Hyde's Super Market

National Labor Relations Board - Board Decisions

Jan 27, 1964

145 N.L.R.B. 1252 (N.L.R.B. 1964)

1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, Respondent would be happy to sit down with him and negotiate a con-
tract. I am not persuaded that Respondent 's conduct in addressing the employees
on January 23, in requesting them to take the vote, in furnishing facilities or other
assistance in connection with the balloting , or in refusing to bargain with the Union
until it again proved its majority status, can reasonably be said to preclude the Board
from conducting an election in which the employees may freely express their choice.
In these circumstances , I am not convinced that Respondent 's conduct was in viola-
tion of Section 8(a)(1) or ( 5) of the Act.
CONCLUSION OF LAW
Respondent has not engaged in unfair labor practices within the meaning of Sec-
tion 8 ( a)(1) or (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusion of law, it is
hereby recommended that the complaint be dismissed in its entirety.
Gene Hyde d/b/a Hyde's Super Market and Retail Clerks Inter-
national Association , Local 1612 , AFL-CIO. Cases Nos. 36-CA-
1 249-1 and 36-CA-1 249-2. January 27, 1964
DECISION AND ORDER
On September 23, 1963, Trial Examiner Henry S. Salim issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that he cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not engaged in certain
ether alleged unfair labor practices and recommended dismissal of
those allegations of the complaint. Thereafter, Respondent filed ex-
ceptions 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 Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner with the following
modification.
1 In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's
findings that certain alleged conduct did not constitute violations of Section 8(a) (1) of
the Act.
145 NLRB No. 122.
HYDE'S SUPER MARKET 1253
Respondent excepted to the Trial Examiner's affirmative remedy
that Respondent should "comply with the provisions of the collective-
bargaining agreement," on the ground that the enforcement of the
terms of a collective-bargaining agreement is for the courts rather
than the Board. We find merit in Respondent's exception, but only
to this portion of the recommended remedy. Where an employer re-
fuses to sign a contract which has been previously agreed upon, the
Board has traditionally ordered his signature upon request.' Here
the contract was signed by Respondent. The unfair labor practice
here consisted of Respondent's later repudiation of and refusal to
honor the contract or recognize the Union. Were we to adopt Re-
spondent's further contention and reject the Trial Examiner's recom-
mendation that Respondent "honor" the agreement, we would be fail-
ing adequately to remedy the unfair labor practice. Accordingly,
while not attempting to indicate the proper interpretation of the indi-
vidual terms of the contract, we believe that the Respondent's duty to
recognize the Union and to honor the agreement is properly the subject
of the Board's remedial order.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications :
The first paragraph is amended to read as follows :
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that Respondent,
his agents, representatives, successors, and assigns, shall:
Paragraph 2 (a) is amended to read as follows :
Recognize the Union as the exclusive bargaining representa-
tive of his employees and honor the collective-bargaining agree-
ment executed by him on April 1, 1963.
2 WATE, Inc, 132 NLRB 133S, 1339; Artistic Embroidery, Inc , 142 NLRB 974
TI?SAL EXAMINER'S DECISION
STATEMENT OF THE CASE 1
Upon a charge filed on April 18, 1963, by Retail Clerks International Association,
Local 1612, AFL-CIO, herein called the Union, the General Counsel of the National
Labor Relations Board issued a complaint dated June 24, 1963, against Gene Hyde,
doing business as Hyde's Super Market , herein called both Hyde's and the Respond-
ent, alleging that Respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8(a) (5) and (1) of the National Labor Relations
Act, as amended . Copies of the charge, complaint , and notice of hearing were
served on the parties.
1 The case numbers were amended at the hearing to read as written above instead of
36-CA-1249 and 36-CA-1249-1 as they appeared originally.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges, in substance, that the Respondent has refused to bargain
in that it notified the Union it would no longer be bound by a contract entered into
with the Union because of alleged misrepresentations made by the Union in obtain-
ing employees' signatures to designation cards and because of coercion exerted by
the Union upon Respondent in getting it to sign said contract. In addition, alleges
the complaint, Respondent interfered with its employees' rights by setting up an em-
ployees' meeting, promising benefits if the Union was not recognized, and requesting
its employees to furnish to its attorney copies of affidavits they had given to the
General Counsel's representative.
Pursuant to notice, a hearing was held in La Grande, Oregon, on July 23 and 24,
1963, before Trial Examiner Henry S. Sahm. All parties were represented by
counsel and were afforded full opportunity to participate in the hearing, and to intro-
duce relevant evidence bearing on the issues, to argue the issues orally upon the
record, and to file briefs and proposed findings of fact and conclusions of law. The
General Counsel and Respondent filed briefs on August 19, 1963, which have been
fully considered.
Upon the entire record in the case, and from observation of the demeanor of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an individual proprietor doing business as Hyde's Super Market.
At all times material herein, Respondent has maintained his only office and place of
business at Island City, Oregon, and is engaged at said location in the manufacture
of bakery products, in the operation of a restaurant, and in the retail sale of groceries,
produce, meat, and bakery products. During the past year, Respondent's retail sales
exceeded $500,000, and its purchases exceeded $400,000 of which more than $50,000
worth of goods originated outside'the State of Oregon. It is found, accordingly, that
Respondent is engaged in commerce within the meaning of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local 1612, AFL-CIO, hereinafter re-
ferred to as the Union, is a labor organization within the meaning of Section 2(5)
of the Act.
