Mead's & Market

National Labor Relations Board - Board Decisions

Aug 20, 1964

148 N.L.R.B. 383 (N.L.R.B. 1964)

MEADS MARKET 383
James A. Mead and Roger Mead , co-partners d/b/a Mead's
Market and Retail Clerks Union , Local 839, Retail Cleiks
International Association , AFL-CIO. Case No ZO-CA-0747
August 20, 1964
DECISION AND ORDER
On May 5, 1961, Trial Examiner Eugene K Kennedy issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices within the meaning of
the National Labor Relations Act and recommending that it cease and
desist therefrom and take cer tarn affirmative action, as set for th in the
attached Decision The Trial Examiner fwthei found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint Thereafter, the General Counsel and the
Charging Party filed exceptions to the Trial Examiner's Decision and
supporting briefs
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 tin ee-member panel [Chairman McCulloch and Members
Leedom and Br own]
The Boar d has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no piejudicial error was committed The
rulings are hereby affirmed The Board has considered the Trial
Examiner's Decision , the exceptions, the briefs , and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith
1 We find, in agreement with the Trial Exaniner, that the Re-
spondent engaged in conduct which constituted interference , restraint,
and coercion in violation of Section 8(a) (1) of the Act Specifically,
Ne rely upon the following
(a) In the second or third week of March 1963, Roger Mead told
Warren Stiaden, then a part-tine employee, "If you want to loin the
Union, you might as well not ask for a [full-time] job because I won't
give you one "
(b) In the last week of May or the first week of June, James Mead
told employee Delmar Strader, "You know if Sou signed the little
white application card, w e will have to close up the fi ont close up
the market"
(c) During the second week in .Tune, Roger Mead told Warren
Stiader that if the store had to go union, they would close the whole
stone
148 NLRB No 43
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) About the second week in June , Maurice Mead 1 told Warren
Strader ". . . if the store goes union , we will have to close down the
Wholesale Department of the store."
(e) On or about June 25 , Roger Mead showed employee Dewey
certain of the Respondent 's financial records and said to him, "If we
have to go Union, there is going to be some charges against some of
the employees for stealing."
(f) - About the last of June, James Mead told employee La Rondelle
that if the Union ever came in , he'd close the store and padlock it.
(g)' In June or early July, James Mead told employee Palazzolo
that if the Union came in, he'd close the store.
(h) During the period from June until August , Respondent unlaw-
fully interrogated its employees , as set forth hereinafter.
2. We find , contrary to the Trial Examiner, that the Respondent re-
fused to recognize and bargain with the Union in violation of Sec-
tion 8 (a) (5) and (1) of the Act. Our finding is based on the following
considerations :
The Respondent , a co-partnership consisting of James A. Mead
and Roger Mead, operates a grocery and produce store at Monterey,
California . In January or February 1963 , the Union began to organize
the Respondent's store and by June 18 represented five of its nine em-
ployees in the appropriate unit. On that date , about 9:30 a.m., Robert
Cowell , attorney for the Union , accompanied by two union representa-
tives, went to the Respondent 's store. Cowell told Roger Mead that the
Union represented a majority of the Respondent 's employees and re-
quested recognition of the Union as their collective -bargaining rep-
resentative . Mead answered that he had talked to all his employees,
that none of them had signed authorization cards, and asked to see
the cards . Cowell refused but offered to submit the cards to a third
party for a "cross-check ." Mead then said that he could not act
without his brother and that the latter was on vacation ? Cowell
told Mead that under partnership laws one partner could bind the
partnership if he was satisfied that the Union represented a majority
of the employees . Mead requested time to consult an attorney and
Cowell acquiesced . The union representatives left and returned about
an hour later to be told by Mead that he had been unable to reach his
attorney, but that he had reached a representative of the California
Association of Employers ( a labor relations association for manage-
ment) and had made an appointment with him for 2 o'clock that after-
noon in Watsonville , a town about 25 miles distant from the Re-
spondent's market. Cowell stated that he would tolerate no delay in
the matter, and again suggested a cross-check of the cards . Mead then
1 The Trial Examiner found , and we agree , that Maurice Mead was an agent of the
Respondent.
2 James Mead did not return until about 3 weeks after June 18.
MEAD'S MARKET 385
showed Cow ell financial records to support his contention that he could
not afford to pay the union wage scale Cowell expressed his d's-
inteiest in the financial iecords, and made an appointment fox the other
two union iepiesentatives to ietuin at 5 p in for Mead's answei to their
demand for recognition When they did so, Mead had gone to a base-
ball game and had left no word for the union iepiesentativcs On
the next day, June 19, the Union filed the instant charge Orn June 28,
the Respondent filed a representation petition which the Regional Di-
rector dismissed on August 28
The Trial Examiner found that Roger Mead was entitled to consult
his biothei before binding the partnei ship to recognize the Union, that
Respondent had a good-faith doubt as to the Union's majority, and
that the Respondent therefore did not unlawfully fail or iefuse to
recognize of bargain with the Union We find meiit in the General
Counsel s exceptions to these findings
The record cleaily shows that the Respondent never intended to
bargain with the Union under any circumstances Thus, as set forth
above, Roger and James Mead both announced to individual em-
ployees, before the Union demanded recognition, that the store would.
