Kimbell Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 828 (N.L.R.B. 1969)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kimbell Corporation and Retail Clerks Union, Local
1680, Retail Clerks International Association,
AFL-CIO. Cases 16-CA-3404, 16-CA-3459, and
16-RC-4978
and the General Counsel filed briefs and I have given
them due consideration.'
Upon the entire record in this proceeding, I hereby
make the following:
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 26, 1969, Trial Examiner Phil W.
Saunders issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel 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 the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
'In finding in agreement with the Trial Examiner that the complaint
should be dismissed , we find it unnecessary to adopt the Trial Examiner's
holding that Respondent in ejecting union business agent Reid from its
store was lawfully enforcing a valid no-solicitation rule
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Trial Examiner: Upon charges filed
by Retail Clerks Union, Local 1680, Retail Clerks
International Association , AFL-CIO, hereinafter called
the Union, the General Counsel issued a complaint dated
November 15, 1968, against Kimbell Corporation, herein
called the Respondent or the Company, alleging violations
of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended . Hearings were held before me
in Ardmore, Oklahoma, on January 7, 8, and 9, 1969, and'
all parties were represented and were given full
opportunity to examine and cross-examine witnesses, to
introduce evidence, and to argue orally. The Company
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation duly organized under and
existing by virtue of the laws of the State of Texas,
maintaining its principal office and place of business in
Fort Worth, Texas, and retail stores in Ardmore,
Oklahoma , where it is engaged in the wholesale and retail
grocery business . During the past year in the course and
conduct of its business operations , Respondent sold and
distributed products the gross value of which exceeded
$500,000 . During the same period of time , Respondent
received goods valued in excess of $50,000 which were
transported to its place of business in Ardmore,
Oklahoma , directly from states of the United States other
than the State of Oklahoma . During the same period of
time , Respondent shipped and transported products valued
in excess of $50,000 from its place of business in
Ardmore, Oklahoma , directly to states of the United
States other than the State of Oklahoma. It is admitted
and I find that Respondent is and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The main issues in this case are as follows:
A. Whether or not Respondent by its conduct during
the election campaign violated Section 8(a)(1) of the Act.
B. Whether or not the discharge of Gordon Fultz
violated Section 8(a)(3) of the Act.
C. Whether or not the Respondent refused to recognize
and bargain with the Union in violation of Section 8(a)(5)
of the Act.
On or about July 24, 1968, the Union began efforts to
organize two of Respondent' s stores in Ardmore,
Oklahoma.' On August 7, 1968, the Union filed its
original Representation Petition with the Board, and
which followed the Union's letter to the Company on
August 5, 1968, stating it represented a majority of its
employees and offered to show the Company signed
authorization cards , and requested recognition . On August
9, 1968, the Respondent acknowledged receipt of the
Union's letter . Respondent's supervisor , Jerry Brownlee
notified the Union that he did not believe they represented
a majority of the employees, and the only recognition the
Company could give would be after the Union won a
Board-conducted election .' On August 12, 1968, the
'The original charge in Case 16-CA-3404 was filed by the Union on
August 14 , 1968, and a first amended charge was filed by the Union on
August 30 , 1968. The charge in Case 16 -CA-3459 was filed by the Union
on October 28, 1968.
'These two stores will hereinafter be referred to as Foodway and Village
stores.
'On the morning of August 9, 1968 , Brownlee , who has the
responsibilities for Respondent 's operations in Texas and Oklahoma, flew
177 NLRB No. 84
KIMBELL CORPORATION
Company discharged Gordon Fultz, and pursuant to a
Decision and Direction of Election, an election was held
at Respondent's stores on October 17. On October 22,
1968, the Union filed objections to the election. On
November 15, 1968, the Regional Director overruled four
objections, and the amended complaint in this proceeding
includes and encompasses the remaining objections along
with the 8(a)(5) charge and allegation.
The complaint alleged the Respondent interfered with,
restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act. The
Respondent' s illegal conduct in October 1968, may be
summarized as follows: (1) Interrogation, (2) promise of
benefits, (3) announcing and publishing new benefits, and
(4) forceful eviction of a union representative from its
store.
Brownlee testified that in the 2 weeks or so before the
October 17 election, he talked to almost every employee,
individually, in the Ardmore stores. Brownlee stated that
in so doing he informed employees the Company did not
feel the Union would be to their benefit, but that he did
not ask employees anything about the Union as he had
been told or instructed not to do so. He testified that in
his conversation, some of the employees volunteered their
sentiments about the Union, and if and when they did so
he would then discuss the Union. Brownlee further related
that in these talks with employees in October and prior
thereto-he learned that some employees in the two stores
in question here, had several questions regarding fringe
benefits, and on occasions he would attempt to supply
answers to such inquiries. Two employees at the Village
store mentioned union contracts with other grocery stores
in the area, and informed him that such agreements
provided a higher pay scale than the Respondent was
paying. Brownlee testified he then found out these other
two union stores were actually paying the same pay scale
as the Company, and on his next visit he showed the two
employees the union contracts of the organized stores, but
he did not discuss the contracts with them.
Albert Bethune testified that prior to the election
Brownlee talked with him. He stated Brownlee asked him
how he liked his work, inquired if he had any suggestions
on improving the operations of the Village store. Bethune
then told Brownlee he did not understand his insurance
coverage. Bethune stated that 2 or 3 days before the
election Brownlee asked him what he thought the Union
could do for him. Brownlee admitted making such an
inquiry in a joking manner, but stated it was in response
to the remark Bethune had made previously that he did
not know what the Union could do for him. Harry
Williams testified that before the election Brownlee had
three visits with him. He stated that Brownlee asked him
if he had any questions about the Union and his working
conditions, and if he wanted the Union to come in.
The General Counsel points out that to inquire of an
employee what he thought the Union could do for him
was a not-too-subtle probe for information about union
to Ardmore, from his office in Fort Worth, and conferred with Crockett
Fox, the Respondent ' s area supervisor ; R. L. Seagroves , the Foodway
store manager ; Earl Younger, the Village store manager ; Lawrence Gee,
the Foodway market manager and Bob Wilson He found out there had
been some union activity, but did not find out which employees were
involved Brownlee testified that he then instructed Fox and the other
mentioned supervisors not to take any action or have any discussion with
the employees about the union matter After this conference in Ardmore,
Brownlee flew back to Fort Worth and mailed the Company 's reply to the
-Union's request for recognition , as aforestated.