Issue
The salient question in this proceeding is whether during the course of an organiza-
tional campaign the Union in obtaining the signatures of Respondent's employees to
authorization cards misrepresented the purpose of their signing these cards.
In. THE ALLEGED UNFAIR LABOR PRACTICES
The Union initiated an organizational campaign on March 29, 1963, to recruit
members from among the 11 employees in an agreed-upon unit of the Respondent
grocery store owned by Hyde. A union meeting was held the evening of March 29,
1963, in an effort to organize Respondent's employees. The union organizer dis-
cussed with the employees the advantages of belonging to a union and passed out
applications for membership to be signed by the employees present.
Of the seven employees in attendance at this organizational meeting, six signed
union authorization cards that evening 2 and the seventh signed a card the following
day .3 Another employee, who did not attend the meeting on March 29, also signed
a union card the following day?
The following day the union representative handed Respondent Hyde a notice
which reads as follows:
This will advise you that as of March 30, 1963, a majority of employees in-
volved in the Hydes Food Store located in Island City, Oregon, have designated
Retail Clerks, Local 1612, R.C.I.A. as their bargaining agent for all matters
2Tsiatsos, Murphy, Long, Bennett, Bright, and Carman
S Jennings
4 Foster.
HYDE'S SUPER MARKET 1255
pertaining to wages, hours and working conditions and that we stand ready to
prove said majority representation by means of a card cross check by a dis-
interested third party. Retail Clerks, Local 1612, R.C.I.A. requests an immedi-
ate meeting with you and/or your authorized Representative for the purpose
of selecting an impartial third party to conduct the aforementioned cross check
to prove majority representation.
As you know, Section 7 of the Labor Management Relations Act of 1947, as
amended, provides, among other things, that employees shall have the right to
self-organization, to join or assist the Labor Union of their choice. Further, it
is a violation of this Act for an Employer to interfere with, restrain, or coerce
employees in the exercise of these rights.
Examples of such illegal interference: Threating [sic] employees with loss
of jobs or benefits if they should join a Labor Union or support a Union,
threatening to eliminate jobs if a Union should be organized, questioning em-
ployees about their Union activities or membership, taking other action uni-
lateraly [sic] deliberatly [sic] timed to defeat self-organization among
employees.
Retail Clerks, Local 1612, stands ready to take appropriate and immediate
action in the event any unfair Labor Practice should occur.
I would suggest that we meet in your office, Wednesday, April 3, 1963, at
2:00 P.M. for the purpose of selecting the disinterested third party to conduct
the card check to establish majority status requesting Union representation.
Your immediate acknowledgement and response to this request is awaited.
(S) Dorthey Harrold,
DORTHEY HARROLD, Secretary-Treasurer.
The same day, after Hyde was handed the above notice by the Union, he asked
an employee, Evelyn Murphy, to call a meeting of his employees. According to
Murphy's uncontroverted testimony, when she asked him why she should become
involved in this union matter, Hyde replied:
Because you were the one that had the employees sign the cards, and it's
your fault we are in this. If you'll tell the employees to get together, they will
follow you and they will do what you want them to do.
Murphy refused, stating she "never called the Union meeting to start with, and I'm
not going to say anything to them."
The following morning, on March 31, Hyde came to her home and again asked
Murphy if she would call a meeting of the employees, telling Murphy "and we
would agree on something.. . She again refused .5
The same day, Jeanette Tsiatsos, an employee, and a former member of the
Charging Union, received permission from Hyde to hold a meeting of the employees
after the store had closed. In attendance were Tsiatsos, Jennings, Long, Virginia
Creswell, "head of the girls in the coffee bar, Gibbs, who is in charge of the bakery,"
and Able, the assistant manager. At the meeting Hyde told the employees that
perhaps he had been remiss in not giving them pay increases but that he might do so,
if and when business conditions warranted.
After Hyde left the meeting, Tsiatsos told those at the meeting she was sorry
she had signed a union card as Hyde could not afford union wages. Tsiatsos asked
those present, according to the credited testimony of Luretia Long, who is presently
employed by Hyde, "that she wished we would all change our minds and take our
cards back." 6 Long spoke up at this point and told Tsiatsos it was too late to do
this.
Two of the union officials, Harrold and Parker, upon learning of this meeting,
came to Hyde's store the following morning, April 1, and asked Hyde to consent to
advance the originally requested cardcheck date of April 3 to April 1, in order to have
the signed cards checked against his payroll to determine if the Union represented a
majority of his employees? Hyde agreed and the union cards were checked against
Hyde's payroll by a disinterested third party and the Union was found to represent
a majority of the employees in a unit agreed upon by the parties. See General
5 The following day Murphy quit her job with Respondent
6It appears that of those present at this meeting only Tsiatsos, Jennings, and Long had
signed union cards.
7 See General Counsel's Exhibit No. 3, supra, penultimate paragraph.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel's Exhibit No. 4. Thereupon the union officials submitted a proposed contract
to Hyde which he read over and then signed.
Gordon Hensley, an employee who described himself as "a supervisor Of a few
other kids that work there . I'm Assistant Manager," and who had attended
neither the union meeting nor the store meeting, nor signed a union card, consulted,
after the union contract was signed, Attorney Willard Carey, who has represented
Hyde for some years. He asked Carey to draft a letter petition to Respondent
whereby the employees could rescind the union membership applications they had
previously signed. Attorney Carey drafted a letter petition which reads as follows:
Mr. GENE HYDE,
Island City, Oregon.
