Opal Cliffs Food Center

National Labor Relations Board - Board Decisions

Aug 11, 1964

148 N.L.R.B. 301 (N.L.R.B. 1964)

OPAL CLIFFS FOOD CENTER 301
Employees may communicate directly with the Board 's Regional Office, The
120 Building , 120 Delaware Avenue, Buffalo, New York, Telephone No. TL
6-1782, if they have any question concerning this notice or compliance with its
provisions.
Marion J. Rossi & Elmo B. Legge, Copartners d/b/a Opal Cliffs
Food Center and Retail Clerks Union , Local 839, Retail Clerks
International Association , AFL-CIO. Case No. 20-CA-2746.
August 11, 1964
DECISION AND ORDER
On May 14, 1964, Trial Examiner Eugene K. Kennedy issued his
Decision in the above-entitled proceeding finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in. certain
other unfair labor practices and recommended the dismissal of the
complaint as to them. Thereafter, Respondent filed exceptions 1 and
a brief, and the General Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 entire
record in this case, including the Trial Examiner's Decision, the
exceptions, and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions and modifications.
We agree with the Trial Examiner that the unit as described in the
complaint is appropriate for purposes of collective bargaining and-
is in substance the same unit described in the recognition agreement
submitted to Respondent by the Union z We find no merit in Re-
Ion June 6 , 1964 , the General Counsel filed a motion to strike paragraph 2.23 of Re-
spondent 's exceptions on the ground that this exception was not based upon evidence in
the record , and to strike paragraphs 5, 6, 8, and 9 for failure to comply with the Board's
Rule requiring that exceptions be supported by a brief or citation to authority . Pursuant
-to the Board 's Rules and Regulations , Series 8, as amended, Section 10246 ( b)(4), we
shall disregard paragraph 2.23 of Respondent 's exceptions as not based upon evidence in
the record . As to paragraphs 5, 6, 8, and 9, these exceptions meet the bare minimum re-
quirements of the Rule , and we have , therefore , accorded them consideration.
2 The unit is described in the complaint as follows:
All employees at Respondent 's Santa Cruz operation , excluding all meat depart-
ment employees , guards, and supervisors as defined in the Act.
148 NLRB No. 28.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's contention that the Trial Examiner failed to give sufficient
weight to Respondent's history of bargaining on a multiemployer
basis. While it would appear that Respondent bargains in a multi-
employer unit with respect to its meat department employees, there is
no probative evidence on the record that Respondent has historically
bargained on a multiemployer basis with respect to the employees
involved herein.3 In addition, at the time Legge refused to recognize
the Union he did not assert that his refusal was grounded on his belief
that the unit sought was inappropriate, nor did he make reference to
bargaining on a multiemployer basis. Moreover, Respondent con-
ceded that the unit was appropriate by so stipulating at the hearing 4
We also agree with the Trial Examiner that the Union represented
a majority of employees in the appropriate unit on June 18, 1963.,
when it demanded that Respondent recognize it as the exclusive repre-
sentative of the employees.' Contrary to the Trial Examiner, however,
we agree, with the General Counsel that Respondent refused to bargain
as of June 18, 1963, and not July 1.
While in ordinary circumstances a partner acting in good faith may
be entitled to a reasonable opportunity to consult with the other
members of the partnership prior to according recognition to a union,
in our opinion Legge's refusal to recognize the Union on June 18
was not because he wished to consult his partner, but because Legge
was unalterably opposed to the unionization of Respondent's clerks.
This is demonstrated by Legge's interrogation of employee Crouse
with respect to which of Respondent's employees were for the Union
and which were opposed, and Legge's naming employee Stanley as the
probable leader of the union movement. Respondent participated in
a meeting held May 28, 1963, where the Retail Clerks (the Charging
Party herein) was specifically identified as the "Union Involved,"
and where Respondent agreed with other employers in the area to
increase employee benefits as part of a general program by the em-
ployers in the area to resist "penetration by Union organizing tactics."
