Purity Food Stores, Inc.

National Labor Relations Board - Board Decisions

Feb 3, 1965

150 N.L.R.B. 1523 (N.L.R.B. 1965)

PURITY FOOD STORES, INC. (SAV-MORE FOOD STORES) 1523
WE WILL NOT, by claiming to know the extent of employees ' support of the
union and the identity of active supporters , or in any other way, give or try
to give employees the impression that their union activities are under surveillance.
WE WILL respect your right to join , assist, or support Carpenters District Coun-
cil of Kansas City and Vicinity , United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, or any other labor organization , to bargain collectively
through it or any other labor organization , or to engage in concerted activity for
mutual aid or protection , or to refrain from doing so, all as guaranteed under
the National Labor Relations Act.
EFCO CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from date of posting, and
must not be altered , defaced , or covered by any other material.
Any employees who have a question concerning this notice or compliance with it
may inquire by mail , telephone , or in person at the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue , Kansas City, Missouri , Telephone No. Baltimore
1-7000, Extension 731.
Purity Food Stores, Inc. (Sav-More Food Stores) and Local 1435,
Retail Clerks International Association , AFL-CIO. Case No.
1-CA-4644. February 3, 1965
DECISION AND ORDER
On November 9, 1964, Trial Examiner C. W. Whittemore issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices 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 also found that Re-
spondent has not engaged in certain other unfair labor practices
and recommended dismissal of the complaint as to them. There-
after, the General Counsel and the Charging Party filed exceptions
and briefs in support thereof. Respondent also filed 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 con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
The Board has reviewed the ruling of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the
entire record in this case, and finds merit in the General Counsel's
and Charging Party's exceptions. Accordingly, the Board adopts
the Trial Examiner's findings, conclusions, and recommendations
only to the extent consistent with our Decision and Order.
150 NLRB No. 148.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent operates a chain of retail grocery supermarkets in the
State of Massachusetts, including a store in the town of Peabody.
On May 13, 1964, Local 1435, Retail Clerks International As-
sociation, AFL-CIO (designated herein as the Union), began
organizing among Respondent's employees at its Peabody store.
By May 14 the Union had obtained signed authorization cards from
about 65 of the approximately 107 employees in the bargaining
unit. On that date a union representative wrote Respondent stating
that the Union represented a majority of the employees in an ap-
propriate unit and demanded that Respondent recognize it and
bargain collectively. On May 15 counsel for Respondent replied
in writing, rejecting the Union's demands, ostensibly on the grounds
that Respondent doubted that the unit sought by the Union was
appropriate for collective bargaining and that Respondent doubted
that the Union represented a majority of the employees.
As the Trial Examiner found, commencing on May 13 Respond-
ent, through its officers and supervisors, engaged in conduct as set
forth in the Trial Examiner's Decision in violation of Section
8(a) (1) of the Act. Leo Kahn, Respondent's president and
general manager, admitted that upon learning of the Union's or-
ganization effort on May 13, he instructed store executive Edward
Goggins to "go to Peabody and to try to the best of his ability
to take part in any discussions on unions so that our side of the
story and the welfare and character of the company would not
go unnoticed by our employees." The Trial Examiner concluded
that the Respondent did not violate the Act by refusing to recognize
and bargain with the Union.
The Trial Examiner considered as support for this finding the
fact that Assistant Grocery Manager Richard Silva obtained sig-
natures on about 1S of the authorization cards relied upon-by the
Union as proof of its majority status. Silva was a supervisor in
the Trial Examiner's view or in any event the employees "had
reason to consider Silva as a supervisor and company agent whose
instructions they must follow." There is no evidence that, Silva
utilized any actual threats or promises to induce employees to sign
the authorization cards, but the Trial Examiner, inferred that
the, employees were coerced merely by being requested to sign a card
by an alleged supervisor. Contrary, to the Trial Examiner, we find
that a clear preponderance of the evidence on the record as a whole
establishes that during the relevant period Silva was not a super-
visor within the meaning of Section 2(11) of the Act.
