Garden Super Market, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1964

148 N.L.R.B. 583 (N.L.R.B. 1964)

GARDEN SUPER MARKET, INC. 583
founded principle by legitimizing the Employer's conduct because
the Union also reached the employees with its campaign material.
Comment amounting to threats is not diluted by such means, for
threats by one having economic control over the voters cannot be
dispelled or abated by a response from any outside source.4 The fact
that a party has an opportunity to respond is material only in deter-
mining whether a misrepresentation warrants setting an election
aside. Time to reply is immaterial where interference with an elec-
tion occurs by other conduct, such as threats or the undue creation of
fears of economic loss. As set forth in my dissenting opinion in
Shure Brothers, Incorporated,' the rationale behind this difference is
the fact that misrepresentations are appeals to reason based on er-
roneous facts, whereas other types of improper campaign material
have their impact by generating fear. Misstatements of fact possi-
bly can be met by the supplying of correct information, but an emo-
tional reaction of fear is not responsive to denials or explanations and
cannot be dissipated or counterbalanced by factual replies.
Here the Employer's sustained emphasis on the probability of job
loss if the Union were certified could only prevent the uncoerced vote
which the Act envisions. Accordingly,,I would direct the Regional
Director to hold another election.
* Oak Manufacturing Company, 141 NLRB 1323; see also Trent Tube Company, Sub-
sidusry of Crucible Steel Company of America, 147 NLRB 538 ( dissenting opinion)
5147 NLRB 43
Garden Super Market , Inc. and Retail Clerks , Union , Local 1015,
Retail Clerks International Association , AFL-CIO. Case No.
17-CA-2337. August 28,'1964
DECISION' AND ORDER
On. May 5, 1964, Trial Examiner Robert E.. Mullin issued his De-
cision in the above-entitled proceeding; finding that the 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 De-
cision. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision with a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers 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.
148 NLRB No. 64.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 1'0(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the ' Trial Examiner, and orders that the Respondent,
Garden Super Market, Inc., Omaha, Nebraska, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on November 8 and December 13,
1963, by Retail Clerks Union, Local 1015, Retail Clerks International Association,
AFL-CIO, herein called Retail Clerks or Union, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director for Region 17 (Kansas
City, Missouri), issued a complaint, dated December 20, 1963, against Garden Super
Market, Inc., herein called Company or Employer. The complaint sets forth the
specific respects in which it is alleged that the Respondent violated Section 8 (a) (1)
and (5) of the National Labor Relations Act, as amended, herein called the Act.
The Respondent duly filed an answer in which it conceded certain facts with respect
to its business operations, but denied all alleged unfair labor practices with which
it is charged.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E
Mullin at Omaha, Nebraska, on February 3 and 4, 1964. All parties appeared at
the hearing and were given full opportunity to examine and cross-examine witnesses,
to introduce relevant evidence, to argue orally after presenting the evidence, and
to file briefs. The parties waived oral argument On March 23, 1964, the General
Counsel and the Respondent filed briefs which have been fully considered.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Employer herein, a Nebraska corporation with its office and principal place
of business in Omaha , Nebraska , is engaged in the retail sale of groceries and
related products . In the course and conduct of its operations its annual sales of
merchandise exceed $500,000 in gross value , and its annual volume of purchases
directly from outside the State of Nebraska exceed $50 ,000 in value . Upon the
foregoing facts the Respondent concedes , and the Trial Examiner finds, that Garden
Super Market , Inc., is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes and the Trial Examiner finds that the Union is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and sequence of events
The Respondent in this case operates a large supermarket in Omaha, Nebraska
At the time in question it had approximately 40 employees. Meyer Meyerson is
the president, and Bernard Kauffman, his brother-in-law, is the only other officer.
These two individuals are also the only stockholders in the Respondent corporation.
Arthur Anderson is the store manager for Garden Super Market.
GARDEN SUPER MARKET, INC. 585
Edwin H. Arnold, International representative for the Retail Clerks, began an
oganizational campaign among the employees of the Respondent in October 1963.
On October 17 he met with several of the employees at the home of one of their
number and on this occasion persuaded those present to sign authorization cards in
the Union. On October 21, Arnold and Dean Powers, the latter being secretary-
treasurer of Local 1015, requested recognition from the Respondent. This was
declined. Thereafter, the supervisory personnel of the Employer engaged in certain
acts and conduct which the General Counsel alleges to have been violative of Sec-
tion 8 (a) (1) . This is denied by the Respondent.
