives before
he'd let the union come in"; "he said that he had a big family, and, if the Union
came in, he would bring them in." One employee, Ouelette, also testified that early
in June Clermont spoke to him and another employee in the office and asked
whether "the Union had gotten in touch with us" and that "he wanted to run the
store as one family . that if the Union got in he would, he'd either close down
the store or bring in relatives to run it. .
Leo Clermont and his brother Roland own three stores in addition to the Billerica
supermarkets; they have three brotheis-in-law, each of whom owns an additional
store, with all seven having a close relationship with one another. As the Billerica
store alone there are seven employees named Clermont.
That the Respondent, with knowledge of its employees' organizational activities,
was determined not to deal with any union, is thus clear on the record and I so find.
Several employee witnesses recalled that Clermont made these speeches in June;
one or two others seemed to believe they were made late in May. There is no
question they came after the organizational campaign was under way and represented
the owner's message to the employees in return. I find that Leo Clermont's interroga-
tion of employees as to whether they had been approached by the Union, coupled
with the direct threat to either close the store or displace the employees with his
relatives if they succeeded in establishing a labor organization as a bargaining repre-
sentative, constituted restraint and coercion of employees and direct violations of
Section 8 (a) (1) of the Act.
B. The appropriate unit
The meat department in this store is an autonomous grouping of employees, both
in terms of separate location and distinctive skills used. Aligned against the rear
of the store theie are three display cases, for meat, fish and delicatessen. Behind
these there is a storage and cutting room, where the products for these cases are cut,
sliced, weighed and wrapped. The entire grouping is called the meat department,
and it has about 15 employees. Four are skilled meatcutters; there are wrappers
and clerks, who weigh and cut, fill the cases, and wait on customers. Of these some
are in training for regular meatcutting occupations.
The department has its own manager, Eugene Paquin, who has occupied the post
for 6 years and is a supervisor. Five employees testified that Paquin instructs and
directs the department clerks in their work. He is the only person in the department
who is salaried and does not punch a timecard. Paquin testified that employees call
him when they are sick and cannot repoit on schedule, that he shifts employees from
one post to another when some are missing, that he rearranges schedules as required
in changing circumstances. He also describes his duties as "to keep the meat depart-
ment operating, to get the work out ... I take care of the case, the meat case; see
that the rest of the work is being done." If someone is not performing correctly
"I'd tell him to do it right, yes, I'd tell him to do the work right ... usually in the
morning I will get them started on whatever is going to be put out first." He also
said he spends about 10 percent of his time directing others in the department, and
the remainder cutting meat and doing regular production work.
Paquin is the highest paid employee in the department. Although its payroll
records were present in the room throughout the hearing, the Respondent refused
to reveal how Paquin's salary compared with the pay of the clerks, or with that of
the next highest paid employee. When the owner, who argued Paquin does not
represent management, was asked, on the stand, would he refer to the records for
this very pertinent matter of relative wage scale, his attorney replied. "We're not
going to produce it."
Paquin has no authority to hire or discharge employees, or otherwise to alter
their terms of employment or to discipline them. I nevertheless find, on the record
in its entirety, that he has and exercises authority "responsibly to direct" the other
employees in the meat department, and that he is a supervisor within the meaning
of Section 2(11) of the Act.
Unless it can be ruled, as the Respondent contends, that the employees of this
meat department may only be represented in collective bargaining as pact of a
larger unit including also meat department employees of other stores which the
Respondent may own or control, I find, in keeping with Board precedent, and as
alleged in the complaint, that the employees of the Billerica store meat department
constitute an appropriate unit. The Board has repeatedly held that in retail food
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishments a unit'limited to employees of the meat department may be, and is
appropriate if so requested by the employees themselves through a union of their
choice.2
The contention that the unit of meat department employees in this case must be
as broad as a chain of retail stores rests upon the testimony of Roland Clermont, who,
with his brother Leo, owns the Billerica store, and who offered the following facts.
