Low Bros. National Market, Inc.

National Labor Relations Board - Board DecisionsJan 8, 1970

180 N.L.R.B. 592 (N.L.R.B. 1970)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Low Bros. National Market , Inc. and Retail Clerks Union , Local 1288, Retail Clerks International Association , AFL-CIO. Case 20-CA-5415 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE January 8, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 3, 1969, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding,' finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent's unlawful conduct had interfered with a National Labor Relations Board election held on January 30, 1969, and recommended that the election be set aside. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel an answering 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 proceeding to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner 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 briefs, and the entire record in this proceeding, and hereby adopts the findings, I 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 Respondent, Low Bros. National Market, Inc., Los Banos, California, its officers, agents, successors , and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. 'This case was consolidated for hearing with Case 20 -RM-1147 which was thereafter severed , in accordance with the Regional Director 's original order consolidating the cases. 'In adopting the Trial Examiner's finding that an employee , Moore, was threatened with loss of employment if the Union won the election, we are cognizant that the finding is somewhat at variance with the specific allegation that employees were threatened with loss of employment if "they went out on strike ." However , Respondent was on notice that it had allegedly threatened employees with "discharge or loss of employment " The finding of a violation was in any event a minor variance from the allegation and inasmuch as we find that the overall issue of threats of discharge was fully litigated , we conclude that the finding of violation was properly made 180 NLRB No. 93 DAVID E. DAVIS, Trial Examiner: This consolidated proceeding with all parties represented was heard before me at San Jose, California on June 10, 1969. The General Counsel issued a complaint on April 4, 1969, in Case 20-CA-5415 based on a charge filed on February 6, 1969, amended on March 19, 1969, by Retail Clerks Union, Local 1288, affiliated with Retail Clerks International Association, AFL-CIO, herein called the Union. On April 10, 1969, Low Bros. National Market Inc., herein called the employer or Respondent filed its answer denying the commission of any unfair labor practices. The petition in Case 20-RM-1147 was filed by the employer on January 2, 1969, and an election pursuant to "Agreement for Consent Election" was conducted by a Board agent on January 30, 1969.' The tally of ballots showed that the Union failed to achieve a majority. Timely objections were filed by the Union and after investigation the Regional Director of the 20th Region issued a Report on Objections overruling all objections except objections 2 and 3. The Regional Director found that a hearing was advisable on these two objections. As the same matters were included in the complaint case as violations on Section 8(a)(1) of the Act, the cases, on April 4, were consolidated for hearing. I have been duly assigned to the consolidated hearing have considered the entire record, in this case, including the briefs received from each of the parties. From my observation of the witnesses including their demeanor, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleged , the answer admitted and I find that Respondent during the past year received goods and products valued in excess of $50,000 directly from suppliers located outside the State of California and that during the same period sold goods and products valued in excess of $500,000. It is admitted and I find that Respondent, at all times material herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act I also find that it would effectuate the policies of the Act for the Board to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleged, the answer admitted and I find that the Union, at all times material herein, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES3 The complaint alleged that Respondent interfered with, restrained, or coerced employees in the exercise of their ' Hereafter all dates will refer to the year 1969 unless otherwise specified 'The General Counsel's unopposed motion to correct the transcript in certain respects is hereby approved. 'Prior to the hearing , Respondent's motion for prehearing discovery was denied by Trial Examiner George H O'Brien The motion was renewed at the hearing and was again denied by the undersigned Trial Examiner. I concur with the written opinion of Trial Examiner O'Brien. See General Counsel Exhibit 2(I). LOW BROS. NATIONAL MARKET, INC. Section 7 rights by certain conduct of Morey Low, President of Respondent and Rudolph G Galvan, manager of Respondent's retail supermarket at Los Banos, California.' Barbara J Vickers testified that she was employed by Respondent at Los Banos as a cashier-clerk from July 1968 to April 13, when she voluntarily quit; that sometime during the latter part of December 1968, she signed an application for membership in the Union at a meeting of the employees in Galvan's home; that early in January, Low called her up to his office at the store; that Low told her that there was going to be an election and he wanted to tell her the disadvantages of the Union Low said that the law required him to negotiate with the Union, that he was not "going to go union," and if the employees voted for the Union, they would have to go out on the picket line, and it would stop their salaries and insurance. Vickers also testified to a conversation that she had with Galvan the day before the election. She stated that Galvan told her the employees of the store had changed their minds about voting for the Union, that she would be the only one left; that