B. The alleged acts of interference, restraint, and coercion; findings and
conclusions with respect thereto
At the outset of the union campaign to organize the Respondent's employees,
Arnold contacted Alyce Chambers, one of the checkers. The latter signed an
application for membership and on October 17 an organizational meeting was held
at her home. This was attended by about nine of the Respondent's employees.
Arnold spoke to the group, discussed the benefits which the Union would endeavor
to obtain, and induced all present to sign authorization cards. He then gave a num-
ber of other cards to Marvin Kellogg, one of the employees present, who promised to
secure additional signatures.
On October 18, Meyer Meyerson returned to the store after having been absent
several months because of a serious illness On or about October 20, Meyerson
questioned Chambers as to her knowledge of the union efforts to organize her co-
workers. The latter acknowledged that both she and her fellow employees had an
interest in the Union and that they had decided that a labor organization was
needed at the store. According to Chambers, Meyerson then told her that "he felt
there were a bunch of kids here that had gotten together and were incompetent
of deciding what was really best for the store and the employees " Chambers
testified that he concluded the conversation with the statement that "if the union
was to come into the store that things would be changed. He would be a changed
person . . . that . the employees had. a pretty good thing going . . . and pos-
sibly he would not be quite so lenient with them as he had before " 1
On October 21, 1963, after several weeks of organizational effort among the
Respondent's employees, Edwin Arnold and Dean Powers went to the Respondent's
place of business where they sought out Store Manager Arthur Anderson. There, the
union representatives told Anderson that the Retail Clerks represented a majority of
the employees in the store, exclusive of those working in the meat department.
They asked for recognition and presented to the manager several copies of a recogni-
tion agreement. According to Arnold, Anderson responded to the latter request with
the statement, "Do you want me to hang myself . I couldn't sign it, because
I don't have the authority." Arnold testified that Anderson then asked for evidence
as to the Union's claim to represent the employees and that he told Anderson that he
had the authorization cards in his pocket. Arnold refuse to accede to Anderson's
request that he be permitted to examine a specific card, but assured the store manager
that the Union would agree to a card check. Arnold then asked him what he
proposed to do and Anderson told him that he planned to do nothing, that "the
employees do not need a union . you fellows just `go away." 2 Finally, in con-
cluding the conversation, Anderson' agreed that he would discuss the matter with
Respondent's attorney.
Immediately after leaving the store, Arnold and Powers prepared a letter to the
Respondent in which they reviewed their conversation with Anderson and renewed
their demand for recognition and an opportunity to bargain as the majority rep-
resentative. In this letter the union representatives also stated that they would be
willing to have their claim to a majority determined through a card check made by a
neutral party. Gene Alexander, one of the employees, testified, that shortly after
Anderson received such a letter from the Retail Clerks, the store manager came to
him and asked whether he knew who had started the Union. Alexander disclaimed
knowledge as to the identity of the one responsible for initiating the campaign,
but volunteered the information that Marvin Kellogg had passed out authorization
cards among the employees On this same day, Anderson sought out Kellogg while
the latter was at work in the stockroom and asked him why had he "started this
Union?" Kellogg feigned complete ignorance of the subject and did not answer.
1 Chambers was a credible witness Meyerson did not deny or contradict her testimony
when he was called to the stand
2 The quotation is from Arnold ' s credible , undenied , and uncontradicted testimony
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During this same period, Anderson approached Gene H. Rose, another employee, to
ask what he knew about the Union. Rose endeavored to avoid answering the question
and Anderson concluded the discussion by telling Rose that he was being awarded a
10-cent raise.3 On or about October 25, Anderson questioned Gary D. Reynolds and
Arthur J. Klabunde, two of the stockroom employees. Both were young, part-time
workers who were still in high school. Both had also signed authorization cards in
the Retail Clerks. On this occasion Anderson questioned them as to whether they
had secured the union cards from Kellogg and they answered in the affirmative.