DEAR MR. HYDE: We, the undersigned employees, do not wish to be rep-
resented by the Retail Clerks Union in collective bargaining but wish to
continue to deal directly with you.
Some of us signed applications for membership in the Retail Clerks Union.
The cards were signed under a representation from the union official that it
was necessary for us to sign the cards so that a secret election could be held by
the National Labor Relations Board to determine whether the majority of your
employees wanted to be represented by the union. Those of us who signed the
cards did not intend that the union should be our representative until a secret
election had been held in which a majority of all of the employees determined
that they wanted the union. We therefore believe that you were misled into
signing the contract, and we do not wish to be bound by any such contract.
Butch Hensley, Gary Carman, Helen M. Bennett, Sandy L. Jennings,
Frank E. Foster, Carolyn Gibbs, Alice M. Kersey, Joan Bright,
Jeanette Tsiatsos.
When Hyde was presented with this withdrawal petition, he consulted his lawyer,
Attorney Carey, who had drafted it, and a letter was composed by Carey on Respond-
ent's letterhead and mailed to the Union which reads as follows:
CERTIFIED
RETURN RECEIPT REQUESTED
Mrs. DORTHEY HARROLD,
Secretary-Treasurer,
Retail Clerks Union, Local 1612,
1305 Knight Street,
Richland, Washington.
APRIL 6, 1963.
DEAR MRS. HARROLD: On Monday April 1, 1963 I signed a contract with
you covering the wages, hours and working conditions of my employees. Prior
to my signing the contract I was lead to believe that you represented a majority
of my employees. In addition my employees were under the impression that a
secret election would be held by the National Labor Relations Board in order
to determine whether your Union would represent them.
The majority of my employees have advised me by letter that they do not
want to be represented by the Retail Clerks Union and that they will not be
bound by the terms of the contract. A copy of the letter which I received from
them is enclosed.
My attorneys advise me that I could not legally sign a contract with your
union unless the majority of my employees wanted me to do so. Since it now
appears that the majority of my employees do not want such a contract, I am
compelled to notify you that I will not be bound by the contract for the reason
that it was based upon misrepresentation and a withholding of material facts,
namely, that my employees were not in favor of your union unless by secret
election a majority of them voted for the union.
I regret the necessity of taking this step but you will realize that I have no
right to select a bargaining agent for my employees contrary to their wishes.
Very truly yours,
(S) Gene Hyde,
GENE HYDE.
GH/dh
CC-Mr. Willard K. Cary, Attorney, LaGrande, Oregon
HYDE'S SUPER MARKET
The Union, by its attorney, replied as follows:
1257
APRIL 8, 1963.
Mr. GENE HYDE
Hyde's Super Market
Island City, Oregon.
Re: Local Union 1612, Retail Clerks International Association
DEAR MR. HYDE: This office represents Local Union 1612.
We have been requested to reply to your letter of April 6, 1963 addressed to
Mrs. Harrold.
Examination of the files and records in this case shows that, without question,
you are bound to a collective bargaining agreement with Local Union 1612.
You will be held strictly accountable to the terms thereof. Local 1612 will not
hesitate to institute appropriate litigation, if necessary.
"Your employees" were not under the impression, relative to an NLRB
election, which you have attributed to them. In any case, their relationships
with Local 1612 are somewhat beyond your legal province to define. They
and the Local are the custodians of this aspect of the situation.
Please make no mistake at all about this: You signed a valid agreement with
Local 1612 under totally proper circumstances. That agreement will be
enforced without regard to the difficulty involved. Of course, the Local would
prefer your amicable compliance. But this preference does not in any way
alter the determination of the Local that you will do what you solemnly agreed
to do. If you believe otherwise, you gravely mis-calculate the character of the
organization we represent.
Very truly yours,
CRITCHLOW & WILLIAMS,
By DAVID E. WILLIAMS.
On April 13, 1963, 4 days after Respondent Hyde received the above letter, he
raised the pay of his hourly employees 10 cents and his employees who were paid by
the week received an increase of $5.
The circumstances which eventuated in this proceeding is Respondent's contention
that Harrold, the union representative, had misrepresented to its employees that by
their signing the union application cards they were merely authorizing a secret elec-
tion to be held in order to determine whether the employees desired to be represented
by the Union. Misleading the employees into signing these union cards, as evidenced
by its employees' withdrawal petition, argues Respondent, justifies its refusal to
bargain with the Union or honor the purported contract signed by Respondent with
the Union as it was thereby rendered invalid by the deceit practiced upon the
employees.
The General Counsel, on the other hand, denies there was any misrepresentation
practiced by the Union in obtaining employees' signatures on the cards, so that
Respondent's refusal to be bound by the collective-bargaining agreement it had signed
with the Union was a refusal to bargain in violation of Section 8(a) (5) of the Act.
Conclusions With Respect to the Alleged Violation of Section 8(a) (5)
Section 8(a) (5) of the Act provides that it shall be an unfair labor practice for
an employer to refuse to bargain with the representative of his employees provided
the representative has been duly selected by a majority of the employees in an
appropriate unit.
An analysis of all the various witnesses' testimony who testified with respect to
what occurred at the union organizational meeting reveals that Harrold, the union
organizer, did not misrepresent anything but rather that at the most, some of the
employees present, through no fault of Harrold, misunderstood what she told them
regarding the legal incidence of their signing union cards.
