Department Store Food Corp. of Penna.

National Labor Relations Board - Board Decisions

Jul 19, 1968

172 N.L.R.B. 1203 (N.L.R.B. 1968)

DEPARTMENT STORE FOOD CORP. OF PENNA. 1203
Department Store Food Corp. of Penna . and Amal-
gamated Meat Cutters and Butcher Workmen of
North America, Amalgamated Food Employees
Union Local 590, AFL-CIO and Retail Clerks In-
ternational Association , Local 1538, AFL-CIO,'
Party to the Contract . Case 6-CA-4017
July 19, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 17, 1968, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision Thereafter,
the General Counsel filed exceptions and a brief in
support of the exceptions and in support of the
Trial Examiner's Decision. Respondent and Retail
Clerks each filed exceptions, a brief in support of
exceptions, and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein
Respondent and the Retail Clerks contend, inter
alia, that the Trial Examiner erred in recommend-
ing that Respondent be required to reimburse
present and former employees for all credit union
payments withheld by Respondent pursuant to
credit union checkoff cards executed by said em-
ployees. They assert, without challenge from the
other parties, that they do not hold or control these
funds which earn interest and may be withdrawn
from the credit union by each employee on
reasonable notice. In view of the availability of the
payments credited to the account of each em-
ployee, we agree that an order requiring Respon-
dent to reimburse credit union payments is not war-
ranted. However, we are limiting our amendment of
the Trial Examiner's Recommended Order to dele-
tion of the reimbursement provision only, for we
agree with the Trial Examiner that the remedy
should forbid further credit union checkoff pay-
ments or deductions.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that Respondent, Depart-
ment Store Food Corp. of Penna , Franklin,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified-
1. Delete from paragraph 2(b) of the Trial Ex-
aminer's Recommended Order the following lan-
guage "Credit union payments," and "and credit
union checkoff cards."
2 Delete from the sixth indented paragraph of
the Appendix the following language "Credit union
payments," and "or credit union checkoffs."
Herein called Retail Clerks
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LiBBIN, Trial Examiner: Upon charges filed
on August 14 and 28 and on December 18, 1967,
by Amalgamated Meat Cutters and Butcher Work-
men of North America, Amalgamated Food Em-
ployees Union Local 590, AFL-CIO, herein some-
times called the Amalgamated or Local 590, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 6 (Pitts-
burgh, Pennsylvania), issued a complaint, dated
December 18, 1967, against Department Store
Food Corp. of Penna., herein called the
Respondent. The complaint alleges, in substance,
that in connection with its conduct with Retail
Clerks International Association, Local 1538,
AFL-CIO, herein called Retail Clerks, Respondent
engaged in unfair labor practices within the mean-
ing of Section 8(a)(1), (2), and (3) and Section
2(6) and (7) of the Act. In its duly filed answer,
Respondent denies all unfair labor practice allega-
tions.
Pursuant to due notice, a hearing was held before
Trial Examiner Louis Libbin at Franklin, Pennsyl-
vania, on February 7, 8, and 9, 1967. All parties ap-
peared at the hearing where they were represented
by counsel, and were given full opportunity to par-
ticipate in the hearing, to adduce relevant evidence,
to examine and cross-examine witnesses, to argue
orally on the record, and to file briefs. On March
29, 1968, the General Counsel, the Respondent,
and the Retail Clerks filed briefs, which I have fully
considered.
172 NLRB No. 129
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For reasons hereinafter indicated, I find that
Respondent violated Section 8(a)( i ), (2), and (3)
of the Act.
Upon the entire record' in the case, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, Department Store Food Corp. of
Penna., is a Pennsylvania corporation engaged in
the operation of a leased retail meat and grocery
department within a retail department store
operated by Weston Shoppers City, Inc., and
located in Sugar Creek Township, Pennsylvania.