be closed if the Union was brought in Moreovei, when, on June 18,
the union representatives presented their demand, Roger Mead im-
mediately embarked on a course of evasions, presenting one excuse after
another throughout the entire day He first replied that lie had talked
to all his employees and none of them had signed authorization cards,
and demanded to see the cards The i ecoi d shows, however, that the
Meads had, at that time, talked to only three of their nine employees-
Waiien and Delmar Stiaclei. and La Rondelle Indeed, chlirng the en-
tue period from June until August, the Meads questioned only six em-
ployees, of whom only four replied that they had not signed cards It
is therefore clear. that even if w e were to agree with the Trial Examuier
that the Respondent's interrogation of its employees had been under-
taken in good faith, the Respondent never ascertained that all its
employees, of even a majority of them, had not signed cards How-
ever, we find that the Respondent's questioning of its employees as to
their union affiliation, when considered in the context of this case,
including the fact that some individuals were questioned more than
once and the threats and coercion in which the Respondent engaged,
was not made for the legitimate purpose of ascertaining their un-
coerced views regarding the Union, but constituted unlawful inter-
rogation in violation of Section 8(a) (1) of the Act3 That the Re-
spondent interrogated its employees in this manner does not indicate
that its challenge of the Union's majority status was made in good
3 See American Furniture Company, Inc, 118 NLRB 1139 , Union Furnxtu, e Company,
Inc, 118 NLRB 1148
760-577-65-vol 148-26
'86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith litany event , as the Trial Examiner found, Rogei Mead stated,
on two sepaiate occasions, that he knew the Union represented his
;employees
The othei ieasons advanced by Rogei Mead foi his iefusal to giant
the Union s demand weie si nilaily unconvincing As Roger was in
charge of operations and the chief iepiesentative of nianageineni on
the premises at the time the request tot iecogiition was made, the re-
quest was properly addressed to him 4 Assuming that had lie been ict
ing in good faith, he would have been entitled to consult his brother
and his lawyer before granting recognition However, his expressed
concern here as to these matters NN as in fact a mere delaying tactic, as is
demonstrated by the fact that after being granted time to see his legal
advisei , he failed to keep his appointment NN All the union iepiesenta
Lives at the end of the clay , and the flu thei fact that the Respondent
neN er communicated with the Union after James Mead ietui red
from his camping trip Also, as the Union had presented no baigann-
ing demands , the Respondent 's reliance on an alleged financial in-
ability to pay the area wage scale is in our opinion , if an) thing, more
indicative of bad faith than good faith Iii any event , it was not a
valid basis for refusing to recognize and bargain with the employees
chosen representative
Accordingly , we find, in all the circumstances of this case , that the
Respondent 's refusal to bargain with the Union , which represented
a majority of its employees , on and after June 18, 1963 , was due to
its desire to gain time and to take action to dissipate the Union's ma-
jority, and was therefore a violation of Section S(a) (5) and (1) of
-the Act 5
THE REMEDY
Having found that the Respondent refused to bargain with the
"Union in violation of Section 8(a) (5) and ( 1) of the Act , we shall
order that the Respondent cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act
We shall order that the Respondent i ecognnze and bar gain with the
Union, upon request, as the exclusive collective -bargaining representa-
tive of the Respondent 's employees in the appropriate unit concein-
ing rates of pay, wages , hours of employment , and other terms and
conditions of employment , and, if an understanding be reached, em-
body such understanding in a signed agreement
4 dfechael Benevento and John Benevento d/b/a M Benevento Sand h Gravel Co, 131
NLRB 358, 367
8 Joy Silk Midis, Inc N N L R B, 185 F 2d 732 (C 1 D C ), enfg 85 NLRB 1263 In
the circumstances, ne find no merit in the Respondent's contention that it was entitled
to iwait the outcome of to election before bargaining nith i union
MEAD'S MARKET 387
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examuier , and orders
that the Respondent , James A Mead and Rovi Jfe,,d, co-paitiier^,
d/b/a Mead's Market, its officers , agents , suc,cessoi s, and assigns, shall
take the action set forth in the Trial Examiner s Recommended
Oi dei ,with the following modifications
1 Acid the following paragraphs 1(a) and 1 ( d) to the Recom-
mended Order , and renumber present paragraphs 1(a) and 1(b) as
pat agi apps 1(b) and 1( c), respectively
1(a) Unlawfully niter r ogatutg its employees as to their union
affiliations
1(d) Refusing , on request , to bargain collectively with the Union
as the exclusive bargaining ieptesentative of al l its employees in the
appropriate unit with respect to rates of pay , wages, hours of em-
ployment, and other terms and conditions of employment
2 Add the following paragraph 2 (a) to the Recommended Order
and renumber present paragraphs 2(a) and 2(b) as paragraphs 2(b)
and 2 ( c), respectively
2(a) Upon request, bargain collectively with the Union as the
exclusive bat gaining rep i esentatnn e of all its employees in the ap-
propriate unit -N3 ith respect to rates of pay , wages, hours of employ-
ment, and other terms and conditions of employment , and, if an
understanding be reached , embody such understanding in a signed
agreement The appropriate unit is All employees at the Respond-
ent's Monterey, California , store, excluding meat department em-
ployees, guards, and supervisors as defined in the Act
3 Before the indented paragraph of the Appendix attached to the
Trial Examiner 's Decision, add the following indented paragraph
WE WILL NOT unlawfully interrogate our employees as to their
union affiliations
4 After the indented paragraph of the Appendix add the two fol-
lowing indented paragraphs
WE WILL NOT refuse to bargain with Retail Clerks Union, Local
839, Retail Clerks International Association, AFL-CIO, as the
exclusive representati\ e of our employees in the appropriate unit
desci ibed below
WE WILL, upon request , bargain collectively with the above-
namned Union for the employees in the appropriate unit with
respect to rates of pay, wages , hours of employment , and other
terms and conditions of employment, and, if an understanding
be reached, embody such understanding in a signed agreement
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The bargaining unit is:
All employees at our Monterey, California, store, excluding
meat department employees, guards, and supervisors as de-
fined in the Act.
