Hy-Vee Food Stores, Inc.

National Labor Relations Board - Board Decisions

May 21, 1969

176 N.L.R.B. 54 (N.L.R.B. 1969)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hy-Vee Food Stores, Inc., and Amalgamated
Meatcutters & Butcher Workmen of North
America , AFL-CIO, Local Union 576, Charging
Party . Case 17-CA-3650
May 21,1969
By MEMBERS FANNING, BROWN, AND ZAGORIA
DECISION AND ORDER
On February 24, 1969, Trial Examiner Owsley
Vose issued his Decision 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 Decision. He
also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint,
and recommended that such allegations be
dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision 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
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 brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Hy-Vee Food
Stores, Inc., Kirksville, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.'
'However , nothing herein shall be construed as requiring the Respondent
to vary or abandon any existing terms or condition of employment.
We reject , as did the Trial Examiner , the Union ' s request for a
monetary remedy to make the employees whole for losses they may have
suffered as a result of the Respondent's unlawful refusal to bargain. In
denying the said request, however , we do not adopt or pass upon the Trial
Examiner 's specific reasoning , but do so because we deem it inappropriate
in the case to depart from our existing policy with respect to remedial
orders in cases involving violations of Sec. 8 (a)(5).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case was heard at
Kirksville, Missouri, on November 19, 1968, pursuant to a
charge filed on August 19, 1968, and a complaint issued
on October 15, 1968 The complaint, as amended at the
hearing, presents the question whether the Respondent's
admitted refusal to meet and bargain collectively with the
Charging Party (hereinafter called the Union) and its
subsequent conduct after being presented with the Union's
bargaining request violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended.
Upon the entire record in the case, my consideration of
the briefs filed by the parties, and from my observation of
the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Iowa corporation, is engaged in
the retail sale of groceries and related products at 63
stores in Iowa and Northern Missouri. The Respondent's
store in Kirksville, Missouri, is the only facility involved
in this proceeding. In the course and conduct of its
business operations, the Respondent annually has a gross
volume of business in excess of $500,000 and annually
receives products valued in excess of $50,000 which are
shipped to it directly from points outside the States of
Missouri and Iowa. Upon these facts I find, as the
Respondent admits, that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and that it will effectuate the policies of the Act
to assert jurisdiction herein.
[I. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Amalgamated Meatcutters &
Butcher Workmen of North America , AFL-CIO, Local
Union 576 , is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent's Refusal to Bargain Collectively
with the Union and its Acts of Interference,
Restraint, and Coercion in Violation of Section
8(a)(5) and (1) of the Act.
1. Sequence of events
a. The organization of the Union at the Respondent's
store
There are six employees in the meat department of the
Respondent's Kirksville store, including the head
meatcutter. Four of these employees met with Ted Wolff,
a business representative of the Union on the night of
Tuesday, July 30, 1968, at the home of one of the
employees. Wolff gave the employees information about
the Union, showed them copies of the contract which it
had with the Green Hills Supermarket, a competitor of
the Respondent in Kirksville, and explained the
procedures usually followed in organizing employees.
Wolff mentioned that there were two methods of
obtaining recognition from employers, either by winning
an election or by means of a showing of authorization
cards to the employer. Wolff recommended following the
latter course and explained why. Wolff then gave the
employees authorization cards and asked them to leave
the room and consider whether they wanted to sign. He
told them to read the cards carefully because he wanted
them to understand that the cards authorized him to act
as their bargaining agent and that, if a majority of the
meat department employees signed the cards, he intended
to use them as his authority to ask the Respondent for
176 NLRB No. 5
HY-VEE FOOD STORES 55
recognition and the commencement of bargaining
negotiations. All four employees returned to the
livingroom and handed him signed authorization cards.
At the request of the employees, who wished to give
Daryl Monk, the head meatcutter, an opportunity to join
the Union, a second meeting was scheduled for August 5.
At this meeting, which was attended by five of the six
meat department employees, Wolff showed Monk the
copy of the Green Hills contract and also the letter
requesting recognition which he stated he was going to
present to the store manager the next morning. Monk
declined to join the Union, stating that the Company
would do the talking for him. Wolff obtained authority
from the four card signers at this meeting .to use the
provisions of the Green Hills contract as a contract
proposal to be submitted to the Respondent on behalf of
the Respondent's meat department employees. Wolff
arranged with Joe Harker, who was to be off duty the
next day, to come to the store at the time the request for
recognition was to be made so as to be available in case
the store manager, Adam Marshall, raised any question to
whether he had voluntarily authorized the Union to
represent him.
Joe Harker's brother, Donald, also worked in the meat
department of the Kirksville store. Donald had not
attended either of the two union meetings. At the request
of Joe Harker, Business Representative Wolff met with
Joe and his brother, Donald, before going to the store to
request recognition on August 6. After Wolff answered a
number of Donald's questions, Donald Harker handed
Wolff his authorization card which he had previously
signed.
b. The Union requests recognition on the morning of
August 6
About 9 a.m. on Tuesday, August 6, Wolff met with
Store Manager Adam Marshall. Wolff was accompanied
by Lowell Robinson, the head meatcutter and union
steward at the Green Hills Supermarket. Wolff told
Marshall that he represented a majority of the employees
in the meat department and had come to demand
recognition of the Union as the bargaining representative
of all of the Respondent's full-time and regular part-time
meat department employees in the Kirksville store. Wolff
presented a letter formalizing the request and gave
Marshall copies of the authorization cards of employees
Marge Smith, Joe Harker, Charles Baker, and Garry
Stanley. He stated that he had the original signed cards
with him. Wolff showed the original card signed by a fifth
employee, Donald Harker, to Marshall and said that he
would send a copy of it to Marshall as soon as he could
get back to his office and have one made. Wolff then
informed Marshall that if he had any doubt about the
authenticity of the cards or felt that the five card signers
might have been intimidated or coerced into supporting
the Union, he could satisfy himself on this score by
talking to the card signers then and there. Marshall
replied that it would not be necessary.