Respondent is a wholly owned subsidiary of
Loblaw, Inc., a New York corporation which is en-
gaged in the operation of retail grocery stores in the
States of New York, Pennsylvania, and Ohio, with
annual gross sales in excess of $1 million. Since Au-
gust 22, 1967, when it commenced operations from
its leased department in the Sugar Creek Township
store, Respondent's gross sales have averaged in ex-
cess of s 30,000 per week and, by projection, are
expected to exceed s 500,000 during the 1 2-month
period ending on or about August 22, 1968
Respondent has, since August 22, 1967, received
goods directly from outside the Commonwealth of
Pennsylvania, valued in excess of $ 10,000, for use
in its leased department
Upon the above-admitted facts, I find, as Respon-
dent admits in its answer, that Respondent is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11 THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, the
record shows, and I find that Amalgamated, the
Charging Party herein, and Retail Clerks, the party
to the contract herein, are each labor organizations
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Introduction, the Issues
As previously noted, Respondent Department
Store Food Corp of Penna. is a wholly owned sub-
sidiary of Loblaw, Inc , a New York corporation
which maintains its principal office in Buffalo, New
York, and is engaged in the operation of retail
grocery stores in the States of New York, Pennsyl-
vania, and Ohio Respondent operates a leased
discount retail meat and grocery department,
'On March 29 , 1968,1 also received from the General Counsel a Motion
to Correct Transcript in certain specific respects . In the absence of any ob-
jections, I hereby grant said Motion and have made the corrections herein
herein sometimes called the leased department,
within a retail department store complex at Weston
Shoppers City, a shoppers' mall located in Sugar
Creek Township between Franklin and Oil City,
Pennsylvania, and 2 miles from the city limits of
Franklin Respondent opened its leased department
to the public for business on August 22, 1967 The
Respondent is alleged to have committed unfair
labor practices during the preparatory period of the
leased department for its public opening
John M Travis had been employed by Loblaw,
Inc , as meat manager in its Oil City, Pennsylvania,
store for about 20 years This and three other near-
by stores, all four of which had long been
represented by the Amalgamated, the Charging
Party herein, were sold by Loblaw, Inc , on October
1, 1966 In May or June 1967, while Travis was em-
ployed as meat manager in an IGA store in Oil City,
George Atkinson, secretary-treasurer of Retail
Clerks, contacted Travis, advised him that Respon-
dent would be advertising to staff its leased depart-
ment, and asked if Travis would help organize the
leased department for the Retail Clerks if he were
hired as meat manager At Atkinson's suggestion,
Travis agreed to answer Respondent's advertise-
ment for help, he also agreed that if he was hired as
meat manager, he would actively solicit for the
Retail Clerks
On July 15, 17, and 18, 1967, Respondent placed
an advertisement in the Derrick, a newspaper of
general circulation in the Oil City-Franklin-Clarion,
Pennsylvania, area, seeking applicants to staff its
leased department which is referred to in the adver-
tisement as "A New Super Market " Applicants
were requested to apply at the State of Pennsyl-
vania Employment Security Office in Oil City,
Pennsylvania, on July 19, 20, and 21. During that
period, about 200 applicants were interviewed
there by Vento, who was Loblaw's director of
discount operations; by Keller, who was from
Loblaw's personnel department in Buffalo; and by
Ruminski, who was the manager of Respondent's
leased department.
Travis was interviewed by Vento and was im-
mediately hired as meat manager. He then in-
formed Atkinson by telephone that he had been
hired and they made an appointment to meet.
About 3 days before July 31, the first day that
Travis began working at Respondent's leased de-
partment, Atkinson gave Travis a supply of union
authorization cards for Retail Clerks and told him
to solicit all Respondent's employees to sign the
cards.
By July 25, 1967, Respondent had decided which
of the 200 applicants who had been interviewed
would be offered employment. The first employees
began working at the leased department on Mon-
granted Said Motion has been placed in the Official Exhibit Folder as G C.
Exh 24
DEPARTMENT STORE FOOD CORP. OF PENNA. 1205
day, July 3 1, when six reported. Among that group
were Meat Manager Travis, Assistant Grocery
Manager Kertcher, and Head Cashier Geraldine
Wurster. Travis knew Kertcher and Wurster at that
time because they had been employed in their
respective positions with two of the four Loblaw
stores which had been sold in October 1966. Dur-
ing the remainder of that week, on August 3 to be
exact, eight more employees reported for work On
Monday, August 7, an additional group of 17 em-
ployees began working, and on Tuesday, August 8,
an additional group of 27 employees began work-
ing. Thus, by the afternoon of August 8, 1967,
Respondent had a total of 58 employees, in addi-
tion to Store Manager Ruminski, who had started
to work in its leased department. In addition,
Loblaw, Inc., had assigned Albertine Carlson,
frequently referred to in the record as Abbie, to
Respondent's leased department to train prospec-
tive cashiers before the opening of the store Carl-
son had been employed by Loblaw for about 26
years and worked as a cashier instructor in various
of the Loblaw chain stores to which she was as-
signed by Loblaw's district managers Carlson
began her duties at Respondent's leased depart-
ment on August 7 for a period of about 2 weeks
Carlson and Travis knew each other from their as-
sociation with Loblaw, Inc.
Travis began soliciting employees to sign
authorization cards for Retail Clerks on July 3 1, the
first day of his employment, and by the afternoon
of August 8 had obtained 53 or 55 signed cards, in-
cluding his own and Kertcher's. By the same time,
Kertcher had obtained signed cards from the
remaining three or five employees. The solicita-
tion and signing of all cards occurred on Respon-
dent's premises.
On the basis of the 58 cards signed by all persons
(except Ruminski) working for Respondent at that
time, Respondent late in the afternoon or early in
the evening of August 8 recognized Retail Clerks as
the exclusive collective-bargaining representative of
its employees. As a result of negotiations held on
August I 1 and 14, Respondent and Retail Clerks
executed a union-security contract for the leased
department on August 15 This agreement, which is
for a 3-year period with automatic renewals for I -
year periods, admittedly has been fully imple-
mented and has continued in full force and effect
since its execution.