5. After. the two foregoing indented paragraphs add the following
paragraph :
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be'
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was initiated by a charge filed by the Retail Clerks Union, Local,
839, Retail Clerks International Association , AFL-CIO, on June 19 , 1963. On
August 27 , 1963, the General Counsel of the National Labor Relations Board (herein
called the Board ) issued a complaint charging James A. Mead and Roger Mead,
co-partners d/b/a Mead 's Market (herein sometimes designated Respondent ), with
unfair labor practices including violations of Section 8(a) (5) and (1) of the Act.
A hearing in this proceeding was held before Trial Examiner Eugene K . Kennedy
in Monterey, California , on October 16, 17 , and 22, 1963 . Briefs submitted by
the Charging Union and the General Counsel have been considered and upon con-
sideration of the entire record , and from my observation of the witnesses , I make.
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND JURISDICTION OF THE BOARD
Respondent, a co-partnership of James A. Mead and Roger,Mead, operates a re-
tail grocery and produce store in Monterey, California. It also sells produce to a
U.S. Navy installation near Monterey in an amount approximating $3,000 annually.
Its annual sales are in excess of $500,000 and it annually receives at its store, goods
valued in excess of $50,000 which originate from outside of California. Respond-
ent concedes jurisdiction of the Board, and it is found that at all material times
herein Respondent has been engaged in commerce and in operations affecting com-
merce within the meaning of the Act. _
II. THE LABOR ORGANIZATION INVOLVED '
Retail Clerks Union, Local 839, Retail Clerks International Association, AFL-
CIO, is a labor organization within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
The issues presented by this case include the questions of (1) whether the Union
represented a majority in an appropriate bargaining unit, (2) whether Respondent
violated its statutory obligation to bargain with the Union, and (3) whether inter-
rogations and statements by representatives of Respondent violated Section 8(a)(1)
of the Act.
A. The appropriate unit, and Union majority
Aside from co-partners Roger and James Mead there were 11 individuals em-
ployed by Respondent as of June 18, 1963, when the Union. demanded recogni-
tion. The General Counsel and Respondent are in agreement that employees Spiro
MEAD'S MARKET 389
iettas, Warren Strader, Delmar Strader, Mike • McAdams, and Richard D'Lorenzo
should be included in the appropriate unit.'
As of June 18, 1963, the Union represented Delmar Strader, Warren Strader,
-David Dewey, Jasper Palazzolo, and John La Rondelle. Respondent challenges
the inclusion of Dewey and Palazzolo based on the contention that they are
supervisors. La Rondelle is challenged by Respondent on the basis that his duties
include driving a truck, and that such work is within the jurisdiction of another union.
The General Counsel opposes and Respondent urges inclusion in the unit of
Maurice Mead, James Mead, Jr., and Josephine Halloway.
1. Maurice Mead
Maurice Mead was a former partner with his sons, Roger and James Mead. In
1958, due to ill health, he "sold" his interest to his sons, Roger and James Mead,
for $1. Thereafter he received $75 for, working approximately 45 hours a week.
'This $75 is characterized by the Respondent's-accountant as a proprietorship draw, and
3s paid without the standard deductions usually taken from employees' salaries. All
checks written on behalf of Mead's Market must be signed by two of the three
Meads, Maurice, James, or Roger. Maurice Mead also takes his groceries without
charge. Other employees must pay for them. Employees who were witnesses, for
the General Counsel credibly testified they regarded Maurice Mead as a supervisor
or one of the bosses. Maurice Mead's special status rests in part on his supervision
of employees, his identification as a proprietary owner to some degree, his authority
to sign checks, his taking of groceries without payment, his freedom to come and
go and work at hours of his own choosing, and his reasonable expectancy of con-
tinuing to receive a "proprietorship draw." He should be excluded from the
unit because his community of interests would be with his sons and not the em-
ployees. The partnership is chargeable with any unlawful statements by Maurice
Mead as he has been vested with at least the indicia of a supervisor if not an owner.
Wilder Finishing Co., Division of Jervis Corporation, 138 NLRB 1017; National
Paper Company, 102 NLRB 1569.
