Quality Markets, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1970

180 N.L.R.B. 989 (N.L.R.B. 1970)

QUALITY MARKETS, INC.
Quality Markets, Inc. and Retail Clerks
International Association , Local 1538, AFL-CIO
and Amalgamated Meat Cutters and Butcher
Workmen of North America, District Union Local
No. 1, AFL- CIO, Party to the Contract
Amalgamated Meat Cutters and Butcher Workmen
of North America , District Union Local No. 1,
AFL-CIO; and Amalgamated Meat Cutters and
Butcher Workmen of North America,
Amalgamated Food Employees Local Union 590,
AFL-CIO ( Quality Markets, Inc.) and Retail
Clerks International Association , Local 1538,
AFL-CIO. Cases 6-CA-4347 and 6-CB-1565
January 28, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 24, 1969, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision, together with a supporting brief, and
Respondents Quality Markets, Inc., and Local
Union 590, filed briefs in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders the complaint herein
be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER 'S DECISION
LLOYD BUCHANAN, Trial Examiner: The consolidated
complaint herein (issued February 26, 1969; charges filed
August 22 and December 6, 1968), as amended, alleges
that the Company has violated Section 8(a)(3) of the
National Labor Relations Act, as amended, 73 Stat. 519,
by entering into, about June 26, 1968, when Local I did
not represent an unassisted and uncoerced majority of the
989
Company's employees, a collective-bargaining agreement
covering the employees of the Company's warehouse and
stores, and maintaining and enforcing said agreement; and
Section 8(a)(2) and (1) of the Act by said acts and by
assisting Locals 1 and 590 in the solicitation of
authorization cards from the Company's employees,
telling employees that the Company would be better off if
they were represented by said locals and that if they did
not select them as their bargaining representative the
Company would have to close its stores, permitting said
locals to solicit authorization cards on the Company's
time and property, selecting an employee to be on Local
I's negotiating committee, recognizing Local l as the
exclusive bargaining representative of employees at its
warehouse and stores at a time when Local 1 did not
represent an unassisted majority of said employees, and by
deducting dues and initiation fees from employees at its
warehouse and stores and paying said moneys to Local 1.
The complaint further alleges that Locals 1 and 590' have
violated Section 8(b)(2) and 8(b)(l)(A) of the Act by
executing and maintaining the collective-bargaining
agreement with the Company, entered into when Local l
did not represent an unassisted majority of the Company's
employees.
The answers, as amended, admit the execution of the
collective-bargaining agreement referred to but deny that
it was entered into at a time when Local I did not
represent an unassisted majority; the Company further
denies the other allegations of unfair labor practice.
The case was tried before me at Warren, Pennsylvania,
on April 21 through 23, inclusive, and May 5 and 6, 1969.
Briefs have been filed by the General Counsel, the
Company, Local 1, and Local 590, the time to do so
having been extended.
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
The Company' s Business and the Labor
Organizations Involved
The facts concerning the Company's status as a New
York corporation, the nature and extent of its business in
the operation of a warehouse in Jamestown, New York,
and 31 retail stores in June 1968, 17 of which stores were
located in the State of New York and 14 in the
Commonwealth of Pennsylvania, 16 and 13 stores,
respectively, still in operation at the time of trial, and its
engagement in commerce within the meaning of the Act
are admitted; I find and conclude accordingly. I also find
and conclude, on the basis of the evidence before us and
prior decisions of the Board, that Locals 590, 1, and 1538
are severally labor organizations within the meaning of
the Act.
Understanding of the present situation will be aided if
we note that the Company on July 7, 1965, refused to
recognize Local 590, but that the Board thereafter
directed it to bargain with that Union with respect to all
of the employees in four of the stores here involved (the
four in Titusville, Pennsylvania).' The Company met with
Local 590 (Local 1 representatives attending) in five
bargaining sessions in February and April 1968, and with
Locals 590 and 1 on June 8 and 17, when agreement was
'The contention with respect to Local 590 was thereafter limited to
Section 8(b)(1 )(A).