It is undisputed, as the Trial Examiner found, that Silva "lacked
the authority to hire or fire, as well as other powers and attributes"
of supervisory status. However, in early 1964, apparently late
January or early February, Silva was given the title of "Assistant
PURITY FOOD STORES, INC. (SAV-MORE FOOD STORES) 1525
Grocery Manager," and thereafter wore a badge with that title
printed upon it. At the time Silva became assistant grocery man-
ager he was told that his duties were "to do the ordering for the
store and keep an eye on the boys underneath me ...." 1 In fact,
however, Silva's duties remained virtually identical to those he had
performed prior to becoming assistant grocery manager, which in-
volved' primarily stocking groceries. Silva only ordered for the
one aisle of the store in which he worked, and the record shows that
such ordering was often performed by stock clerks.
There is no evidence that after Silva became assistant grocery
manager, as the Trial Examiner found, that he "responsibly gave
instructions to employees." Silva gave no instructions to full-time
employees and only routine directions to part-time employees pur-
suant to Respondent's practice of having full-time employees direct
and assist part-time employees. While it is true that Silva conveyed
instructions to employees when Grocery Manager Vasipolli was off
duty, Silva testified and Vasipolli corroborated his testimony that
Vasipolli "would leave me a list of instructions, who I would have
to work with me, where to put them, what he wanted done ...."
On May 9, 1964, when both the store manager, and Vasipolli were
gone from the store for a few hours, Vasipolli testified that prior
to leaving the store he told Silva "what had to be done . . . who to
get to do the work .. and, what jobs had to be done first." Silva's
assigning`of employees to aid the head cashier on this date, was
done at the request of the head cashier who was a supervisor. It
is clear, therefore, that during the relevant period Silva was merely
a- conduit for relaying the instructions of Grocery Manager Vasi-
polli, and as, such did not responsibly direct employees within the
meaning of Section 2(11) of the Act. As the Trial Examiner found
that Silva possessed no other indicia of supervisory status, as set
forth in the Act, we find that Silva was not a supervisor within the
meaning of the Act.2 -
Nor do we find anything in the record .to support the Trial
Examiner's finding that "employees generally . . . had reason to
consider Silva as a supervisor and company agent." Many em-
ployees testified at the hearing, but none of them testified that he
considered Silva to be a supervisor or that he had been instructed
'In addition , the Trial Examiner found that Silva was given a raise. Silva testified
without contradiction , however , that after Goggins told him he was to be assistant
grocery manager, he asked Grocery Manager Vasipolli for a raise to go "along" with
the title Vasipolli replied that Silva was "just it trainee . . . and . . wasn't officially
Assistant Manager as yet or anything," and refused Silva's request . Thus, while it
is true as the Trial Examiner points out that Silva did receive an increase in February,
the record does not establish that such increase was given in connection with his
position as assistant grocery manager.
2 See Crown Corrugated Container, Inc, 123 NLRB 318, 324, The Great Atlantic 't
Pacific Tea Company, Ire, 132 NLRB 799, 801, Sherman White d- Company, 120 NLRB
499, 500-501.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to follow Silva's directions, except part-time employees who were
given directions by all full-time employees.-' Silva performed the
usual duties of a stock clerk, and, as Vasipolli conceded, was treated
like any other stock clerk, punched the sametime clock, and received
a lower salary than many of the other stock clerks. Moreover,
on May 15, Goggins in the presence of other employees repeated
Vasipolli's earlier statements to Silva that Silva was "only a
trainee." In light of these facts we do not believe that the evidence
on the record will support an inference that the employees looked
upon Silva as a supervisor whose "instructions they must follow."