3 See Starrett Brothers if Eken, Incorporated, 77 NLRB 275, 278
4It is of no consequence if, as Respondent claims , such stipulation was attributable to
the Regional Director's dismissal of a representation petition wherein Respondent sought
an election in a multiemployer unit . So far as the record shows , Respondent did not
appeal from the Regional Director 's decision , and therefore "must be deemed - to have re-
linquished any' right it might have had to object" to the dismissal, of the petition
N L R.B. v. Delsea Iron Works , 334 F. 2d 67 ( C.A. 3).
5 The Trial Examiner inadvertently erred in stating that there were 21 , employees on
the payroll as of June 18 The record , and the Trial Examiner's Decision itself, show
that there were 22 employees on the payroll on that date . The Trial Examiner correctly
concluded that Dominco Legge, Donald Rossi, Ronald Rossi, and Opal Russell should be
excluded from the unit . Thus, the Union had a majority of 11 of 18 eligible employees
rather than 11 of 19 eligible employees as stated by the Trial Examiner. These minor
errors in arithmetic do not affect the Trial Examiner ' s ultimate finding that the Union
represented a majority of the employees in an appropriate unit.
OPAL CLIFFS FOOD CENTER 303
On July 6,1963, after the Union's demand for recognition, Respondent
implemented a part of this plan, by granting its employees a unilateral
wage increase.
In light of these facts, it is clear, in our view, that Respondent's
refusal to recognize the Union on June 18 was the result of Legge's
adherence to the previously adopted program of resistance to the
organization of, Respondent's employees rather than the absence of
one of the partners. Accordingly, we find that Respondent failed to
bargain in good faith as of June 18 as alleged in the complaint.
We also agree with the Gen®ral'Counsel, contrary to the Trial Ex-
aminer, that Legge's interrogation of Crouse on May 13 with respect
to which of Respondent's employees were for the Union and which
were opposed to the Union violated Section 8(a) (1) of the Act.'
Moreover, the coercive impact of this conduct was intensified by
Legge's identification of employee Stanley as a leading union ad-
herent, thereby creating at least the impression that Respondent was
engaged in surveillance of its employees' union activities.7 We fur-
ther agree with the General Counsel that Respondent violated Sec-
tion 8 (a) (1) by Marion Rossi's statement to a salesman in the pres-
ence of employee Stanley that some or all of the "baggers" would be
terminated if the Union came in,8 and Rossi's and Legge's statements
to Stanley on July 6 after giving Stanley his check (which included
the unilateral wage increase) that the increase would keep the union
away for a year or two and that the employees would be doing better
than they would under a union contract.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby, orders that Respondent, Marion J. Rossi
& Elmo B. Legge, copartners, d/b/a Opal Cliffs Food Center, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employment, with
the Union as the exclusive representative of all its employees in the
following appropriate unit :
All employees of Respondent's Santa Cruz, California, operation
excluding all meat department employees, guards, and supervisors as
defined in the Act.
9 See Ttdeland8 Marine Service, Inc., 140 NLRB 288
,Cf. Walton Manufacturing Co., 124 NLRB 1331 ; enforced in relevant part 286 F 2d
16 (IC A. 5).
s See Jack Roach Broadway, Inc, d/b/a Luke Johnson Ford, Inc., 133 NLRB 32.
Cf. Leonard Carp et al., d/b/a Edward's Super Market , 133 NLRB 1633.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Unilaterally instituting any wage increase or other benefit to
the employees without consulting the Union prior to such action.
(c) Coercively interrogating employees with respect to union mat-
ters, threatening employees with termination in the event the store is
organized, and advising employees that they will derive greater bene-
fits by remaining unorganized.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Upon request, bargain collectively with the above-named
Union as the exclusive representative of all the employees in the
appropriate unit, and embody in a signed agreement any under-
standing reached.