829
activities ; maintains these visits with the employees were
for the purposes of soliciting information about the
Union; that Respondent's correspondence to the
employees' made it very clear that the Respondent was
opposed to a union ; and argues that in the face of such
opposition, the effect upon the employees of being
"visited" by an official as high in Respondent's hierarchy
as Brownlee , and discussing the Union with him, could be
no other than unlawful interference.
In regards to the testimony of Bethune, it is apparent
that Bethune voluntarily told Brownlee that he had not
had time to think much about the Union and did not
know what it could do for him. Brownlee's responsive
remark to Bethune as to what the Union could do for
him, must have come up in an informal joking manner as
Bethune had just previously proposed the same question
or subject matter himself. Based upon the demeanor of
the witnesses, and their respective testimony in relation to
this incident, it is apparent to me this inquiry was mere
banter or jesting on Brownlee 's part and Bethune must
have been aware of this. I find no violation in this dual
interchange of mutual inquiries. See T. N. T. Trailer
Ferry, Inc., 152 NLRB 1495.' Although I believe
Brownlee technically overstepped the bounds of
permissible action when he inquired of Williams about the
Union, as aforestated - I do believe this must be deemed
an isolated or single incident of interrogation, and when
viewed in the total context of this record insufficient to
warrant a violative 8(a)(1) finding.
The complaint alleges that on October 10, 1968,
Brownlee promised employees economic benefits,
including wage increases, if they refrained from union
activity. Henry Williams testified that prior to the election
Brownlee was talking to him about working conditions,
and then told him "when all of this was over with" he was
going to try to improve the working conditions in the
store. Ronnie Southerland testified that he talked with
Brownlee 2 or 3 days before the election, and during the
talk there was some discussion about another grocery
store paying more than Respondent. According to the
testimony of Southerland, Brownlee then stated that he
could not make any promises to him or anybody else and
that his hands were tied until the union business was over
with . Brownlee • stated that he did not make any
statements to Williams or Southerland that when the
Union was out of the way their wages could or would be
increases , and also testified these two employees were
making the same wages as paid in union organized
grocery stores. Brownlee went on to state that he was
reviewing with employees improvements the Company had
been making in working conditions and fringe benefits,
but had made it clear that such efforts were in no way
linked with the union activities of the employees. The
General Counsel argues that it may logically be inferred
that by stating "after the Union business is over,"
Brownlee meant it was to be resolved favorably for the
Company. However, this record shows that it was
Williams and Southerland who initiated the subject of the
difference in the wages being paid to the sack boys under
union contract stores from that which the Company was
G. C Exhs 10 and 11.
'Brownlee stated he was told by counsel not to ask employees about the
Union. From this record , and my observation of his demeanor while
testifying - I believe Brownlee heeded such instructions Other than noted
above , no other employee testified that he asked them about their union
efforts, whether they belonged to the Union, or even what they thought
about the Union , and even though Brownlee admittedly talked to all of the
employees involved
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paying. Furthermore, the statement attributed to Brownlee
by Southerland cannot be categorized as a promise of
benefits, even taking Southerland's version, as he admitted
Brownlee stated he could not make such a promise to him
while the union campaign was going on.
In essence, Brownlee merely informed Southerland of
the Respondent's restrictions during the organizing
campaign. From this record as a whole, and my
observations of the demeanor of the witnesses while
testifying, I believe and credit Brownlee's denial. Brownlee
had no reason to make such statements to Williams or
Southerland as they were being paid the same pay scale as
set forth in the union contracts of organized grocery
stores.
It is further alleged in the complaint that on or about
October 10, 1968, Brownlee offered, promised, granted,
announced and published to its employees improved
hospitalization policies, sick leave, and other benefits or
improvements, if they refrained from union activities.
When Brownlee initially assumed his position and
responsibilities with the Company in May , 1967, he
reviewed the classifications and pay scales of employees,
and by his evaluations ascertained certain deficiencies in
pay compensations and in the fringe benefits plans.
Brownlee then chartered a long-range course of changes in
efforts to correct these shortcomings in past practices or
policies. Brownlee stated that upon his arrival on the job,
the Company had no up-to-date manual or any booklet
containing policies of the Company, and the first current
manual was put out on January 1, 1968. He also stated
that certain changes were then needed to clarify the
January manual, and as a result the Company issued a
new manual on policies in July 1968. In October 1968,
during the organizational attempts by the Union, the
Company passed out to employees a blue book' which
summarized the fringe benefits to employees. This blue
book contains paragraphs on hospitalization insurance,
life insurance and disability payments, on-the-job injuries,
sick leave, holidays, vacations, retirement, time off, and
maternity leave of absence. The blue book also has
statements on problems and suggestions, and
qualifications and opportunities for advancements.
Brownlee testified that when the revised manual was
issued on July 1, 1968, as aforementioned herein,
supervisors and store managers were instructed to see that
employees were familiar with its contents, but when he
talked to the employees at Village and Foodway in
October, he learned that these employees still had many
questions regarding fringe benefits, and as a result the
blue book was put out in simple and understandable
language.
Dortha Watterson testified that in January, 1968, she
was unable to work at the Village store due to illness, but
she did not receive sick pay. She stated that no supervisor
had ever explained employees fringe benefits to her.
Watterson testified she never inquired of any supervisor as
to why she did not receive sick pay for the 2 days in
January. Gordon Fultz testified that during the 6 1/2
years he was employed by Respondent he had never seen
the policy manual which outlined Respondent's benefits,
and this included a 3-month period when he was a store
manager. Bethune testified he had never seen a policy
manual in the store until the evening of January 7, 1969.