Next, Wolff produced the Green Hills contract as a
basis for beginning collective-bargaining negotiations.
After reading it for 5 or 10 minutes, Marshall asked
Wolff what had prompted the employees to seek
affiliation with the Union. Wolff mentioned concern about
job security and various other items, which Marshall
made note of at the time.
In its letter requesting recognition the Union had
proposed that the parties hold their first bargaining
meeting at the store at 2 p.m. on August 12. Marshall
advised Wolff that he would have to check with his
superiors at the headquarters of the Respondent at
Chariton, Iowa, as to whether this date was acceptable. It
was agreed that Wolff would call Marshall on Friday,
August 9, to ascertain an acceptable meeting date. When
Wolff did so, Marshall informed him that a letter was
already on its way stating that Monday, August 19, at 2
p.m., would be the earliest possible date for a meeting.
On August 9, the Union sent a letter to the Respondent
enclosing a copy of Donald Harker's authorization card.
In the letter the Union again requested recognition and
immediate collective bargaining with respect to a unit
consisting of the meat department employees.
c. Store Manager Marshall 's conversation with
Ronald Van Vleck on August 6
Van Vleck is the head food clerk at the Green Hills
Supermarket, which as stated above, has a contract with
the Union. Van Vleck had previously had a conversation
with Store Manager Marshall in which the latter had
indicated to Van Vleck his disapproval of the Union. Van
Vleck was off duty on August 6, and as soon as he was
informed of the organization of the Respondent's meat
department employees, he decided to visit the
Respondent's store and observe Marshall's discomfiture at
this turn of events. As he walked around the store,
Marshall came up behind Van Vleck and asked him if he
knew what was going on. Then the following occurred,
according to Van Vleck's testimony:
I told him I had heard about it, I heard they had
signed up. And he asked me what I thought of the
union and I said it had its ups and downs like anything
else in this town. As far as I was concerned it had very
good points. And he said, "I have a couple of fine boys
in this outfit that had a good future in this outfit, but
this is going to hurt them."
Marshall denied saying anything to Van Vleck
indicating that any employees would suffer any
disadvantage as a result of affiliating with the Union.
However, as found below, three other employees, Joe
Harker, Donald Harker, and Charles Baker, testified to
similar comments by Marshall to them concerning the
threat which the Union presented to their future
advancement in the Company. And, as noted below,
Marshall himself admitted raising the question with the
men "as to where they might go" in view of the fact that
"only one store was union ." Under all the circumstances I
credit Van Vleck's testimony.
d. Store Manager Marshall meets with Marjorie
Smith, Garry Stanley, and Donald Harker on the
afternoon of August 6
At 3 p.m. on August 6 Marshall summoned Smith,
Stanley, and Donald Harker to his office. As above noted,
Joe Harker was not on duty that day. Present when the
three meat department employees arrived in the office, in
addition to Marshall, was Charles Smock, the meat
supervisor for a number of the Respondent's stores.
Marshall opened the meeting by saying that Wolff had
indicated to him the reasons why the employees were
seeking a union , and that he wanted to verify them so that
he could report back to headquarters where he was to go
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the next day. After Smith and Stanley explained what
their complaints were, Smock stated, according to the
credited and undenied testimony of Smith and Stanley,
that "he didn't like the idea of a union at all and he didn't
like to go through the third party." Smock then inquired
whether the employees would be satisfied if the
Respondent "could come up with something similar, a
contract or proposal or something, that we could discuss
without having to go through the third party." Smith told
him no. Whereupon Marshall stated, "If you join the
union or go union , all I will say is good morning when
you come to work, all the rest will have to be done
through a third party, the union." As the meeting was
about to end, Marshall asked Donald Harker how old he
was. When Donald replied that he was 17, Marshall
commented, "Well, under the contract that [Wolff] had
shown me this morning you won't be able to work in the
meat department because you are under 18, and we are
going to follow by this contract."
Later in the day, August 6, Store Manager Marshall
went up to Donald Harker and Garry Stanley as they
were grinding hamburger in the meat department.
According to the testimony of Donald Harker, Marshall
said he
... has three boys in the meat department that have a
good future, and he said it was Joe, and Chuck Baker,
and myself, and now, then, if we wanted a promotion or
transfer to another store then it wouldn't be able to
happen because there wasn ' t any union in any of the
other meat departments.'
e. Vice President Clemmons questions all five card
signers individually on August 8 concerning why they
wanted union representation
Wilson Clemmons is vice president in charge of retail
operations in all of the Respondent's 63 stores. His office
is at the company headquarters at Chariton, Iowa.
Clemmons came to Kirksville on August 8, 2 days after
the Union made its demand for recognition. He had last
visited the Kirksville store in April or May 1968.
Clemmons had all of the card signers who were on duty
that day sent to the backroom where he questioned each
in turn why they were seeking representation by the
Union. Joe Harker, Smith, and Stanley expressed concern
about the possibility of layoffs, since three grocery
department employees had recently been laid off.