'Quality Markets, Inc, 160 NLRB 44, enfd. 387 F.2d 20 (C.A 3)
180 NLRB No. 151
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached and thereafter ratified by the employees. We can
note further that in an RM petition in July 1965 the
Company pointed out that Locals 1 and 1538 had
previously declared a representation interest in connection
with several of the stores; and that Locals 590 and 1538
had competed in an election held in January 1964 with
respect to the employees in two of the stores.
It is admitted that we do not here face a Midwest
Piping situation. Neither the Charging Union nor any
other (excluding the Respondent Unions) has made a
claim, colorable or otherwise, of majority. Whether or not
unlawful assistance is to be found will be determined by
the evidence directly submitted to support the allegations
of the complaint. No suspicion is cast by the Company's
unwillingness to recognize Local 590 in 1965 and, after
Board Order and court decree, its entry into an agreement
with Local I in June 1968. We shall explore the facts in
connection with that agreement.
Were there issues concerning the change in unit from
the 4 stores involved in the Board's 1966 decision to all 31
stores, and in the Union recognized from Local 590 to
Local 1, as we shall further see, we would perforce note
that we do not know how many of these cards were signed
by Titusville employees; or whether deduction of cards on
the ground that transfer of jurisdiction from Local 590 to
Local l was unwarranted, would leave either or both
Unions without a majority. But those issues were early
removed from the case. Indeed, maintaining that he was
attacking only that "part of the contract" which extended
recognition to the other 27 stores, and that he had
accepted it as valid as to the 4 stores over which Local
590 had jurisdiction, the General Counsel was permitted
to amend to claim invalidity of the contract as it
purported to cover all 31 stores and the warehouse.' The
issue then remained whether the cards for Local 590 or
Local I were signed by an unassisted and uncoerced
majority.
We now direct our attention to the allegations of
interference and unlawful support early in June. They will
have been before us when we consider the agreement
entered into later that month.
To support the allegations that Superintendent
Ammons and Assistant Superintendents Wallin and Slagle
assisted Locals I and 590 in the solicitation of
authorization cards, Marvell, employed at the Frewsburg
store, testified that, in the beginning of June while he was
with employee Waid (he thought that Waid went to help a
customer during the conversation), Ammons approached
him and Waid in the store and told them that the Meat
Cutters represented the employees at the Titusville stores;
that they would probably soon come into the stores' to see
the employees; that, because of the expense and trouble,
the Company had changed its position of opposition to
union representation; and that he did not want to
influence anyone's decision with respect to signing a union
card but merely wanted to tell the employees what was
'What the General Counsel declared to be his "original position," still
adhered to , that he was attacking only that part of the contract which
covered the 27 stores other than the 4 in Titusville could lead to an
interesting numbers game . We would presumably deduct the number
(which we do not know ) of cards signed by Titusville employees from the
total number of valid cards; and then compare that difference with the
number of employees in the 27 stores . None of this was done ; while the
concept of invalidity of a part of the coverage of the contract (quite
different from separating certain provisions as invalid ) might prove
exciting , the General Counsel does not appear to have thought it through
or to be seriously urging it.
going on. Were we to guess or assume ("infer" would be a
wholly unwarranted term) that Local I had asked for and
received permission and then told the Company that it
would solicit cards in the stores, it is clear that no
company representative directed employees to distribute
or to sign union cards. We shall see that an outright
expression of preference for the Meat Cutters would not
be violative. Even less restrictive or coercive is company
expression of anticipated solicitation by a union; if this
implies approval, it no more interferes than does stated
endorsement. (We shall see also that no opportunity
accorded Local I was denied Local 1538.)
Marvell testified further that, without mentioning any
union by name, Ammons spoke of the possibility of other
unions getting into various stores "and causing a labor
problem." His recollection several times refreshed, Marvel
added that Ammons (denying as we shall see) "did
mention that if the problem was of a great size or
magnitude that possibly the company would rather than to
have to spend a great deal of money and time involved in
this type of situation, they would sell part or whole of the
chain or that it was possible that this might happen."
It is quite lawful for an employer to state his preference
for one union or another or, as here, for a single union
rather than several.' It is something else to make a threat
in that connection. The credibility finding makes it
unnecessary for us to concern ourselves with the question
whether the statement that all or some of the stores might
be sold is a threat or of the same order as that alleged
that the chain would be closed.