This record shows that on January 1, 1968, the
Company announced in writing their sick leave policy of 1
week each year.' Brownlee stated that prior to the above
•G. C Exh 8
date the Company also had a sick leave policy, but it was
an unwritten policy. He further testified there had been no
change in the Respondent's policy on hospitalization
insurance since present coverage and premiums went into
effect on June 1, 1968. Brownlee also testified that life
insurance provisions and disability payments were
upgraded earlier in 1968, and specifically denied there had
been any changes in fringe benefits or wages - other than
regular scheduled increases - subsequent to the start of
the Union's organizational campaign on July 24, 1968. The
Company introduced testimony through Pat Price' to the
effect she had received sick leave pay in 1967, and
Respondent's Exhibits 5 through 8 and the testimony of
Brownlee , shows that Watterson was paid 2 days of sick
leave in January 1968.
It is the position of the General Counsel that the
Company announced and circulated its blue book in early
October 1968, for the purpose of affecting the outcome of
the election on October 17, and thereby violated Section
8(a)(1) of the Act. In support of this position, the General
Counsel points to certain language and sentences in the
blue book, and in relation thereto argues as follows:
In the Hospitalization Insurance paragraphs, the
booklet states that these benefits have been "recently
improved in our continuing program of upgrading your
company benefits." Brownlee attempted to clarify this
statement at the hearing, but he neglected to state
whether he clarified it with each employee who was
given a booklet. From the testimony of witnesses, it is
apparent this point was not clarified for the
rank-and-file employees. This booklet in the same
section later states , "We know that hospital charges are
constantly rising and we are keeping the plan under
study for improving it." In the pragraph entitled
Retirement, the first sentence states, "Another one of
our improved employee benefits ...." It is important
to note that nowhere in the booklet is there a statement
that the benefits set out therein are not newly granted
benefits, but simply a restatement of existing benefits."
It appears to me there is lacking a sufficient
preponderance of evidence by the General Counsel to
adequately support the allegation that the Company
announced and promised improved employee benefits. The
fringe benefits the employees had subsequent to the advent
of the Union and have up to the present - were the same
benefits they had prior to July 24, 1968. From the
evidence in this record the employees had sick leave
benefits as early as 1967, and the testimony by Watterson
that she did not receive sick leave pay in January 1968,
was successfully refuted by the Company, as aforestated.
As pointed out, there was some testimony the employees
were not fully aware of the sick leave policy and possibly
hospitalization benefits, but such policies did exist. The
Company may have been negligent in not going over this
information with the employees, but this cannot support a
finding that the employer did not have such benefits.
Brownlee stated that the improved hospitalization plan
was made June 1, 1968, and a letter was sent to all
employees advising them of such change. This fact is in no
way denied, and adequately demonstrates the increased
benefits in hospitalization took place prior to any union
activity. Since no changes in employee benefits were made
after July 24, 1968, when the union drive got under way,
the crux of the argument by the General Counsel must
hinge on the October publication of the blue book.
'Resp Exh 3 This exhibit is a page extract from the policy manual or
booklet issued by the Company on January 1, 1968.
KIMBELL CORPORATION 831
However , all the fringe benefit plans had been in existence
and put in writing and were operative before this
publication , and the employees had some knowledge of
their existence. Under such circumstances the mere
restatement in the blue book of policies previously
announced in writing in January and July 1968, cannot be
deemed an offer or promise of improved benefits for the
purpose of affecting the election. From this record as a
whole, it is readily apparent that starting back in 1967,
Brownlee instituted and then continued to make a very
determined effort to implement improved relationships,
policies , and communications with employees , and the
summarization of already operative benefit plans in the
blue book in simplified and understandable language,
must fall within this long range scope of his persistent
endeavor.
Paragraph 6, subsection (d) of the complaint, alleges as
follows:
On or about October 17, 1968, the Respondent by its
officers and agents , Buck Seagroves, Crockett Fox and
Jack Cross, forcefully and violently evicted
representatives of the Union from its store in order to
induce its employees to refrain from becoming or
remaining members of the Union or giving any
assistance or support to it.
Danny Reid, a business agent of the Union, and two of
his helpers went to the Respondent's Foodway store on
the morning of the election. They were then told by
Supervisor Fox and Store Manager Seagroves , that they
were not wanted in the store. The supervisors were
informed the Union had "interest in the store" and their
people would be in and out of the store all day long. Reid
and the two others then drove over to the Respondent's
Village store. Upon arrival they were met by Store
Manager Younger and Jack Cross, and informed they
were not wanted and to leave. The union delegates replied
that they were going to stay. Respondent's attorney,
Edward Kemble, then appeared and he also asked them to
leave the store. Reid testified that at this time one of the
store checkers were stationed in a nearby check stand.
The union representatives left, consulted with their
attorney, and Reid then returned to the Village store. He
was met at the door by Jack Cross, and Reid stated, "He
put his hand on my chest and took me by the arm and
turned me around and shoved me out the other door."
Employee Lowella Wells, testified that when Reid came in
the door, Cross "pushed him out the other door," but she
could not hear what they were saying. Reid stated that
Supervisor Younger was close-by when this incident
occurred. Reid called the police and filed charges against
Cross for assault. The next development shows that Reid
then went back to the Foodway store where he was met at
the door by Seagroves and who again told him that he
was not wanted. Reid informed Seagroves he was going to
be at the store all day long. Seagroves then went down to
the police station and filed charges against Reid for
disturbing the peace, but Reid posted bond and returned
to the Village store. He then had a short conversation
with Younger about arrangements for employee Bethune
to be the Union's observer at the election, and also talked
with Respondent's attorney, Kemble about this matter.
Manager Younger then filed charges against Reid for
disturbing the peace, and shortly thereafter two
policemen - one in uniform and one plainclothesman -
came into the store and took Reid with them. Reid testified
that at the time Lowella Wells was on the scene, and
Dortha Watterson stated that she saw a policeman go out
of the store with Reid on this occasion. Reid again posted
bond, and this time returned to the Foodway store where
he was met by Seagroves and Gee (the meat market
manager). Seagroves asked Reid to leave, and after some
conversation Attorney Kemble walked up and asked Reid
if he wanted to be arrested again . After some conversation
with Kemble, Reid walked away and began shopping in
the store. He found some merchandise that he desired to
purchase. Subsequently, two policemen arrived (one in
uniform and the other in plain clothes) and arrested Reid.