Klabunde was then asked whether he knew of any other employees who had signed
cards and the latter disclosed the most of those classified as "carry-out boys" had done
so. Klabunde, however, did not identify any of the card signers by name. Ander-
son closed his conversation with these two employees by telling them that if the
Union succeeded in organizing the store the part-time workers, such as Reynolds
and Klabunde, would have their hours cut and that the full-time employees, such as
one John Janda, whom he mentioned, would be cut from $125 to $85 4
In the period immediately after the request of the Retail Clerks for recognition,
Meyerson questioned a number of the employees as to their union activities. About
October 28 he called Marvin Kellogg into his office and asked him why the em-
ployees "go behind his back." 5 During the course of this conversation, Meyerson
told Kellogg that if the Union organized the store, some of the regular employees
would suffer a loss of from $25 to $30 a week because they would have no more
overtime. The following day Meyerson engaged Kellogg in another conversation
about the Union. On this occasion the Respondent's president showed the employee
a contract which the Retail Clerks had with another supermarket. He then told
Kellogg that if such an agreement were in effect at his store , one of the employees
whom he named and who was generally regarded as an alcoholic, would have to
be dropped because the Respondent could not afford to pay him what the Union
would demand. John Janda, Jr., another employee, was off work on October 31.
According to Janda, Meyerson telephoned him at his home and told him, "Johnny,
this is Meyer . I don't want you to lie to me. . . . Did you sign one of those
cards9" When Janda acknowledged that he had done so, Meyerson told him that
if the Union came into the store Janda might lose as much as $30 a week Accord-
ing to Janda, he closed the conversation with the admission that he was sorry that
he had ever signed a card. On that same day, Meyerson called Gary Reynolds into
his office and questioned the latter as to why Reynolds had signed an authorization
card. According to the employee, Meyerson told him that "he was kind of angry
because we had not waited until he got back and had done it . . . while he was
flat on his back." Meyerson referred to the likelihood of a cut in the hours if a
union represented them and concluded the conversation by asking Reynolds for
the names of those who had signed cards. The latter then disclosed to the Respond-
ent's president the names of all the coworkers whom he knew had signed authoriza-
tions. On November 3, Meyerson called Reynolds to his office again and on this
occasion reviewed the likelihood of a cut in hours if the Union came in, reminded
Reynolds of his disappointment with the employees for having signed union cards,
and told Reynolds that he was going to get some more money when Meyerson had
an opportunity to straighten out certain records .6 On November 4, Meyerson ques-
tioned Klabunde as to whether he had signed a union card. When Klabunde an-
swered in the affirmative, Meyerson told him that he felt that it was wrong for the
employees to have done such a thing while he was sick in a hospital and that "he
was disappointed with the way we went behind his back . " Meyerson con-
cluded the conversation by telling the employee that he had planned to give him
a raise but that he could not do it at the moment because it would look like a bribe
since the Union then had pickets in front of the store?
3 This was the first raise that Rose received while in the Respondent's employ.
4 The findings in this paragraph are based on the credible, undenled,'and uncontradicted
testimony of the employees specified Anderson appeared at the hearing and testified but
was not asked about these conversations which the employees attributed to him.
5 The question is from Kellogg's credible, undenied testimony
6 Meyerson testified that he could not recall having made these comments to Reynolds.
He did not, however, deny that he ever had such a conversation Reynolds' version of this
meeting was credible It is found by the Trial Examiner to be an accurate account of the
conversation with Respondent's president
7 The Union began picketing the Respondent's supermarket on November 1.
GARDEN SUPER MARKET, INC. 587
Concluding Findings
The General Counsel alleges that the Respondent engaged in unlawful interfer-
ence, restraint , and coercion of its employees through the activities of Anderson and
Meyerson set forth above. This is denied by the Respondent and in its brief the
latter relies upon Blue Flash Express, Inc., 109 NLRB 591, and related cases, to
support its contention that none , of the foregoing conversations and interrogation
breached the Act. This latter argument , however, ignores the context of threats
and promises of benefit in which these conversations occurred . Thus, on one of
the first occasions when Meyerson questioned an employee (Chambers) about
the organizational activity then under way, he told her that "if the union was to
come into the store . . . things would be changed . He would be a changed per-
son . he would not be quite so lenient with them as he had before ." He told
Reynolds that their conduct had made him "angry" and Kellogg was questioned as
to why the employees had gone "behind his back." Both Meyerson and Anderson
told several of the employees that the advent of a union would mean a cut in wages
and a loss of overtime . During this same period , Meyerson told Reynolds that the
latter was going to "get some money" and Klabunde that a raise which was planned
for this employee would be impossible because of the Union's picketing. In the
meantime , upon questioning Rose, another employee, about the Union , Anderson
told him that he was getting a 10-cent raise. On the facts found above , the Trial
Examiner concludes and finds that the Respondent violated Section 8(a)( I) of the
Act through the conduct of Meyerson and Anderson set forth in this paragraph.