(b) Post at its store, copies of the attached notice marked "Ap-
pendix." 10 Copies of said notice, to be furnished by the Regional
Director for Region 20, shall, after being duly signed by a repre-
sentative of Respondent, 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
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps have been taken in
compliance herewith.
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
ZVE WILL, upon request, bargain collectively with Retail Clerks
Union, Local 839, Retail Clerks International Association, AFL-
CIO, as the exclusive representative of all employees in the bar--
gaining unit described below, with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and
if an understanding is reached, embody such understanding in
a signed agreement. The bargaining unit is:
OPAL CLIFFS FOOD CENTER 305
All employees at our- Santa Cruz, California, operation,
excluding all meat department employees, guards, and super-
visors as defined in the Act.
WE WILL NOT institute w,,-ibe increases or take other action with
respect to the wages, hours, or working conditions of our em-
ployees without bargaining with the Union as required by law.
WE WILL NOT coercively interrogate employees with respect to
union matters, threaten employees with termination in the event
the store is organized, or advise employees that they will derive
greater benefits by remaining unorganized.
WE WILL NOT in ally other like or related manner interfere
with, restrain, or coerce our employees in the exercise of their
rights guaranteed by the National Labor Relations Act, as
amended.
MARION J. ROSSI & ELMO B. LEGGE, COPARTNERS,
D/B/A OPAL CLIFFS FOOD CENTER,
Emnployer.
Dated---------------- By---'---------------------------------
(Representative ) t (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 compli-
ance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in this matter was held before Trial Examiner Eugene K. Kennedy in
Santa Cruz, California, on October 23, 24, and 29, 1963. Except for relatively
minor issues, the question presented by the facts of this case is whether Respondent
violated its obligation to bargain in good faith as required by the National Labor
Relations Act, as amended, herein called the Act. Briefs have been received from
the Respondent and the General Counsel, and upon consideration of the entire
record in the case and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
As is alleged in the complaint and admitted in the answer , Marion J . Rossi and
Elmo B . Legge are copartners in a business operating under the name of Opal Cliffs
Food Center located in Santa Cruz , California . This copartnership , in a typical
year, sells products exceeding $500,000 in its retail establishment and, in a typical
year, receives goods valued in excess of $10,000 directly from outside the State of
California , and receives goods valued in excess of $25,000 from businesses or enter-
prises who in turn receive the goods directly from outside the State of California.
7 60-5 7 7-6 5-v o f 148-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent is, and at all times material herein has been, an employer engaged in
commerce and in operations affecting commerce within the meaning of the Act.
Retail Clerks Union, Local 839, Retail Clerks International Association, AFL-CIO,
herein called the Union, is a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The issues
The primary question presented here is whether Respondent, by its conduct, after
the Union's demand for recognition, in failing to answer such demand, and by
instituting a wage increase without consulting the Union, violated its statutory obli-
gation to bargain as required by Section 8(a) (5) of the Act.
There is a difference of opinion as to which individuals are properly included in
the bargaining unit and, also, a question as to whether statements imputable to
Respondent violate Section 8(a)( I) of the Act.
The General Counsel argues that the conduct of Respondent, in meeting with
other grocers in the Santa Cruz area, and agreeing on a uniform wage policy de-
signed to inhibit or forestall union organization of the area grocery stores, was, in
itself, an unfair labor practice. Without more, such action is comparable to a person
intending a crime without committing any act, and such intent without action is not
punishable. Consequently, here, except to the extent such a plan was communicated
to the employees of Respondent, it will not be considered, per se, unlawful. Stating
it in another way, there must be some act or word following the agreement among
the grocers which operates to affect the rights of employees guaranteed by the Act in
order to establish an unfair labor practice. In this case, the inquiry will be limited
to statements and act of Respondent made known to its employees.