As Reid was leaving the store, he asked Seagroves to
check his merchandise for him. Seagroves said, "No,"
took the merchandise out of his hands, and told him that
he did not have to sell him the merchandise. Reid went to
the police station and again posted bond. Reid further
testified that during the interval between the
organizational campaign beginning on July 24, 1968, and
up until the October 17 election, he was in and out of the
Foodway and Village stores in order to converse with
employees about the Union and to solicit authorization
cards, but stated he never stayed more than 15 or 20
minutes at any one time. Reid admitted he knew about
the "no solicitations" signs at both stores and had been
previously warned in September about violating the same.
The signs read that there should be no solicitation without
prior approval of the manager.
It is pointed out by the General Counsel that to
forcefully evict and have the union representative arrested
in front of rank-and-file employees would normally be
calculated to discourage these employees from supporting
the Union, and that such conduct has a particularly
damaging effect when it occurs, as here, on the day of the
election.
The Board in Walton Manufacturing Company, 126
NLRB 697, has specifically set forth its test for lawfulness
of rules against solicitation for nonemployees on employer
property as follows:
3. No-solicitation or no-distribution rules which
prohibit union solicitation or distribution of union
literature by nonemployee union organizers at any time
on the employer's property are presumptively valid, in
the absence of a showing that the union cannot
reasonably reach the employee with its message in any
other way, or a showing that the employer's notice
discriminates against the union by allowing other
solicitation or distribution.
It is also well recognized that a retail department store,
because of the nature of its business, is further privileged
to ban union activity, even on nonworking time, in those
areas of the store open to the public. See May
Department Stores, 59 NLRB 976, enfd. 154 F.2d 533
(C.A 8), cert. denied 345 U.S. 905. The two stores in
question here are retail grocery stores.
There is no testimony in this record that other means of
contacting employees were unavailable to the Union, and
furthermore, the only actual or stated purpose which the
Union had on October 17, was to solicit the help of
employee Bethune. It is obvious the Union did not resort
to any other means of communications , but merely sought
to establish some sort of contact with Bethune, by the
coming into the stores.
Since the Board's test makes such a rule as here valid,
the burden of overcoming this presumption by competent
evidence is on the party seeking to establish that the rule
is invalid . The General Counsel has failed to meet that
burden.'
'See Salyer Stay Ready Filter Corp, 136 NLRB 1210
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains for disposition the question of whether
Cross, Seagroves, and Younger were enforcing the
Respondent's rule when Cross forcibly ejected Reid from
the Village store and when Seagroves and Younger had
him arrested, or whether their conduct was such that it
constituted interference with their employee's Section 7
rights . As pointed out in Salyer Stay Ready Filter Corp.,
supra, - there can be no question that the Respondent,
having a legitimate rule, and had a concomitant right to
enforce the rule.' At both stores Reid was asked to leave,
and when he refused to do so, the Company could then
take necessary steps to remove Reid from the premises.
Under the controlling circumstances present here, the
physical ejection of Reid by Cross, and complaints by
Store Managers Seagroves and Younger which then
resulted in his arrests and peaceful removal from the
stores by the police, must be deemed as lawful
enforcement of the Company rule, and necessary action,
without unreasonable force, to accomplish the task at
hand. Furthermore, I cannot infer from these incidents,
even though the action occurred in sight of a few of the
Respondent's employees, that its purpose was calculated
to discourage employees from supporting the Union as
contended by the General Counsel. The course taken by
the Company, under these particular circumstances, must
be tipified as more-or-less immediate and on the spot
reactions to the situation they were confronted with, and
the subsequent arrest of Reid and his removal by the
police, was no more than a continuation of the action
started in the Respondent's stores when Reid refused to
leave and was initially ejected by Cross. The above
analysis is also intermingled with the admissions of Reid
that he knew about the no-solicitation signs in both
stores - Store Manager Seagroves had previously pointed
out the signs to him, and that a few weeks prior to the
election Brownlee had asked him to leave the backroom
of the store. Thus, the Union cannot claim the day of the
election was the first occasion on which the no-solicitation
rule was called to their attention. There is also no
evidence in this record that the Company allowed or
permitted other types of solicitation in the stores while
placing a ban on solicitations by the Union. The General
Counsel's positions and argument relative to Jack Cross,
also hinges to some extent on the allegation that Cross
was a supervisor within the meaning of the Act. There is
no credited evidence whatsoever, to substantiate this
allegation. Reid merely suggested that he knew Cross as a
maintenance supervisor, but there was no testimony in
ascertainment of his actual duties, authority, or
responsibilities. Cross was present when Younger told
Reid he was not wanted in the store, and
Younger was also present when Cross ejected Reid
from the store. From these facts it can be assumed
that Cross was acting under the direction of management
and as an agent of the Respondent, but this in no way
alters my prior discussion and analysis, as the Company
had justifiable grounds in acting as it did in directing
Reid's removal.
I find that the Respondent had a valid no-solicitation
rule and that by ejecting Reid from the stores the
Company agent and managers were lawfully enforcing the
rule.
'The Supreme Court has held that a no-sohcitation rule is not
necessarily invalid even when enforced in a context of employer unfair
labor practices and antiunion solicitation . See Nutone, Inc, and N.L R.B
v Avondale Mills, 357 U.S 357, 362-363.
Gordon Fultz was employed by the Respondent for
approximately six and one-half years, and in 1967 Fultz
was a manager at another Respondent' s store in Ardmore
for approximately three months before it closed. At the
time of his discharge he was working at the Foodway
store and had the title of assistant manager . In late July
1968, Fultz signed an authorization card for the Union,
actively solicited 9 or 10 other employees to sign
authorization cards, and attended all the Union meetings.