Further, it was likewise coercive and a violation of the same subsection of the Act:
(1) for Anderson to interrogate Alexander, Kellogg, Ross, Reynolds, and Klabunde
about their union activities ; and (2 ) for Meyerson to question Chambers , Kellogg,
Janda, Reynolds, and Klabunde about their union sympathies and their support of
the Retail Clerks. The Trial Examiner so finds s
C. The evidence as to the alleged violations of Section 8(a)(5); findings and
conclusions with respect thereto
1. The appropriate unit
The General Counsel contends that all full-time and regular part-time employees
of the Respondent , excluding meat department employees , guards, and supervisors
as defined in the Act, constitute a unit appropriate for the purpose of collective-
bargaining within the meaning of Section 9(b) of the Act. The Respondent entered
a general denial as to the appropriateness of this unit , but offered neither evidence
nor argument to support this position . The unit alleged as appropriate is the same
as that which the Union sought when it first requested recognition 9 and it is the
conventional unit found by the Board to be, appropriate in retail supermarkets.
8The General Counsel also alleged that the Respondent violated Section 8(a)(1)
through the interrogation of employee Charlotte Legon by Vivian Oruch, the head checker
at the store and , according to the General Counsel, a supervisor The testimony disclosed
that although Oruch takes care of the cash for all the other checkers , she herself works
at a checkout counter throughout the workday About 1 hour a week she is detailed to
the store office and helps write checks for supplies and merchandise . She does not write
any of the payroll checks . She has a key to the front door of the store and occasionally
opens it when the manager has not arrived She effectively recommended the hiring of
one employee during the course of 3 years' employment Meyerson testified, however, that
this was not unusual and no index of supervisory status because he often solicits recom-
mendations from any of the employees , including the carryout boys, as to friends and
relatives whom they feel that the Respondent might hire Meyerson denied that Oruch
had any authority to hire, fire, promote , or exercise any other prerogatives of supervision
While it is obvious that Oruch has more responsibilities than any of the other checkers,
it is the conclusion of the Trial Examiner that the General Counsel has not established
by a preponderance of the evidence that she is a supervisor within the meaning of the
Act. Accordingly , a motion of the Respondent to strike all testimony as to Oruch is
granted . It will also be recommended that paragraph VIII( a) of the complaint be dis-
missed insofar as it alleges that the Respondent violated the Act through the activities
of Oruch
9 On October 21, 1963, Arnold and Powers asked that Store Manager Anderson sign an
agreement which would recognize the Retail Clerks as the majority representative for a
unit composed of "All employees of the employer, full- time and part -time, except the store
manager , meat department employees, and those excluded by the National Labor Relations
Act, as amended " -
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weis Markets, Inc., 116 NLRB 1993, 1994-1995; Safeway Stores, Incorporated
110 NLRB 1718, 1730-1731. Cf. The Great Atlantic & Pacific Tea Company, Inc.,
132 NLRB 799; Winn-Dixie Stores, Inc., and its subsidiary Winn-Dixie Green-
ville, Inc, 124 NLRB 908. Accordingly, it is the conclusion of the Trial Examiner
that the above-described unit is appropriate here.
The Union made its first demand for recognition on October 21, 1963. The Gen-
eral Counsel and the Respondent stipulated as to the payrolls for the weeks ending
October 19 and 26. Exclusive of Meyer Meyerson, Bernard Kauffman, and Arthur
Anderson, who appear on these lists and whom the Respondent concedes to be
supervisors, 38 employees are listed for the period ending October 19 10 Of this
number, the parties further stipulated that 11 employees'were in the Respondent's
meat department and should, therefore, be excluded from the unit.il Another em-
ployee on the list, E. Meyerson, was the mother of the Respondent's president.