B. The events
On June 18, 1963,1 Robert Cowell, attorney for the Union, and Union Repre-
sentatives James Dobbs and Bill Amos visited Respondent's market. There on the
premises they spoke with Elmo Legge, one of the partners. Legge was excited and
disturbed by this visit. Cowell informed him that the Union represented a majority
of Respondent's employees and demanded recognition of the Union. Legge several
times asked Cowell and his companions to leave. The conversation took place in
a portion of the market used as an office, and Cowell, before leaving, tendered a
document, which was a blank form of a recognition agreement, to Legge by placing
it on his desk. Legge told Cowell that he would not sign anything without the
approval of his partner, Marion Rossi, who was on vacation at this time, and who
did not return until June 24. As Cowell and the two union representatives were
leaving, Cowell advised Legge that he could either talk to him or to the Federal
Government.
On June 19, the Union filed an unfair labor practice charge alleging Respondent
had failed and refused to bargain with the Union. Neither the Union nor Re-
spondent has had any direct communication with the other on the question of col-
lective bargaining since June 18, 1963. -
On July 6, 1963, Respondent put into effect a wage increase. This increase had
been agreed upon by other independent grocers in a joint action designed to forestall
union organization in their respective stores. The General Counsel contends that
Respondent made some statements interfering with the employees' rights. These
statements will be considered below.
C. The appropriate unit.and majority status of the Union
As alleged in the complaint, a unit of employees appropriate for bargaining is:
All employees at Respondent's Santa Cruz operation, excluding all meat depart-
ment employees, guards, and supervisors as defined in the Act.
This unit description is substantially the same as the unit described in the pro-
posed recognition agreement tendered by Cowell to Legge on June 18, and the parties
have stipulated that the unit described above is an appropriate unit of Respondent's
employees.
I Unless otherwise indicated, all dates are in 1963
OPAL CLIFFS FOOD CENTER 307
As of June 18, the day the Union demanded recognition , the following employees
were on Respondent 's payroll:
Nancy Adams Dennis Jahnigen Ronald Rossi
Allen Canepa Clinton Kelly Opal Russell
Pete Caselli Marc Kimmell Louis Schultz
Robert Crouse Dominco Legge Melvin Stanley, Jr.
Steve Funk Joe Lucas Anna Tefertiller
Lillian Gay Arsen Melkonian Wally Tienken
Mike Gent Donald Rossi Carl Twiss
Don Hunt
As of June 18, 1963, the Union had current authorization cards executed by
Melvin Stanley, Louis Schultz, Marc Kimmell, Pete Caselli, Donald Hunt, Steve
Funk, Anna Tefertiller, Nancy Adams, Mike Gent, Robert Crouse, and Allen
Canepa.
The General Counsel contends that Dominco Legge, Donald and Ronald Rossi,
and Opal Russell should be excluded from the bargaining unit.
Dominco Legge is the father of Elmo Legge, one of the two partners owning
Respondent business. Dominco Legge rents to Respondent partnership the build-
ing and ground on which the business is located, for $550 a month. There is no
written lease, but he is paid this rent pursuant to an oral agreement. He receives
$20 a month and works at hours of his own choosing. In addition, he takes any
groceries or other commodities in the store without paying for them. These factors
establish that Dominco Legge's community of interest was with the owners of Re-
spondent rather than with its employees, and, consequently, he should not be in-
cluded in the bargaining unit.
Donald and Russell Rossi are the sons of Marion J. Rossi and thus are excluded
from inclusion in the unit by the operation of the Act which in Section 2(3) pro-
vides that the term "employee" shall not include any individual employed by his
parent.
Opal Russell, an individual who does the bookkeeping and acts as secretary for
the partners, on occasions would also act as a checker at the cash register. Russell
did not have any particular hours for performing work as a checker but, on occa-
sions when needed, she would act as a substitute. Her primary duties were those
of a bookkeeper and secretary for the two partners. She was the only employee
paid • at the rate of $2 an hour. Since her. typing might involve information of a
confidential nature pertaining to labor relations, and since her work as a clerk is
incidental to her principal function of bookkeeper and secretary, it is found on
balance of the above considerations that she is properly excluded from the unit.