Fultz testified that in July 1968, he was working as a
stocker-checker at the Foodway store and that Bob
Wilson was the assistant manager of this store. He stated
that a week or so after the organizational campaign began
-Wilson inquired about the " union deal ," and informed
Fultz he knew such a compaign was going on. Fultz
testified that when he reported to work on August 12,
Seagroves informed him they were to report to the home
of Respondent's area supervisor, Fox. Upon their arrival
Seagroves and Fox engaged in some conversation about
another employee, and then Fox asked Fultz if there were
"any disturbances" among the employees at the Foodway
store. Fultz replied that he knew of none. According to
the testimony of Fultz, Fox then told him that he had
heard Fultz had been "kicking" about his salary. Fultz
replied that he had complained, and then explained to Fox
why. Fox then offered Fultz the manager 's job at the
Respondent's store located in Hugo, Oklahoma, at an
increased salary. Fultz related he then told Fox there had
been a rumor to the effect the store at Hugo was going to
close, and the Foodway store was receiving merchandise
from Hugo. Fox replied they had until October 1968, to
improve the volume of business at this store. Fultz then
asked to have a few days to think the matter over, but
Fox told him he had to know something that day. Fultz
testified that on the way back to the Foodway store he
asked Seagroves what would happen to him if they closed
the Hugo store, and Seagroves replied he did not know.
Fultz stated that after returning to the Foodway store he
was confronted by Doug Bates, supervisor for the
Company in West Texas, and he informed Bates he was
not taking the Hugo job. Bates subsequently informed Fox
of Fultz' decision . Fox then called Manager Seagroves
and told him to talk to Fultz, and to tell him if he did not
take the Hugo job, the Respondent did not have a job for
him at the Foodway store. According to Fultz, Seagroves
then asked him if he was going to take the Hugo job, and
Fultz testified he told Seagroves he was not going to
Hugo, and Seagroves then told him he did not have a job
at Foodway. Follwing this conversation Fultz himself
called Fox to ascertain his status, and Fox asked him,
"You are not going to take the store?" Fultz said, "No."
Fox replied "You don't have no job there." Fultz testified
he then told Fox it seems "funny" to him that after six
and one-half years his work was suddenly unsatisfactory.
Fox stated, "Well, we've got to cut expenses," and after
some additional conversation , Fox informed Fultz that he
was fired. Fultz then called Brownlee in Fort Worth and
told him he had been discharged. Fultz testified Brownlee
then informed him "we wanted you to go to Hugo and we
felt that you let the Company down and we felt that you
would be an asset down there." Fultz also stated that
within a week or so following his discharge the
Respondent 's store in Hugo was closed , and that the first
time he heard anything about the store managership in
Hugo was on August 12.
Fox testified that on or about July 7, 8, or 9, 1968,
Brownlee came to Ardmore to confer with him with
regards to a possible management change in the store at
KIMBELL CORPORATION
Hugo as they had just reviewed the annual fiscal reports
ending June 30, 1968. Brownlee insisted that a
management change in Hugo was necessary, and they then
discussed the available men, under the jurisdiction of Fox,
who could handle this job. Fox stated he felt Fultz would
be the best qualified person to take the job as he had prior
experience as a store manager . Brownlee and Fox also
discussed who would take Fultz' place at Foodway, and
Fox advised that Bob Wilson, who had previously worked
for the Company, had stated to him that he would like to
come back to work. Fox testified that 2 or 3 days later he
talked to Fultz, and informed him of the possibility of a
store manager's job, and Fultz then told Fox he would be
interested as he needed more money. Fox further related
that on or about August 1, 1968, he again spoke with
Brownlee about the management change at the Hugo
store. On this occasion he informed Brownlee that Wilson
progressing satisfactorily at the Foodway store,'° and that
Fultz would be moved to Hugo, but would delay the
change until he (Fox) was released from the hospital. Fox
went on to testify that on August 12, 1968, Brownlee
again called him and inquired about the Hugo change,
and Fox then told Brownlee that in his visit to Ardmore
on August 9, as aforestated, he had instructed supervisors
to make no change or statements without prior approval
from Brownlee, but after concluding his telephone
conversation he then called Seagroves and had him bring
Fultz to his house, as previously setforth herein. Fox
stated he then informed Fultz of his promotion to the
Hugo store, and that he would start him out at $140 a
week, a $40 raise over his present salary. Fultz asked Fox
whether it was true the Company was going to close down
this store, and he then advised Fultz there was a
possibility that they would, but they felt like he could
"turn the store around." Both Fox and Brownlee
affirmatively stated they had no intention of closing the
Hugo store at the time the job was offered to Fultz. Fultz
then told Fox he needed to talk to his wife and Fox asked
him to let him know something that day, and also advised
him that Bates was on his way up to Ardmore from
Texas, and that he would help Fultz get the Hugo store
open the following morning . Fox went on to testify that
late in the afternoon of August 12, Bates came to his
home and informed him that he had spoken to Fultz, and
Fultz had advised him he was not going to go to Hugo.
Fox then called Brownlee and told him of this, and
Brownlee asked Fox to talk to him and try to get him to
change his mind. Brownlee further informed Fox that if
Fultz would not take the job to release him. Fox stated
this was the first time in 30 years of experience of anyone
not accepting a store manager job. Fox then called
Seagroves at Foodway and asked him to check with Fultz
and that if he did not want the Hugo store to tell him the
Company did not have a job for him. Fultz then called
Fox and advised him he did not want to go to Hugo, and
that he had bought a place in Ardmore that day. Later
that evening Fultz called him again and asked Fox if he
realized he was firing him while under a doctor's care, and
Fox stated that he was not aware of this. Fultz also told
Fox he would see him in court. Fox stated that in the past
the Company had used their Foodway store as training
grounds for store managers , that employees were aware of
this, and Fultz had previously gone into a store
managership from Foodway.
"Apparently Wilson had been hired in the interval between the middle of
July and August 1, 1968.