The Appropriate Unit
The unit sought by the Union consisted of "all full-time and
regular part-time employees employed at your store in Peabody,
Massachusetts, excluding supervisors and guards as defined in the
Act and casual employees." Respondent contends, however, that
the only appropriate unit should consist of all of the employees
in Respondent's chain of seven retail stores. As we stated in Dixie
Belle Mills, Inc., etc.4 "assuming that the unit urged by the Em-
ployer ... may be the most appropriate unit, this does not establish
it as the only appropriate one." "[W]hether a proposed unit which
is confined to one or two or more retail establishments making up
an employer's retail chain is appropriate will be determined in the
light of all the circumstances of the case." 5 In the instant case
the record reveals the following relevant facts :
Respondent operates seven stores in the State of Massachusetts,
four under the name "Purity-Sav-More," two under the name
"Sav-More," and one under the name "Converse-Sav-More." 6 The
Peabody store is approximately 10 miles from the nearest of the
other stores in the chain, and about 30 miles distant from Respond-
ent's main offices. The Peabody store advertises in different area
newspapers and circulars which do not list the name and location
of all of the stores in the chain. Store hours vary among the
seven stores. The management of each store determines the number
of employees required to staff the store. Persons employed in the
Peabody store are hired at that store and must fill out an applica-
tion for employment at the Peabody store. Almost all of the part-
time employees, who comprise about 50 percent of the work force
at the Peabody store, come from the Peabody area.
8 The Trial Examiner's implied finding that Goggins had notified the employees at a
meeting that they were to follow Silva's instructions is based on an incomplete state-
ment of Silva's testimony. While Goggins had a meeting of the employees and ap-
parently announced that Silva had been given the title of assistant grocery manager,
Goggins did not tell the employees that they were to follow Silva's instructions.
4139 NLRB 629, 631.
8 Sav-On Drugs, Inc., 138 NLRB 1032, 1033.
8 The Converse-Sav-More store is owned by a wholly owned subsidiary of Respondent.
PURITY FOOD STORES, INC. (SAV-MORE FOOD STORES) 1527
The actual operations of the Peabody store are under the direct
control of the store manager and the "store supervisor,"' the latter
dividing his time about equally between the Peabody store and
another store in the chain. The store supervisor and the manager
have direct control over the hiring and discharge of employees;
the assignment of work to employees; the approval of work sched-
ules for employees; the approval of time off; and settlement of
customer complaints. Vacation schedules are based upon depart-
mental seniority within the store. The time records of employees
of the Peabody store are kept and totaled at Peabody, and for-
warded to the main office for payroll purposes. There are four
office employees at the Peabody store who perform clerical work
for the Peabody store only.
Other than fresh meat and dairy products almost all other
merchandise is ordered by' the individual stores, including the
Peabody store, directly from independent warehouses and vendors,
with the quantity of merchandise ordered left in large degree to
the discretion of the individual store management.
While the record shows that employees are transferred among
the various stores on both a permanent and temporary basis, the
record reveals that only 118 of these transfers over a 2-year period
involved the Peabody store. The record does not disclose how
many of these transfers involved supervisors. However, even as-
suming, arguendo, that none of the transfers involved supervisors,
we do not believe that an average of about 1 transfer a week in
a unit of over 100 employees is by any means determinative.
Therefore, on the basis of the facts set forth above, we find that
a unit consisting of all full-time and regular part-time employees
employed at Respondent's Peabody store, excluding casuals, super-
visors, and guards as defined in the Act, constitutes an appropriate
unit for collective bargaining within the meaning of Section 9(b)
of the Act .7
Accordingly, as the Union. represented an uncoerced majority of
the employees 8 in an appropriate unit, we find that Respondent's
refusal to recognize and bargain with the Union on May 15, 1964,
and thereafter, constituted a violation of Section 8(a) (5) and (1)
of the Act .9
We also find that Respondent violated Section 8(a) (5) and (1)
of the Act by granting-its employees unilateral wage increases in
7 See Sty-On Drugs, Inc., supra, Primrose Super Market of Salem, Inc ., 148 NLRB 610.
8 In this respect we will not count the card signed by employee LeGrow as there is
evidence indicating that LeGrow signed the card under duress from fellow employee
Pappas.
e Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F. 2d 732, cert. denied 341 US 914;
Fred Snow , Harold Snow, and Tont Snow , d/b/a Snow & Sons , 134 NLRB 709.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 1964, without prior notice to ' or consultation with the
Union. See N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg
Steel Products Co., 369 U.S. 736.
THE REMEDY -
Having found that Respondent has engaged in and is engaging
in additional unfair labor practices, we shall amend the Trial
Examiner's Recommended Order, and order that Respondent cease
and desist therefrom and take certain affirmative action in order to
effectuate the purposes of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby orders that Respondent, Purity Food
Stores, Inc. (Sav-More Food Stores), 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 full-time and regular part-time employees of Respondent,
employed at its Peabody Store, excluding casual employees, guards,
and supervisors as defined in the Act.