2. James Mead, Jr.
He is the son of copartner James Mead and thus is properly excluded from the
'unit under the provisions of Section 2(3) of the Act.2
3. Josephine Halloway
When she was 2 years old she was taken into the household of Maurice Mead
and went under the name of Josephine Mead. She called Maurice "daddy." The
record, however, does not establish she was legally adopted.. As of June 18, 1963,
she was married and shortly after left to take employment in another part of the
:State. She did not receive any special privileges such as the right to take supplies
without payment.
Josephine Halloway is properly included in the bargaining unit. The record
does not establish a parent-child relationship in the legally accepted sense of the
term. She was married and living away from the Maurice Mead household as of
June 18, 1963. The record does not establish that she would not have a community
of interest with the other employees. In these circumstances, it is found that the
,literal wording of the statute is controling and that she was not a child of an em-
ployer as of June 18, 1963. Since there is no other reason than being a legal or
-natural child of Maurice Mead- to exclude her, it is found Josephine Halloway
-should be included in the bargaining unit.
4. Jasper Palazzolo
Of 10 employees of Respondent, 6 received the same or higher rate than Palazzolo.
Although be was characterized by Roger Mead as manager of the wholesale de-
partment, the record reflects his duties were routine tasks to be expected in a
produce market and do not include the statutory requisites constituting the role of
supervisor. It is found Palazzolo is properly included in the bargaining unit.
1 The General Counsel reserved taking a position on Richard D'Lorenzo at the hearing
but in his brief conceded D'Lorenzo,was a regular employee who should be included in
the unit.
2 Insofar as pertinent, this section provides that the term "employee" shall not include
"any individual employed by his parent . .. .
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 David Dewey
As of June 18, 1963, Dewey was receiving the same or less compensation than
received by six of the nine employees in the bargaining unit His duties included
stocking shelves in the grocery section, ordering groceries, and checking out
groceries at the cash register Respondent claims that because on rare occasions
he is left in charge of the market when the three Meads are away this makes Dewey
a supervisor This sporadic and infrequent investment of authority does not con-
stitute Dewey a supervisor so as to be ineligible for inclusion in the bargaining unit
Cities Service Refining Corporation, 121 NLRB 1091, 1093, W W Wallwork Fargo,
Inc, 123 NLRB 91, 111
In summary, it is found that as of June 18, 1963, a unit appropriate for bargain-
ing included Spiro Pettas, Josephine Halloway, Delmar Strader, Warren Strader,
David Dewey, Jasper Palazzolo, Richard D'Lorenzo, John La Rondelle, and Mike
McAdams The Union represented five of the nine as of June 18, 1963, and hence
represented a majority at Mead's Market
The employees work in a relatively small building under common supervisors
with substantial interchange of tasks peculiar to the operations of a retail grocer y
and produce market It is found that a proper, generic description of the bargaining
unit is All employees of Respondent at its Monterey, California, store excluding
meat department employees, guards, and supervisors as defined in the Act, constitute
a unit appropriate for purposes of collective bargaining within the meaning of
Section 9(b) of the Act
B Alleged refusal to bargain
The complaint alleges that commencing on June 18, 1963, and continuing there-
after, the Union has requested, and is requesting, and Respondent refused, and con-
tinues to refuse, to recognize the Union and to bargain collectively with the Union
This allegation is premised on the following events On June 18, 1963 (all dates
are in 1963 unless otherwise noted), Robert Cowell, attorney for the Union, accom-
panied by two union representatives, Bill Amos and Jim Dobbs, arrived at Respond-
ent's market in Monterey, California On this date, James Mead was on vacation, and
Roger Mead, his brother and partner, was confronted by the three union emissaries
Respondent had no prior notice of the visit or its purpose Cowell advised Mead that
the Union represented a majority of Respondent's employees and demanded recogni-
tion of the Union as exclusive bargaining agent Roger Mead responded that he had
already inquired from the employees about their support for the Union and it was
his belief that the Union did not represent a majority He also advised Cowell
that he could not do anything until his brother and partner returned from vacation
James Mead was on a camping trip and did not return until about 3 weeks after
June 18
Respondent's partnership agreement, which was in effect when a demand for
recognition was made, provided in pertinent part as follows
ARTICLE V
MANAGEMENT SALARIES
1 Each of the partners shall have an equal voice in the management and
conduct of the partnership business All decisions shall be by both partners
Roger Mead also complained to Cowell that he did not think it fair for the Union to
have Amos, who was Roger Mead's brother-in-law, act as an organizer When Roger
Mead expressed doubt of the Union's majority, he asked Cowell to see proof and
Cowell responded that he would never see the union authorization cards Because
of this expressed doubt of Roger Mead as to the Union's majority, Cowell suggested
that a third party conduct a card check After Cowell had explained what a card
check was Roger Mead informed Cowell that he could not act without the consent
of his brother, and he also wanted time to consult an attorney Cowell told Roger
Mead it was unnecessary for his brother's decision to bind the partnership but
nevertheless allowed Roger Mead an opportunity to contact his attorney Cowell and
the union representatives left for a short period, and, upon their return, were informed
by Roger Mead that he had been unable to contact his attorney but had contacted the
California Association of Employers which is a labor relations association for
management He stated that he had an appointment at 2 o'clock in the afternoon
with their representative in Watsonville a town about 25 miles distant from Re-
spondent's market Roger Mead also displayed to Cowell his financial records to
support his statement that he could not afford to pay the union wage scale Roger
Mead and his brother James, had computed that the average hourly union wage
scale was $130 a week, after they had heard of the union organizational drive in
MEAD'S MARKET 391
their store in the early part of 1963 . Cowell expressed his disiroterest in the Re-
spondent 's profit-or-loss figures and demanded that the Union receive a yes or no,
answer as to recognition on that day . The two union organizers returned at 5 p in,
to Mead 's Market, and Roger Mead was not there as he had gone to watch his son
play in a Little League baseball game, which was his regular custom.