Clemmons sought to reassure them their fears were
groundless, stating that the meat department employees
were more highly skilled than the grocery employees, and
he told one or two of them that the work of the laid off
grocery employees was not satisfactory. As Clemmons
dismissed Joe Harker and Garry Stanley he asked each in
turn to "search [his] soul and think this out very
carefully." Stanley replied, as he testified, "I had thought
it over and ... I was for the Union."
'Garry Stanley 's testimony is to the same effect . While Marshall denied
generally making any threats against employees he admitted visiting with
the men in the meat department "about the future of these employees."
Marshall 's testimony on this point continues as follows:
The way I stated it to him was I wondered if they had given thought
to the fact that if only one store was union and none of the rest of them
were , when they began training as market managers for the future I was
concerned as to where they might go.
As found above , Marshall ' s comments to Ronald Van Vleck were in the
same vein . I credit Donald Harker 's testimony.
When Charles Baker's turn came, Clemmons asked him
what his "gripe" was. Then the following ensued,
according to Baker's credited and undenied testimony:
I said I didn't think my wages were quite up to par and
I told him that Adam [Marshall] promised me a raise
previous to my coming to the meat department, I had
not got it yet, and he said, "Yes, we have made a
mistake there. We have fired managers for less than
this," . . And he asked me, "Have you given any
thought to an election?" And I said, "No, I have signed
the card... .
To Marjorie Smith, whom he had known for a long time,
Clemmons stated as follows:
Majorie, our face is red, we are embarrassed, we in the
company have let you down. Why didn't you come to
us before you went to the Union?
Smith replied that the discharges of the three employees
without warning and the rumors of further layoffs made
her apprehensive about job security.
Donald Harker was not working on Thursday, August
8, but he came into the store during the day to buy
groceries. Store Manager Marshall asked Donald to come
up to the office. Clemmons was present but Marshall did
most of the talking. As Donald Harker credibly testified,
the following then occurred:
Adam [Marshall] asked me my reason for signing the
card to join the Union. And I didn't know if I should
tell him, but I said, "I heard they were going to lay off
three men by September 1 and I thought we needed
more security than we had." And he came right back
and said he thought the people in the meat department
had more security than we thought. And he asked me
what my future plans are and he said, "Do you know
the Union won't help you in anything but the meat
department?" And I never answered him. And he asked
me if I planned to stay in the meat department and I
said, "Yes, as far as I know." And Bill [Clemmons]
asked me if I thought this was what I wanted, if I
thought I would get along with it and I said, "Yes, I
think I can." And Adam said, "I think we have been
close enough friends that I figured at least you would
come to me when you needed help."
f. Store Manager Marshall's threat to Joe Harker on
August 9
Joe Harker encountered Store Manager Marshall as he
arrived at work on Friday morning , August 9. Marshall
told him at this time that he would like to talk to hith
some time that day. Harker said that he had time right
then. They went into the coffeeroom where Marshall
asked him why he had joined the Union. Harker replied
that he had heard rumors that full-time meatcutters were
going to be laid off and replaced with lower paid
employees. Whereupon Marshall stated:
"Well, I want to give you some advice." He said, "This
might have a bearing on your future with Hy-Vee" .
this might have some bearing on your promotions and
advancement with the company.
'The quoted testimony is Joe Harker's. As indicated above , Marshall
denied generally making any threatening statements to employees.
However , Marshall admittedly made a similar statement to Donald Harker
and Garry Stanley in the meat department on August 6. 1 credit Joe
Harker 's testimony.
HY-VEE FOOD STORES 57
At some unstated time during this period Marshall
stopped the mother of Joe and Donald Harker as she was
shopping in the store and told her that he "didn't feel that
the Union was right for [Donald] and Joe, he didn't think
we would get along with it." Thereafter, Mrs. Harker, in
the presence of her husband, reported Marshall's
comments about the Union to both Donald and Joe. On
this occasion both Mr. and Mrs. Harker indicated to their
sons their agreement with Marshall's views about the
Union. At this,time Donald, who was 17 years old, was
living at home with his parents.'
g. Vice President Clemmons talks with employees
early in the week of August 12
Clemmons returned to Kirksville on August 12 or 13
and again talked with three of the card signers
individually. With Charles Baker, Clemmons took the
same approach as he had in the discussion on the previous
Thursday, with Clemmons attempting to satisfy him about
the wage increase he had been promised and about other
aspects of his job as well. Clemmons opened the
discussion with Marjorie Smith as follows:
"Have you changed your mind about the union?" And I
said, "No, I have not," and he said, "Well, I was just
sure when I came in today you would say 'I have
changed my mind'." And I said, "No, I haven't," and
so he said, "Well, this won't do you any good, you will
not get anything out of it," .. .
Clemmons then stressed the difficulties in reaching a
collective-bargaining contract, and broached the possibility
of a strike. To Garry Stanley, Clemmons emphasized the
length of time it took to reach a collective-bargaining
contract, saying that it would take 6 months or a year or
so, but that the Union would finally get one.
h. Joe and Donald Harker and Charles Baker revoke
the bargaining authorizations previously given the
Union
On August 13 Joe and Donald Harker signed and
mailed to Union Business Representative Wolff
documents, the form of which is identical, as follows:
Ted,
I Joe G. Harker Jr. as of this date August 13, 1968
do withdraw, cancel and resind the authorization
Signed By me July 30, 1968.