(b) -Unilaterally instituting any wage increase or other benefit
to the employees without bargaining with the Union prior to such
action.
(c) Interrogating employees as to their union membership and
activities in a manner violative of Section 8(a) (1) of the Act.
(d) Threatening, directly or by plain implication, the closing of
the Peabody store if a labor organization obtains majority status
as the bargaining representative of the employees.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of, rights guaranteed by
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 Peabody, Massachusetts, store, copies of the
attached notice marked "Appendix." 10 Copies of said notice, to be
IU 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."
PURITY FOOD STORES, INC. (SAV-MORE FOOD STORES) 1529
furnished by the Regional Director for Region 1, shall, after being
duly signed by a representative 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, in-
cluding 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 1, in writing, within
10 days .from the date of this Order, what steps have been taken
in compliance herewith.
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 :
WE WILL, upon request, bargain collectively with Local 1435,
Retail Clerks International Association, AFL-CIO, as the exclu-
sive representative of all employees in the bargaining unit de-
scribed 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 :
All full-time and regular part-time employees employed at
oui Peabody, Massachusetts, store, excluding casual employ-
ees, guards, and supervisors, as defined in the Act.
I'VE WILL NOT institute wage 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 threaten you, directly or by implication,, with
economic, reprisals to discourage your membership in or,activity
on behalf of any labor organization. .
WE WILL NOT interrogate you as to your union membership or
sympathies in a manner violative of the Act. -
WE WILL NOT violate any of the rights your have undei° the
National Labor Relations Act to join a union of your own choice
or not to engage in union activities.
PURITY FooD STORES, I NC., (SAV-MORE
FOOD STORES),
Employer.
Dated---------------- By--------------------------------=----
(Representative ) ( Title)
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Boston Five Cents Savings Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 523-8100, if they have any
questions concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE -
Upon charges filed on June 11 and July 13, 1964, by the above -named labor
organization , the General Counsel of the National Labor Relations Board on July 23,
1964, issued his complaint and notice of hearing. The Respondent duly filed its
answer. The complaint alleges and the answer denies that the Respondent has engaged
in and is engaging in unfair labor practices violative of Section 8(a) (1) and (5) of the
National Labor Relations Act, as amended . Pursuant to notice , a hearing was held
in Boston , Massachusetts , on September 11, 14, 15, and 17, 1964, before Trial Exam-
iner C. W. Whittemore.
At the hearing all parties were represented by counsel , and were afforded full
opportunity to present evidence pertinent to the issues , to argue orally , and to file
briefs. Briefs have been received from the General Counsel and the Respondent.
After the hearing a motion was received by the Trial Examiner from counsel
for the Respondent , the attached letter indicating that a copy of said motion was
served upon counsel for General Counsel . The motion concerns certain typograph-
ical errors in the record . No objection having been received from General Counsel,
said motion is hereby granted , made a part of the record , and the corrections ordered
to be made.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Massachusetts corporation , with principal office and place of
business in Chelmsford , Massachusetts , and among others maintains a retail grocery
store in Peabody, Massachusetts . At this Peabody store , the only one of several
operated by the Respondent to be involved in this proceeding , the Respondent is
engaged in the retail sale and distribution of foodstuffs, groceries , and related products.
In its answer the Respondent admits that during the calendar year 1963 it sold
and distributed products valued at more than $ 500,000. It also admits that during
the same period . it received goods valued at more than $50,000 from points outside
the Commonwealth of Massachusetts.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
Local 1435, Retail Clerks International Association , AFL-CIO, is a labor orga-
nization admitting to membership employees at the Peabody store of the Respondent.
IH. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The issues of this proceeding arise from a "quickie" organizing campaign on May 13,
1963 , in the above-named Local a few Peabody store employees . The refusal-
to-bargain issue stems from the facts that: ( 1) on May 14, the day after organization
began, an official of the Local wrote to the Respondent, claiming majority repre-
sentative status in a unit of employees limited to the Peabody store and demanding
negotiating meetings; and (2) on May 15 , counsel for the Respondent replied to the
demand , in writing , stating in substance that the Respondent doubted the majority
claim and the unit claimed , and that it declined to recognize the Local until it had
been certified by the Board.