Roger Mead's action in attempting to explain his financial situation to Cowell
reflected that he regarded recognition of the Union as an agreement to pay the area
union wage scale. This finding is supported by Cowell 's testimony to the effect that
the Union maintained a uniform area wage scale.
That Respondent had a sincere concern with its ability to meet a demand for pay-
ing the union wage scale is graphically depicted by the following tabular comparison
of union wages as compared to the 1963 wage rate of Respondent in effect in
June 1963:
Name
Current
1963 weekly
pay
Union scale
weekly
pay
Hours
per
week
Computed
hourly
rate
Union
hourly
rate
Maurice Mead____________________ _______ $75 00 $143.00 45 1 66 3 25
S. Pettas_______ ___________________________ 90 00 182 00 56 1.66 3 25
J Halloway_______________________________ 65 00 149 50 46 1 42 3 25
D Strader________________________________ 80 00 195 00 60 1 33 3 25
W Strader-------------------------------- 80 00 195 00 60 1 33 3 25
D Dewey_________________________________ 80 00 195.00 60 1 33 3 25
J. Palazzolo------------------------------- 80 00 195 00 60 1.33 3 25
R D'Lorenzo_____________________________ 75 00 195 00 60 - 1 33 3 25
J La Rondelle---------------------------- 70 00 195 00 60 1 17 3 25
J Mead, Jr --------------------------------- 25 00 81 25 25 '' 1 00 3.25
M McAdams------------------------------ 40 00 130 00 40 1 00 3 25
Total-------------------------------- 755 00 1,712 00 ----------- ------------ ------------
Respondent's net profit for the year 1962 was $21 ,020.20. In order to pay the union
scale of $130 a week, assuming there was no union overtime rate, the employees would
have to be paid at an annual rate of $89 , 037. Respondent 's annual payroll rate as of
June 1963 was $ 39,320. Paying the union scale would mean operating at an
annual loss of about $29,000
The anticipated financial impossibility of Respondent's inability to pay the union
scale is not relied on in any manner to excuse Respondent from recognizing the Union.
However, it does demonstrate that Roger Mead's desired to seek advice from counsel
and also to obtain the participation of his brother in the event recognition of the
Union was indicated was not a frivolous tactic to avoid Respondent 's statutory obliga-
tion to bargain . As will be developed later, this financial problem is also properly
considered in connection with assessing the propriety of some statements and the
questions imputable to Respondent . On the evening of June 18 , Cowell prepared an
unfair labor practice charge against Respondent which was filed with the National
Labor Relations Board on the following morning. Subsequent to June 18, no
representative of the Union renewed the request for recognition. Respondent, on
June 28, filed a petition with the National Labor Relations Board seeking an election
to determine whether the Union represented a majority of its employees. Respondent
designated substantially the same bargaining unit as alleged as appropriate in the
complaint of the General Counsel . The petition for an election filed by Respondent
was dismissed by the Regional Director of 'the National Labor Relations Board for
Reeion 20 on August 28, 1963
As noted above , the complaint poses questions of whether Respondent refused to
bargain on June 18, and , also, whether Respondent refused to bargain after June 18,
With respect to the conduct of Respondent on June 18 , the position of Roger Mead
that he required his brother 's participation before making a commitment on behalf
of the` partnership is obviously a comnlete defense to any charge of failing to
bargain occurring on that date . The partnership agreement explicitly requires , assent
of both partners . Aside from the agreement Roger Mead certainly would be entitled
to consult his brother before binding the partnership without violating the-Act. - The
necessity for a joint decision between himself and his brother for recognition 'of the
Union was advanced by Roger Mead when the demand was made; and since this was
not an afterthought or pretext it follows that Respondent cannot be charged with anv
breach of its statutory obligation to recognize or bargain with the Union on June 18.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , the record establishes a basis for Roger Mead 's expressed doubt as to
the union majority on June 18. After the demand for recognition , Roger Mead asked
employees David Dewey , Delmar Strader , Warren Strader , and John La Rondelle if
they had signed union cards, and they all denied having done so except La Rondelle.
Roger Mead's testimony , although not explicit, creates an inference that he asked
every employee whether he had signed a union authorization card.3
About a week prior to June 18, Roger Mead asked Warren Strader and John
La Rondelle whether they had signed union authorization cards. Both denied having
done so. During the same period , James Mead asked Delmar Strader whether he had
signed a union authorization card , and this was also denied . Jasper Palazzolo, the
only other employee to testify in addition to the two Straders and La Rondelle,
related that Roger Mead told him in Mid -August that he heard Palazzolo had joined
the Union . Palazzolo answered by saying he was going to get out of it.