The foregoing facts are not in dispute. The prin-
cipal issues litigated in this proceeding are (1)
whether Travis, Kertcher, and Carlson were super-
visors or agents of Respondent, (2) whether
Respondent rendered unlawful assistance and sup-
port to Retail Clerks in connection with the sol-
icitation and signing of union authorization cards,
(3) whether Retail Clerks represented a free and
uncoerced majority when it was granted exclusive
recognition on August 8, 1967, and (4) whether
Respondent violated the Act by granting Retail
Clerks exclusive recognition on August 8, 1967, by
executing the union-security contract on August
15, 1967, and by thereafter maintaining and enforc-
ing said contract.
B. Solicitation for Retail Clerks
Charlotte Urey and Geraldine Wurster started
working at Respondent's store on July 31. When
Urey reported to Store Manager Ruminski, he was
in the office talking to Travis. He then told' Urey
that Travis would be her meat manager.2 About
quitting time that day, Ruminski called Urey and
Wurster to the office, which is located in the front
of the store, and told them to complete an addi-
tional application form in connection with their em-
ployment application. As soon as they had
completed the application form at the office win-
dow and had returned it to Ruminski, Travis came
up and asked each one to sign an authorization
card while they were still in front of the office win-
dow. Each one signed and returned the card to
Travis.'
Employees Collingwood, Barker, Barnes, and
Kelley first started working at the store on August
3. They reported in the morning at the store office
where Manager Ruminski gave them additional em-
ployment application forms with instructions to
complete and return them to him. He also told the
group to wait near the office until everyone had
finished filling out the forms and that he would then
tell them what to do. The group filled out the em-
ployment forms a few feet from the office and then
returned them to Ruminski over the office counter.
As the employees then began to move away from
the office, Travis, who had been waiting nearby
while the women were filling out their employment
forms, approached and solicited each one to sign a
union card, without naming the Union for which he
was soliciting. All four in the group thereupon rou-
tinely signed.' Barker did not even know for which
union she was signing. They then waited until Ru-
minski came over and told them to report to Dave
Kertcher, who told them what work to do.5
About 1 p.m. on Monday, August 7, and about
8.30 a.m. and 1 p.m on Tuesday, August 8, three
separate groups of new female cashier trainees for
their first time reported to Training Instructor Carl-
son at the store office There were 9 women in the
Monday group, 5 or 6 additional women in the
Tuesday morning group, and an additional 10 or 1 1
' She had previously worked in a Loblaw store and knew that Travis was
the meat manager of the Loblaw store in Oil City
'The finding,, in this paragraph are teased on the credited and uncon-
tradicled testimony of Urey
' The record shows that Collingwood knew Travis from her past employ-
ment at one of the Loblaw stores
' The findings in this paragraph are based on the credited and uncon-
tradicted testimony of Collmgwood and Barker
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
women in the Tuesday afternoon group, making a
total of 24 or 26 new cashier trainees for the 2
days i'
Carlson followed the same procedure with
respect to each of the three groups which reported
to her on Monday and Tuesday Each group re-
ported to her in the store manager's office, located
in the front of the store. The first thing that Carlson
did was to hand to each woman in the group the
employment application which they had previously
filled out at the State Employment Office in Oil
City, together with another blank employment ap-
plication form, and instructed them to copy their
employment application onto the new application
form and then to return both to her. This is the
process which Carlson characterized at the instant
hearing as "checking-in" the new employees. The
employees filled out the new employment applica-
tion forms at one of the counters a few feet from
the office and then returned them to Carlson in the
office. Carlson then told each one, as she returned
the employment application forms, that a man
"over there" wanted to see them and pointed to
where a man was standing about 10 or 15 feet away
from the office. This man, whom the girls did not
know at that time but who they later learned was
Meat Manager Travis, was standing beside a small
table which was set up in the main aisle Everyone
in each group went over to where Travis was stand-
ing, as referred by Carlson Travis took a union
authorization card out of his shirt pocket, laid it on
the table, and told each one they were trying to get
a union together and to sign their name if they were
interested. The card was folded, with the bottom
half facing the employee Travis did not mention
"The findings in this paragraph are based on Carlum's own testimony,
which was corroborated by testimony of cashier trainees With respect to
the number of girls who reported in the Monday afternoon group, Carlson
testified at one point that there were "around nine or ten" and at another
point that there "ere -approximately eight or nine, ten-t%hateier checked
iii" (emphasis added) As Respondent's own Exhibit 2(h) shows that nine
female employees began working on Monday, August 7, I find that there
were time in that group Carlson further admitted that the fi'e or six girls in
the group on Tuesday morning "were not" the same girls whom she had in-
structed the previous afternoon but were part of a new group She further
admitted that the 10 girls who had come in "at one o'clock with their appli-
cations" on Tuesday afternoon and had just checked in were the ones who
were in her Tuesday afternoon class and constituted another new group
The foregoing numbers do not include Collingwood and Barnes . both of
whom had been working for Kertcher since Thursday, August 3, and were
instructed by him on the afternoon of August 7 or 8 to report to Carlson
in the ladies' lounge for cashier training uner Carlson's instructions Nor do
they include Head Cashier Geraldine Wurster who "sat in on all new
groups " The record shows that after Tuesday. the three groups were con-
solidated into two groups for the remainder of the 2 weeks ' training period
Counsel for Respondent explained at the instant hearing why there were so
many cashier trainees by stating that most of the employees who might
from time to time in the future be assigned to cashier work " were given
such training prior to the opening of the store so they would have the flexi-
bility to fill the cashier stations during rush hours "
r The findings in this paragraph are based on a composite of the mutually
consistent and credited testimony of employees Foster. Rhoades. Prichard,
Reed, and Charleen Karns , all of whom were cashier trainees at that time,
the admissions of Carlson and Travis consistent with said findings , and all
the surrounding circumstances The employees testified under subpena at a
the name of the Union for which he was asking
them to sign . He showed them where they had to
fill the card out and where they had to sign it.