Harrold told the employees that it would be necessary for them to sign union
application cards in order for her to deal with Hyde as their representative for pur-
poses of collective bargaining. If a majority of them signed cards, she told the
employees, she would ask Hyde to agree to have these cards checked by a disinterested
third party (who would not disclose to Hyde whom of his employees signed the
cards) and if the cardcheck revealed a majority had signed, she would request Hyde
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to recognize the Union as the -representative of his employees. If, however, explained
Harrold, Hyde would not agree to recognize the Union, under the circumstances
detailed above, it would be necessary to resort to an election to be conducted by
the National Labor Relations Board. When one of the employees questioned Har-
rold as to whether a cardcheck or an election was faster, she replied that a cardcheck
was faster as negotiations for a contract could begin immediately, whereas a Board
election would require some time to arrange and conduct. Discussion was had and
the employees instructed Harrold to request of Hyde a cardcheck.
Harrold's version of what she told the employees at the organizational meeting was
corroborated by Carman,8 Long, and Bright,9 all of whom are presently employed
by Hyde. Considerable credence has been placed upon the testimony of these three
employees as they were in the employ of Respondent at the time they testified. As
such, they depended on their jobs for their livelihood and they understood that after
testifying they would continue in the employment of Respondent. Moreover, the
trier of these facts is not unmindful of the predicament of an employee who testifies
adversely to his employer's interests, being apprehensive and fearful, with some
measure of justification, as to the future possibility of retaliatory action. These
practical considerations, coupled with the normal workings of human nature, have
led the Trial Examiner to credit the testimony of Carman, Long, and Bright who are
presently employed by Respondent, as it is believed they were impelled to tell the
truth regardless of what consequences might eventuate.
Tsiatsos' and Jennings' testimony reveals they did not disagree with Harrold's
version of what occurred at the union meeting but rather that subsequent to their
signing the union cards, they changed their minds about joining the Union. Tsiatsos
testified:
. following the meeting Sandy [Jennings] and I talked and we decided we
really didn't want the Union after all, that we had rushed through this a little
bit faster than we realized and before we knew just exactly what it was. .. .
We [Tsiatsos and Jennings] got together after the meeting and decided we
really hadn't thought about what the union was, and realizing a little bit of
[Hyde's] position, that he wasn't a big corporation, which we hadn't thought of
before, . . . and couldn't afford wages like [Albertsons, a competitor] can
for their employees, and I guess we had been thinking that why shouldn't we
be getting paid the same thing for the same type of work. So, then, we discussed
it . and we decided we didn't want it after all. So, we decided to call
[Hyde] on the phone and we didn't exactly want to say we didn't want the
Union to represent us, but we did want him-since [the Union] talked to us, we
wanted him to [state his side of the case].
Q. Did [Harrold] indicate who would have the right to determine whether
the cross check would be used or the election would be used?
A. It was up to [Hyde] to have an NLRB election or the cross check.
Tsiatsos, upon whom Respondent bases most of its case, nowhere in her testimony
stated that Harrold, the union representative at the organizational meeting, mis-
represented to the employees that by their signing the union application cards, they
were merely authorizing a secret election to be held in order to determine whether the
employees desired to be represnted by the Union. Moreover, Tsiatsos' testimony
s Carman testified as follows:
Q. Do you consider that you were misled?
A. I don't consider that I was misled . In my own mind , I thought that it concerned
an election.
Q. Why did you think that 9
A. Because I thought being as how [Hyde ] had this choice , that he would take the
election.
Q. You didn't think that he would agree to the card check'
A. No, I didn't.
Bright's testimony on examination by Respondent 's counsel is as follows:
Q. And what was said with respect to who would have the choice as to whether it
would be a cross check or an election?
A. Well, I understood it to be that Mr. Hyde would have the choice of which way
he wanted it to be.
9
HYDE'S SUPER MARKET 1259
not only corroborates Harrold's testimony but also the version of what transpired
at this meeting as testified to by Carman, Bright, and Long, her coworkers. Tsiatsos
testified Harrold told the employees that Hyde had his choice of according the union
recognition either by acknowledging the validity of the signed union cards or, in the
event he chose to demand an NLRB election, he could elect to do so. In fact, on
direct examination by Respondent's counsel, she testified Harrold made this "real
clear." For example, Tsiatsos testified as follows:
Q. Did Mrs. Harrold say what would happen if [Hyde] didn't agree to a
cross check?
A. She said there would be a written ballot, a secret ballot, and that he would
never know who signed it or who didn't.
However, continues Tsiatsos' testimony, Harrold pointed out to the employees that
Hyde might very well demand an election "because most employers don't go for
cross checks."
As a matter of fact, Tsiatsos' testimony makes it clear that no misrepresentations
were made by Harrold and that she understood the salient facts but that she, along
with Jennings, changed their minds about the Union, subsequent to the time they
had signed cards and after Hyde had signed the contract. In this regard, the Board
has held that the testimony of a signer of a union card as to her subjective state of
mind is not sufficient to overcome the effect of her overt action in having signed an
authorization card.1° Actually, when she attempted to persuade the other employees
who had signed cards to change their minds, she testified that she was unsuccessful.