833
Brownlee also gave considerable testimony in regard to
Fultz and his statements were in general corroboration to
the testimony of Fox. Brownlee further stated that on the
night of August 12, when Fultz called him in Fort Worth
and advised he was not going to Hugo, he also inquired
what would happen to him if the Hugo store closed. In
response to this question Brownlee advised Fultz they
were not planning to close the Hugo store, and second,
the Company would take care of Fultz, "just like we did
when we closed the No. 8 store in Ardmore when he was
manager ." Brownlee went on to state that the
$140-a-week salary he offered Fultz as base pay, was a
little higher than they were paying the manager at the
Foodway in Ardmore because of the fact that the Hugo
store had been a problem and it would take some time to
improve the sales, and Fultz would not draw the usual
store manager's bonus. Brownlee indicated that some
merchandise from the Hugo store had been transferred,
but stated this was due to the fact that the storeroom in
Hugo was filled up and he had to get the merchandise in a
store where it would sell. He also testified he was never
able to find a man to take over the Hugo store, and it
closed shortly after October 1, 1968.
It is the position of General Counsel that the discharge
of Fultz was motivated by a desire on the part of the
Respondent to rid itself of the leading union adherent in
its stores , and thereby undermining the Union in its
organizational efforts. The General Counsel also points
out that Fultz secured 10 of the 18 authorization cards,
that Brownlee isolated the union activity to be mainly
concentrated in the Foodway store, that Fultz was
considered a valuable employee by the Company, and that
the pretextual nature of Respondent's defense is reflected
in the "shifting" reasons given for Fultz' discharge. The
Company maintains that Fultz was terminated because he
would not accept the responsibility they had asked him to
accept.
There were some questions raised with reference to the
supervisory or nonsupervisory status of Fultz. Fultz denied
he had been told he was the assistant manager, denied
that he had told any employee this, and refuted the
contention he had authority to hire or fire employees. Fox
stated that Fultz was the assistant manager of the
Foodway store, and he could recommend the hiring and
firing of employees. However, Respondent did not
produce any valid or credited incident showing that Fultz
exercised this alleged supervisory authority, and it was
finally admitted by Fox that Seagroves had the ultimate
responsibility for the Foodway store. The Respondent also
admitted that Fultz' work with the payroll at the Foodway
store was in the form of clerical duties - merely adding
hours worked by the employees and that final pay
computation were done in Fort Worth. Simply because a
man is given a title of assistant manager does not of itself
make that employee a supervisor within the meaning of
the Act. The testimony in this record clearly established
that Fultz was nothing more than a rank-and-file
employee at the time of his discharge."
The Respondent gained official knowledge of the union
activity on August 8, 1968, when Brownlee received the
Union' s letter requesting recognition. To establish
knowledge of the specific employees involved in union
activity - the General Counsel relies on the fact that the
following day Brownlee made a personal visit to Ardmore,
"The General Counsel withdrew his trial amendment to paragraph 6 of
the complaint alleging that Robert Wilson was a supervisor or agent within
the meaning of the Act.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conferred with supervisors and Bob Wilson relative to
the organizational efforts , as aforestated . Brownlee stated
that in his conferences on August 9 he merely ascertained
there had been some union activity , and the Union had
secured a small number of supporters . On the morning of
August 9 , Fox was released from the hospital, and,
therefore, had no personal knowledge of any union
activity and so informed the other present at the
conference in his home . Fox then inquired of Meat
Market Manager Gee and Bob Wilson if they knew
anything about organizational efforts , and both replied in
the negative .'2 Based upon this record there is no evidence
that the Company had any reliable knowledge of Fultz'
activity for the Union prior to his discharge . To establish
this essential element , the General Counsel also relies on
the testimony of Fultz that in late July or early August,
1968, Bob Wilson asked Fultz about "the union deal."
Fultz testified he then replied, "that ' s done blowed over a
long time ago ." Although Wilson indicated he knew union
activity was going on, there is no evidence he had
ascertained in any way the identity of the employee
leaders or that he was in any position to actually know
Fultz ' participation for the Union . This record does not
show Wilson attending any meetings of the Union or
signing an authorization card." The General Counsel
further maintains that the extensive card signing activity
by Fultz is also indicative of Company knowledge and a
subsequent discriminatory discharge . The General Counsel
points to the testimony that at least six authorization
cards secured by Fultz were obtained from employees
while on Respondent' s premises . It appears to me this
theory is extremely difficult to successfully maintain, as
Fultz himself agreed that he was careful and secretive in
signing employees "so that Mr. Seagroves did not know
about it."
Against a solid array of substantial credible testimonial
evidence supporting Respondent ' s contention that Fultz
was dismissed for cause , as indicated above, there is a
dearth of evidence to support the theory of General
Counsel - who of course carries the burden of proof
here - that Fultz was dismissed because of his union
membership, sympathy or activities , or to discourage
union membership . It is of course obvious that mere union
membership and activities do not insulate an employee
from discharge for other reasons
Union membership and activities is not a shield behind
which a discharged employee can take refuge and claim
discrimination . . The burden remains upon the
General Counsel to prove that the reason for the
discharge was the employer's anti-union hostility. An
employer is not obliged to treat a union member
differently or with greater deference than any of his
other employee . Poor performance , misconduct and
insubordination , for example, do not have to be
tolerated merely because the offenders are among the
plant's most active union supporters. An employer's
stated opposition to unionization is not in itself
sufficient evidence to sustain a finding that an employee
was discharged because of discrimination against a
union ." N.L.R.B . v. Bangor Plastics , Inc., 392 F.2d
772, 777 (C.A. 6).
The evidence overwhelmingly establishes that the
Company had an immediate and pressing problem with its
store managership in Hugo and in the judgment of
"There is no allegation in the complaint that this single conversation
with Bob Wilson in August, was violative of the Act
"Wilson was not called as a witness in the trial before me
Brownlee and Fox, the only capable man to adequately
handle this difficult economic situation with Fultz. There
is no showing by the General Counsel that this problem
was not real - or that it was manufactured, trumped-up,
or pretextual on Respondent's part, nor is there a showing
of any unlawful discriminatory application in the selection
of Fultz for this job. The re-establishment of increases
sales at the Hugo store loomed large in importance to the
Company, and such is confirmed by witnesses and by the
fact that the Hugo store did close its doors in early
October 1968.