Without asking any questions about the necessity
for signing or the consequences for not signing,
every female employee in each of the three groups
perfunctorily signed a card after cursorily glancing
at it or not even reading it all. Employees who did
not know what their position in the store would be
were advised by Travis to put down " female clerk"
or "female cashier." Indeed , many employees did
not even know the name of the Union for which
they were signing. While the employees were sig-
ning the union cards, Carlson was waiting near the
store manager 's office for the group to return. After
signing and returning the card to Travis, each em-
ployee went back to where Carlson was standing
and waited with her until the entire group had
finished signing cards for Travis and had reassem-
bled for further instructions . Carlson then in-
structed the group to go back with her to the ladies'
lounge in the rear of the store where she would give
them further instructions about what she wanted
them to do.'
In addition to the female cashier trainees in the
above-described three groups , Carlson admitted
that on August 7 she also followed the same
procedure , hereinabove described , with respect to
an additional four or five employees who were re-
porting for the first time but not for cashier train-
ing. Thus, she admitted that after checking them in
the store manager 's office by having them fill out
new employment application forms, she sent them
to Travis with instructions to report for work to
Assistant Manager Kertcher after seeing Travis.
time when they were still employed at Respondent's store and in the
presence of their superior They testified in a manner which impressed me
with the veracity of their testimony On the other hand, I was not favorably
impressed by the manner in which Carlson testified When called as a wit-
ness for Respondent , Carlson testified on direct examination as follows
While she and Geraldine Wurster were escorting the group of cashier
trainees to the ladies' lounge on the afternoon of August 7 to begin their
cashier instruction , Travis approached them in the produce aisle and asked
if it was all right to see some of the girls Carlson nodded in assent and
walked with Wurster to the ladies' lounge where the other employees
joined them after talking to Travis However. on cross-examination, she at
first denied sending any girls to Travis but , after being confronted with her
pretrial affidavit, admitted that she had sent four or five girls in that group
to him She admitted that she must have spoken to Travis when she was
with the August 8 afternoon group but could not recall the contents of the
conversation Finally, when called as a witness by the General Counsel on
the first day of the hearing, she admitted processing in four or five em-
ployees other than cashier trainees on August 7 and sending them to Travis
with instructions to report to Kertcher for work after seeing Trasis Under
all the circumstances , I do not credit the testimony of Carlson to the extent
that it may conflict w ith the findings set forth in the text
Although there was no testimony by any cashier trainee who reported in
the August 8 morning group , Carlson admitted that she had a new group of
girls that morning and that she took them " through the same procedure as
the day before " This admission , plus the fact that on August 8 Travis
signed up esery new employee who reported for work that day, considered
in the light of all the surrounding circumstances convinces me and I find
that Carlson processed in that morning group and sent them to Travis in the
same manner as the preceding and subsequent group
DEPARTMENT STORE FOOD CORP. OF PENNA. 1207
These four or five employees also signed union
authorization cards for Travis before reporting to
Kertcher.
Byron Kendrick reported for work to Store
Manager Ruminski at the store office on the after-
noon of August 7. Ruminski told Kendrick what
kind of work he would be doing and that he would
be working for Kertcher who would tell him what
to do. At that point Travis approached and asked
Ruminski if he (Travis) could talk to Kendrick, Ru-
minski replied that he could. After Kendrick
finished talking to Ruminski , Travis asked Kendrick
to come with him towards the end of the produce
aisle , about 20 feet from the office. Kendrick at
that time did not know Travis or what position he
held in the store. Travis told Kendrick that they
were organizing a union in the store and that he
wanted Kendrick to sign for it. Kendrick asked if it
was necessary to sign in order to work in the store.
Travis replied that it was. Kendrick thereupon
agreed to sign . Travis then gave Kendrick a card
and pointed out where to sign. Kendrick signed the
card without reading it and returned it to Travis
who put it in his pocket. Kendrick then reported to
Kertcher who introduced himself as the assistant
manager and stated he would tell Kendrick what
jobs to do and how to do them.'