To the same effect is Jennings' testimony when she was called as a witness by
Respondent. She stated Harrold explained the two methods available to Hyde, viz,
either a card check or a Board election. When later, her testimony at first appears
to be inconsistent, closer examination of it reveals, however, that throughout her
testimony she is consistent in that at no time does she accuse Harrold of mis-
representation but rather that she [Jennings] "understood" or was under the "im-
pression" that a secret election would be held in order to determine if the employees
wished to have the Union represent them. Moreover, Jennings' lack of mental
capacity or inability to comprehend what was clear to the other employees cannot
be availed of by Respondent Hyde to disavow the contract he signed with the Union.
Furthermore, Jennings did not sign a card at the union meeting (as did six of the
other employees) but delayed making a decision until the following day when she
telephoned Harrold and told her she had decided to sign up with the Union. In fact,
the testimony reveals that she and Tsiatsos were not critical of Harrold but rather
they were disappointed when they learned Hyde had signed a contract with the
Union without first demanding an election. Significant also is Jennings' own testi-
mony that Harrold, immediately after Hyde signed the contract, so informed Jennings
and yet Jennings did not indicate any objection.
The only misrepresentation in this case, if it can be categorized as such, is the
testimony of Foster, who did not attend the union meeting on March 29. Foster
testified that Evelyn Murphy, a clerk, who is no longer employed by Respondent,
solicited him to sign a union card which he did on the representation to Murphy
that it was solely for the purpose of obtaining an NLRB election in which the em-
ployees would be afforded the opportunity to vote. Assuming this to be true,
Murphy's alleged misrepresentation cannot be imputed to the Union in the absence
of any showing of privity, express or implied, between Murphy and the Union."
Another defense of Respondent Hyde is that he was intimidated by the union
representatives into signing the collective-bargaining agreement. Furthermore, argues
Respondent Hyde, the Union's threats to picket his store and place it on the Union's
"unfair list" unless he signed a contract with them taints the transaction and, as a
matter of law, invalidates the collective-bargaining agreement he signed. For this
reason, concludes Hyde, he was legally justified in repudiating on April 6 the contract
which he had signed on April 1, 1963.
10 The Nubone Company, 62 NLRB 322, 326, footnote 9.
11 Cf. Snow & Sons, 134 NLRB 709, where two employees' signatures to union cards were
obtained through misrepresentation and the Board held these two tainted cards could not
invalidate the valid cards of the other signers who still constituted a majority. In the
instant case, disregarding Foster's card, the Union still had a majority as 7 of the 11 em-
ployees in the unit signed valid cards. See Ottenheimer and Company, 144 NLRB 38,
footnote 2.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Not only does this argument fail to strike a responsive chord but it strains one's
credulity to believe that Hyde, a self-professed successful owner of this grocery busi-
ness, who has had prior dealings with a union (he has a contract with the Meat
Cutters Union covering the butchers in his meat department), and evidently knowl-
edgeable of at least the basic principles of labor relations, would be so naive as to
be senselessly panicked into signing a contract against his will. Then too, his
attorney, Willard Carey, who plays a cogent role in these proceedings, as hereinafter
detailed, was as close to him for legal advice as his telephone. It requires a greater
degree of credulity than the trier of these facts possesses to accept the view that
Hyde was coerced into signing a contract with the Union that did not meet with
his approval.
Assuming, arguendo, that Hyde was threatened with picketing and faced with be-
ing placed on a union unfair labor listing, there is nothing illegal in informing an
employer that he will be placed on an unfair list and a lawful picket line established
should he fail to accord recognition to the union on the basis of an undisputed 12
patent majority of his employees' signed authorization cards.13 N.L.R.B. v. Inter-
national Association of Machinists, Lodge 942, AFL-CIO (Alloy Mfg..Co.), 263
F. 2d 796, 799-800 (C.A. 9), cert. denied 362 U.S. 940.
Furthermore, the union representative's alleged repeated assertion td' Hyde, in
his office on the day he signed the contract, that he was "in deep trouble" is an in-
cident so minimal in content as not to be worth any pondering as negotiations for
labor contracts take on many aspects of hard, serious, and intense exchanges of
views. A frank, and not always complimentary, exchange of views must be ex-
pected and permitted the negotiators if discussion is to be fruitful rather than
sterile. The conferees must not be inhibited by semantics and they must be free to
debate and challenge one another without censorship or liability for intemperate
statements even if in the course of hard bargaining dire consequences are threatened.
Such bluffing, bluster, and braying bravado are merely part of the tactics, postures,
and give-and-take of labor-management negotiations.
The withdrawal petition, admittedly initiated by Hensley and prepared by Hyde's
attorney, at no charge to Hensley 14 and circulated among the employees is, to say
the least, suspect. Nine "employees" signed this withdrawal petition, asserting they
did not wish to be represented by the Union and that they had signed union cards
and wished them to be considered void because they were signed after representa-
tions by the Union that they were for the purpose of obtaining a "secret" election.
One of those signing this petition was Hensley, a self-styled "supervisor" and
"assistant manager"; another, Carolyn Gibbs, wife of the manager of the bakery
department; and a third employee, Kersey: none of whom had attended the union
meeting or signed union cards. When Hensley was asked on cross-examination why
he was the promoter of this petition and felt impelled to retain an attorney to draft
this petition, in view of the fact that he had not signed a union card, he answered,
"Well, I didn't feel like [the employees] were right in doing what they did. I figured
they should have a vote . . . . They were under the impression that they could
have a vote."