Joe G. Harker Jr
Both Joe and Donald Harker told Store Manager
Marshall that same day that they had resigned from the
Union.
On August 15 Charles Baker signed an identically
worded revocation, placed it in an envelope, sealed it, and
after obtaining a stamp from Store Manager Marshall,
asked Marshall to mail it to the Union for him. Before
doing so he told Marshall, as he credibly testified, "This
is letter of withdrawal." Marshall said, "I sure will."
The foregoing finding is based on the testimony of Donald Harker.
Marshall ' s version of this conversation is that he merely asked Mrs.
Harker " if Joe and Donny had a problem why they didn ' t come and visit
with me ." I credit Donald 's testimony.
i. The Respondent refuses to recognize the Union
On August 14 the Respondent mailed the following
letter to the Union:
Highway 6 & 63 South
Kirksville, Missouri
August 14, 1968
Mr. C.A. Nothnagel
Secretary-Treasurer
Local No. 576
1305 East 27th Street
Kansas City, Missouri 64108
Dear Sir:
We do not recognize you as bargaining representative
for the employees of our meat department. We feel and
are informed that you do not represent a majority of
our employees.
Therefore there will be no occasion for a meeting
Monday, August 19, 1968, at 2:00 P.M.
Furthermore, we question the appropriateness of the
unit, and insist that if there is to be a unit it should
include all employees of the store.
Sincerely,
HY-VEE FOOD STORE
/s/ Adam Marshall
Adam Marshall,
Manager.
J. The pay raises and bonuses given the Respondent's
meat department employees
The complaint in this case was issued on October 15
and served on the Respondent's attorney the next day. A
few days later Joe Harker's wages were raised from $2.45
to $3 per hour. About the same time the Respondent
raised the wages of Charles Baker from $2.40 to $3 per
hour. Prior to that time the raises the two men had
received had been in 15- to 25-cent increments. Joe
Harker and Baker were two of the three employees who
had signed withdrawals from the Union.
According to Joe Harker, in the preceding December
Marshall had promised him a raise the following fall.
Baker testified that Marshall had promised him a raise
when he took Jim Bullock's job in the meat department.
This occurred on January 15, 1968. Although Baker had
"bugged" Marshall once or twice, to use Baker's
expression, about the raise which he had promised him, it
was not forthcoming until October. Just a few days after
Joe Harker and Baker were given their raises, Marshall
told Donald Harker that he was going to see about getting
Donald a raise. This is Donald's undenied testimony.
The Respondent has a practice of paying profit-sharing
bonuses to its employees based upon the profits of each
individual store. Vice President Clemmons testified that
the amount of the bonus is determined by following a set
formula which has been approved by the Internal Revenue
Service and varies in accordance with the wage scale of
each individual employee. The bonus is paid monthly if
the profits of the store warrant it.
Between February and September 1968 no bonus
payments were made at the Kirksville store. Clemmons
testified that this was due largely to the extra expense of
remodeling and adding to the Kirksville store, which work
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was going on during this period . However, in September
and October very substantial bonuses were paid, over $75
in September and over $150 in October. These were the
amounts paid to Garry Stanley, Joe Harker, and Charles
Baker . Their previous bonuses in February 1968 had been
less than $ 10. The October bonus was substantially larger
than any bonus the employees had previously received.
The Respondent asserts that this was because the profits
of the store were better than they had ever been before
and that the amounts of the bonuses had been determined
the same way they had been in the past.
k. Store Manager Marshall's attempts to influence
the testimony of the employees in this proceeding
About November 5, 2 weeks before the hearing in this
case , Marshall suggested to Donald Harker as follows:
You can do it if you want to, but I would like to have
one of you three boys, either you, Chuck, or Joe, to
stand up in the trial and ask for an election.
The "three boys" mentioned by Marshall were the three
who had signed withdrawals from the Union . Donald
Harker , to whom Marshall made the suggestion , was the
17 year old, who had previously been spoken to by both
Marshall and Clemmons about the Union.'
A week or so later Marshall again spoke to Donald
Harker, asking him if he "was ready to testify." When
Harker replied that he was , Marshall stated , according to
Harker ' s undenied testimony , that "he was there to back
us all the way."
The night before the trial in this case , which was held
on November 19, Marshall received a phone call from
Donald Harker ' s father about 10:30 p . m. asking Marshall
to come by the Harker residence and visit with him. As
Marshall testified, Mr. Harker did not mention what he
wanted to talk about. Marshall, however, picked up Vice
President Clemmons and the two men arrived at the
Harker residence about 10 :45 p.m. A lengthy discussion
(from an hour to an hour and a half ) ensued in which Mr.
and Mrs. Harker, Donald Harker, Marshall, and
Clemmons took part. As Donald Harker summarized the
discussion,
Well, they came in and Adam [Marshall] wanted to
explain to my dad , we had a misunderstanding about I
thought I was going to get a raise and I misunderstood
and I wasn ' t supposed to get one. . . . And he wanted
to explain to them , and he just thought the Union, he
just told Mom and Dad that he didn't think the Union
was right for me and Joe, that he thought we could
work out better with the Hy-Vee Company than with
another union.
Marshall ' s version of the discussion is consistent with
Harker 's except that it omits any reference to the Union.
I credit Donald Harker 's version.