Assistant Grocery Manager Dave Kertcher ad-
mitted that on July 31 he signed a Retail Clerks
authorization card for Travis, that he agreed to help
Travis to get employees to sign cards, and that he
solicited and signed up three or four employees by
August 8. Gregory Brooks started working as a
part-time stockboy at the store on August 7. When
he reported to the office, he was told to go see
Dave Kertcher, who gave him an apron and told
him what to do. While unloading boxes, Brooks was
told that he was wanted in the office. On his way to
the office, Kertcher approached him with an
authorization card and told him to sign the card for
the Union. Brooks thereupon signed, without even
knowing the name of the Union. At that time, he
had been in the store only about an hour. The
findings relating to Brooks are based on his
credited and undisputed testimony. Kertcher did
not deny having solicited Brooks in the manner
hereinabove set forth.
C. Retail Clerks Majority
I deem it unnecessary to, and therefore do not,
determine whether, as the General Counsel con-
tends, Meat Manager Travis, Assistant Grocery
Manager Kertcher, and Cashier Training Instructor
Carlson were supervisors within the meaning of the
Act during the period material herein. Nor do I
deem it necessary to determine, as the General
Counsel further contends, whether Travis and
Kertcher were in any event acting for and on behalf
of Respondent during the solicitation activities. I
nevertheless find, in agreement with the General
Counsel, that Retail Clerks did not represent a free,
unassisted, and uncoerced majority of the 58 per-
sons employed by Respondent when it was ac-
corded exclusive recognition on August 8, 1967. I
make this finding on the following three indepen-
dent grounds.
1. On August 7 and 8, new groups of employees
reported to Carlson who was stationed in Store
Manager Ruminski's office. She required them to
fill out a new employment application form. When
these forms were completed and returned to her,
she then sent or referred them to Travis, who was
standing beside a table in the middle of the main
aisle and a short distance from the office. She in-
structed her cashier trainees to return to her for
further instructions about their work after finishing
with Travis, and waited outside the office until her
entire group returned to her. She instructed the em-
ployees who were not cashier trainees to report to
Kertcher for work assignments after they had
finished with Travis. According to Carlson's own
conservative count, she sent 28 employees to Travis
in this manner on those 2 days, as previously found.
Without hesitation or questions, all 28 routinely
and virtually automatically signed the authorization
cards which Travis placed before them on the table,
asked them to sign, and showed them how to fill it
out. Some glanced at the card; some did not read it
at all; and some did not even know the name of the
Union for which they were signing . Indeed, they
signed them in the same matter-of-course manner
as they had completed the employment applications
which Carlson had instructed them to fill out in the
office.
Under the foregoing circumstances previously
described in more detail, I find that the newly hired
employees could reasonably believe that the signing
of the union card was just as much a required part
of the checking-in process and a condition of em-
ployment as was the filling out of the new employ-
ment application form which Carlson gave them in
the office.' I therefore find that these 28 cards do
not reflect the free and untrammeled choice of the
signers and for that reason may not be counted in
determining the Retail Clerks majority. And this is
so without regard to whether management was
"The findings in this paragraph are based on the credited testimony of
Kendrick He testified under subpena at a time when he was still employed
by Respondent under Comanager Kertcher, and his demeanor on the wit-
ness stand impressed me as a witness worthy of belief With respect to this
incident, Tras is, who had heard Kendrick's testimony, later testified that he
merely told Kendrick that' if the union got in it would be a closed shop and
he'd have to belong to the union to go to work, there'd be no other way out
of it " Tras is impressed me on the one hand as being reluctant 'Vague, and
es asis e in gn ing answ ers w hich appeared to be harmful to the Retail Clerks
while on the other hand as being anxious to solunteer information which
appeared to be helpful to the Retail Clerks He did not impress me as a
credible witness and I do not credit his s ersion of what he told Kendrick on
that occasion
See, e g . Cixa Cola Bottl,,u Conipans of Sacramento. 146 NLRB 1045,
1046, Continental Distilling Sales Conipan%, 145 NLRB 820. 830-831,
AlasAa Salmon /ndusin, hu , 122 NLRB 1552. 1554-55, Neu Orleans
Laundries. Inc , 114 NLRB 1077, 1085, and Pittsburgh Metal Lithogra-
phingCo,lnc , 158NLRB 1126. 1133
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware of the conduct of Carlson and Travis or
whether Respondent may also be found to have
rendered unlawful assistance to Retail Clerks by the
manner in which these cards were solicited.
I further find that the card signed by employee
Kendrick at Travis' solicitation on August 7, after
Travis told him that it was necessary to sign in
order to work in the store, as previously found in
more detail, also may not be counted towards
establishing Retail Clerks majority.
The parties agree that on August 8, 1967, there
were 58 persons, including Travis and Kertcher,
employed at the store and that Respondent ac-
corded Retail Clerks exclusive recognition on that
date on the basis of cards signed by all 58 persons.
Assuming therefore that the remaining 29 cards
were valid designations , it follows, as I further find,
that Retail Clerks did not at that time in fact have
valid designations of a numerical majority of the 58
persons claimed by Respondent and Retail Clerks
to be in the appropriate unit.