The petition was prepared by Respondent's attorney at no charge and openly
circulated in the store during working hours and at a time when Hyde was on the
store premises. Hyde testified that after Hensley banded him the employees' with-
drawal petition, he took it to his lawyer, Carey, not knowing that Carey had drafted
it. Nor, Hyde swore, did Carey divulge this fact to him. It was in this state of
ignorance that Hyde agreed with Carey's proposal to send a letter to the Union
repudiating the contract he had signed about a week earlier. When it is considered
that the petition was, in due course, presented by his client Hyde to the same attorney
who originally prepared it who, in turn, it is claimed, did not disclose to client Hyde
that client Hensley had retained him to prepare it, the proportions and aspect of this
farcical situation assume the amusing piquancy of a Gilbert and Sullivan plot. Even
though the confidential relationship of attorney and client, between Carey and
Hensley, might have impelled the nondisclosure of these facts by Carey to his other
client Hyde, it is not too unreasonable to assume that the withdrawal petition was
circulated with the knowledge, and if not connivance. at least, tacit approval of
12 When this incident occurred Hyde did not dispute the Union's claimed majority.
13 Construction, Building Material and Miscellaneous Drivers Local Union No 81, et al
(Marshall & Haas), 133 NLRB 1144, 1146
14 Hensley spent approximately 40 minutes with Attorney Carey, explain the matter
and having the petition drafted During this conference, Carev divulged to Hensley that
he was also representing Hyde in the union matter at the store
HYDE 'S SUPER MARKET 1261
Respondent Hyde who, it appears, belatedly found himself in the unfortunate posi-
tion of justifying his repudiation of the previously executed contract for reasons that
apparently did not occur to him prior to the inception of these proceedings.15
In addition to the reasons cited above, it is believed that Respondent was con-
nected with this withdrawal petition for another reason. Hensley, the active in-
stigator and ardent proponent of this petition, was closely associated with manage-
•nent and supervision, and if not technically so, at least he was considered so in the
minds of the other employees who were signatories of this petition. It is not un-
reasonable to assume, therefore, that these employees believed Hensley was acting
not only on behalf of management but also on instructions from Respondent in
circulating this petition.16
Based upon the entire record in this case, it is found that Union Representative,
Harrold, in her remarks to the employees at the organizational meeting on March 29,
1963, did not tell them that by signing an application card they merely would be
authorizing a secret Board election to determine whether they desired the Union to
iepresent them. On the contrary, the evidence shows Harrold explained to them not
only the two methods of determining whether the employees wished the Union to rep-
resent them but also detailed for their information both choices available to Re-
spondent, namely, that the signature cards might be used either for a cross-check
or in the event Respondent refused then the cards could be employed to obtain an
NLRB election.
Moreover, under the circumstances in this case, the controlling factor for resolving
the issue as to the Union's majority status is determined as of the time of the card-
check and the employees' subsequent change of mind cannot invalidate the cards they
previously signed, absent any union misrepresentation, which it has been found
above is nonexistent. Moreover, the Board has held that where the employer has
prepared and caused to be circulated among the employees a petition designed to
oust the union the employees' change of heart was not genuine and voluntary.17
At no time has Respondent questioned the appropriateness or identity of the unit
sought by the Union nor did it at any time prior to the withdrawal petition question
the Union's majority status therein. Only after it attempted to dissipate the Union's
majority by granting a pay increase to the employees in the said unit, as described
infra, did it question the validity of the Union's majority and refuse to honor the
contract previously executed by it.
In Idaho Egg Producers, 111 NLRB 93, the Board found a violation when the
employer attacked the validity of union cards, claiming that some of them were
obtained through fraudulent union tactics and that as a result the Union was not
selected by -a free choice of employees. The Board found no merit to the defense
holding there was no evidence showing the union employed illegal tactics.
In H. Rohtstein & Co., 120 NLRB 1556, where the employer refused to recognize
and bargain with the union after agreeing to recognize the union and to execute
a contract because he claimed, inter alia, that the union employed illegal means in
obtaining employees' signatures , the Board held that the fact the employees later
15 The Board and the courts, in numerous cases involving facts far less compelling than
here, have held that an employer by aiding or assisting employees in the preparation or
circulation of petitions to withdraw from a union or for decertification of a union,
thereby interfered with, restrained , and coerced his employees in the exercise of the rights
guaranteed them in Section 7 of the Act, in violation of Section 8(a) (1) thereof.
N.L R B. v. Avondale Mills, 357 U.S 357, 362; N L R.B v Atlantic Stages, 180 F 2d 727
(C A 5) ; NLRB. v Jack Smith Beverages , Inc, 202 F. 2d 100 (C A. 6) ; NLRB. v
Charles If. Krimm Lumber Company, 203 F 2d 194 (C.A. 2) ; N L R B v Louisville Con-
tainer Corporation , 209 F. 2d 654 (CA. 6) ; N.L.R B v Cambria Clay Products Company,
215 F 2d 48, 51 (C A. 6) ; N.L R.B. v. Birmingham Publishing Company, 262 F. 2d 2
(CA. 5) : N.L R B. v. Overnight Transportation Co., 308 F. 2d 279 (CA. 4) ; Trumbull
Asphalt Co. v. NLRB., 314 F. 2d 382 (CA 7) ; Southern Block and Pipe Corporation,
90 NLRB 590; Cactus Petroleum , Inc, 134 NLRB 1254; Kit Manufacturing Company,
Inc, 142 NLRB 957. However, this was not alleged as a violation in the complaint
16 The Board has held the employer liable for the conduct of an employee who is tech-
nically not a supervisor but who has the attributes of a representative of management, and
is reasonably regarded as such by the employees. Red Arrow Freight Lines, Inc., 77 NLRB
859, enfd 180 F. 2d 585 (C.A. 5). Cf. N.L.R.B. v. Guild Industries Manufacturing, 321
F 2d 108 (C.A. 5), enfg. 135 NLRB 971, where the court held it not necessary to resolve
whether the employee was a supervisor as it was not unreasonable to find that the em-
ployee in question was acting upon instructions of his employer.