On June 18 , after interrogating the employees , Roger Mead told Cowell, "Only one
of them signed. And I told 'him that it didn't look like the whole bunch. .
As of June 18, 1963, Roger Mead,on the basis of the information he obtained from
the employees , was warranted in doubting the majority status of the Union. The
question is next presented as to whether subsequent to June 18 , Respondent continued
to have a good -faith doubt as to the Union's majority. On the facts presented by this
record, the answer must be yes. Roger Mead admitted , on cross-examination, he
asked Josephine Halloway if she had been contacted by a union representative , and she
informed him that she had not. This is significant in dispelling any inference that the
Meads may have been told by Amos or Godwin ( characterized by Roger Mead
as his brothers-in-law by marriage ) the names of individuals who had signed authori-
zation cards. Uncertainty as to the union affiliation of Halloway , who had been
raised in the Mead household , indicates persuasively that the Meads lacked any relia-
ble knowledge as to the identity of individuals who had signed union authorization
cards except for La Rondelle who had told Roger Mead that he had signed one.
Palazzolo's concession , at a date after June 18, that he had signed a union card was
accompanied by his announced intention to withdraw and, consequently , even after
June 18, 1963 , only La Rondelle was known as an individual who supported the
Union . In the absence of any proof to the contrary , the situation prevailing with
respect to lack of knowledge by Respondent of the union majority would continue
after June 18. The questioning of Halloway and Palazzolo by Roger Mead after
June 18 buttresses Respondent 's position that it had a good-faith doubt concerning
the majority statuts of the Union.
It is not necessary for a disposition of this case to determine whether, after the
Union filed unfair labor practice charges, it had an obligation in the entire context
of events to renew its request for recognition in order to avoid being considered as
having abandoned its position in seeking recognition . In this case, an RM petition
filed by Respondent on June 28 seeking a secret ballot election was , in effect, an
acknowledgment of the Union 's request for recognition of June 18. Respondent's
preference . for a secret ballot election , expressed by its petition filed on June 28,
was made in the context of a good-faith doubt as to the Union 's majority status on
June 18 and continuing thereafter. The record fails to establish that its preference for
a Board-conducted secret ballot election was motivated by any desire to utilize delay
to defeat the Union 's 'legitimate aims by any unlawful acts or statements.
Consequently , it is found that the evidence presented fails to establish by an
adequate measure of proof that Respondent , on June 18, or thereafter , wrongfully
failed to recognize the Union or to bargain in good faith.
C. The alleged unlawful statements
As indicated previously , the record demonstrates that Respondent had an extremely
large stake in the question of whether it was going to be required to pay the union
wage scale . Roger Mead acknowledged that if the Union represented a majority
of the employees , Respondent must recognize it. His interrogation of the employees
concerning whether they had signed a union authorization card was for the purpose
of obtaining information vitally important to Respondent . On June 18 . 1963, when
John La Rondelle was asked by Roger Mead whether he had signed a union authoriza-
tion card, he responded in the affirmative . Roger Mead then asked him if he knew
what it was for, and when La Rondelle said yes, Roger Mead replied , "As long as you
a The record is confused with respect to whether or not Roger Mead made his Inquiries
in the presence of Cowell and the union representatives Roger Mead was under the im-
pression that he had, but Cowell's testimony Is credited to the effect that only David
Dewey was interrogated by Roger Mead In the presence of Cowell.
MEAD'S MARKET 393
know what it was for, it's okay." The conduct of Respondent is consistent with the
import of this statement and that it was seeking the information from employees as to
whether they had affiliated with the Union solely for the purpose of determining
whether the Union represented a majority of its employees.
Violations of the Act by other statements attributable to Respondent are also
claimed by the General Counsel. In considering these statements; it seems useful to
again indicate that there can be little doubt Respondent honestly viewed organization
by the Union of its employees as a major threat to its survival in business. As
previously noted, instead of a $20,000 a year profit, which was a typical annual return
for Respondent, the advent of the union wage scale would approximate them ex-
periencing a yearly deficit approximating $29,000.
In January or February 1963, James and Roger Mead told employee David Dewey
they had heard of his appointment to meet a union official. They also told Dewey
some of the employees "couldn't make it" on a union job, and told him "Why do
you pick on us? If you want a union job, why not go to a union store?" This
statement shows Respondent partners preferred not to have their employees orga-
nized and no more. The Act does not necessarily interdict an employer from
such an utterance. In view of the fact that it would appear that it was economi-
cally impossible for Respondent to pay a union wage rate and remain in business,
Respondent's comments, over a period of about 10 months indicating an apprehen-
sion of the Union, were isolated comments and did not reflect a systemized anti-
union drive.