2. Conclusions concerning the Respondent 's unfair
labor practices
a. The Respondent's acts of interference, restraint,
and coercion in violation of Section 8(aKl) of the Act
'Marshall's conduct on this occasion was in keeping with his conduct
2-1/2 months earlier when he told Garry Stanley that a Board investigator
would be visiting the store and that "all we had to say was we had a
change of heart ." This is Stanley 's credited and undenied testimony.
(1) The Respondent' s questioning of employees and
threats of reprisal
As found above, the same day that the Union requested
recognition and gave Marshall copies of the signed
authorization cards , Store Manager Marshall summoned
three of the four card signers who were on duty that day
to his office and questioned them in a group about the
problems which had caused them to seek union
representation . Meat Supervisor Smock , who was present
in the office during this group interview , frankly stated
that he did not like the idea of a union at all and
proposed that the employees enter into a contract directly
with the Respondent, without the intervention of the
Union . Store Manager Marshall threatened Donald
Harker on this occasion that the contract proposals
submitted by the Union required his discharge for being
underage . Although the Respondent was under no
obligation to agree to this contract proposal, Marshall
went out of his way to state "we are going to follow ...
this contract." Later that same day, Marshall warned
Donald Harker and Garry Stanley that having a union in
the store would diminish their chances of being promoted
or transferred . Marshall similarly threatened Joe Harker
on August 9, telling him that union affiliation "might
have some bearing on [his] promotions and advancement
with the company ." Store Manager Marshall ' s threats to
employees and Meat Supervisor Smock 's suggestion that
the employees forget about the Union and make a
contract directly with the Respondent , constitute well
recognized forms of interference , restraint , and coercion in
violation of Section 8(a)(1) of the Act. In view of
Marshall's threats and the illegal proposal of Smock,
Marshall ' s questioning of employees about the problems
which led them to affiliate with the Union also interfered
with , restrained , and coerced the Respondent's employees
in violation of the Act.
On August 8, 2 days after the Union's request for
recognition was received , Vice President Clemmons came
down from company headquarters in Chariton and
questioned each of the five card signers individually
concerning their reasons for seeking union representation.
While Clemmons indicated to some of the employees that
it was up to them to decide whether to continue with the
Union, the net effect of his talks was to implant in the
employees' minds the Company's view that there was no
need for union representation . To those who expressed
fears concerning their job security Clemmons sought to
allay these fears by assuring them their jobs were not
vulnerable to layoffs like those of the grocery employees:
To those who expressed dissatisfaction concerning their
wages or some other aspect of their jobs Clemmons
sought by veiled promises of benefits to convince them
that the Respondent had been remiss in the past and
would make amends in the future. On August 12 or 13
Clemmons returned to Kirksville and again talked with
three of the card signers individually. His approach to
employees varied depending upon the employee with
whom he was talking but the sum of his remarks to each
left no doubt but that he was seeking to induce them to
change their minds about union representation.
Since normally Clemmons' visits to the Kirksville store
were infrequent, Clemmons' visits to the store 2 weeks in
a row underlined the urgency of his message to the
employees being interviewed. And the technique of having
a top official of the Respondent interview each of the card
HY-VEE FOOD STORES
signers individually ' could not fail to impress upon the
employees that the Respondent was deeply concerned
about their decision to have union representation . In view
of the manner in which Clemmons ' systematic questioning
of all the card signers was carried on , the background of
threats against which it must be viewed , and the fact this
questioning was not for the purpose of ascertaining the
truth of the Union 's claim of majority status and did not
serve any other legitimate interest of the Respondent, but
on the contrary had as its sole purpose the dissuading of
the employees from adhering to the Union , I conclude
that Clemmons' questioning of the card signers took on a
coercive coloration , and therefore violated Section 8(a)(1)
of the Act . Struksnes Construction Co., Inc ., 165 NLRB
No. 102; International Harvester Company , 170 NLRB
No. 134; Automotive Warehouse Distributors , Inc., 171
NLRB No. 101; Bryant Chucking Grinder Company, 160
NLRB 1526, 1529, 1539-44, enfd . 389 F .2d 565, 567 (C.A.
2), cert . denied 392 U. S. 908.
(2) The wage increases and the bonus payments
As found above, shortly after the issuance of the
complaint herein and after the Respondent was apprised
of the fact that it would have to answer to charges of
unfair labor practices , the Respondent raised the wages of
Joe Harker and Charles Baker by two or three times the
amount of any previous wage increase given them. Joe
Harker and Baker were two of the three employees who
had signed withdrawals from the Union. The
Respondent ' s defense is that both had been promised wage
increases prior to the advent of the Union , that it had
previously hesitated in granting any wage increases during
the union campaign because of fears of violating the Act,
and that in October, after being advised by counsel that it
was lawful to grant previously promised increases during a
union campaign , it finally did so.
As found above , the previous year Joe Harker had been
given a vague promise of a wage increase in the fall of
1968 and Baker had been told by Marshall that he would
get an increase when he took Jim Bullock 's job in the
meat department , which occurred on January 15, 1968.
However , although Clemmons told Baker in the August 8
interview that the Respondent had "made a mistake" in
withholding the wage increase , the Respondent did
nothing about the raise promised to become effective on
January 15 until the latter half of October, when it knew
that its prospects in the forthcoming trial would depend in
part upon the testimony of Baker and the others who
signed withdrawals from the Union . Under all the
circumstances, including the substantial amount of the
raises given both men , I conclude that the Respondent
would not have granted the two men the wage increases it
did, at least in the amounts which it did, but for a desire
to assure their continued rejection of the Union and to
foster a sympathetic attitude towards the Respondent in
the forthcoming trial. Wage increases given for such
purposes , in my opinion , interfere with the rights
guaranteed in Section 7 of the Act and violate Section
8(a)(1). N.L.R.B. v. Exchange Parts Co ., 375 U.S. 405.