Respondent contends Melvin Stanley and Robert Crouse are supervisory em-
ployees and should be excluded from the unit.
With respect to Stanley, it is noted that he received the same weekly wage as six
other employees, including Crouse. He was specifically informed by Rossi in
March 1963 that he was not to act as an assistant manager. This comment oc-
curred when another employee complained to Rossi about Stanley, and Rossi, accord-
ing to Stanley, told him (Stanley) something to the effect that he was just an Indian
and not a chief. Rossi testified he told Stanley to forget he was assistant manager
on the grocery side and that he was to confine his duties to the frozen food depart-
ment and the checkstand. If Stanley ever did have any supervisory authority, it
was terminated in March of 1963. Stanley's duties are of a type to be expected
from a clerk in a retail food operation. His purchasing of frozen foods requires
about 1 hour a week, and he prepared advertising material which required, accord-
ing to the uncontradicted testimony of Stanley, about 5 minutes a week. During
rush periods, he could call for extra checkers which the checkers themselves usually
did. It is 'found that the record reflects that Stanley performs the duties and func-
tions to be expected from an employee, who is not a supervisor, in a retail food
operation. Buttressing this finding is the fact that on its payroll Respondent lists
Stanley as a grocery clerk.
Crouse, like Stanley, received the same weekly wage as six other employees. He
is classified on Respondent's payroll as a produce clerk. The record does not reflect
any duties that would constitute him a supervisor within the statutory meaning.
The record reflects that Crouse worked as a clerk in the market's produce depart-
ment and occasionally was trusted to make a trip with the truck to purchase fruit to
be sold in the store The record does not contain any substantial evidence that
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clouse exercises any supervisory function other than that of the most routine type
requiring no independent judgment on the part of Crouse. Accordingly, it is found
that Crouse is properly included in the bargaining unit.
To recapitulate, as of June 18, the Union had 11 authorization cards executed by
Respondent's employees. There were 19 of the 21 individuals on the payroll, as of
June 18, found to be in the appropriate unit. Since the Union represented 11 of
the 19 as of June 18, 1963, it represented the majority of the employees of R
spondent when the demand for recognition was made.
D. The refusal to bargain
Legge, the partner who was in the market on June 18, 1963, stated to the union
representatives that he would not sign anything, including the proffered recognition
agreement, without the consent of his partner who was on vacation. The blank
recognition agreement left on the desk in Legge's office amounted to a continuing
request by the Union for recognition by Respondent.2 However, the complaint
alleges that Respondent failed to bargain in good faith on June 18, and continuing
thereafter. It is found this position is an unreasonable one, and no refusal to bar-
gain can be found in this record until a reasonable time after the return of Rossi
from his vacation which was on or about June 24. Since the Union did not com-
municate with Respondent, or Respondent with the Union, at any time after June 18,
and since it is found that the demand of the Union was a continuing one, it follows
that at some date a reasonable amount of time after Rossi returned from his vaca-
tion, Respondent violated its obligation to bargain in good faith.
A filing of an unfair labor practice charge by the Union on June 18 did not excuse
Respondent from its bargaining obligations .3
In the context of the events here, Respondent was obligated, within a reasonable
time after the return of Rossi, to recognize the Union or, at the very least, to seek
a secret ballot election or a mutually satisfactory mode of determining whether the
Union represented a majority of Respondent's employees.
July 1, 1963, is selected as an arbitrary date past a reasonable time when the
Union was entitled to some response to its demand for recognition. Since no re-
sponse was forthcoming, it follows that since the record does not demonstrate any
good-faith doubt on the part of Respondent, as to the majority status of the Union,
Respondent, by refusing to recognize the Union on July 1, 1963, and continuing
thereafter, violated its statutory obligation to bargain in good faith with the Union.