2. Moreover, assuming that the number of in-
valid authorization cards solicited in the
hereinabove-described manner totaled less than
the 29 hereinabove found, a realistic measurement
of the overall pervasive effect of the coercion in-
volved in the solicitation of the large number of
cards which were so obtained requires the finding,
which I herein make, that such coercion tainted
whatever numerical majority Retail Clerks may have
obtained.10 Therefore on this ground alone, I find
that Retail Clerks did not represent an uncoerced
majority when it was accorded exclusive recogni-
tion on August 8, 1967.
3. Finally, I find that by Carlson's previously
described conduct, Respondent rendered unlawful
assistance and support to Retail Clerks in the suc-
cessful solicitation of practically a majority of the
58 employees claimed to be in the unit. Carlson
was responsible for the formal training of cashiers
at Respondent's leased department and for
checking in the new employees who reported to her
in the store manager's office. Thus, her "responsi-
bilities put her in a position to be identified with
management in the eyes of the [new] employees
and to translate to them the policies and desires of
management." Valley Forge Flag Company, 152
NLRB 1550, 1554 The new employees who re-
ported to and were checked in by her and then sent
to see Travis in the manner previously detailed had
just cause to believe that in so doing "she was act-
ing within the apparent scope of her authority" and
(Valley Forge, supra) for and on behalf of manage-
ment. Under these circumstances, Respondent's lia-
bility for her conduct does not depend on whether
she was a supervisor or was expressly authorized to
engage in such conduct or even whether Respon-
dent was aware of her conduct." For, as the
Supreme Court stated in the landmark case of In-
ternational Association of Machinists, Tool and Die
Makers Lodge No. 35 (National Motor Bearing Co
v N.L R B., 31 1 U.S. 72, 79-80-
Petitioner's argument is that since these [lead]
men were not supervisory their acts of solicita-
tion were not coercive and attributable to the
employer.
The employer, however, may be held to have
assisted the formation of a union even though
the acts of the so-called agents were not ex-
pressly authorized or might not be attributable
to him on strict application of the rules of re-
spondeat superior. We are dealing here not with
private rights (Amalgamated Utility Workers
v.Consolidated Edison Co., 309 U.S. 261)
nor with technical concepts pertinent to an
employer's legal responsibility to third persons
for acts of his servants, but with a clear legisla-
tive policy to free the collective bargaining
process from all taint of an employer's compul-
sion, domination, or influence The existence
of that interference must be determined by
careful scrutiny of all the factors, often subtle,
which restrain the employees' choice and for
which the employer may fairly be said to be
responsible. Thus, where the employees would
have just cause to believe that solicitors profes-
sedly for a labor organization were acting for
and on behalf of the management, the Board
would be justified in concluding that they did
not have the complete and unhampered
freedom of choice which the Act contemplates.
These principles apply with equal and full force to
Respondent's responsibility for the conduct of Carl-
son and the manner in which all those referred by
her to Travis were successfully solicited to sign
union authorization cards.
Moreover, it is inconceivable to me that Carlson
did not know that Travis was going to solicit the
new employees to sign authorization cards for
Retail Clerks when she sent them to him after
checking them in. Indeed, Carlson's testimony that
she did not even know anything about the Retail
Clerks in the store until after it had been recog-
nized by Respondent is even more incredible. Carl-
son and Travis knew each other from their Loblaw
associations. On July 3 1, the first day of their em-
ployment, Travis admittedly had a conversation
with Geraldine Wurster, whom he also knew from
their prior Loblaw association, about helping him
get employees to sign authorization cards for Retail
Clerks and sending employees to see him for that
purpose. Carlson reported at Respondent's store for
the first time on the morning of August 7 and im-
mediately became friendly with Wurster and went
p1 See . c g . Clemente Brother (o npan t, Ito , 165 NLRB 698, 701-702,
where the Board reversed the Trial Examiner to find that the coercion in-
volved in obtaining 7 signed cards out of a total of 129 cards tainted the
Union's entire majority
" See, e g. P,ochureh Metal Luhoi:raphtng Co. In( . 158 NLRB 1126
1133. Hampton Meri haute 4+wuanon, it al , 151 NLRB 1307. 1308
DEPARTMENT STORE FOOD CORP. OF PENNA.
to lunch with her that day and the following day.
She admitted that during that period Wurster told
her about the Amalgamated, the Charging Party
herein, but denied that any mention was made of
the Retail Clerks She also admitted having a con-
versation with Travis on August 8 but could not re-
call its content. That on three separate occasions
over a 2-day period Carlson would send groups of
new employees to Travis, who was stationed nearby
the office in the main aisle beside a table on which
the girls were filling out cards, and then wait out-
side the office until the group finished with Travis
and returned to her, without knowing why Travis
wanted to see the girls, strains credulity to the
breaking point and just defies belief. I do not credit
her denials in this respect and find under all the cir-
cumstances that she was fully aware that Travis
wanted to solicit the employees for Retail Clerks12
and that she sent them to him for that purpose.