In addition to this store, he and his brother own three others, each located 3 or 4
miles away from the others; at the time of the demand and refusal they had only
three; the fourth was opened in September. Each of the three stores which existed
in August is owned by a separate corporation. There are also three other similar
stores, again with a separate corporate entity for each establishment; these are
individually the property of three brothers-in-law of the Clermonts. The Clermonts
have no proprietary interest in the latter three stores, but, according to Robert, he
and his brother "have influence in them."
Every Monday morning the five owner-relatives meet jointly in one store office
and together decide "policy" for all stores, Clermont called the group "partners."
Together they decide on common advertisement for newspapers, determine what
purchases to make on a broad scale for many stores, check on each other's need
for the individual stores, and transfer supplies and merchandise among the locations
to balance the requirements. The same type of display and signs are used in all
stores, the starting rate of pay is the same in all of them; all stores have the same
fringe benefits, such as Blue Cross insurance, vacations, holiday, sick leave, and
bonuses.
Against the foregoing it also appears that each store maintains its own separate
payroll, books, and records in all respects (including profit and loss statements),
that each of the brothers or brothers-in-law spends most of his time running the
stoie in which he has a vested interest, that at the time of the events the only
office any store maintained was in the store itself, that there is no central warehouse-
each store having its own on the premises, that each has its own store manager,
and, of course, that each is literally a separate company employer in a different
location.3
The witness Cleimont spoke of transfer of employees among the stores; he said
there have been from 13 to 15 transfers in the past. He also added that virtually all
of them were occasioned by requirements in staffing new stores when they were
opened for business, that 13 of these were moved to permanent jobs in new stores,
and that temporary transfers occur only "on occasions." The only employees he
named as having been moved back and forth among the stores were his son, a
15-year-old boy, another relative named Eddie Roland, and one John Sergi. Cler-
mont also explained that even these transfers are usually to help at openings.
The Respondent's final position respecting its multistore unit contention is that
it must include employees in the three stores which the Clermont brothers owned
in August, before they opened their fourth. These are enterprising businessmen,
2 The Great Atlantic & Pacific Tea Company, Inc., 132 NLRB 797.
Apart from all other considerations, the Respondent also argues that the smaller unit
cannot be found appropriate here because the Union attempted, but failed, to organize
the employees of the entire Billerica store There is some evidence indicating that, in
the early stages at least, the organizers did solicit authorization cards in other store de-
partments, and further such proof was offered but rejected. When, as in this case, the
departmental or craft unit proposed is appropriate on the basis of the homogeneity of the
group as reflected by distinctive work skills, separate locations and supervision, tradi-
tional unit arrangements, and other factors of like kind, it is immaterial that the union
may also have sought to organize a more inclusive group, or could have requested a
storewide unit if it so wished. Neither the extent of the Union's organizational activities,
nor the fact, which may be assumed, that it initially desired to represent a storewide unit,
are factors considered here in the determination of the appropriate unit
3 The broad assertion that the store managers, who are in charge of the store whenever
the individual owner is away, are not supervisors within the meaning of the Act, is not
supported by the record as a whole. Roland Clermont, who spoke in generalities about
the Store managers, was not a convincing witness His broad exaggerations at many
points, coupled with his deliberate evasions and deceit concerning a company-prepared list
of employees discussed below, reduce his factual statements to little persuasion The
principal burden of his insistence that store managers are not in substantial authority
rests, on the statement that the owners are themselves present in the store at all times,
but be did not explain how the two biothers, owning four stores, could be present in all
for any significant periods.
CLERMONT 'S, INC. 1409
and with their operations continuing to expand a union would be hard put to keep
up with them if an appropriate unit must always embrace their latest store openings.
That a multistore unit could also be appropriate does not preclude a single-store one.
On the basis of all the facts in evidence , I find that all employees in the meat
department of the Respondent 's Billerica store, including regular part -time employ-
ees, but excluding all other employees and supervisors as defined in the Act, con-
stitute a unit appropriate for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.4
C. Union authorizations
The General Counsel placed in evidence nine union authorization cards; they
bear the signatures of the following employees , each of whom testified he signed his
own card, and are dated as here indicated: William Scofield , May 25, 1964 ; Ronald
Beaudoin , July 3 ; Pauline Pomerleau , May 19; James O'Brien , June 15; Loretta Walsh,
May 18; Louis Comeau , March 16 ; Josephine Ruggiero , July 13; Elizabeth Neault,
July 3; and Leo Breton, June 9.