PURITY FOOD STORES, IXC . (SAV-MORE FOOD STORES ) 1531
Thus there is no dispute as to the actual fact of refusal to bargain . The question as
to whether or not such refusal was unlawful , as well as the opposing positions of the
parties, will be discussed below.
The complaint also alleges , and the answer denies, that concurrent with the brief
organizational attempts responsible agents and supervisors of the Respondent engaged
in unlawful acts of interference , restraint, and coercion . At the opening of the
hearing General Counsel amended his complaint by alleging that on September 4,
1964, the Respondent granted pay raises "for the purpose of further undermining the
Union 's majority status." The Respondent admits the fact , but not the alleged pur-
pose, of the pay raises.
Also at the hearing the Respondent amended its answer to allege that agents of
the Union , in obtaining signatures to designation cards, misrepresented "material
facts."
B. The refusal-to-bargain issue
It appears that the move to organize the Peabody store employees , who had previ-
ously not been represented by a labor organization , was initiated by Assistant Grocery
Manager Richard Silva. According to the testimony of employee John Pappas, he
was asked by Silva on May 12, to go with him and two other employees , Padios and
Gilroy, the next day (their day off work ) to the union office in Lynn, Massachusetts,
and "get a union in the store ." These four and one other employee, Franklin, went
to the Local 's headquarters , obtained a supply of blank cards headed "Authorization
for Representation," and proceeded to get other employees to sign them.
On that day, May 13, they obtained signatures to some 50 such cards , which were
identified through them and placed in evidence . Also placed in evidence were about
15 other cards , identified either by the individuals concerned or by stipulation and
signed either on May 13 or May 14. By agreement of the parties, a list of employ-
ees in the unit claimed by the Union and on the current payroll was also admitted
into evidence . The list totals about 107. Without attempting here to be absolutely
accurate on the count , it would appear probable that as of the date of the demand
the Local had signed designations as the bargaining representative from a majority
of the employees in the claimed appropriate unit, which was "all full-time and reg-
ular part-time employees ," excluding guards and supervisors.
As noted above, however, the Respondent questions both the appropriate unit and
the majority in the unit claimed . The latter point is first considered.
In substance , it is the Respondent 's contention that even within the unit, as claimed,
an uncoerced majority was not established by General Counsel. While there is
credible evidence that one employee , 17-year-old LeGrow , was threatened by Pappas'
uplifted fist, in the presence of other employees , if he did not sign a card , and that a
more serious altercation was only avoided when Silva intervened, it is plain that
the Respondent rests its position chiefly upon its contention that Silva, the leader in
the movement , in fact was and is a supervisor . Silva himself obtained signatures to
18 cards, and was present when others of his group solicited signatures.
Upon review of all the evidence the Trial Examiner is inclined to the view that
there is merit in this contention of the Respondent . While Silva lacked the authority
to hire or fire, as well as other powers and attributes which might , in some circum-
stances, cause the Employer to be responsible for all his conduct , there can be small
doubt but that the employees generally, many of whom testifying at the hearing were
teenagers , had reason to consider Silva as a supervisor and company ' agent whose
instructions they must follow.
Silva had been promoted , and given a raise, in early 1964, to the position of
assistant grocery manager . Thereafter he was given , and wore openly , a badge
with both his name and his title upon it. According to his own testimony, when
promoted by management , he was told "my duties were to do the ordering for the
store and keep an eye ' on the boys underneath me-keep an eye on the boys that
make out the order for the store and to be a boss more or less." Also according to
this testimony , when given the badge and the promotion he raised the question as to
whether the employees "would go along with the badge ." Goggins, a management
executive , agreed with this and, according to Silva, "said that he would have a meet-
ing of all the other employees , which he did."