In early March, Roger Mead told a then part-time employee, Warren Strader,
"If you want to join the Union you might as well not even ask for a (full-time)
job because I won't give you one." Shortly later, Warren Strader was given a
full-time job without reference to his union affiliation. Warren Strader was a
witness for the General Counsel and it is most' probable that he would have testified
about any other antiunion question or statement from Roger Mead if it had been
made. The fact that Roger Mead did not again couple unionism with the actual
promotion given Warren Strader demonstrates his earlier comment was an isolated
expression and not necessarily made exactly as the testimony of Warren Strader
indicates. Nevertheless, this comment of Roger Mead to Strader clearly conveyed
a threat of economic loss for protected activities and is violative of Section 8 (a) (1)
of the Act.
On June 25, Roger Mead had a conversation with employee Dewey in the area
of the market used as an office. Dewey was shown the financial records of Re-
spondent by Roger Mead who said to him, "If we have to go union there's going to
be some charges made against some of the employees for stealing." This statement
to Dewey was predicated on information Roger Mead had received from another
grocer that indicated that there was widespread stealing by the employees of Re-
spondent. Irrespective of this, Roger Mead's threat of instituting a criminal com-
plaint depending on the success of a union organizational drive, even though not
aimed of Dewey, was an unlawful statement violative of Section 8(a)(1).
More troublesome are the statements by James and Roger Mead and their father,
Maurice Mead, to the effect that a successful union organizational drive would
cause closing the market.
James Mead, in the first week of June, told Delmar Strader, "You know if you
signed a little white application card, we will have to close up the market," and
he also made a similar comment to Jasper Palazzolo, and, in the last week of
June, he told employee La Rondelle, "If the union ever came in here, he'd close
the store and padlock it."
In the second week of June, Roger Mead told Warren Strader, "If . . . the
store goes union , we will have to close down the Wholesale Department of the
store."
In the second week of June, Roger Mead told Warren Strader, "If the store had to
go union, they would close the store."
In the second week of June, Maurice Mead 4 told Warren Strader, ". . if the
store goes union , we will have to close the Wholesale Department down."
In summary, the record demonstrates that over a period of several months,
Respondent is chargeable with five statements to employees with whom Respond-
ent worked in close proximity on a daily basis. These statements were casual and
' Maurice qualifies as a spokesman for Respondent irrespective of whether he was tech-
nically a partner or supervisor. As the father of the two partners and'the only individual
who signed checks other than Roger or James Mead he has the attributes of a representa-
tive of Respondent and would reasonably be regarded as such by the employees. Red
Arrow Freight Lines, Ino., et at., 77 NLRB 859, enfd. 180 F. 2d 585 ('C.A. 5).
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
none of them were included in a prepared or formalized speech. As set forth
above, Respondent had ample reason to believe the imposition of the union wage
scale would result in their economic ruin . Hence, the statement to the effect all
or part of the market would be closed down was based on an honest belief as to
what would be the result in the event of successful union organization.
In Henry I. Siegel Co., Inc. v. N.L.R.B., 328 F. 2d 25 (C.A. 2), enfg. 143 NLRB
386,•a Board majority consisting of Chairman McCulloch and Member Rodgers,
with Member Fanning dissenting , held that a speech by Respondent's vice president
to its employees, containing the following, did not violate Section 8(a)(1):
It is my honest belief that a union cannot and will not work in Bruceton profit-
able for you. . . . We'll work all the people we 'can work, but it is my
belief that we cannot work 1,400 people. It is my belief that I cannot even
work a 1,000 people. I don't believe we can work 500 people. What's going
to happen to the other people. . . . Now what's going to happen when
we have to cut the shop back.
In upholding the Board, the Court of Appeals for the Second Circuit stated:
"Siegel's speech made informally, expressed his `honest belief that a current union
organizational drive would, if successful, result in a reduction of the work
force.
In the case under consideration, Respondent's representatives spoke more in-
formally than did Vice President Siegel in a speech containing 35 pages of type-
written transcript. In the instant case, Respondent had expressed to employees
the idea that a successful union campaign would eliminate the work force. If
the criteria be the measure of formality surrounding the questioned statement and
whether or not it represented an honest belief of the relator, on both counts, the
facts of the present case would offer greater protection to the challenged statements
than in Siegel, as more informality is demonstrated by this record and the honest
belief of economic impossibility is supported by objective facts, which does not
appear to be the case in the Siegel decision.
However, it is undisputable that the employees here were advised by Respondent
that a successful union organizational drive would be met with the closing of the
market. This extreme and, in a sense, ultimate, penalty is regarded as going be-
yond permissible bounds tolerated by the Act, and Respondent's statements to
employees with reference to closing the market in the context of a conversation
about the Union are regarded as violative of Section 8(a) (1).
The statement about curtailing the work force in the event of union organization
in Siegel is less extreme than the threat to close down entirely, present here. The
result reached here is rationalized with Siegel on the basis that the threat here
is greater in degree.