The cards read as follows:
AMALGAMATED MEAT AND FOOD STORES EMPLOYEES' UNION
Local 592, A.F. of L.
Hubbard 2-6290
AUTHORIZATION FOR REPRESENTATION
I, the undersigned , hereby authorize the Amalgamated Meat and Food Store
Employees ' Union, Local 592, A.F. of L., to represent me and, in my behalf,
to negotiate and conclude all agreements as to hours of labor, wages and other
employment conditions in accordance with the provisions of the National Labor
Relations Act and /or in accordance with the laws of this State.
Name
Street and No. City
Name of Employer Shop or Dept.
Address
Date
Signature
The Respondent questions the validity of these cards on the ground that the
employees were told the purpose was other than as stated on their face , or that they
later changed their minds . With respect to Beaudoin , Pomerleau , Walsh , Comeau,
Ruggeriero , and Neault , there is no evidence supporting any question as to their
proper authorization of the Union to bargain forthwith on their behalf.
Scofield testified that when the union organizer gave him the card, and invited
him to sign , he was undecided and kept it in his possession for 4 days before he
signed it and returned it to the union agent . At the hearing he said : "I understood
the purpose of that card was stating I was interested in a union and would be
willing to want to find out more about it." Inconsistently , however, he also added:
"I thought it would keep them from bothering me, and I was interested in finding out
more about the Union ." The card in evidence shows quite clearly it was dated in
Scofield's own handwriting on May 15. But this was before Leo Clermont 's speeches
in which he said he wanted no union and would burn the store before having one
In these circumstances Scofield's later assertions concerning an earlier state of
mind, at variance with the clear purport of the card he knowingly signed , cannot
serve retroactively to impair its validity in this proceeding.5
Breton originally worked in the grocery department , was transferred into the meat
department when his brother left the store in May, and later, after the Respondent
had refused to bargain with the Union, returned to grocery . His card shows a double
entry in ink in the space calling for "shop or dept ." He said he worked in grocery
when he signed and that sometime later Peck went to his home and asked him to
sign a second card. Breton first testified that he refused and told Peck "he was
lucky he got me to sign when he did ... if I had the first card that I signed I would
have torn it up." Breton also testified that at that time: "I told him I wasn't satis-
fied with the deli department ; I wanted to go back on groceries ," and that Peck advised
him to wait , " it might be worth my while ." Finally, Breton testified : "I don't
remember the exact words."
* Sav-On Drug8 , Inc., 138 NLRB 1032.
6 Finley Park Dairy Co., d/b/a Country Lane Food Store, 142 NLRB 6,83 ; N.L .R.B. v.
Gene Hyde, d/b/a Hyde's Supermarket , 339 F. 2d 568 ( C.A. 9).
206-446-66-vol. 154 90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is indication that the date June 9 was added to Breton 's card after he
signed, and it seems clear he in fact signed while he was in grocery in May.6 But
this was before the intimidating speeches by the store owner that he would replace
employees with relatives before tolerating any union . In these circumstances, and
in view of Breton 's vacillating and uncertain recollection of what he later told Peck,
I find the evidence insufficient to support the contention now that he effectively and
independently withdrew his authorization of the Union.
O'Brien said that when he signed his card there was no mention of any voting,
and that he was told the cards were "for a majority." Sometime later he invited
Union Organizer Peck to his home "to explain what it was about to my parents."
Counsel for the Respondent attempted to have O'Brien say his purpose in calling
Peck was to withdraw his earlier authorization , but O'Brien insisted he recalled
nothing else of what was then said , that he left for work and did not hear what
Peck explained to his parents , and that he did not say to Peck that he wanted his
card removed. O'Brien's card was valid when he signed and there is no reason
for rejecting it now.