The General Counsel contends that the very substantial
profit-sharing bonuses given the Respondent 's employees
in September and October 1968 were also granted in
violation of the Act. The Respondent's explanation for the
September and October 1968 bonuses - that the amounts
of the bonuses were the result of strictly applying the set
'Cf. N.L.R.B. v. Syracuse Color Press , 209 F. 2d 596, 599 (C.A. 2),
cert. denied 347 U.S. 966.
59
formula for determining bonuses to the high level of store
profits in September and October - if believed, in my
opinion , constitutes a complete answer to these allegations
of the complaint as amended . I agree with the General
Counsel ' s view that the Respondent failed to support its
oral testimony concerning the large bonuses given in
September and October 1968 with convincing
documentary evidence. However , in my opinion, the
Respondent ' s oral testimony , as supplemented by the
exhibits which were received in evidence at my request,
was sufficient , in the absence of any rebuttal evidence, to
sustain the Respondent 's defense to this aspect of the case.
Accordingly, the allegations of the complaint as amended
based upon the Respondent 's granting of the September
and October 1968 bonuses are hereby dismissed.
(3) Store Manager Marshall ' s further attempts to
influence the testimony in this proceeding
I have found that several weeks before the trial of this
case was scheduled to begin Marshall granted extra large
wage increases to Joe Harker and Charles Baker, two of
the three employees who had signed withdrawal cards
from the Union , in part , in an effort to encourage a more
favorable attitude towards the Respondent on the part of
the two men. I have also found that on two occasions
within 2 weeks of the trial Marshall had conversations
with the third union withdrawee about the testimony he
was to give at the trial. On the first occasion Marshall
requested Donald Harker "to stand up in the trial and ask
for an election ." The second time Marshall asked Donald
if he were ready to testify. When Donald replied that he
was, Marshall stated that "he was there to back us all the
way." Implicit in Marshall ' s statement was the
assumption that Donald was going to testify in accordance
with Marshall's expressed desires and say that he had had
a change of heart and wanted an election . As the cases
cited below hold, the Act does not tolerate such pressures
on employees to shape their testimony to fit their
employer 's wishes.
I conclude that by Marshall 's suggestions to Donald
Harker concerning his testimony at the trial the
Respondent has obstructed the Board 's processes and
interfered with the freedom of its employees to vindicate
their statutory rights in a Board proceeding. It is
indispensable to a fair adjudication of employees' rights
under the Act that witnesses in Board proceedings testify
free of all pressures to tailor their testimony to favor any
party to the proceeding . The normal effect of the
Respondent 's repeated approaches to Donald Harker was
to restrain him from testifying with the full freedom which
the Act and due process requires . Such conduct violates
Section 8(a)(1) of the Act. Cf. Oregon Teamsters,
Security Plan Office, 113 NLRB 987, 1028-29, as
modified in 119 NLRB 207, 209-211; Better Monkey Grip
Company , 115 NLRB 1170, enfd. 243 F.2d 836 (C.A. 5),
cert. denied 355 U.S. 864; Jackson Tile Mfg. Co., 122
NLRB 764, 766, enfd. 272 F.2d 181 (C.A. 5);
Grand-Central Chrysler, Inc., 155 NLRB 185, 188.6
'While the General Counsel apparently contends that the late night visit
of Marshall and Clemmons to the Harker residence on the night before the
trial constitutes a further attempt to intimidate Donald Harker with
respect to his testimony in this case, in view of the fact that the visit was
paid in response to the request of Mr. Harker , a friend of Marshall's, I am
reluctant to conclude that Marshall's statements on this occasion were
intended to coerce Donald with respect to his testimony in this case In any
event, a finding of such an unlawful intent would not affect the scope of
the remedial order in this case.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The Respondent's refusal to recognize and bargain
collectively with the Union in violation of Section
8(aX5) and (1) of the Act
(1) The Union' s majority status in an appropriate
collective- bargaining unit
The complaint alleges that all full-time and regular
part-time employees in the meat department of the
Respondent ' s Kirksville , Missouri , store , excluding office
clerical employees , food clerks , bakery and delicatessen
clerks , casual employees , guards and supervisors as
defined in the Act, and all other employees constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
The Respondent contends that a unit of meat
department employees is not an appropriate unit under the
circumstances of this case , urging that the store as a
whole should be treated as a single unit . The Respondent
points out that all of the employees in the store are
subject to the same working hours and conditions, have
the same vacation plan, profit - sharing bonus plan, and
other benefits . On the other hand , the General Counsel
notes that the meat department is geographically separate
from the rest of the store , is under separate supervision,
and that generally speaking there is no interchange of
employees between the meat department and other parts
of the store . And, as the Respondent emphasized in
attempting to allay the meat department employees' fears
about their job security , the meat department employees
are more highly skilled employees than those in the other
departments . The Union made no effort to organize the
employees of the store as a whole . In circumstances
similar to those of this case the Board has traditionally
held separate meat departments to be appropriate units.
The Great Atlantic & Pacific Tea Company , Inc., 130
NLRB 226; Bruno 's Food Store , Inc., 131 NLRB 1023;
Owego Street Supermarkets , Inc., 159 NLRB 1735, 1741.
