Gruber's Super Market, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1973

201 N.L.R.B. 612 (N.L.R.B. 1973)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gruber's Super Market, Inc. and Retail Clerks Union
Local 37, a/w Retail Clerks International Associa-
tion, AFL-CIO. Case 25-CA-4904
February 5, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On October 6, 1972, Administrative Law Judge
Melvin Pollack issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Gruber's Super
Market, Inc., South Bend, Indiana, its officers,
agents , successors , and assigns , shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Administrative Law Judge: This case
was tried at South Bend, Indiana, on August 10, 1972. The
charge was filed by the Union on April 24, 1972, and the
complaint was issued on June 29 , 1972. The primary issue
is whether Respondent Gruber's Super Market, Inc.,
granted its employees wage increases on April 5, 1972, in
violation of Section 8(a)(1) and (5) of the National Labor
Relations Act.
Upon the entire record , including my observation of the
witnesses , and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent , an Indiana corporation , is engaged at stores
I The objections were mailed from South Bend on October 6 and,
according to the testimony of a postal official , but for an inexplicable delay
in Mishawaka and South Bend , Indiana , in the retail sale
and distribution of food , nonfood and related products.
Respondent 's annual interstate purchases exceed $50,000
and its sales exceed $500 ,000. I find , as Respondent admits,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act , and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Pursuant to a Board election conducted on August 6,
1971, the Union was certified on August 16, 1972, as the
collective-bargaining representative for all regular full-time
and part-time employees at Respondent 's Mishawaka
store . About this time , nine employees at the South Bend
store mailed signed authorization cards to the Union. On
August 24, 1971, union representatives gave John Gruber,
Respondent 's president , a contract proposal for the
Mishawaka employees and also requested recognition for
the South Bend employees . Gruber examined the Union's
authorization cards and said he would have to discuss the
matter with James Gruber, Respondent 's vice president
and the manager of the South Bend store . A day or 2 later,
John Gruber advised the Union that he wanted a Board
election for the South Bend employees . On August 27,
1971, the Union made a written request for recognition,
and on August 30, 1971, filed a representation petition with
the Board . Pursuant to a consent-election agreement, an
election was scheduled for September 30, 1971 , for "all
regular full -time and part-time employees" at the South
Bend store , excluding meat department employees , office
clericals , professional employees , guards and supervisors.
On September 27, 1971, manager James Gruber spoke to
the South Bend employees about the coming election. He
asked each employee why he wanted a union. Most
employees said they were concerned about their wages.
Gruber said Respondent could not afford to give them
wage increases at that time because of expenses incurred in
opening the Mishawaka store and reminded employees
that the national "wage freeze" had been on since August
15. He said that if the Union did not win the election, the
South Bend employees would get a raise comparable to
any negotiated for the Mishawaka store employees. He
added that the employees should give Respondent a
chance and pointed out that the employees would have
another opportunity to vote for the Union after a period of
time if management failed to satisfy them. He said if the
Union got in he would have to reschedule the hours of the
stockboys who reported for work after school because he
could not afford to give 4 hours' pay to someone who
worked only 2-1/2 to 3 hours.
The election was held on September 30, 1971, as
scheduled , and resulted in a 5-5 vote . The Union filed
objections to the election on October 8, 1971,i and a
hearing was held on the objections on February 16, 1972.
On April 5, 1972 , Respondent gave the South Bend
employees wage increases comparable to those negotiated
would have been received at the Board 's Indianapolis office on October 7.
201 NLRB No. 98
GRUBER'S SUPER MARKET, INC.
at the Mishawaka store and put into effect in late
December 1971. On April 10, 1972, the Hearing Officer
issued his report on objections and recommended that the
September 30, 1971, election be set aside and a second
election be held. The Board on June 8, 1972, adopted the
Hearing Officer's recommendations.
B. Analysis and Conclusions
Respondent contends that its policy was to pay uniform
wages at the Mishawaka and South Bend stores, that it
would have given the South Bend employees the wage
increases negotiated for the Mishawaka employees in
December 1971 but for the unresolved objections to the
election, and that in fairness to the South Bend employees,
some of whom had not had a raise for 2 years in a period
of inflation, it gave them wage increases on April 5, 1972,
without waiting further for what it considered an unduly
delayed decision on the Union's objections.
The record shows, however, that on September 27, 1971,
manager James Gruber promised the South Bend employ-
ees wages comparable to those that might be negotiated for
the Mishawaka store employees if they voted against the
Union at the election on September 30. He urged the South
Bend employees to go along with management and pointed
out that if management failed to satisfy them, they could
vote for the Union at a later election.2 Several employees
after the election inquired about wage increases, but it does
not appear that they threatened to leave Respondent's
employ if their wages were not increased. Nor does it
appear that Respondent lost any significant number of
employees because of wages, for 8 out of 10 eligible voters
in the September election were still in its employ when it
gave a general wage increase on April 5, 1972. In these
circumstances, I find that Respondent's grant of a wage
increase at a time when it faced the possibility of a second
election was designed to erode union support among the
employees, and hence was violative of Section 8(a)(1) of
the Act.3 Cf. All-Tronics, Inc., 175 NLRB 644; Collins
Mining Co., 177 NLRB 221, 236-237.