D. Composition of the bargaining unit and majority status
The demand letter was written on August 5, a Wednesday, received on a Monday,
the 10th, and answered by the Respondent the following day. A proper period for
testing the representative strength of the Union among the employees in the meat
department would therefore appear to be the week ending August 7. Plow many
employees were then working in that group so as to be counted in the unit, and,
against that number, what percentage do the authorization cards represent
The General Counsel called upon the Respondent to produce, by subpena, its
payroll record evidence of which employees were assigned to or working in the
meat department during that critical period. General Manager Leo Clermont testi-
fied that the store records do not reveal departmental designation, or work assign-
ment, of individual employees; he said all are simply classified "employees." Thus
the usual method for establishing which of the approximately 45 employees in this
store worked in the meat department at the time in point, was not available to the
General Counsel for purpose of proving majority status.
The finding, accordingly, will rest upon the testimony of persons who worked in
the store at that time. The General Counsel ran through the total employment list
for the benefit of each of three employees he called as witnesses, and asked for their
recollection. The Respondent did likewise from the same list with its principal
witnesses, Meat Manager Paquin and owner Roland Clermont All five of these
witnesses gave their best recollection on whether the named persons worked full
time or part time in the meat department , or not at all. In addition , other witnesses
were asked passing questions relating to certain specific employees
The store hours are far in excess of the number of hours worked by any employee.
Necessarily therefore, the recollection of any one employee, or even of either man-
ager, cannot be finally determinative of which employees worked in the meat depart-
ment. Indeed, a number of witnesses conceded that persons of whom they were
asked might have been assigned to the department, either full time or part time,
when they were not there. Even those few clerks whose unit placement was disputed
at the hearing could not absolutely swear exactly how many hours each worked in
that department during the critical week. If the recollection of some differed from
that of others there is no warrant, as Respondent's counsel directly asks in his brief,
for a flat finding that they are deliberate liars and that therefore their testimony must
be rejected entirely. Indeed one of the owners, upon whose testimony the Company
relies primarily for these details, admitted he spent very little time in the store at
the time and that it was his brother who then looked after it. The ultimate findings
of exactly who should be counted as included in the meat department in the first
week of August must rest upon the entire record, although necessarily only the more
salient testimony can be set out here.
Undisputed and direct testimony shows clearly that 12 employees were regularly
assigned to the department, there are* Beaudoin, Leo Breton, Gabriel Gauthier,
Neault, Pomerleau, Ruggiero, Scofield, Walsh, White, Sandra Swanson, Lee Marsden,
and Katherine Novanis.
° I find no merit in the Respondent 's argument that any card signed by an employee
while he is assigned to one department cannot be used to prove union authorization for
any unit bargaining which does not include the employee's original departmental
assignment
CLERMONT'S, INC. 1411
The General Counsel would also include James O'Brien and Louis Comeau, each
of whom the Respondent contends were not employees in the meat department at
the time. O'Brien testified that he was originally in grocery and sometime in May
started working part time in the delicatessen counter-"about once a week." He
continued to say that gradually his time in the meat department increased until by
June or July it was "a steady 3 days a week." By the end of August he was a full-time
delicatessen employee. Meat Manager Paquin answered unequivocally that O'Brien
was an employee of his department during the critical week; he said the man started
there before another Breton left it in May. Against this direct testimony, the vague
comments of other employees, who themselves spent only part of the store hours
at work, as well as the testimony of Roland Clermont who was hardly there at all,
cannot countervail.
All five witnesses who responded to the lcng interrogation based on the store
list of employees said that Louis Comeau did work in the meat department during
the first week in August; Paquin agreed without hesitancy. It also appears that at
one time this employee worked only part time there and spent most of his time in
groceries. Exactly how Comeau's part-time assignment to this department grad-
ually increased, and just when he became full time, is not clear. Pomerleau, a
regular meat packer, recalled that Comeau worked in the meat room in July.