In the opinion of the Trial Examiner, the record contains competent and credible
evidence showing that after his promotion and at all material times Silva responsibly
gave instructions to employees , assigned employees to aid the head cashier when
requested by him, assumed the full duties of the department manager, Vasipolli (an
admitted supervisor ), whenever the latter was off duty or on vacation , and that on
May 9 , a few days before he started organizing , he was placed in charge of the entire
store while his superior was away. It is concluded and found that at the time Silva
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicited and obtained signatures to at least 18 cal ds, and clearly was known to
employees as the leader of the movement, he was a supervisor or agent of the
Respondent. (See the Board's recent holding on a similar point as to employee
Carson, Sinko Manufacturing and Tool Company, 149 NLRB 201.
In determining whether or not the card majority adduced by General Counsel was
tainted by. the inherent coercion of a supervisor's solicitation, it is necessary to cod-
sider,the employees themselves, since it is their right of free choice which the Act
was designed to protect. As noted, a great many of the employees in this store were
and are teenagers, going to school and working part time. What is a 17-year-old
'school boy likely to do when the individual wearing the badge "Assistant Grocery
Manager" and whose orders he has been instructed to follow comes to him and
asks him to sign a card? It appears reasonable to believe that he yields to the
request, particularly if he sees that others are doing as the supervisor requests. Here
there was no preliminary campaign, with customary distribution of leaflets urging
organization as an avenue to protection or benefits. Almost all the cards were signed
in one day. - -
The situation here is not that described in a case cited by General Counsel, Douglas
County Electric Membership Corporation, 148 NLRB 559. There a Board election
had been held, the employees had voted by secret ballot. In effect the Board held
that whatever assistance a supervisor might have given in the early organizing cam-
paign, the employees had had the subsequent opportunity to vote secretly and record
their free choice.
In short, the Trial Examiner is not convinced that General Counsel has established
beyond a reasonable doubt that on May 15, 1964, the Charging Union had been
designated by an uncoerced majority of employees in the claimed unit as their col-
lective-bargaining agent. Since proof is lacking on this essential point , it will be
recommended that the 8 ( a) (5) allegations of the complaint be dismissed.,
C. Interference, restraint, and coercion
Credible evidence, however, convinces the Trial Examiner that management itself
was not innocent of coercive conduct, as soon as it became aware of the activities of
Silva and others, which was about noon on May 13, according to the testimony of
Leo Kahn, president and general manager of the corporate chain. According to
Kahn, he was informed of the union activity by Edward Goggins, the company
executive in charge of two stores of the chain, including Peabody, and he promptly
instructed Goggins to "go to Peabody and to try to the best of his ability to take
part in any discussions on unions so that our side of the story and the welfare and
the character of the company would not go unnoticed by our employees, and I asked
him as much as possible to talk about the problem." Kahn added that he also
instructed Goggins "to make use of his rights and free speech," but cautioned him
against "anything that could be construed as being coercive or threatening or prom-
ising or investigatory as far as asking anyone whether or not they signed Union cards."
In the opinion of the Trial Examiner, Kahn was ill-advised in directing Goggins
to "take part in any discussions on unions ," even if he actually tempered this direction
with quotes from the Act. As an experienced executive he should have been well
aware that zealous subordinate supervisors would be more concerned with attaining
the goal,Kahn obviously wanted them to reach-discouraging union membership-
than with keeping within the cautionary limits he says he outlined to Goggins. In
any event, it appears plain that Kahn's own action precipitated conduct by his sub-
ordinates violative of the Act.
Among others, credible evidence establishes and it is found that the following inci-
dents occurred:
(1) On the night of May 13, Goggins and Supervisors Vasipolli, Smith, and'Scopa
all engaged in surveillance of the area just outside the Peabody store where the orga-
nizing ,committee was attempting to obtain signatures . When the organizers left this
area and went to another parking area, some distance away, Vasipolli and Scopa
followed. Vasipolli readily admitted that he went to this latter area because he heard
that a union meeting was to be held there. Later in the evening Goggins followed
IIt is considered to be immaterial to the majority question that top management,
when it became aware as it did almost immediately of Silva's leadership in the move-
ment, failed to order him to cease or suffer demotion . Even if there were grounds for
suspecting an effort on the Respondent 's part to entrap the Union , it would not warrant
a mandate that the employees themselves must accept the Union as their bargaining
agent.