In order to find that Fultz was unlawfully terminated -
I would have to draw an inference that the Company
offered the Hugo job to Fultz knowing this store would be
closed down, and with a further inference that after
closing it down the Company would have then discharged
Fultz. As pointed out, both Brownlee and Fox testified
they had no intention of closing the Hugo store if Fultz
could make it a profitable venture. Brownlee assured Fultz
he would take care of him if in fact the store was closed,
just as the Company had previously done in 1967 when
they closed another store in Ardmore where Fultz had
been the manager. This assurance by Brownlee was not
specifically denied by Fultz although he could not
remember it. Therefore, I would have to make an
additional inference that the Company would not have
transferred Fultz back to one of their operating stores if
and when the Hugo store closed, and Brownlee's
affirmative promise and credited testimony he would in
fact take care of Fultz, together with the fact that the
Company had previously transferred Fultz in a like
situation , is sufficient proof to rebut any inference that the
Respondent would not have so transferred Fultz if the
Hugo store had to be closed. I am not prepared to pile
one inference upon another in order to reach a conclusion
that there was substantial evidence, nor am I required to
do so.
There is also some indications in this record that the
discharge was discriminatory because some other person
could have been transferred to the Hugo store.1" This
record shows that other than the store located at Purcell,
Foodway was the only one to have Assistant Managers
(Fultz and Wilson) and as pointed out, on August 12,
1968, there were only three assistant managers in the
jurisdiction supervised by Fox - those being Wilson and
Fultz at the Foodway store in Ardmore, and Shockley at
Purcell. Neither Shockley nor Wilson had any previous
store manager experience, and Fultz was the only one that
had such experience." There was also an attempt to show
that Shockley was transferred from the store in Purcell to
Foodway to take Fultz' place. However, this record shows
that Shockley was not transferred, but resigned his job at
Purcell and came to Ardmore to attend a special school.
His services then became available to Foodway, and he
was hired in late August 1968, due to the above factors
and also because Foodway was short of help as several
young package boys had returned to school.
The General Counsel argues that the August 12
discharge of Fultz is "highly suspicious" due to its timing
- just a few days after the Company received notice from
the Union. However, reliable evidence in the record shows
"Fox had 10 stores in Oklahoma under his supervision or jurisdiction.
The Foodway store has about 18 employees, and the number of employees
and other stores are located in the following Oklahoma towns . Purcell, 9;
Village Ardmore, 9; Healdon, 6; Marietta , 6; Sulphur , 6; Wilson, 5,
Midell , 4; and Davis, 4 employees.
"Wilson had been out of the grocery business for several months prior to
being rehired by the Company
KIMBELL CORPORATION
that initial considerations to place Fultz in Hugo were
undertaken on or about July 10, 1968, before any union
activity, and it is also clear that Fox did not want to
transfer Fultz until Wilson had an opportunity to get
acquainted with the work at Foodway. Fox then indicated
the change could have been made in early August, but
explained he wanted to postpone the final decision until he
was released from the hospital, as aforestated.
The record reveals some testimony by Fultz that the
transfer to Hugo would have placed a considerable burden
on him . As pointed out, Brownlee sent area Supervisor
Bates from West Texas to Ardmore on the date in
question for the purpose of helping Fultz to make the
move, and on the night of August 12, when Fultz called
Brownlee in Fort Worth, he concluded his conversation
with Brownlee by telling him he wanted to go to West
Texas and work for Bates . This requested transfer to
Texas by Fultz would certainly be a greater distance and
burden in family moving arrangements than the
approximate 100 miles involved from Ardmore to Hugo.
An employer does not violate the Act by expecting too
much of employees. Provided no violation of the Act is
involved , no offense against the Act is committed by an
employer who discharges an employee even at will or
whim. Act, Sec. 10(c); N.L.R.B. v. Great Dane Trailers,
Inc., 388 U.S. 26; N.L.R.B. v . Waterman S. S. Corp.,
309 U.S. 206 218-219; N. L. R. B. v. Finesilver
Manufacturing Company, 400 F.2d 644 (C.A. 5); Betts
Baking Co. v. N.L.R.B., 380 F.2d 199, 203 (C.A. 10);
N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497,
505-507 (C.A. 6) cert. denied , 389 U.S. 843; N.L.R.B. v.
Soft Water Laundry, Inc., 346 F.2d 930, 934 (C.A. 5);
N.L.R.B. v. Redwing Carriers, Inc., 284 F.2d 397 (C.A.
5); Dieckbrader Express, Inc., 168 NLRB No. 113;
Kayser-Roth Hosiery Co., Inc., 166 NLRB No. 56;
Guyan Machinery Company, 155 NLRB 591.
In the instant case, it cannot be said the Company was
requiring Fultz to do too much. The Company was not
asking Fultz to take a less desirable position at a loss in
pay, but exactly to the contrary. He would have been
transferred to a store managership and at a considerable
increase in salary-even higher than other store managers
were receiving . An employee has no right to insist upon
employment on terms prescribed solely by him.
In the final analysis, the Respondent has shown a real
economic necessity and reason for the transfer of Fultz; it
has shown that the decision was based on background
qualifications and experience after careful evaluation or
deliberations ; and this record further shows that the
Company had no specific prior knowledge of Fultz'
individual union activities. I find that it has not been
established by substantial credible evidence , as required,
that Respondent discharged Fultz because of his union
membership, sympathy, activities, or support, or in order
to discourage union membership. This, the measure and
limit of the issue here , has simply not been proved.
By letter dated August 5, 1968, the Union informed the
Respondent it represented a majority of its employees,
excluding meat department employees , in its Foodway and
Village stores , and offered to prove its majority status by
a cross check of signed authorization cards . In this letter
the Union requested recognition for all employees in the
grocery and produce departments , specifically excluding
one store , manager , meat department employees , guards,
watchmen , and supervisors as defined in the Act. By letter
dated August 9 , 1968, Brownlee informed the Union as to
the proper ownership of the two stores in question, and
then denied the request for recognition on the basis the
835
Company did not believe the Union represented a
majority of its employees, and its doubt as to the
appropriateness of the requested unit. 16
On the record in the instant case, I am unable to
conclude that the Respondent acted in rejection of the
collective-bargaining principle or to gain time in which to
undermine the Union and dissipate its purported majority.