Under all the circumstances I find a separate unit of the
Respondent ' s meat department employees to be an
appropriate unit , as alleged in the complaint.
It was stipulated at the hearing that there were six
employees in the Respondent ' s meat department. On
August 6, 1968, when the Union first requested
recognition and bargaining of the Respondent , the Union
had in its possession bargaining authorization cards signed
by five of the six employees in the meat department. It
offered to show the originals to Store Manager Marshall
and actually handed to Marshall photocopies of four of
the five cards in its possession and showed him the
original of the fifth card . The Respondent has at no time
challenged the fact that as of August 6, 1968, the Union
was the duly designated bargaining representative of a
majority of its meat department employees . I conclude
that as of August 6 , 1968, the Respondent was the
exclusive bargaining representative of the Respondent's
employees in an appropriate bargaining unit.
(2) The Respondent's refusal to recognize the Union
In its letter of August 14 to the Union the Respondent
expressly declined to recognize and bargain collectively
with the Union. Obviously relying on the fact that Joe and
Donald Harker had informed it on the day before that
they had withdrawn from the Union, the Respondent
predicated its refusal primarily on the grounds that the
Union did not represent a majority of the meat
department employees.
It is settled that where a union representing a majority
of the employees (a fact which may be evidenced, as here,
by authorization cards) requests recognition and
bargaining, and the employer declines such a request upon
the ground the union lacks the requisite majority support,
the employer may be held to have refused to bargain
collectively in violation of Section 8(a)(5) and (1) of the
Act if the evidence justifies the conclusion the employer's
refusal "is motivated, not by any bona fide doubt as to
the union's majority, but rather by a rejection of the
collective bargaining principle or by a desire to gain time
within which to undermine the union." Joy Silk Mills,
Inc., 85 NLRB 1263, 1264, enfd. 185 F.2d 732, 741-742
(C.A.D.C.), cert. denied 341 U.S. 914; Colson Corp. v.
N.L.R.B., 347 F.2d 128, 135-136 (C.A. 8); The Madison
Courier, Inc., 162 NLRB 550, 593-596, enfd. 67 LRRM
2462 (C.A.D.C.), and cases therein cited.
As found above, Store Manager Marshall parried the
Union's original request for recognition which was
received on August 6 by saying that he would have to
consult his superiors in Iowa. Immediately, however,
Marshall embarked on a course of conduct which supports
the conclusion that the Respondent, in postponing giving
an answer to the Union, was seeking to gain time in which
to undermine the Union. Thus, that same day Marshall
questioned the group of meat department employees about
their reasons for wanting union representation and warned
Donald Harker that under the union contract he would
lose his job, and Meat Supervisor Smock proposed on this
same occasion that the employees enter into a contract
directly with the Respondent. Later that day Marshall
threatened Donald Harker and Garry Stanley that their
chances of promotion would be adversely affected by
unionization of the store. Marshall similarly threatened
Joe Harker on August 9. On August 8 Vice President
Clemmons coercively questioned each of the card signers
and engaged in a repeat performance on August 12 with
three of the five card signers . While Clemmons' technique
in attempting to dissuade the employees from adhering to
the Union was much more subtle than that of Marshall's,
Clemmons' questioning must be considered a part of the
total picture, which includes Marshall's blunt threats
concerning the adverse consequences of unionization. The
coercive conduct of Store Manager Marshall and Vice
President Clemmons in the period from August 6 through
13, in my opinion, caused the withdrawals of the Harker
brothers and Charles Baker from the Union.
Under all the circumstances, including the Respondent's
subsequent grant of extra large wage increases to two of
the three union withdrawees and its efforts to induce the
third to testify favorably to it in this proceeding, I
conclude that the Respondent's conduct from the time it
first received the Union's request for recognition and
bargaining was motivated not by any good-faith doubt as
to the majority status of the Union or as to the
appropriateness of the unit but rather by a rejection of the
collective-bargaining principle. As the Supreme Court
stated in Medo Photo Supply Corp. v. N.L.R.B. 321
U.S. 678, 687:
[The Respondent] cannot, as justification for its
refusal to bargain with the union, set up the defection
of union members which it had induced by unfair labor
practices, even though the result was that the union no
longer had the support of a majority. It cannot thus, by
its own action, disestablish the union as the bargaining
representative of the employees, previously designated
as such of their own free will.
HY-VEE FOOD STORES
Accordingly I find that on and after August 6, 1968, the
Respondent has refused to bargain collectively with the
Union in violation of Section 8(a)(5) and ( 1) of the Act.
Owego Street Supermarkets , 159 NLRB 1735 , 1741.'
Conclusions of Law
1. All full-time and regular part-time employees in the
meat department of the Respondent's Kirksville, Missouri,
store, excluding office clerical employees, food clerks,
bakery and delicatessen clerks, casual employees, guards
and supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
2. At all times on and after August 6, 1968,
Amalgamated Meatcutters & Butcher Workmen of North
America, AFL-CIO, Local Union 576, has been the duly
designated exclusive collective -bargaining representative of
the employees in the aforesaid appropriate unit.
3. By refusing on and after August 6, 1968, to
recognize and bargain collectively with the Amalgamated
Meatcutters & Butcher Workmen of North America,
AFL-CIO, Local Union 576, as the exclusive
representative of the employees in the aforesaid
appropriate unit, the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act.