17 Ridge Citrus Concentrate, Inc, 133 NLRB 1178.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changed their minds cannot operate to overcome the effect of their overt action
in having signed union designation cards. To the same effect is Nubone Company,
62 NLRB 322 at 326, footnote 9, where the Board stated that the testimony of a
signer as to her subjective state of mind ( as in the case of Tsiatsos and Jennings)
is not sufficient to overcome the effect of her overt action in having signed an
authorization card.
In Exact Level & Tool Mfg. Co., 66 NLRB 1238, the employer's claim that union
cards of his employees were improperly obtained was rejected by the Board. The
employees, held the Board, were not misled and even if they were, the misrepresenta-
tion was of a character which was not fatal to the union's claim. Moreover, some
of these same employees, stated the Board, accepted offices in the union without
protest.
In Wilson Athletic Goods Mfg. Co., 73 NLRB 744, the Board held that a union's
alleged representations prior to an election that it was necessary for employees to sign
union membership cards in order to vote in the Board election did not constitute
a valid defense to a charge of an employer's refusal to bargain.
In a case dispositive of the primary issue herein, the Board recently held that the
record did not support a finding that any misrepresentations were made by the union
in securing employees' signatures. The Board affirmed the Trial Examiner who held
the significant factor to be what, if any, misrepresentations were made as to the pur-
pose of the union cards, not what the signer might have understood.18 Member
Brown stated that "the best evidence of the employees' intent, i.e., their signatures
to cards which designated the union as their bargaining agent, establishes that the
Union enjoyed majority status when it requested recognition . . . it is unnecessary
and inappropriate to consider what representations the Union's solicitors may have
made or what the employees may have been told." [Emphasis supplied.]
Although the Board decisions appear to hold that a union 's exaggerated or even
untrue statements is not fraud affecting the employees' grant of bargaining au-
thority 19 and there is language in a court decision, 20 similar to Member Brown's,
supra, to the effect that membership cards may not be collaterally attacked on the
ground they were obtained by duress and misrepresentation, there are other courts
which hold a contrary view.21 The Trial Examiner, however, is bound by the Board
view.
In view of all the facts and circumstances in this case , it is found accordingly
that the Respondent by repudiating the April 1, 1963, agreement, which it had
previously executed, and thereby refusing to recognize the Union as the exclusive
representative of its employees in an agreed-upon appropriate unit, constituted a
refusal to bargain within the meaning of Section 8(a) (5) of the Act.
The alleged violations of Section 8(a)(1)
The complaint alleges:
1. On or about March 30, and again on or about March 31, 1963, following
the Union's request for recognition, Respondent asked Evelyn Murphy, one
of his employees, to get the other employees together in a meeting with Re-
spondent, to attempt to persuade them to withdraw from the Union and to
bargain directly with Respondent with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment.
2. On or about March 31, 1963, Respondent met with a majority of his
employees at his store and promised them wage raises and other changes in
their conditions of employment, in an attempt to persuade them to abandon the
Union.
3. On or about June 3, 1963, Respondent by its agent and attorney, Willard
K. Carey, requested that its employees furnish to said Carey copies of the affi-
davits which they had dictated to the attorney for the General Counsel prior
to trial of the case.
As to General Counsel's contention that Respondent requested Murphy to call a
meeting of the employees in order to persuade them to withdraw from the Union
and to bargain directly with Respondent, the probata fails to sustain the allegata 22
Is Winn-Dixie Stores, Inc., 143 NLRB 848. Accord: Mil West Towel & Linen Service,
Inc., 143 NLRB 744
iu I!. Rohtsteen & Co., Inc., 120 NLRB 1556, 1559.
21 N L R.B. v. Wm. Tehel Bottling Co., 129 F. 2d 250, 254 (C A. 8).
21 N.L R B v H. Rohtste,n & Co., Inc., 266 F 2d 407, 409-410 (C.A. 1).
22 See supra.
HYDE'S SUPER MARKET 1263
The testimony of Murphy discloses no more than a request by Hyde that she call
the employees together with the cryptic statement that "they will follow you and do
what you want them to do."
It shall be recommended that the incident with regard to the allegation that Re-
spondent's lawyer, Willard K. Carey, "requested its employees [to] furnish .