Called earlier because he was on leave from the Navy
and had to return, and in apparent anticipation of some of
Marvell's testimony, Waid told us that Ammons did not
make any statement to him in Marvell's presence
concerning organizational activities and never made any
threats in connection with failure to designate the Meat
Cutters as collective-bargaining representative.
Questioned in detail as an adverse witness concerning
each of the allegations of violation attributed to him,
Ammons credibly denied all. He testified reliably that he
explained the existing situation to all who asked him,' and
there were many; he explained that negotiations covering
the Titusville stores had been going on for 3 or 4 months,
that the Company was "giving up," and that it "possibly
could have a union if this is what the people wanted... .
We were through fighting and spending our money."
Denying that he told employees that representatives of
Local I would be coming around, Ammons testified
further that the organizational efforts were a matter of
common knowledge and that he told the employees that
"if this is what the people want . . . it was their choice if
they wanted them, they could have a union." I find no
threat and no disparate treatment or unlawful assistance
to Locals 1 or 590.
Johnson, employed at the North Warren store in June
1968, testified that at the beginning of June, Slagle told
him that the Company had reversed its decision with
respect to unions and had decided that it was all right for
employees to join at their discretion "whoever they wished
?his was also charged , although not alleged , to Anderson, manager of
the Meadville store, and in part denied by him, as we shall see when we
consider testimony with respect to possible invalidity of authorization
cards.
'Cf. N.L.R.B. v. Supreme Dyeing & Finishing Corporation , 340 F.2d
493 (C .A. 1). The question of an employer 's statement of preference will
be further considered below.
'The General Counsel disclaimed violation in connection with testimony
by one employee of a conversation allegedly initiated by Ammons.
QUALITY MARKETS, INC. 991
to choose." Slagle asked Johnson to pass the information
on to the other employees in the store. Certainly the
Company was here doing no more than informing
employees that it would no longer unlawfully restrict or
interfere with union activity. If because Locals I and 590
had for several months conducted an extensive organizing
campaign among all of the stores with the assistance of
some 18 organizers, an advantage accrued to them, there
was no denial of similar or equal opportunity to Local
1538 or any other labor organization. Indeed if Local l
had requested and obtained from the Company permission
to enter the stores (we have no testimony concerning this),
such prearrangement might suggest orderly procedure' and
might serve to eliminate employee fear of company
displeasure. With no compulsion exercised on employees,
a competing (or noncompeting) union has no lawful basis
for complaint. It may be noted parenthetically that, with
all of this, not more than three cards were thereafter
signed in the North Warren store.
Employee Middleton testified that early in June
Ammons told him that it was no use fighting any more,
and that if anyone came into the store with union cards,
the employees might just as well sign them. After telling
us that this was only his own "supposition" from what
Ammons had said, Middleton testified that Ammons had
in fact said that they might as well go union to avoid
future labor trouble, not that the Company would
probably have to go union to avoid future labor trouble.
(Neither version is alleged.)
At most we have here a very weak and unreliable
suggestion of a statement concerning the advisability of
signing union cards "if anybody"' came in. Ammons'
attitude, as conveyed to the employees and described by
himself, Middleton, and Waid, mirrored that of
Middleton, who testified that, although he did not favor
unions, he signed a card to avoid "bickering and fighting
among the unions." His thought was, he testified, that "if
you can't fight them, join them."
Such testimony does not suggest violation by Ammons.
Like the latter, Middleton was not enthusiastic but he was
reconciled. His mental reaction governed his activity. A
union organizer asked him to get cards signed, and he
distributed them, telling the men to sign if they wanted to;
he was not telling them that they had to. Middleton was
no Boanerges while he himself signed and distributed
cards to others.
Finally in this connection, with testimony that Local l
representatives specifically asked for and then asked
employees to solicit cards, there is no evidence, were that
violative, that it was done at the suggestion or with the
assistance of any company representative.
Posing different questions from those raised by
Marvell's testimony that Ammons spoke of problems if
more than one union got in is warehouse employee Gage's
testimony that, still in the early part of June, he went to
the office of Secretary-Treasurer Reading and asked
whether the Meat Cutters was going to represent the
employees, and that Reading replied that the Company
had been fighting unions for years and was tired of
'Any cooperation which might be inferred or assumed is in marked
contrast to the facts in Department Store Food Corporation of
Pennsvivania , 413 F.2d 74 (C.A. 3), where the court , encouraging
cooperation between management and labor declared that they may not
"join hands at the expense of employee rights."