Although carried on the rolls as a checker and with no specific supervisory duties,
Meyerson conceded that he realized that the employees "respect her more because
she is my mother " It is manifest that because of her relationship to the owner
of the business, Mrs. Meyerson "enjoys a special status which allies [her] interests
with those of management." Adam D. Goettl and Gust Goettl, d/b/a International
Metal Products Company, 107 NLRB 65, 67. For this reason the Trial Examiner
concludes and finds that she should be excluded from the unit. Cf. N.L.R.B. v.
0. U Hofmann, O. F. Hofmann, and Phillip Hofmann t/a O. U. Hofmann & Sons,
147 F. 2d 679, 680-681 (C.A. 3).
Meyerson testified that 12 of the individuals on the Respondent's payroll during
this period were part-time employees.12 Meyerson further testified that he tried
to keep the part-time workers on the same schedule from one week to the next. As
a result these 12 employees are in the category generally described as regular part-
time employees and, therefore, should be included in the unit. The Great Atlantic
& Pacific Tea Company, Inc., supra, at 802; Winn-Dixie Stores, Inc., etc., supra, at
912-913
With the exclusion of the 11 meat department employees and Mrs. Meyerson, the
rest of the full-time and part-time employees in the unit on the date in question
totaled 26 The General Counsel established that 18 employees signed authoriza-
tion cards between October 14 and 20, 1963 These cards were received in
evidence.13 At the hearing, the General Counsel stated that Marshall Legon, one
of the card signers, was only employed for a period of from 4 to 6 weeks and could
not, therefore, be considered either a full-time or a regular part-time employee. In
addition, in his brief, the General Counsel conceded that the name of Jerome Adams,
another card signer, does not appear on the payroll for October 19. The names
of all the other 16 employees who signed authorization cards appear on the pay-
rolls for both October 19 and 26.14 Thus on October 21, with 16 authorizations
in a unit of 26 employees, the Retail Clerks had a clear majority.
2. The refusal to bargain
As found earlier herein, on October 21, both in a meeting with Store Manager
Anderson and by letter, the Retail Clerks requested recognition as the majority
representative for a unit herein found to be appropriate. At the same time, both
in their conversation with Anderson and in the letter dispatched to the Resnondent
on the same date, Arnold and Powers offered to establish the Union's majority status
by having an impartial third party examine the authorization cards and check them
against the company payroll. Anderson's initial response was to tell the representa-
1" With the exclusion of Meyerson, Kauffman, and Anderson, the payroll for October 26
lists only 27 employees
11 The meat department employees were E Bratetic. A M Oruch, M. Maher, G Bratetic,
A C Johnson, F Vincent, 11M Kill, T. Waite. M J Schiesow, C Thompson, and R Hooks
19 These were A J Klabunde, F Conley, J Bell, Al T Legon, J. Adams, G Reynolds,
B Howard C. Brown, C E Davis, L Santo, Ni. Dingle and C J. Dearborn
13 Although at the time of this offer the Respondent objected to the introduction of these
cards on the ground that no proper foundation had been laid, its counsel conceded that
there was no dispute as to the authenticity of the signatures Thus, Attorney Kratz
stated: "I don't think there is any question that they actually signed them, that [these
arej the signatures of the persons in question, I don't think there is any question on it"
34 Viz, Alyce Chambers, Jerry Adams, Dorothy Chambers, Marvin Kellogg, Charlotte
Legon, David Russ Norwood Dingle, Garv D Reynolds, Gene H Rose, Arthur John
Klabunde, John Janda, Jr, John Howard, Carlton Dearborn, Freddie Cornley, Otis Brown,
and John Bell.
GARDEN SUPER MARKET, INC. 589
tives of the Retail Clerks that the employees did not need a union and that the
organizers should "just go away." Finally, he concluded the meeting with a
promise that he would contact the Respondent's attorney.
By letter dated October 23, 1963, the Union renewed its request for recognition
and stated that if this was not accorded it would establish a picket line at the Re-
spondent's store to advertise to the general public the position of the Company. On
October 28 and 31, Arnold discussed the union demand with Attorney Richard M.
Fellman, counsel for the Respondent. At this time Respondent's counsel told
Arnold that Meyerson would insist on an election before recognizing the Union.
Arnold, on the other hand, stated that at that point the Union would no longer
agree to an election because the employees had reported to him that since the
original request for recognition the management had engaged in various acts of
interference and coercion.