4. By threatening employees with reprisals because of
their affiliation with the Union; coercively questioning
employees about their decision to affiliate with the Union;
making veiled promises of benefits and granting wage
increases to affect its employees ' decisions regarding union
matters; and by attempting to interfere with the Board's
investigation of unfair labor practice charges and to
influence the testimony of witnesses in this proceeding, the
Respondent has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the Act, thereby engaging in unfair labor
practices in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent had engaged in
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, my Recommended Order will provide that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In order to remedy the Respondent's refusal to bargain
collectively in violation of Section 8(a)(5) of the Act, my
Recommended Order will direct the Respondent, upon
request, to bargain collectively with the Union. In view of
the Respondent's unfair labor practices in violation of
Section 8(a)(1) of the Act, which I have found were
engaged in an effort to dissipate the Union's majority
'Respondent's raising a question in its August 14 letter concerning the
appropriateness of a unit of meat department employees has all of the
earmarks of an afterthought in view of the fact that this point had not
been mentioned previously in the discussions or the correspondence
between the parties . In any event , the Board has long held that a good
faith but erroneous doubt as to the appropriateness of the unit is not a
defense to an otherwise meritorious charge of a refusal to bargain. Owego
Street Supermarkets . 159 NLRB 1735, 1742; The Madison Courier, Inc.,
162 NLRB 550, 597, enfd .67 LRRM 2462 (C.A.D.C.).
61
status, I find that such an affirmative bargaining order
would also be appropriate under the circumstances of this
case to remedy the Respondent's violations of Section
8(a)(1) of the Act.
The Union, relying on the Trial Examiner's decision in
Zinke Foods, Inc., 30-CA-372 (now pending decision by
the Board), contends that in addition to the conventional
remedies in refusal-to-bargain cases, I should also require
in this case that the Respondent execute the area
collective-bargaining contract between the Union and the
several area employers as a means of effectively
remedying the Respondent's refusal to bargain and to
prevent the Respondent from profiting from its own
unlawful conduct. I am sympathetic with the argument of
counsel in favor of making the 8(a)(5) remedy more
effective and believe that under appropriate circumstances
the directing of a monetary remedy in an 8(a)(5) case is
within the Board's powers (see my decision in Ex-Cell-O
Corp., 25-CA-2377, decided March 2, 1967, pending
decision before the Board). However, in my opinion a
basis should be laid in the unfair labor practice proceeding
for the conclusion that there is a practicable way of
ascertaining (albeit in a supplemental proceeding) the
measure of the employees' losses resulting from the
refusal to bargain before a monetary remedy should be
ordered in a refusal-to-bargain case. The basis for such a
conclusion was laid in the Zinke case. No attempt was
made to establish grounds for such a conclusion in this
case. For these reasons, the Union's request for an
extraordinary 8(a)(5) remedy in this case is denied.
In view of the nature of the unfair labor practices
committed, the commission by the Respondent of similar
and of other unfair labor practices may be anticipated. I
shall, therefore, make my Recommended Order herein
coextensive with the threat and order that the Respondent
cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
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
The Respondent, Hy-Vee Food Stores, Inc., Kirksville,
Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated
Meatcutters & Butcher Workmen of North America,
AFL-CIO, Local Union 576, as the exclusive
representative of all its employees in the appropriate unit
stated in the Conclusions of Law above.
(b) Threatening employees with reprisals because of
their affiliation with the Amalgamated Meatcutters &
Butcher Workmen of North America, AFL-CIO, Local
Union 576, or any other labor organization; coercively
questioning employees about union matters; making
promises of benefits or granting wage increases or other
benefits in order to affect its employees' decisions
regarding union matters; and attempting to interfere with
the Board' s investigation of unfair labor practice charges
or to influence the testimony of witnesses in Board
proceedings.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request , recognize and bargain collectively
with the Amalgamated Meatcutters & Butcher Workmen
of North America , AFL-CIO, Local Union 576, as the
exclusive representative of all the employees in the
appropriate unit stated in the Conclusions of Law above.
(b) Post at its Kirksville , Missouri , store , copies of the
attached notice marked "Appendix ."' Copies of said
notice , on forms provided by the Regional Director for
Region 17 , after being duly signed by an authorized
representative , shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
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 17, 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
Appeals 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 the Regional Director for
Region 17 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith,"
APPENDIX
NOTICE TO ALL EMLOYEES
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 NOT threaten employees with the loss of
promotions or other benefits because of their affiliation
with the Amalgamated Meatcutters & Butcher
Workmen of North America, AFL-CIO, Local Union
576, or any other labor organization.
WE WILL NOT coercively question employees about
their decision to affiliate with the Union or about other
union matters.
WE WILL NOT promise benefits or grant wage
increases in order to influence our employees' decisions
regarding union matters.
WE WILL NOT interfere with the Board's investigation
of unfair labor practice charges or attempt to influence
the testimony of witnesses in Board proceedings.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the right
to join a labor organization and to participate in union
activities.
WE WILL, upon request, recognize and bargain
collectively with the Amalgamated Meatcutters &
Butcher Workmen of North America, AFL-CIO, Local
Union 576, as the exclusive representative of all of the
full-time and regular part-time meat department
employees in our Kirksville Missouri, store.
Dated By
HY-VEE FOOD STORES,
INC.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , 610 Federal
Building , 601 East 12th Street , Kansas City, Missouri
64106, Telephone 816-374-5181.