'As did counsel for the Company in a May letter of instruction, the
General Counsel and various witnesses referred to "the Union " or "the
Meat Cutters" without distinguishing between or separating the two locals.
At times, of course , each local was referred to specifically.
fighting, and that overall maybe it was for the best. As
Gage testified in this connection, there was no suggestion
of threat or other coercion or interference by Reading.
Questioned further in reference to an earlier statement
which he had submitted, Gage told us that Reading had
said that "the company would be better off with the
union. He did not say we had to join the Union." This
latter was presumably the General Counsel's prior
information. It is what he had alleged.
Confirming that he had told Gage that the Company
was giving up the fight, Reading denied that he had said
that the Company would be better off if the Meat Cutters
were selected as collective-bargaining representative. If
Reading did in fact make the latter statement it was in
connection with his remarks that the Company had been
ordered to negotiate with the Meat Cutters and had pretty
much given up the fight. Thus even if all of this were said,
there was no threat or other interference in the statement
that the Company would be better off.'
However one might evaluate the statement that the
employees would be better off if they were represented by
the Meat Cutters, whether or not as a promise of benefit
to be granted by the Company rather than as an opinion
of benefit to be derived from union membership and
without any promise of company action, the alleged
statement here is that the Company would be better off if
there were such union representation. Only by most
imaginative inferences and assumptions could one read
into this statement of company advantage a threat or
other unlawful interference with employees' concerted
activities. It does not appear that we have yet reached that
blissful state where warning of loss to an employer,
without a suggestion of concomitant loss or harm to
employees, would so distress employees that they would
thereby be restrained or limited in their own protected
concerted activity. (This is not to minimize employee
concern where it does exist.) Aside from the issue of
credibility, I find here no violation by Reading.
Admittedly union representatives were permitted in the
stores and were seen by supervisors of the Company. We
recall that it does not appear that the Company was in
fact concerned as between Local I and Local 590 or
indeed that it distinguished between the two beyond
recognizing that their respective organizational efforts
may have been directed toward separate stores. As
distinguished from the earlier allegation of assistance in
solicitation of authorization cards, it is now claimed that
the Company is guilty of violation for having permitted
Local I and Local 590 to solicit cards.
We recall also that there was no denial of equal
opportunity to any other labor organization. We have no
proof of active assistance to any union; after the adverse
court decision in the case involving its Titusville stores,
the Company would now recognize a majority
representative. Certainly it is not incumbent on an
employer to solicit visits and efforts by other labor
organizations . Indeed an employer so engaged would be
inviting countercharges. As for testimony of earlier
exclusions, it does not appear that any union
representatives were excluded since January 1968, at
which time the Company was still "fighting."
The General Counsel stresses, indeed his entire case is
based on, the fact that after the circuit court of appeals
directed it to bargain with the Meat Cutters as
'To the extent that a preference was suggested for one union over
another, this is considered below in connection with the alleged unlawful
assistance.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees in its four stores in
Titusville, the Company decided to stop fighting. It is not
at all "crystal clear that Quality knew that its policy
reversal would inure to the sole and substantial benefit of
Locals 1 and 590." But if this was a fact and the
Company, adopting a passive attitude, indicated that it
would not stand in the way of organization of its
employees, what nonviolative alternatives were open to it?
It can scarcely be suggested that it should have continued
an intransigent and unlawful attitude. Having indicated
opposition, it now declared in response to employees'
inquiries, that it would no longer oppose. Neither could it
go into the highways and byways and solicit
organizational activity by other unions Not only was the
Company not obliged to await efforts by other unions, but
it could not lawfully do so It now merely told employees
that it would "sin no more." Indeed as we shall see, the
Company might lawfully have expressed an opinion
favorable to Locals 1 and 590. This it did not do, as the
General Counsel recognizes and admits.
The Thurston case,'" cited by the General Counsel with
its extensive and serious interference, is not at all in point.