There is one aspect of the evidence that raises a question as to Respondent's
good-faith doubt of union majority. John La Rondelle, while working in the
store's wholesale department, heard Roger Mead explain to a contractor that he
could not afford some construction work because "All my boys went union." After
the conversation, Roger Mead turned around and saw La Rondelle and said, "Hi
John," and indicated he did not know La Rondelle had been present. Employees
Spiro Pettas, Josephine Halloway, Richard D'Lorenzo, and Mike McAdams did
not sign union authorization cards, and there is no indication in this record that
they had any affiliation with the Union. Thus four employees of the nine in the
unit did not "go union," and Roger Mead's statement to the contractor is factually
erroneous. This statement, in all likelihood, reflected Roger Mead's uncertainty
and doubt about his building plans and the possible extra labor costs incident to
union organization or the possibility of closing the store. It seems probable that
his reference to "all" his employees was utilized primarily as an excuse to defer
making a commitment to the contractor. The record does not establish at any
time before the hearing that Roger Mead had knowledge of any individual em-
ployee having designated the Union as bargaining representative except La Rondelle
and possibly Palazzolo, who in any event informed Roger Mead he intended to
withdraw his authorization. In this context, "all" employees cannot be equated
with a majority on the basis of the record facts which more likely demonstrate that
Roger Mead still had a large doubt concerning a union majority status when he was
using the Union as an excuse for delaying construction plans. Consequently, this
statement of Roger Mead to a contractor is not adequate to establish Roger Mead
did not have a good-faith doubt as to the Union's majority on this occasion.
In approximately the second week of June, Roger Mead asked Delmar Strader
whether he had signed the union application card. Strader denied having signed
one and testified that Mead said something which indicated to him that the Union
MEAD'S MARKET 395
represented a majority. Whether . Roger Mead was stating this in order to draw
further information from Delmar Straderor whether it was based on some general
information from the union organizers , who were married to his sisters , it would
seem that the interrogation carried on by Roger Mead disabused him of a belief
that the Union represented a majority . The questioning of employees was-an
effort by Roger Mead to ascertain this question of majority . Cowell , on June 18,
refused to disclose the names of the card signers, and it is a fair assumption that
the practice was followed at all times by union representatives in connection with
the organizing campaign in 1963 . If Respondent had been given names of em-
ployees by the union representatives, it would have been unnecessary to inquire, what
Josephine Halloway had done with respect to the Union. Consequently, the
questioning of the employees and their denial of union affiliation established a good-
faith doubt as union majority representation of Respondent's employees . Inter-
rogation solely for the purpose of determining whether a union represents a majority
is not conduct violative of Section 8(a)(1) of the Act. Blue Flash Express, Inc.,
109 NLRB 591. .
CONCLUSIONS OF- LAW
1. The activities of Respondent set forth in section III, above, -occurring in con-
nection with the business of the company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
2. At all times material herein, Retail Clerks Union, Local 839, Retail Clerks
International Association, AFL-CIO, represented a majority of the employees in an
appropriate unit described as follows:
All employees of Respondent at its Monterey, California, store, excluding meat
department employees, guards, and supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within the meaning of Section 9(b)
of the Act. - -
3. Respondent is an employer and the Union is a labor organization within the
meaning of the Act. -
4. Respondent has not failed or refused to unlawfully recognize or bargain with
the above-described Union. '
5. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, as found above, Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a) (1) and Section 2(6) and (7)
of the Act. -
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that Respondent, James A. Mead
and Roger Mead, co-partners d/b/a Mead's Market, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Threatening to close its market in the event that a union is successful in
organizing its employees.
(b) Threatening the employees with criminal prosecution if union organization
is successful, or threatening to withhold promotion to employees in the event they
support union organization, or in any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action necessary 'to effectuate the policies of the
Act:
(a) Post at its premises in Monterey, California, copies of the attached notice
marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director
for Region 20, shall, after being duly signed by Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for a period of
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.
5If this Recommended Order be adopted by the Board, the words "a Decision and Order"
in the notice shall be substituted for the words "the Recommended Order of a Trial
Examiner ." 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."
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 20, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Decision, what steps the Respondent
has taken to comply herewith.°
It is further recommended that, unless on or before 20 days from the date of its.
receipt of this Trial Examiner's Decision, Respondent notifies the Regional Director
that it will comply with the foregoing Recommended Order, the National Labor
Relations Board issue an order requiring the Respondent to take the action aforesaid.
6In the event that this Recommended Order be 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 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 Rela-
tion Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with closing the market, criminal
prosecutions, or withholding promotion in the event of a successful union
organizational drive in our market, or in any other like or related manner inter-
fere with their rights guaranteed by Section 7 of the National Labor Relations
Act, as amended.
JAMES A. MEAD AND ROGER MEAD, CO-PARTNERS
D/B/A MEAD'S 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 Regional Office, 830 Market
Street, San Francisco, California, Telephone No. 556-6721, if they have any question:
concerning this notice or compliance with its provisions.
Luggage Workers Union Local 60, International Leather Goods,
Plastic and Novelty Workers Union , AFL-CIO (also known
as The Suitcase , Bag and Portfolio Makers Union ) and Ed-
ward Ledesma and Rexbilt Leather Goods, Inc.; The Luggage
and Leather Goods Manufacturers Association of New York,
Inc., Parties in Interest . Case No. 2-CB-3756. August 21, 1961.
DECISION AND ORDER
On February 28, 1964, Trial Examiner Alba B. Martin 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 Decision. Thereafter, the General Counsel
filed exceptions to the Decision and a supporting brief, and Respondent
filed a brief in support of the Trial Examiner's Decision and cross-
exceptions. The General Counsel then filed an answering brief to the
cross-exceptions.
148 NLRB No. 45.