The Union when it requested recognition on August 24,
1971, had obtained valid authorization cards4 from a
majority of the employees in the following appropriate
unit: All regular full-time and part-time employees at the
South Bend store, excluding meat department employees,
office clerical employees, professional employees, guards
and supervisors.5 Respondent's conduct in giving all the
2 Although unfair labor practice findings may not be based on Gruber's
remarks as they occurred more than 6 months before the filing of the charge
(Sec. 10(b) of the Act), his remarks "may be utilized to shed light on the true
character of matters occurring within the limitation period ...." Local
Lodge No. 1424 IAM (Bryan Manufacturing Co.) v. N. L. R. B., 362 U.S. 411,
416-417(1960).
3 Respondent contends that the Union's objections were untimely filed
and should have been overruled out of hand . As noted above, the objections
would have been timely received at the Board 's Regional Office but for an
inexplicable delay in the postal service . The processing of the objections in
these circumstances accords with Board policy. Rio de Oro Uranium Mines,
Inc., 119 NLRB 153.
4 Respondent contends that five of the nine employees who signed union
cards did not understand the significance of the cards because they had
never talked to any representative of the Union before signing the cards. As
the cards in clear and unambiguous language authorized the Union to act as
the collective-bargaining agent of the signatory employees, I find Respon-
dent's contention without merit.
613
employees in the bargaining unit a substantial wage
increase , in violation of Section 8(a)(1), is such as to have a
lingering effect and to make it unlikely that the use of
traditional remedies will insure a fair rerun election. C & G
Electric, Inc., 172 NLRB 427; Tower Enterprises, Inc., 182
NLRB 382. The unambiguous cards validly executed by a
majority of the employees in the bargaining unit therefore
represent a more reliable measure of employee desire on
the issue of representation in this case. I find, accordingly,
that Respondent by refusing to recognize the Union on the
basis of its authorization cards engaged in conduct
violative of Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
By granting its employees wage increase on April 5,
1972, in order to discourage support of the Union, and by
refusing to bargain with the Union, Respondent engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(axl) and (5) and Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
The Board has held that a bargaining order is warranted
under Gissel6 where , as here, an employer refuses recogni-
tion to a union which has obtained valid authorization
cards from a majority of the employees in an appropriate
bargaining unit , and thereafter grants substantial wage
increases to a high percentage of the employees in violation
of Section 8(a)(l) of the Act. G & G Electric, Inc., 172
NLRB 426; Tower Enterprises, Inc., 182 NLRB 382, fn. 1. I
shall therefore recommend that Respondent, upon request,
bargain with the Union.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:7
ORDER
The Respondent, Gruber's Super Market, Inc., its
officers, agents, successors, and assigns, shall:
5 Respondent contends that high school students , employed as stockboys
at the South Bend store , should be excluded from the unit because they
"come and go all the time" and leave Respondent 's employ after
graduation. The test, however, is not whether the students seek permanent
employment with Respondent but whether the circumstances of their
employment give them a community of interest with the other employees
with respect to wages, hours, and working conditions . Simon Brothers Co.,
133 NLRB 906, 912. Students, such as those involved in this proceeding,
who regularly work a substantial number of hours weekly are therefore
properly included in the unit.
6 N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575.
7 In the event no exceptions are filed as provided by Sec. 102.48 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions, recommendations , and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Granting wage increases in order to discourage
support of Retail Clerks Union Local 37, affiliated with
Retail Clerks International Association, AFL-CIO, or any
other labor organization.
(b) Refusing to recognize and bargain collectively with
the above-named labor organization, as the exclusive
representative of its employees in the following unit found
to be appropriate for collective bargaining purposes:
All regular full- time and part-time employees of
Gruber's Super Market, Inc., at its South Bend store,
excluding meat department employees, office clericals,
guards, professional employees, and supervisors.
(c) In any like or related manner , interfering with,
restraining , or coercing its employees in the exercise of
their rights under the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of the
employees in the unit set forth above with respect to rates
of pay, wages, hours of employment, and other conditions
of employment and if an understanding is reached embody
the same in a signed agreement.
(b) Post at its South Bend, Indiana, store, copies of the
attached notice marked "Appendix."8 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.9
8 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 25, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT grant wage increases in order to
discourage support of Retail Clerks Union Local 37,
affiliated with Retail Clerks International Association,
AFL-CIO, or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their rights under the National Labor Relations Act.
WE WILL bargain collectively , upon request, with
Retail Clerks Union Local 37, affiliated with Retail
Clerks International Association , AFL-CIO, as the
exclusive bargaining representative of all our employ-
ees in the appropriate unit described below with respect
to rates of pay, wages , hours of employment , and other
terms and conditions of employment and if an
agreement is reached embody such understanding in a
signed agreement . The appropriate unit is:
All regular full-time and part-time employees of
Gruber's Super Market , Inc., at its South Bend store,
excluding meat department employees , office clericals,
guards , professional employees , and supervisors.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the
above-named or any other labor organization except to the
extent that this right may be affected by an agreement in
conformity with Section 8(aX3) of the National Labor
Relations Act as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
GRUBER'S SUPER MARKET,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 614 ISTA Center, 150 West
Market Street , Indianapolis , Indiana 46204 , Telephone
317-633-8921.
I