On November 1, the Union established a picket line at the Respondent's store.
On November 4, representatives of both the Union and the Employer met at Fell-
man's law' offices. Present for the Respondent were its attorneys, Fellman and
Kratz, and Meyerson. The Union was represented by Arnold and Powers. Also
present was one Silhasek, a business agent for the Amalgamated Meat Cutters 15
Both Arnold and Meyerson testified with respect to what transpired at this meet-
ing. There was no substantial conflict in their respective versions of'what occurred.
According to Arnold, he stated at the outset that the Union was entitled to im-
mediate recognition, that it had authorization cards from a majority of the employees
in the unit, that it was renewing the offer to have an impartial third person, judge,
minister, or priest, or anyone agreeable to the parties, check the payroll against
the cards, and that at that point the Union expected to be recognized. According
to Arnold, Attorney Fellman then stated, "We don't doubt but what you represent
a majority of the people or else you wouldn't have made a demand on us for rec-
ognition, nor would you have sent the letters which you did or commenced picket-
ing on November 1." Meyerson, however, insisted that there should be an election.
According to Arnold, the latter stated, "I don't doubt but what you represent a
majority of the people, but I still believe the democratic way is to have an election
conducted by the government." Arnold then stated that the Union would no longer
consent to an election because of what it then knew about the conversations which
Anderson and Meyerson had had with the employees during the preceding weeks.
When called as a witness, Meyerson did not deny or contradict any of the fore-
going testimony which Arnold had given. He reiterated the Respondent's position
that an election was needed and added that at this conference the Employer sought
to have the Union join with it in petitioning for an election. The meeting closed
with neither side having changed its position.
On November 5, Meyerson and Arnold met outside the store for a short while,
and discussed the possibilities of a contract. Meyerson concluded the meeting with
the statement that he would contact Arnold the following day. Arnold testified,
at the hearing, however, that thereafter he heard nothing further from Meyerson.
3. The refusal to bargain
In response to the General Counsel's allegation that the Company violated Section
8(a) (5) of the Act, the Respondent contends that it had a good-faith doubt whether
the Retail Clerks represented a majority of the employees in an appropriate unit
so that it was not required to bargain until the Union had established its majority in
a Board election.
In -the event an employer has an honest doubt as to a union's purported majority
or the unit which the Board would find appropriate, it is well settled that he may
insist on a formal representation proceeding and a Board-conducted election to
resolve such doubts before being obligated to bargain. N.L.R.B. v. Jackson Press,
Inc., 201 F. 2d 541, 544-545 (C.A. 7); Joy Silk Mills, Inc. v. N.L R.B., 185 F.
2d 732 (C.A.D.C.); cert. denied 341 U.S. 914. However, such a position on the
part of an employer is not tenable - should the evidence develop that he did not
entertain any real doubt of the Union's majority and.that his insistence on certifica-
tion was motivated largely by a desire to gain time to destroy the Union's support.
NL.R.B. v. Wheeling Pipe Line, Inc., 229 F. 2d 391, 393 (C.A. 8); N.L.R.B. v.
W. T. Grant Company, 199 F. 2d 711, 712 (C.A. 9), cert.;denied 344 U.S. 928;
N.L.R.B. v. Ken Rose -Motors, Inc., 193 F. 2d 769, 771 (C.A. 1).
15 The 11 employees' of the Respondent's meat department are represented by the latter-
named union.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earlier herein , it was found that from the time when the Respondent first learned
that the employees were interested in securing a labor organization to represent
them, the Respondent engaged in a continuing series of violations of Section 8(a) (1)
of the Act through the actions and conduct of Meyerson and Anderson set forth in
detail above. In the light of this course of conduct , as well as the statements of
Meyerson and his counsel on November 5, the Trial Examiner concludes and finds
that the Respondent did not have a bona tide doubt as to the majority status of the
Retail Clerks and that , by its refusal to bargain with that union on October 21,
1963, or at any time subsequent hereto, it violated Section 8(a) (5) of the Act.