O'Brien testified that both he and Comeau were gradually transferred for full-time
work in delicatessen; that during the week of August 10, Comeau did about 30 hours
there, and the same was true of the week starting August 3. Against this is the
recollection of Scofield, who left the Respondent's employ to enter the Army on
August 15. He said Comeau did not work in the meat department at all. The meat
manager, Paquin, said Comeau was a part-time man in delicatessen in August;
"I believe he was on 3 nights a week for a while." And Roland Clermont, the owner,
said Comeau "did work a few hours a week in Deli, and he went in the Deli full
time for the summer after Leo Breton was transferred." As already stated, Cler-
mont's personal recollection of the exact situation in the Billerica store is of very
little weight.
Of significance here is a document prepared by the Respondent shortly after the
charge in this case was filed on August 18 It is entitled "List of employees who
were employed in our #6 store in the meat dept. first week of August," and includes
the name of Louis Comeau. The document was delivered to the General Counsel,
in the course of his investigation of the charges, by counsel for the Respondent, and
it was placed in evidence.
Leo Clermont testified that it was typed by his wife from an original list given to
him by his brother Roland. Asked to explain what it represented and why it was
prepared, his testimony degenerated into a series of evasions and illogical statements,
unintelligible irrelevancies, and incoherent replies. Was it a correct list of meat
department employees? "I wouldn't swear to it." The totality of his testimony at
this point amounted to an outright refusal to say why his brother had prepared it,
or what his brother had said when asking that the wife type it
Roland Clermont started by saying the document is not a correct list of the meat
department employees. He admitted he told his bookkeeper to prepare the list:
"I told my bookkeeper at the time to go to the record and put on everybody that was
in the meat department ... I read something you're supposed to send back a list of
this type." Clermont then insisted he did not know the origin of the request letter,
he did not know to whom he had given the list. What source of information did
the bookkeeper use to prepare the list? "From my knowledge, from the payroll."
Clermont even testified he did not look at the list at all
On the record in its entirety, I find that during the week of August 7, 1964, both
O'Brien and Comeau were at least regular part-time employees of the meat depart-
ment and therefore included in the bargaining unit underlying this complaint.
In further disagreement with the General Counsel, the Respondent contends that
two boys, sons of the owner Roland Clermont, must be included in the unit count
on the ground that they too were working regularly in the meat department during
the week in question. Roland Clermont is 15 years old and in June 1964 was trans-
ferred away from the Billerica store to another owned by his father. In the latter
part of August, after the refusal to bargain had been established, he was brought
back to work part time in the meat department while he continued school. Based
solely upon the conclusionary statement of his father at the hearing, supported only
by the equally conclusionary agreement of the meat manager, that the boy had been
only "temporarily" sent to the other store, the Respondent wants him called a
permanent employee of Billerica. With the unit placement of individuals in this
case of paramount importance, something more is required to offset the objective and
direct evidence placing the boy outside the unit when the issue arose. I do not
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deem the mere statement by the owner, an unpersuasive witness generally, concern-
ing his earlier state of mind sufficient basis for now including the young Roland
in the unit.
Eddie Clermont is the 19-year-old son of owner Roland. There was virtual
agreement among the five or six witnesses who saw him working the store that he
did work part time during the week ending August 10. He has been in the store for
some time, summers full time and otherwise weekends when he attends school.
The only real argument advanced by the General Counsel for his exclusion is an
unsupported assertion that as son of an owner, Eddie enjoys special privilege. I do
not believe the fact that he is occasionally sent to a new store to help in a grand
opening suffices to prove a privileged status. I find Eddie Clermont to have been
a regular part-time employee of the meat department at the time and shall count
him in the unit.
Of the 15 employees thus properly to be deemed included in the bargaining unit,
9 had authorized the Union to bargain on their behalf. Accordingly, I find that on
August 10, 1964, and at all times since, the Union was and has been the exclusive
representative of all the employees in the bargaining unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
E. Bad faith in the refusal to bargain
The appropriateness of the bargaining unit in which the demand for bargaining
was made, as well as the Union's majority status at the time are thus clear. The
refusal to bargain as requested is equally unquestionable. There remains solely
the question of whether the record as a whole supports the complaint allegation that
the Respondent's decision was based on a bad-faith rejection of the principle of
collective bargaining and of the statutory mandate upon the employer to bargain in
good faith with the duly selected representative of its employees. In view of the
admitted announcements by Leo Clermont, owner of the store, that in no event
would he deal with a union, and that he would close the store before doing so, no
other conclusion can be reached. There is nothing to counterbalance the motive
so directly revealed by the owner's very words. This was not a low supervisor whose
coercive statements might be dissipated with time. That the Respondent had no
solid basis for the doubt it expressed through the lawyers back in August is at
least strongly suggested by the fact that as late as the hearing it had not yet decided
precisely what its contentions were to be on the scope and composition of the unit.