PURITY FOOD STORES, INC. (SAV-,MORE FOOD STORES) 1533
in his car for a considerable distance one of the organizing group, Pappas. The Trial
Examiner concludes that the purpose of such surveillance , as well as the reasonable
effect of it, was to intimidate employees in the exercise of their Section 7 rights.
(2) Earlier that same evening, after she had reached home from work, employee
Winslow was called by Goggins, who asked her if she knew "what' s going on." When
she admitted that she did, he asked her if she had been "approached by any of the
fellows," and told her to "keep your eyes open." It is plain that Goggins was refer-
ring to the union activity, which he had previously reported to Kahn, and it is found
that such interrogation was violative of the Act.
(3) On about May 15, Supervisors Scopa and Vasipolli queried employee Hodge
concerning her participation in the union movement. Scopa asked her if she had
signed a card. When she replied in the affirmative, Vasipolli asked her why. She
gave reasons, whereupon Vasipolli told her that if the Union got in her hours as
cashier would be cut to 15 hours a week.
(4) A few days later Scopa asked Hodge and another cashier under him, White-
head, if they were going to a union meeting that night, and the next day asked them
if they had gone.
(5) Goggins also asked employee Kastanko if he was going to attend the union
meeting.
(6) The latter part of May George Karelis, an admitted supervisor, told employee
Pappas, one of the organizing group, that he had been asked by Goggins to "pump"
him for information about union meetings and who attended. Whether Goggins had
in fact given him such instructions is immaterial.
(7) Early the morning of May 14, after spending several hours the night before
patrolling the meeting places of the employees, Vasipolli queried Pappas as to how
he had managed to lose Goggins the night before, and asked Padios why he had
"started this."
(8) Early in June Supervisor Renaud told employee Pappas that he was taking a
big risk by engaging in his activities because the "store could close" and he could do
nothing about it.
(9) In mid-May Vasipolli asked Pappas why he had become "mixed up" in the
Union, and warned him that he had been "burnt" once before, at another store.
(Vasipolli in effect admitted the warning but placed it at a later date.)
The Trial Examiner concludes and finds that the above-described conduct of man-
agement and supervisors, especially when considered as a course of action precipitated
by Kahn himself, constituted interference, restraint, and coercion of employees in the
exercise of rights guaranteed by Section 7 of the Act.2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of 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 burdening and obstructing "com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain 'unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take
affirmative action to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 1435, Retail Clerks International Association, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce'within the meaning of Section 2(6) and (7)- bf the Act.
2 The Trial Examiner is not persu:2dcd by the preponderance of evidence that certain
wage raises granted by the Respondent in early September were violative of the Act
in that they were, as the amended complaint alleges, given for the purpose of under-
mining the Union's majority As noted heretofore, the evidence fails to'establish majority
status on the part of the Union. •
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
[Recommended Order omitted from publication.]
U-Tell Corporation and Retail Store Employees Union, Local
444, Retail Clerks International Association , AFL-CIO. Case
No. 30-CA-29 (formerly 13-CA-6060). February 3, 1965
DECISION AND ORDER
On August 19, 1964, Trial Examiner Horace A. Ruckel issued
his Decision in the above-entitled proceeding, finding that Re-
spondent had engaged in certain unfair labor practices alleged in
the complaint and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Decision. The Trial Examiner further found that the
Respondent had not engaged in one unfair labor practice alleged
in the complaint and recommended that the complaint be dismissed
with respect to the latter allegation. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's failure to make
certain findings and conclusions and filed a brief in support thereof
and in support of the remainder of the Trial Examiner's Decision.
The Respondent filed exceptions to the portion of the Trial
Examiner's Decision in which it was found to have violated the
Act and filed a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, the Board has delegated its powers in con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, exceptions, briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
1 The Trial Examiner erroneously fixed the date of the meeting of Respondent's cashiers
as July 21, 1963. Such meeting was in fact held on September 21, 1963. We do not
find the variance in these dates to be material to the finding of a violation with respect
to payment of compensation to the employees who attended the meetings of July 20
and September 21, 1963, or with respect to the statements of Dumke, the chief cashier,
at the latter meeting.
150 NLRB No. 149,