Carey with copies of the affidavits which they had dictated to the attorney for the
General Counsel prior to trial of the case" be dismissed. There is no evidence that
Carey's method of soliciting these affidavits was coercive. The complaint itself,
supra, alleges Carey merely "requested" of Respondent's employees copies of their
affidavits. He did not, as the evidence shows, demand that they be produced. "In the
absence of any threats, harassment, or undue persuasion," it is found that Carey's
conduct in this regard was not in violation of Section 8(a) (1) of the Act 23
With respect to the allegation in the complaint that Hyde "promised" wage in-
creases, the evidence clearly shows that Hyde at the meeting in his store on March 31
made no such promises. All he did was state that he might consider doing so if
business conditions in the future so warranted. However, it was stipulated that he
did grant his employees wage increases on April 13, 1963, retroactive to April 6, the
same day on which he notified the Union that he was repudiating the contract he
executed on April 1, 1963. Such conduct, as the Board and courts have repeatedly
held, is violative of Section 8 (a) (1) of the Act 24
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations described in section I, above, have a close, intimate, and sub-
stantial 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 of
commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, it will be
recommended that it be ordered to cease and desist from this and like and related
conduct. It will also be recommended that it be ordered to take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. On April 1, 1963, and at all times material thereafter , the Union was and now
is the exclusive representative of the Respondent 's employees excluding guards, pro-
fessional employees, and supervisors as defined in the Act , and employees covered
by collective-bargaining agreements , with other labor organizations and these said
described employees constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
23 Atlantic & Pacific Tea Company, 138 NLRB 325 (Intermediate Report). See N.LR.B.
v. Guild Industries Manu facturing, 321 F. 2d 108 ( CA. 5), where the court absolved an
attorney of any unfair labor practice in using a court reporter and swearing employee
witnesses during preparations to defend unfair labor practice charges. While acknowledg-
ing such tactics were coercive and a violation by the company of Section 8(a) (1), the
court, nevertheless, holds the attorney's conduct related to the legitimate purpose being
undertaken, and did not amount to purposeful aid to the employer in violating the Act or
extend to matters beyond the rights of the company in the pending Board proceedings.
Henry I. Siegel Co., Inc., 143 NLRB 386, and Hilton Credit Corporation, 137 NLRB 56,
are distinguishable, as there the Board points out, Respondents made "demands" for the
affidavit. It is the Respondents' "demand for such affidavits which interferes with the
Board's efforts to secure vindication of employees' statutory rights and thus interferes
with the enjoyment of such rights In violation of Section 8(a) (1) without regard to
whether such demands are successful " Henry I. Siegel Co., Inc , supra, footnote 1. Cf.
Winn-Daaie Stores, Inc., 143 NLRB 848, where the Respondent by "demanding" copies of
his employees' pretrial statements "which they might give to the" General Counsel's
representative was held to have violated Section 8(a)(1)
24 N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co, 369 U.S. 736.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By repudiating the above contract and thereby refusing to honor it, as agreed
upon on April 1, 1963, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (5) of the Act.
5. By unilaterally increasing the said employees' wages on April 13, 1963, Re-
spondent violated Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recommended that the Respondent, its offi-
cers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Repudiating and refusing to honor the written agreement executed by it with
the Union on April 1, 1963, or from engaging in any like or related conduct in
derogation of its statutory duty to bargain.
(b) Granting wage increases to employees under circumstances which interfere
with, restrain, or coerce them in the exercise of their rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Forthwith honor and comply with the provisions of the collective-bargaining
agreement executed by it with the Union on April 1, 1963.
(b) Post at its grocery store in Island City, Oregon, copies of the attached notice
marked "Appendix." 25 Copies of said notice, to be furnished by the Regional Direc-
tor for the Nineteenth Region, shall, after being duly signed by the Respondent, be
posted immediately upon receipt thereof, in conspicuous places, and be maintained
for a period of 60 consecutive days. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20 days from the receipt
of the Trial Examiner 's Decision what steps the Respondent has taken to comply
therewith 26
25 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 be 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."
25 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply theiewith "
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 Rela-
tions Act, as amended , we hereby give notice that:
WE WILL NOT repudiate or refuse to honor the collective -bargaining agree-
ment executed by us with the Retail Clerks International Association, Local
1612, AFL-CIO, on April 1, 1963.
WE WILL NOT interfere with , restrain , or coerce our employees in the exercise
of their right to self-organization , to form labor organizations , to join or
assist any labor organizations , to bargain collectively through representatives
of their own choosing, and to engage in concerted activities of their own
choosing, and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain from any or all of
such activities.
All of our employees are free to become or remain , or to refrain from becoming
or remaining , members of any labor organization . We will not discriminate in regard
PUBLIC SERVICE COMPANY OF NEW MEXICO 1265
to hire or tenure of employment against any employee because of membership
in, or activity on behalf of , any labor organization.
GENE HYDE D/B/A HYDE'S SUPER MARKET,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Subregional Office, 612
Lincoln Building, 208 SW. Fifth Avenue , Portland , Oregon, Telephone No. Capitol
2-1607 , if they have any questions concerning this notice or compliance with its
provisions.
Public Service Company of New Mexico and Chauffeurs, Team-
sters and Helpers, Local 492 of the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America and International Brotherhood of Electrical Work-
ers, Local Union 611, AFL-CIO, Petitioners . Cases Nos. 28-RC-
1101 and 28-RC-1111. January 27, 1964
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Hearing Officer William B. Dickinson. The Hearing Officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Employer is a public utility company engaged in the transmis-
sion, distribution, and sale of electric power throughout the State of
New Mexico. It is composed of five major divisions, which are located
in Albuquerque, Belen, Deming, Las Vegas, and Santa Fe, New Mex-
ico, and services approximately 100,000 consumers.
145 NLRB No. 131.
734-070-64-vol. 145-81