There was extended questioning and evidence about employees' possible inclusion,
employees who, in the Respondent's finally articulated position in the brief are
totally ignored. I find, on the record as a whole, that the Respondent's refusal to
extend recognition to the Union on demand on August 11, 1964, constituted a viola-
tion of Section 8 (a) (5) of the Act.7
F. Transfer of Pauline Pomerleau
Pomerleau was a meatwrapper in the Billerica store. She signed a union card
and distributed three others among the employees. The Respondent was aware of
her prounion sympathies because in July she solicited Meat Manager Paquin to join.
On August 15 Paquin told her she was being transferred the following Monday to
the Lowell, Massachusetts, store, about 4 miles away, also owned by the Clermont
brothers. The manager told her he did not know the reason for the transfer, and
when she asked when she might return, answered, "After things blow over, maybe
you'll come back." 8 She then asked Leo Clermont about the matter, and Clermont
said it was a surprise to him and he did not know how long it would last.
Pomerleau reported to Lowell on the 17th as instructed. Two days later she
heard a rumor that she was being watched for union activities, confronted the meat
department manager, Robert Parent, with the story, and asked was it true. Parent
replied, "Yes, I was told to watch you for Union activities." She then went to the
store manager, Robert Breton, and asked him was all this true. Breton also said,
"Yes," and then apologized with the statement he thought it was a wrong thing to
do. Parent did not appear as a witness and Breton testified that he was not told by
his superior to watch Pomerleau; for the rest all he said was that the day she arrived
he said no more than "hello" to her. He did not refer at all to the conversation she
said she had with him 2 days later. He is the store manager, and admitted that he
7 Joy Silk Mills, Inc, 85 NLRB 1263, enfd 185 F 2d 732, cert denied 341 U S 914
sPaquin denied having made this statement to Pomerleau. In light of the demeanor
of the two witnesses at the hearing, and in view of further credited testimony, set out
below, that after arriving at the Lowell store, the manager there admitted to her he had
given orders that she be watched for union activities, I credit Pomerleau against Paquin.
CLERMONT'S, INC. 1413
directs the employees of the entire store. I credit Pomerleau and find that by his
admission to her that she was being surveilled in her union activities, Store Manager
Breton committed an act of illegal coercion in violation of Section 8 (a) (1) of the
Act, for which the Respondent is accountable.
About a week after the transfer, Pomerleau asked Roland Clermont, then running
the Lowell store, to be sent back to Billerica ; he said he needed her at Lowell
because she was a replacement for someone who had left, gave her a raise, more
responsible work assignments, and raised her pay 20 cents per hour. She still works
at the Lowell store.
Roland Clermont said he had to replace a meatwrapper at Lowell who had given
notice because she was going to have a baby, and who in fact did leave the Company
at that time. Repeatedly he insisted he had chosen Pomerleau from the Billerica
store because she was the last meat wrapper to be hired. On cross-examination
later he admitted there were three other meatwrappers-Novanis, Walsh, and Swan-
son-who had been hired after Pomerleau. He then added that two of them-
Novanis and Swanson-were less experienced.
I conclude that the preponderance of the substantial evidence on the record as a
whole supports the complaint allegation that Pomerleau was transferred to the
Lowell store on August 17 because of her union activities. The Respondent knew
she favored and assisted the Union; it was opposed to such activities even to the
extent of threatening dire consequence if the employees persisted in their resolve;
the store manager set a watch on her at the new location to guard against continued
union activities there; and, equally significant, the reason advanced for selecting her
for transfer is patently unpersuasive. I find that by transferring Pomerleau away
from the Billerica store on August 17, 1964, the Respondent violated Section 8(a) (3)
of the Act.