Low would know that she was the only one that voted for the Union; that if she voted for the Union Galvan would riot want her working for him; that the other employees would not want her to work there, and would make her life miserable. Vickers stated that Galvan also told her that the store had had a union once before and that the then manager of the store had gotten rid of all employees one by one and brought in loyal employees when the contract expired and that the contract was not renewed. Vickers also testified to a conversation she had with Galvan after the election' in which Galvan told her that a Board agent would talk to her that it was up to her whether she told the Board agent anything, but that as she was leaving Respondent's employment, the question arose whether Low would give a good reference to an employee that was not loyal. On cross-examination Vickers acknowledged that Low referred to a sheet of paper when talking to her; and that Low stated that if the Union and Low were unable to get together there might be picketing. Although Vickers insisted that Low said if there was picketing the employees would not get their job back, her testimony with regard to her conversation with Low was self-contradictory in that she admitted that Low said that the only way the Union could back up unreasonable demands would be to go on strike. Steven C. Moore testified that he has been employed as a stock clerk and boxboy since May 1968; that currently he is employed on weekends as he is a student; that early in January, Low called each of the employees into his office one at a time; that no one else was present when Low spoke to him; that Low told him that he had heard that a majority of the employees had signed union cards; that Low asked whether Moore had talked to any of the union men; that Moore replied he had not; that Low asked if he had any real interest in the Union; that Moore replied that he was interested because of the monetary benefits but not in any of the other benefits; that Low said he would have taken care of the other benefits if Moore The answer admitted that Low and Galvan were supervisors within the meaning of the Act. 'This conversation was not alleged as a violation of the Act but the General Counsel presented it as additional "background" evidence. It was admitted on that basis. 593 was not "in the care or' his parents; that Low told him that the card signers would have to go out and walk the picket line in order to get an election and that he would then replace the employees. Moore also testified that Low had a paper in front of him which they read together but that Low said other things than what was on the paper. Moore continued that he was again called into Low's office in the latter part of January when Low touched on the same subjects again and that Low said if the Union came in, student help would no longer be needed. On cross-examination, Moore admitted that Low did not ask him if he had signed a union card or what side he was on, that Low said that he did not have to agree to the benefits or wage scale that the Union promised, that Low said he would bargain with the Union; that he understood Low to say that if there was going to be an election, the employees would have to picket. It was stipulated that Moore's sworn statement given to a Board agent sometime before the hearing contained no mention of Low's statement that if the Union came in, student and part-time help would be eliminated.6 Morey Low, called by Respondent Counsel, testified that he was president of Respondent since December 1968, that before he talked to the employees he had obtained advice from Counsel and obtained a written memorandum from his Counsel;7 that this memorandum was used by him during his conversations with each of the employees; that he had the memorandum in front of him during all such conversations. Low stated that he engaged in some small talk with Vickers but practically read the memorandum to her, that he could not otherwise recall his conversation with Vickers Low denied that he asked Moore or any other employee how they felt about the Union. He stated that he told Moore he wasn't covered by hospital insurance because he was working part time and was living at the home of his parents who probably covered him; that when he talked with Moore, they read the memorandum from counsel together. Low further testified that he had talked with an official of the Union sometime in 1968 and that the official had told him that he didn't need part-time help. Low denied, however, that he repeated this conversation to any of the employees. He admitted that one of the notations in his own handwriting on the typed memorandum referred to the official of the Union. Rudolph Galvan, called by Respondent, testified that he was manager of the market since December 1968; that he was contacted by a representative of the Union who suggested that he call the employees to his home; that all the employees did come to his home and that he also was present at Vicker's home at a later meeting of the store employees; that he went along and favored the employees' union movement until almost a week before the election; that he then changed his mind because he didn't think the employees were ready for it; that he did have a conversation with Vickers in which Vickers asked him why he had changed his mind; that he told her that he thought neither Vickers nor anyone else was ready for it; that they couldn't follow a time schedule; that, "I just figured-the Union told me we would have to go by schedule. They have to be there on time and have lunch time at a certain time, and all of them want to go on different times." Galvan stated that he told Vickers that it was a secret ballot and she could vote for the Union and 'I do not consider the omission as fatal to Moore's testimony in this regard 'Resp. Exh. I 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no one would know how she voted.' Galvan denied that he had told Vickers she would be the only one to vote for the Union or that he talked to her about what she should tell