Joy Silk Mills, Inc. v. N.L.R.B., ibid, at 741-742, National Furniture Manufactur-
ing Company, Inc., 130 NLRB 712, 724-725; The Bedford-Nugent Corp., 137
NLRB 1030, 1036-1037.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, the
Trial Examiner recommends that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act. Having
found that the Respondent unlawfully refused to bargain with the Retail Clerks
the conventional remedy includes a provision that the' Employer bargain with that
Union. -
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All full-time and regular part-time employees of the Respondent , excluding
meat department employees, guards, and 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.
3. At all times since October 20, 1963, the Union has been the exclusive representa-
tive, for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act, of all the employees in the aforesaid appropriate unit.
4. By refusing, on and since October 21, 1963, to bargain collectively in good
faith with the Union as the exclusive representative of its employees in the aforesaid
appropriate unit the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 ( a) (5) of the Act.
5. By interfering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record , and pursuant
to Section 10(e) of the Act, the Trial Examiner hereby recommends that the Respond-
ent, Garden Super Market, Inc., its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with Retail Clerks Union, Local 1015,
Retail Clerks International Association, AFL-CIO, as the exclusive representative
of all its employees in the following appropriate unit : All full-time and regular part-
time employees of the Respondent , excluding meat department employees , guards, and
supervisors as defined in the Act. -
(b) Coercively, or otherwise ' unlawfully, interrogating employees concerning
their own union activities or, those of their coworkers.
(c) Warning employees that the advent of a union will result in a cut in hours of
employment and a loss of overtime.
(d) Soliciting employees with promises of wage raises or other economic favors
to induce them to abandon their affiliation with , or support of, any labor organization.
(e) In any like or related manner interfering with , restraining , or coercing em-
ployees in the exercise of their rights guaranteed under Section 7 of the Act.
GARDEN SUPER MARKET, INC. 591
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all the employees in the appropriate unit, and embody
in a signed agreement any understanding reached.
(b) Post at its store in Omaha, Nebraska, copies of the attached notice marked
"Appendix." 16 Copies of said notice, to be furnished by the Regional Director for
Region 17, shall, after being duly signed by the Respondent, The posted by the
Respondent immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notice is not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in writing, within 20 days from the
date of the receipt of this Decision and Recommended Order, what steps the Respond-
ent has taken to comply herewith.17
18 In the event that this Recommended Order shall be adopted by the Board, the words
"a Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order "
17In 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL, upon request, bargain with Retail Clerks Union, Local 1015, Retail
Clerks International Association , AFL-CIO, as the exclusive representative of all
the employees in the bargaining unit described below, with respect to rates of pay,
wages, hours, and other conditions of employment , and, if an understanding is
reached, embody such understanding in a signed agreement . The bargaining
unit is:
All full-time and regular part -time employees , excluding meat department
employees, guards, and supervisors as defined in the Act.
WE WILL NOT coercively , or otherwise unlawfully, interrogate employees
concerning their own union activities or those of their coworkers ; warn em-
ployees that the advent of a union will result in a cut in hours of employment and
loss of overtime ; solicit employees with promises of wage raises or other
economic favors to induce them to abandon their affiliation with or support of
any labor organization ; or refuse to bargain collectively with the aforesaid
union as the exclusive representative of the employees in the bargaining unit
described above.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist the above -named or any other labor organization , to bargain collectively
through representatives of their own choosing , to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection , or to refrain from any or all such activities.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members of any labor organization.
GARDEN SUPER MARKET, 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.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore
1-7000, Extension 731, if they have any question concerning this notice or com-
pliance with its provisions.
Lamar Electric Membership Corporation and International
Brotherhood of Electrical Workers, AFL-CIO. Case No.
10-Cf1-5580. August 28, 1964
DECISION AND ORDER
On May 12, 1964, Trial Examiner George Bokat issued his Decision
in the above-entitled proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices within the
meaning of the Act and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Lamar
Electric Membership Corporation, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard at Barnesville, Georgia, on March 17, 1964, before Trial
Examiner George Bokat, pursuant to a charge filed the preceding January 8 and
a complaint issued on February 7, 1964. At issue is whether the Respondent violated
Section 8(a)(5) and (1) of the Act following the certification of the Charging
Union. Disagreeing with the validity of the certification and to test that issue,
Respondent, as it concedes, has refused to bargain with the Union in respect to the
employees in the unit embodied in the certification, though requested to do so. Upon
the entire record, and after due consideration of the brief filed by the Respondent, I
make the following:
148 NLRB No. 73.