G. The transfer of Ronald Beaudoin
Beaudoin started in the Billerica store as an apprentice meatcutter in October
1963; he, too, on August 17, was transferred to the Lowell store, a location some-
what closer to his home. The first day there Store Manager Breton had him in the
,office, and, in the presence of another employee, said he was the store manager and
had authority to hire and discharge people. He then asked Beaudoin "how the
union was doing." Beaudoin answered he did not know, and the manager then
said: "Well, if there's any union talk around here ... I'll fire them." Breton's only
reference to such a conversation at the hearing is that all he recalled was saying
"hello" to the man when he arrived.
About a week after the transfer Beaudoin spoke to Roland Clermont, told him
about having signed a union card, and expressed the thought he had been transferred
because of this. Roland replied this was not so, and then raised his pay because
Beaudoin was spending more time cutting meat than he had at Billerica. At the
hearing, Beaudoin said that although he worked more hours at Lowell and learned
more about meatcutting, he preferred his friends at Billerica. Two months later
he was transferred back to his original store.
When Beaudoin went to Lowell, he filled a vacancy resulting from the transfer
of Eddie Blanchette, a meatcutter who went to still a third store owned by the
•Clermonts. There is no evidence that any management representative knew Beau-
doin had signed a union card He testified he spoke to no one about having done so,
and surely not to Leo Clermont, then in charge of the store. Beaudoin also said
that when he told Roland Clermont of this probably having been the cause for the
transfer the boss gave no impression of having known.
Unquestionably Store Manager Breton's statement to Beaudoin , which I found
was made, that the man would be discharged if he talked union, was an outright
threat of coercive economic reprisal for union activities, and a deliberate unfair
labor practice in violation of Section 8 (a) (1) of the Act, chargeable to the Respond-
ent. Considering, however, all the facts truly pertinent to the issue of illegal transfer
of this employee, it does not appear that the affirmative burden of proof resting
upon the General Counsel has been satisfied. The improved working conditions inci-
dental to the transfer, the plausible explanation seen in the necessity for replacing
the meatcutter Blanchette, the return of the employee to the store of his choice,
and the total lack of any indication that the Respondent had reason to believe he
was at all in favor of the Union, virtually preclude the inference called for by the
complaint. Accordingly, I shall recommend dismissal of the complaint as to
Beaudoin.
H. Alleged illegal interrogation, restraint, and coercion by Respondent's counsel
At the hearing the General Counsel moved, and was permitted to amend the com-
plaint to allege that lawyers for the Respondent illegally interrogated employees
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning their union activities, more precisely as to why they had signed union
cards. In support of these charges three employees, all of them of the meat depart-
ment, testified to interviews with Robert Moss, Respondent's principal trial attorney
at the hearing. A fourth told of her interview with John Gallagher, a lawyer from
Moss' office. All these talks took place in the Billerica store about 2 weeks before
the start of the hearing.
On this subject, Beaudoin , Pomerleau, and O'Brien testified very briefly on direct.
examination. They said that when Moss spoke to them, he asked such questions as:
Have you heard union talk, have you signed a card, who spoke to you about it, why
did you sign the card, what the card meant to you, how did the employees come
into possession of the cards, have you talked to the Union about what the card'
was for, do you know why you signed?
On cross-examination each of the witnesses admitted that their interviews with.
the lawyer extended over a considerable period of time, one saying 25 minutes and
one as much as 2 hours. Moreover, consistently each of them admitted that Moss
started by informing them that he was a lawyer investigating the charge on behalf
of the Employer and preparing to defend the Respondent at a trial, that he assured'
them his purpose was not to encourage or discourage their union activities, that any
information they gave him would in no way affect their jobs. They then also recalled
that he asked such questions as: Did you sign a card like this one [with Moss show-
ing a blank authorization card like those received in evidence here], did the Union
tell you the card was "to get a vote," what did he say the purpose was, what was
said when you signed the card, and what was the purpose of the card?