I therefore find that on this ground also, any nu-
merical majority which Retail Clerks may have had
at the time of its recognition on August 8, 1967,
was tainted by the unlawful assistance and support
rendered by Respondent in obtaining employee
signatures to authorization cards through the con-
duct of Carlson and therefore at no time reflected
that complete freedom of choice of the signers
which the Act contemplates '-1
D. Concluding Findings With Respect to
Respondent's Unlattful Conduct
I find that by the conduct of Albertine Carlson in
assisting Travis to solicit and sign up practically a
majority of the employees in the manner previously
described, Respondent rendered unlawful
assistance and support to Retail Clerks in violation
of Section 8(a)(I) and (2) of the Act." I also find
that by granting exclusive recognition to Retail
Clerks on August 8, 1967, when Retail Clerks was a
minority union and did not represent a free,
unassisted, or uncoerced majority, Respondent
rendered further assistance and support to Retail
Clerks in violation of Section 8(a)( I) and (2) of
the Act. 15
On August 15, 1967, Respondent and Retail
Clerks executed a collective-bargaining agreement
which contained union-security and checkoff provi-
sions." Respondent admittedly has fully imple-
mented this agreement and has complied with all its
terms, including the union-security and checkoff
provisions. The proviso to Section 8(a)(3) of the
Act prescribes the conditions under which an
agreement containing a union-security clause may
be lawful. Among these requirements are: (1) the
union with whom the agreement is made must be
one which has not been assisted by unfair labor
" Whether this information came to her from Wurster or directly from
Travis, I need not determine
See cases cited in pres sous footnotes
" See Majecs u Wean ing, 147 NLRB 859, 860, and cases previously cited
1209
practices, and (2) the union must be the freely
designated bargaining representative of a majority
of the employees in the appropriate unit. As previ-
ously found, neither of these requirements has been
met in this case. I therefore further find, in ac-
cordance with well-established precedents, that by
executing, maintaining in effect, and enforcing this
agreement, Respondent has violated Section
8(a)(3) and (1) of the Act and has rendered addi-
tional assistance and support to Retail Clerks in
violation of Section 8(a)(2) and (I) of the Act.
In view of the above findings and the remedy
hereinafter recommended, I deem it unnecessary
to, and therefore do not, determine whether
Respondent violated the Act in the additional
respects alleged in the complaint and asserted by
the General Counsel.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. By the conduct set forth in section C, supra,
of this Decision, the Respondent has rendered un-
lawful assistance and support to Retail Clerks Inter-
national Association, Local 1538, AFL-CIO, and
thereby has engaged and is engaging in unfair labor
practices within the meaning of Section 8(a)( 1)
and (2) of the Act.
2 By recognizing Retail Clerks as the em-
ployees' exclusive bargaining representative on Au-
gust 8, 1967, when Retail Clerks was a minority
union and not the freely designated bargaining
representative of a majority of the employees in the
appropriate unit, by executing a union-security
agreement with Retail Clerks on August 15, 1967,
and by thereafter maintaining and enforcing said
agreement, Respondent has engaged and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(1), (2), and (3) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices within the meaning of
"International Lathe' Garment IVorker%' Union, AFL-C/O (Bernhard-
Alhnan n Tecac Corp ) v N L R B . 366 U S 731
"Article IV provides for "Union Check-off." and article XXXII pro-
vides for "Credit Union" checkoff
354-126 O-LT - 73 - pt. 2 - 5
1210 DECISIONS OF NATIONAL
Section 8 ( a)(1), (2), and ( 3) of the Act, I will
recommend that Respondent cease and desist
therefrom and take certain affirmative action which
will effectuate the policies of the Act.
I have found that Respondent violated Section
8(a)(1) and ( 2) of the Act by granting exclusive
recognition to Retail Clerks on August 8, 1967, at a
time when the Retail Clerks was a minority union
and did not represent a free , unassisted, or un-
coerced majority of the unit employees , and further
violated Section 8(a)( 1), (2), and (3) of the Act by
executing the union -security contract with Retail
Clerks on August 15, 1967, and thereafter main-
taining and giving effect to said agreement , includ-
ing the union -security and checkoff provisions. I
will recommend that Respondent withdraw and
withhold recognition from Retail Clerks as the
representative of any of its employees at the leased
department unless and until the Board shall certify
it as such representative . I will further recommend
that Respondent cease maintaining or giving any
force or effect to the collective -bargaining agree-
ment executed on August 15, 1967, or to any
modification , extension , renewal , or supplement
thereto, and also cease giving effect to the union
checkoff and credit union checkoff cards executed
pursuant thereto. Under all the circumstances dis-
closed by this record , I find that dues, initiation
fees, and other moneys for Retail Clerks were
deducted and paid under coercion and that a reim-
bursement order is necessary fully to remedy the
unfair labor practices and to establish an atmos-
phere in which the employees may exercise the right
to select or reject a bargaining representative. I will
therefore further recommend that Respondent
reimburse all present and former employees for
dues and other moneys paid by or withheld from
them pursuant to the terms of the union -security
agreement executed on August 15, 1967, or pur-
suant to any union checkoff authorizations and
credit union checkoff cards executed by them prior
to the date of compliance with this Recommended
Order 17 Reimbursement shall include interest on
the moneys due, to be computed in the manner set
forth in Seafarers International Union of North
America, Great Lakes District , AFL-CIO, 138
NLRB 1142.