As the Board stated in Hercules Packing Corporation, 163
NLRB No. 35, "The burden is upon the General Counsel
to establish that the employer in bad faith declined to
recognize and bargain with the Union." Upon
consideration of the entire record, I find that the General
Counsel has not sustained his burden.
While an employer's right to a Board election is not
absolute, it has long been established Board policy that an
employer may refuse to bargain and insist upon such an
election as proof of a union's majority unless its refusal
and insistence were not made with a good-faith doubt of
the Union's majority." An election by secret ballot is
normally a more satisfactory means of determining
employees' wishes, although authorization cards signed by
a majority may also evidence their desires. Absent an
affirmative showing of bad faith, an employer, presented
with a majority card showing and a bargaining request,
will not be held to have violated his bargaining obligations
under the law simply because he refused to rely upon
cards, rather than an election as the method for
determining the Union's majority.
Whether an employer is acting in good faith or bad
faith in questioning the Union's majority is a
determination which of necessity must be made in the
light of all the relevant facts of the case, including any
unlawful conduct of the employer, the sequence of events,
and the time lapse between the refusal and the unlawful
conduct. Where a company has engaged in substantial
unfair labor practices calculated to dissipate union
support, the Board, with the Court's approval, has
concluded that the employer insistence on an election was
not motivated by a good-faith doubt of 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.
As previously detailed herein, the Respondent
committed no violative 8(a)(1) or 8(a)(3) unfair labor
practices. This factor is of utmost importance is
ascertainment of good or bad faith, and highly relevant
when looking at the entire scope of Respondent's conduct.
After Brownlee received the Union's demand for
recognition , he called two employees to find out if there
was any basis for the letter, and then on the next day,
August 9, went to Ardmore and made further inquiries
there, as aforestated, about this matter. In regards to his
conference at Ardmore on August 9, 1968, Brownlee
"The described unit in the complaint was found to be appropriate by the
Regional Director in his Decision and Direction of Election after a
representation hearing was held in Case 16-RC-4979 , and this is essentially
the same unit the Union requested recognition of in its letter and in its
Petition for Election , as aforestated Since it has been uniformly held that
insubstantial variations in the unit described by a Union in its request for
recognition does not destroy the validity of an otherwise valid demands,
the inconsequential change here in the language describing the unit is of no
effects The Company also raised the argument at the trial and in its brief,
to the effect that the Union did not , in its letter nor at any other time, ever
request the Respondent to bargain It is well established that a demand for
recognition constitutes a request to bargain , and that no particular form of
words are necessary to appraise the employer of a demand to bargain.
"Joy Silk Mills, Inc. 85 NLRB 1263, 1264, enfd . 185 F.2d 732
(C A D.C .), cert denied 341 U S. 914
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated the following:
We were a little surprised, very much surprised,
when we got this letter from the Union to start with,
and in my inquiries to Mr. Fox and their answers to
him were that there were no union activities as far as he
knew. I wanted to go a little further. I wanted to find
out and so we talked to the store managers, these 2
employees, to try and find out if in fact there was any
kind of union activity. We did find out there had been
some activity and that it was apparently a very closely
guarded secret and that these people had pledged
friendships and so forth and promises. They hadn't said
anything about it and really didn't want to discuss it
then so we dropped the subject. We needed to know if
there was any basis to think that the Union might have
a majority of the employees.
Brownlee further stated:
We were just trying to find out if the Union had been in
the stores or had contacted our employees. That's what
we were interested in finding out.
Brownlee also testified that at the August 9 conference -
Fox, and Store Managers Seagroves and Younger,
indicated that they knew nothing of the Union, and based
on such information they could not believe there was any
substantial interest in the Union.
Upon completion of the Ardmore meeting - Brownlee
then consulted with his attorney and passed along the
above information - that there was no possible way the
Union could have a majority. Brownlee then sent his reply
letter to the Union. 18 Up to this point or date in the
sequence of events, it is obviously apparent the Company
had reasonable grounds to entertain their doubt as to the
Union's majority.
From August 9 until October, the Company did
absolutely nothing in regards to the Union, and the
complaint inself duly reflects that all alleged misconduct
other than the discharge of Fultz, did not take place until
October. As specifically detailed earlier herein, I have
found no violative conduct in the October period
preceding the election. In October, Brownlee also had
individual conversations with almost every employee, but
"Brownlee noted that the Union's demand letter stated their willingness
to let him check the authorization cards, but testified the Company
not want to know who had signed the cards and that an election was the
best method to settle the matter
yet this record shows there was only one isolated incident
where he overstepped permissible bounds of inquiry and if
the Company had any intentions to undermine the Union
or to destroy its majority, as so alleged in the complaint,
these occasions certainly presented an excellent
opportunity. Brownlee testified that in his October talks
and conversations with employees, he told them they
should vote whatever way they wanted, and that nobody
would know how they voted as it would be a secret
election conducted by the Board. He then concluded this
line of testimony by stating, "I never made an anti-union
talk. I think I was just the opposite. I think I probably
leaned over backwards to be fair...." This record is in
overwhelming support of Brownlee's testimony, and his
most unusual and remarkable candor.
In the concluding summary of this case, there is no
evidence that the Company completely rejected the
collective-bargaining principle or refusal to bargain with
the Union, or that it refused to recognize and bargain in
order to gain time to undermine and destroy the Union's
majority. The Respondent's desire to invoke the
procedures of the Board for an election, and in the
absence of unfair labor conduct and for all other reasons
given herein, are more consonant with my finding that the
Company had a good-faith doubt of the Union's majority.
Accordingly, I shall also dismiss the 8(a)(5) allegation of
the complaint."
CONCLUSIONS OF LAW
1. The 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. The Respondent has not engaged in unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed in its entirety.20
"In view of my dismissal of the 8(a)(5) allegation , it is unnecessary to
consider any of the issues and contentions relating to the authorization
cards and the Union's majority status Discussions and conclusions on the
cards could in no way alter my findings herein
"In accordance with the above objections 1, 2, 3, 5, 8, 10, and 11 in
16-RC-4978 are overruled.