One employee, Neault, recalled having been interviewed by Lawyer Gallagher;
after testifying he asked had she signed a union card, she said the interview lasted'
about 25 minutes but she was not sure what the lawyer had said or asked, that she;
really could not recall anything about the conversation.
Moss explained what he had one from the witness stand. He said he interviewed
about 20 employees in preparation for the hearing, that he explained his purpose to
each of them, and that all questions he asked were based upon the exact allegations
of the complaint in his possession. Moss denied having asked, directly or out of
context, why the employees had signed a union card. He testified instead that what
he did seek to learn, and what he asked was "What the employees had been told was
the purpose of the cards," "What their purpose was in signing the cards," or "the
circumstances surrounding the cards, where they were, what had been told to them "
I think Moss was the more reliable witness concerning these interviews. The
issue which the lawyers were raising in defense was whether, in the solicitation activ-
ities leading to the signing of the authorization cards, the employees were led to,
believe, contrary to the printed words, that there was a more limited purpose, such
as the filing of a petition, or a consent election, or some further step before final,
binding authority to the Union to act as bargaining agents. With this as his proper
area of inquiry, if he was to search for supporting witnesses, the questions he asked
were not improper, particularly in view of the employees' admission that he explained
his purpose and gave them full assurance against any prejudice in employment result-
ing from their cooperation. And if any employee paraphrased some of his questions
as simply "Why did you sign a union card," the rephrasing is understandable in the
circumstances. The question "What was your purpose in executing the card," or
even "What were you told was the purpose for signing the card," could easily be
recalled, after the events, as "Why did you sign this card." The complaint allegations
that Mr. Moss or Mr. Gallagher, as agents of the Respondent, violated Section
8 (a) (1) of the Act, are not supported by the evidence .9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set out in section III, above, occurring in connec-
tion with the operations of the Respondent, set out in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several'
States and tend to lead to labor disputes 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. Remedial'
action for the illegal transfer of Pauline Pomerleau requires that the Respondent
reinstate her to her former employment at the Billerica store and make her whole-
9 Atlantic & Pacific Tea Company , 138 NLRB 325.
LOCAL 1291 , INT'L LONGSHOREMEN 'S ASSN. 1415
for any loss of earnings , if any , she may have suffered in consequence of the dis-
crimination . The Respondent having refused to bargain in good faith with the
Union upon request, it must also be ordered to do so , and, if an agreement is
reached , sign a contract . In view of the nature of the unfair labor practices com-
mitted, the commission of similar and other unfair labor practices reasonably may
be anticipated . I shall therefore recommend 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 in the meat department of the Respondent 's Billerica, Massa-
chusetts, store, including regular part -time employees , but excluding all other 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.
4. Amalgamated Meat and Food Store Employees , Local 592, AFL-CIO, was on.
August 10 , 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 Section 9(a) of the Act.
5. By refusing to recognize and bargain with the Union as the representative of
the employees in the aforesaid unit, the Respondent has engaged in and is engaging.
in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. By transferring Pauline Pomerleau , the Respondent has engaged in and is,
engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act..
7. By the foregoing conduct , by telling employees that they are being surveilled
in their union activities , by telling employees that they would be discharged for
talking about the Union , and by telling them that the Respondent would close the
store , bum it, or replace employees with relatives of the owners before dealing with
a 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)( I) of the Act..
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Local 1291 , International Longshoremen 's Association, AFL-CIO°
and United States Steel Corporation . Case No. 4-CD-106-2.-
September 23,1965
DECISION AND ORDER
Upon a charge filed on May 6,1964, by United States Steel Corpora-
tion, hereinafter called the Employer, the General Counsel for the
National Labor Relations Board, by the Regional Director for Region
4, issued a complaint dated March 26, 1965, against Local 1291, Inter-
national Longshoremen's Association, AFL-CIO, hereinafter called
the Respondent, alleging that the Respondent had engaged in unfair
labor practices affecting commerce within the meaning of Section
8(b) (4) (i) and (ii) (D) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the charge and the
complaint with notice of hearing were duly served upon the Respond-
154 NLRB No. 119.