Respondent claims that the Union's demand for recognition on June 18 was de-
fective. It relies on the fact that Cowell did not attempt to arrange a meeting when
Rossi could be present and also because it was unethical of Cowell, a lawyer licensed
to practice law in California, to advise Legge that it was unnecessary to have Rossi,
the partner on vacation, sign the recognition agreement. The Union is also con-
demned by Respondent for Cowell' s statement to Legge that if he did not talk to
Cowell then Legge would talk to the Federal Government.
Respondent appears to be urging a denial of relief to the Union on the basis that
the Union did not have "clean hands" in this matter. Assuming, arguendo, this
theory of defense to an unfair labor practice is applicable (Respondent cites no
authorities for its contention), the statements and acts imputable to the Union do
not constitute such impropriety. While it may be that the conduct of the union
representatives was not in accord with the methods usually employed for communi.
cation in the business community, and while it may be that the tactics employed in
seeking recognition might offend some sensibilities, there is nothing that is apparent
in this record which would warrant a finding that the demand for recognition was
defective so as to preclude the Board from prosecuting this action, or the Union
from initiating it by filing a charge.
Thus, as of July 1, and continuing thereafter, it is found that Respondent failed,
and continues to fail, to bargain in good faith with the Union.
E. The wage increase
On July 6, 1963, Respondent instituted a wage increase retroactive to June 30.
Respondent's knowledge of union organization is first reflected by a conversation
Legge had with employee Crouse a few days before or after May 13, when the
2Burton D ixie Corporation , 210 F. 2d 222 (C.A. 10), 103 NLRB 880
3 Skyline Homes, Inc. v. N L. R B., 323 F. 2d 642 (C A. 5), enfg as modified 134
NLRB 155.
OPAL CLIFFS FOOD CENTER 309
Union was discussed . It is also reflected in the testimony of Bartling , a representa-
tive of the California Association of Employers , a representative of Respondent.
Bartling testified , without contradiction , that on the evening of the demand , that is
June 18, the subject of the organization of Respondent's market was discussed at a
meeting of the grocers uniting to form a common front against union organization.
At the grocers ' meeting on May 28 called for establishing uniform wages and
benefits, there was discussed the Retail Clerks Union wage scale . At this meeting,
the substance of agreement was reached although not reduced to a final form until
a later date.
It is clear Respondent had knowledge of the Union 's demand for recognition
when it agreed to an area industry pay increase on May 28 and , also, when it in-
stituted it on July 6. Such unilateral action is in derogation of the Union 's repre-
sentative- status, and violates Respondent 's statutory obligation to bargain . N.L.R.B.
v: Benne Katz . d/b/a Williamsburg Steel Products Co., 369 U.S. 736.
F. The alleged unlawful statements; - interference , restraint , and coercion
On approximately May 13, Legge engaged employee Crouse in a discussion about
the Union . Legge used an empty crate to make a tally of those employees he re-
garded to be for the Union and those opposed ., He also advised Crouse that em-
ployee Stanley was probably the main instigator of the union movement. Legge
asked Crouse for his help . The context of the testimony suggests help was being
sought to keep out the Union . Crouse and Legge had a friendly relationship away
from work as suggested by their drinking beer together and exchange of family
visits at their homes. In light of these considerations , all that emerges from this
episode is that Legge engaged in guessing out loud to Crouse about union adherents,
and, by implication , Crouse learned , if he did not know previously , that Legge was
opposed to union organization of the store . The request for help probably stemmed
from the close personal relationship . There is no warrant here for an inference
that Legge was asking Crouse to do anything unlawful.
About a week after July 6 , when the pay raise was instituted , Legge stated to
Crouse that Respondent 's pay raise was more valuable than the union scale since no
union dues were involved and there were greater health benefits for dependents.