Upon the foregoing findings and conclusions and
the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following:
RECOMMENDED ORDER
Respondent, Department Store Food Corp. of
Penna., Sugar Creek Township, Pennsylvania, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving assistance and support to Retail
Clerks International Association, Local 1538,
` Intalco Aluwuuun Corporation , 169 NLRB 1034, Rut A ers Materials
Corporation , 162 NLRB 1670 , 1673, Lunarth -Central Distributing Co , Incu ,
LABOR RELATIONS BOARD
AFL-CIO, or to any other labor organization, by
participating in the solicitation of employee signa-
tures to authorization cards or by any other con-
duct proscribed by the Act, and from granting ex-
clusive recognition to and executing a contract with
any labor organization which does not represent a
majority of its employees in the appropriate unit or
which does not represent a free, unassisted, or un-
coerced majority.
(b) Recognizing the above-named Retail Clerks
as its employees' exclusive representative for col-
lective-bargaining purposes unless and until the Na-
tional Labor Relations Board shall certify it as such
representative.
(c) Maintaining or giving any force or effect to
the collective-bargaining agreement executed with
the above-named Retail Clerks on August 15, 1967,
or to any modification, extension, renewal, or sup-
plement thereto, or to any union checkoff and
credit union checkoff cards executed pursuant to
said agreement, provided, however, that nothing
herein shall require Respondent to vary or abandon
any wage, hour, seniority, or other substantive fea-
ture of its relations with its employees which has
been established in the performance of this agree-
ment, or to prejudice the assertion by employees of
any rights they may have thereunder.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain col-
lectively through representatives of their own
choosing, to engage in concerted activities or other
mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such
right is affected by the provisos in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Retail Clerks International Association, Local
1538, AFL-CIO, as the collective-bargaining
representative of any of its employees in its leased
department in Sugar Creek County, Pennsylvania,
for the purpose of dealing with the Respondent
concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other terms and
conditions of employment, unless and until the
Board shall certify said labor organization as such
representative.
(b) Reimburse all present and former employees
at the above-named leased department for all initia-
tion fees, dues, credit union payments, and other
moneys, if any, paid by or withheld from them pur-
suant to the terms of the union-security agreement
executed on August 15, 1967, or pursuant to any
union checkoff authorizations and credit union
checkoff cards executed prior to the date of com-
pliance with this Recommended Order, in the
161 NLRB 1443, 1444-45, and Pittsburgh Metal Lithographing and Hanp-
ton Merchants Association cases, supra
DEPARTMENT STORE FOOD CORP. OF PENNA. 1211
manner provided in "The Remedy" section of this
Decision.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its leased department in Sugar Creek
Township, Pennsylvania, copies of the attached
notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Re-
gion 6, after being duly signed by Respondent's
representative, shall be posted by said Respondent
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith."
'" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order " shall be substituted for the words "a Decision
and Order "
'" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
gust 15, 1967, with the above-named Retail
Clerks, or to any modification, extension,
renewal, or supplement to said agreement, but
WE WILL NOT vary or abandon the wages,
hours, seniority, or other substantive provisions
in such agreement.
WE WILL NOT withhold or deduct from the
wages of our employees any moneys pursuant
to union checkoff authorizations or credit
union cards signed by employees prior to our
compliance with this Order.
WE WILL reimburse all present and former
employees for any dues, initiation fees, credit
union payments, and any other moneys paid
the employees directly to the above-named
Retail Clerks or withheld by us from their
wages pursuant to union checkoff authoriza-
tions or credit union checkoffs signed by them
prior to the date of our compliance with this
Order, plus interest at 6 percent per annum.
The National Labor Relations Act gives all
employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through represen-
tatives they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things
WE WILL NOT interfere with any of these
rights.
All our employees are free to become or remain,
or refrain from becoming or remaining , members
of either the above-named Retail Clerks, or of
Amalgamated Meat Cutters and Butcher Workmen
of North America, Amalgamated Food Employees
Union Local 590, AFL-CIO, or of any other union.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trials
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT assist or contribute support to
Retail Clerks International Association, Local
1538, AFL-CIO, or to any other labor or-
ganization.
WE WILL NOT recognize the above-named
Retail Clerks as the exclusive representative of
our employees for the purposes of collective
bargaining unless and until it has been selected
by our employees in an election conducted by
the National Labor Relations Board.
WE WILL NOT give any force or effect to the
collective-bargaining agreement, executed Au-
DEPARTMENT STORE
FOOD CORP. OF PENNA.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, 1536 Federal Building , 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222,
Telephone 644-2969.