a Board agent. On cross-examination, Galvan testified that when the employees met at his home in December 1968, he also signed an application for Union membership; that when he changed his mind about the Union, about 3 days before the election, he contacted every employee and told them he didn't think they were "ready" to join the Union. He explained that being ready for a Union means coming in on time, working, and taking orders. Confronted with a prior statement given to a Board agent in which he stated that the employees said "Fine , whatever you say, Randy;" on the occasion when he told them he changed his mind about the Union, Galvan conceded that some of the employees replied in that manner. Galvan admitted that he told Moore that if the Union came in , he would be required to work more regular hours and that Moore would not be able to make up the hours he lost for tardiness and absences as he had done in the past . Galvan also admitted that he told Vickers if the Union came in she would be required to improve her work, come in on time, and not take so many days off because of sickness. In response to a series of questions asked by the Trial Examiner, Galvan stated that he was also called into Low's office at the time other employees were called in and that Low told him not to say anything to the employees about the Union because he was the manager. Galvan admitted that he had spoken to Low about the Union 3 or 4 times and talked about who were members of the Union; that Low asked him who was for or against the Union and that he said he didn't know.' Analysis and Conclusions I credit Low's testimony that he had the memorandum from his counsel in front of him when he talked with Vickers and Moore. However, I am persuaded from Low's admissions that he discussed other matters with the employees . One of these other matters , I am convinced, was his conversation with a union official in which Low was told that he didn't need part time help." I regard the repetition of this conversation to Moore as a threat that if the Union came in , Moore , as a student and part-time employee, would no longer be employed. I find this threat to constitute a violation of Section 8(a)(1). With regard to Moore 's other testimony concerning his conversations with Low, I find, because of Moore's inconsistent and contradictory testimony" that Low merely followed his counsel ' s memorandum .' 2 To the extent I have credited Low, I find, as stated above, that Low did not violate the Act in his conversation with Vickers nor in any other respect than found above in his two conversations with Moore. Vickers' testimony as to her conversations with Galvan stand on a different footing. Vickers was quite certain of 'I do not credit Galvan in this regard. 'Galvan 's testimony as a whole is circumspect . I conclude that he furnished Low with all information in his possession. "The notation to this effect on the memorandum clearly was designed to remind Low to mention this to part-time employees . Accordingly , I do not credit Low's assertion that he did not repeat it to any of his employees. "Moore testified that Low said he would negotiate with the Union but inconsistently added that Low said the employees would have to picket to obtain an election. "I find that Reap . Exh. I contains statements protected by Section 8(c) of the Act. Galvan' s statements to her and did not retract or retreat from her direct testimony on cross-examination. Moreover, as indicated above, I give little weight to Galvan' s testimonial account. 1, therefore, credit Vickers' testimony that Galvan told her she was the only one who would vote for the Union;" that Galvan under these circumstances would not want her working for him; and that Respondent's employees had been represented by a union on a previous occasion but that it had rid itself of all employees one by one. From Galvan's own testimony it seems fair to conclude that the Union initially attempted to organize Respondent's employees by seeking and securing Galvan's assistance . Apparently Galvan, early in the Union's organizing effort, cooperated fully with the Union. It was Galvan who called the employees to his home in December 1968 where the employees, including Galvan, signed applications for membership in the Union. Apparently, after talking with Low about four or five times , Galvan' s enthusiasm for union representation of the employees was extinguished . The Union' s subsequent attempt to rekindle Galvan's previous favorable attitude by staging a party for Galvan and the other employees met without success. Indeed from Galvan's testimony it is established that he organized and then unorganized the employees . Apparently Galvan believed that as manager of Respondent's establishment, the decision whether the employees would be represented by the Union was his. Galvan maintained that he resorted to the simple argument that the emloyees were not "ready" for unionization in discouraging the employees from voting for the Union. However, I believe that he used cruder and more convincing arguments as recited by Vickers and confessed by himself. Thus, in addition to Vickers' testimony , summarized above, Galvan stated that he told Vickers and other employees that if the Union came in they "would have to go by the schedule." That, if the Union came in, they would have to work harder, come in on time, and take orders better." Galvan also admitted that he told Moore that his working conditions would change if the Union came in so that he could no longer make up time he lost by absences and tardiness. Galvan also admitted telling Vickers that with a union, her excuses for tardiness and sickness would no longer be acceptable and she would have to work harder. In view of the foregoing , I find that each of Galvan's statements to Vickers and his admissions as to what he told Moore and other employees constitute violations of the Act. The fact that Galvan may have disobeyed Low's precise instructions to the contrary cannot absolve Respondent 's liability in that Galvan, an admitted supervisor , was the immediate and direct supervisor of the employees. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by and through Manager Galvan's conduct. IV. OBJECTIONS TO THE ELECTION The Regional Director referred to me the following Union Objections to the Election: "I believe I warranted in inferring that Galvan 's prediction was quite accurate . Vickers was the union observer at the election and the vote was 6 against the Union and one in favor. "The above seems a logical interpretation of Galvan 's description of what he meant by the employees not being "ready" for a union. LOW BROS. NATIONAL MARKET, INC. Objection No. 2: The Employer informed employees that they will be required to picket the Employer if Local 1288 is designated as collective bargaining representative. As I have found, above, that Low said that employees may have to picket only in the event the Union made unreasonable demands, I recommend that Union Objection 2 be overruled. Objection No. 3: The employer informed employees that they would be discharged if Local 1288 was selected by the employees as their bargaining representative. I have found, above, that Low violated Section 8(a)(l) by threatening Moore with loss of his employment if the Union won the election. I have also found that Respondent violated Section 8(a)(1) when Galvan threatened Vickers with discharge if she voted for the Union. I have further found that Galvan's admissions that he discouraged employees from adherence to the Union by threatening them with stricter working conditions likewise constituted violations of Section 8(a)(1). I find that all of the violations of Section 8(a)(1) found above occurred within the critical period" and are within the purview of Union Objection 3. Accordingly, it is found that Respondent's unfair labor practices resulted in substantial interference with the election conducted on January 30, 1969, and inhibited the employees from expressing a free choice in the election. It is, therefore, recommended that the election be set aside and a new election be conducted at an appropriate time designated by the Regional Director." It is further recommended that Case 20-RM-1147 be severed from 20-CA-5415. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I also recommend that the election held on January 30, 1969, in Case 20-RM-1147, be set aside. I further recommend that said case be severed and a new election be conducted by the Regional Director at such time as he deems circumstances permit a free choice of a bargaining representative. I find that the unfair labor practices found herein strike at the very roots of employees' rights to self-organization and a free and untrammeled choice of a collective-bargaining representative, rights which the Act "The time between the filing of the petition and the election. Ideal Electric d: Manufacturing Co.. 134 NLRB 1275. "The General Counsel , in his brief, correctly points out that the evidence shows (admitted by Low ), that Low subjected the employees individually to antiunion propaganda in the privacy of his office after summoning them from their customary work area . As the Union Objections before me do not specifically encompass these interviews , I make no determination in this regard. 595 is designed to protect. Accordingly, I shall recommend a broad cease-and-desist order. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Low Bros. National Market, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 1298, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct described above, Respondent has interfered with, threatened, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By engaging in the conduct described above during the period after the filing of the representation petition to the date of the election, Respondent unlawfully and substantially affected the results of the Board election conducted on January 30, 1969. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. All allegations of the complaint not found herein to constitute unfair labor practices are hereby dismissed. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Threatening employees with discharge or stricter working conditions if they voted for, sympathized with, or selected Retail Clerks Union, Local 1288, Retail Clerks International Association, AFL-CIO or any other union as their collective bargaining representative. (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, (except to the extent that the right to refrain may be limited by the lawful enforcement of a lawful union-security clause requirement.) 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its place of business in Los Banos, California, copies of the attached notice marked "Appendix."" Copies of said notice on forms provided by the Regional Director for Region 20, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of this Decision what steps Respondent has taken to comply herewith " It is further recommended that the results of the election conducted on January 30, 1969, in Case 20-RM-1147, be set aside and a new election be conducted at a time the Regional Director for Region 20 finds appropriate. "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 20, in writing , within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten you with discharge or stricter working conditions if you vote for , sympathize with, or select Retail Clerks Union , Local 1288, Retail Clerks International Association , AFL-CIO, or any other union , as your collective - bargaining representative. WE WILL NOT in any other way interfere with, restrain , or coerce you in the exercise of your rights to organize ; to form, join , or assist a labor organization; to bargain collectively through a bargaining agent chosen by you; to engage in other group activities for the purpose of collective bargaining or other mutual aid or protection ; or to refrain from any such activities (except to the extent that the right to refrain may be limited by the lawful enforcement of a lawful union-security clause requirement) Dated By Low BROS. NATIONAL MARKET, INC. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.