On June 18, Legge in addressing Crouse referred to the union visitors as a "goon
squad."
Crouse overheard Rossi say to a salesman from another company that if the
Union came in "they'd have to get rid of some or all of the baggers." Reference
to the area contract reveals there is not a union classification of "bagger ." Irrespec-
tive of this, the comment is suggestive of several innocent meanings , which are
unnecessary to detail . This remark overheard by chance is too equivocal in the
context of the events to support a violation of Section 8(a)(1).
On July 6, when employee Stanley received his check , Rossi and Legge engaged
him in conversation . Legge stated , in effect , Respondent 's employees would be
doing better than under a union contract . Rossi added that the increase should in
effect keep away the union organizers every year or two. Legge also commented
that anyone not doing his job would be out. This comment would reasonably
mean that with the raise given the employees , greater emphasis was being placed on
their production.
It seems that all that can be distilled from the above statements by Legge and
Rossi to Stanley and Crouse is that Respondent was not in favor of having a union
in its store . The central fact of the unfair labor practices is that Respondent re-
fused to bargain with the Union by failing to grant the Union recognition and also
by unilaterally instituting a wage increase . It seems an unnecessary and tortuous
road into a realm of speculation to attempt to base independent , unfair labor prac-
tices on the statements set forth above.
CONCLUSIONS OF LAW
1. The activities of Respondent set forth in section II, above, in connection with
its operations 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 burdening and obstructing commerce and the free flow of commerce.
2. Respondent is an employer , and the Union is a labor organization , within the
meaning of the Act.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. On and after July 1, 1963, the Union has been the exclusive bargaining repre-
sentative of all employees in the following described unit for the purposes of col-
lective bargaining with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
4. The appropriate unit of Respondent's employees consists of all employees at
Respondent's Santa Cruz, California, operation, excluding all meat department em-
ployees, guards, and supervisors as defined in the Act, and constitutes a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
5. Since July 1, 1963, Respondent has refused, and continues to refuse, to recog-
nize the Union as the exclusive bargaining representative of its employees in the
above-described unit, thereby violating Section 8(a)(1) and (5) of the Act.
6. On July 6, 1963, the Respondent unilaterally instituted a wage increase at a
time when the Union represented a majority of its employees, thereby violating Sec-
tion 8(a)(1) and (5) of the Act.
[Recommended Order omitted from publication.]
Jay's Foods , Inc. and Local Union No. 1, American Bakery &
Confectionery Workers International Union, AFL-CIO, Peti-
tioner. Case No. 13-RC-9650. August 11, 1964
DECISION ON REVIEW, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued September
23, 1963, by the Regional Director for Region 13, an election by secret
ballot was conducted on October 9,1963, under the direction and super-
vision of the Regional Director in the unit found appropriate. At
the conclusion of the balloting, the parties were furnished a tally of
ballots, which showed that, of approximately 216 eligible voters, 212
cast valid ballots, of which 84 were for, and 116 were against, the Peti-
tioner, and 8 ballots were challenged and 4 were void. Thereafter,
the Petitioner filed timely objections to conduct allegedly affecting
the results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation, and on December 13, 1963, issued
and duly served upon the parties his Supplemental Decision and
Notice of Hearing, ordering that a hearing be conducted before a
Hearing Officer for the purpose of resolving the issues of credibility
raised by Petitioners' objections Nos. I-A-3 and I-B, and directing
that the Hearing Officer prepare and serve upon the parties a report
containing resolutions of issues of credibility of witnesses, findings of
fact, and recommendations to the Regional Director as to the disposi-
tion of the said objections.
Pursuant to the above order, a hearing was held beginning on Jan-
uary 14 and ending on January 22, 1964, before Hearing Officer
Arnold E. Charnin. All parties participated and were given full
opportunity to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. On February 11, 1964, the Hearing
148 NLRB No. 34.