If prior company opposition, known to employees,
impeded organizational efforts, it is understandable that
withdrawal of such opposition permitted the 18 organizers,
theretofore thwarted, to succeed. As Ammons admitted
and as the General Counsel notes, "Local l would not
have become the bargaining representative were it not for
the fact that Quality had changed its position regarding
unionization." But to rely on that without proof of
violation by unlawful interference and assistance is but to
argue that the Union's success is per se proof of company
violation.
This is not a case of "over hasty recognition" of a
union. There is no evidence that "another [was]
attempting to gain a foothold" as in Corning Glass "
Even were statements that union organizers would be
coming in to be regarded as statements of the Company's
preference or suggestions without threat or promise, such
statements are valid whether there be one union or
several.': This view was clearly adopted by the Board and
stated as follows in its request for modification of opinion
in Gem International:"
This is not to say that an employer may not express his
views in favor of one union or in opposition to another;
it is simply to preclude him from bringing economic
power to bear in the effort to influence his employees'
choice of bargaining representative.
In Gem International' ° as in Topps Kerrmill,'s the Board's
findings of violation were based on findings of disparate
treatment.
The law in this connection has further been declared as
follows in the Supreme Dyeing case:"
Nor was there error in the Board's concluding that
Brodeur, on the respondents behalf, committed an
"Thurston Motor Lines . Inc. 159 NLRB 1265, 1278 The facts, from
marked interference to Midwest Piping, in the cases cited by the General
Counsel , by their very contrast point to the decision here
"N L.R B v. Corning Glass Works, 204 F 2d 422, 426 (C.A 1).
"Id at 428; 100 NLRB 444, 455.
"Gem International . Inc v N L R B.. 321 F 2d 626 (C A. 8) The
General Counsel cites, in support of this position , I L G W U v N L R B,
280 F 2d 616, 620 (C.A.D C ), affil. 366 U.S 731.
"Gem International, Inc, 137 NLRB 1343, 1346
"Topps Kerrmill. Inc.. 143 NLRB 694, 698
"N L R B v. Supreme Dyeing & Finishing Corporation , 340 F . 2d 493,
494 (C. A. I)
unfair labor practice on July 16. It is one thing for an
employer to state which union it would prefer.
NLRB v. Corning Glass Works, I Cir., 1953, 204
F.2d 422. It is quite another matter to accent the
endorsement with a statement of consequences.
Even more recently, in Midway Clover Farm Market,
Inc.," where one union solicited cashiers to sign cards at
checkout counters, and the Trial Examiner found that
"this conduct at least implied the support of management
for such activity," the Board reversed the 8(a)(2) finding
in the absence of evidence that management prohibited
solicitation by the other union
Indeed with all of this said because of the background
and history of the situation, we can now limit
consideration to the claim of unlawful support without
reference to possible disparate treatment. The General
Counsel points out in his brief that, as the transcript
shows, when the Company decided that it would no longer
resist unionization, it was not aware of any current
organizational efforts on the part of Local 1538 or any
other labor organization. We are left with Ammons'
uncontradicted statement that there has been no rule
against permitting any union to organize on store
premises.
The General Counsel's plaint here is that
"organizational activities took place on Company time
and property." Countless charges are filed and cases heard
because of an employer's refusal to permit union activity
on his own time and property. Violation is here charged
because this was permitted -- without evidence of
compulsion directed to employees, or restriction or other
discrimination among unions. I find and conclude that
violation has not been shown in this connection.
The remaining allegation of violation prior to execution
of the collective-bargaining agreement is that
Secretary-Treasurer Reading selected an employee to be
on Local l's negotiating committee. Gage testified that
about the second week in June, Reading, over the
intercom, asked him whether he would represent the
warehouse at the negotiations between the Company and
the Union. Gage told us further that he did not recall
whether Reading had said that he was relaying a message
from the union representative but, without saying by
whom, admitted that he had been so informed. Reading
testified simply that Ritzer of the Union had called and
asked him to relay to Gage the message that Ritzer was
asking Gage to serve on the bargaining committee as a
representative for the warehouse and truckdrivers;
Reading relayed the message to Gage. There is no basis
for finding in this incident unlawful interference or
support At whatever point cooperation may become
unlawful assistance, that here described falls far short.
If to this point the case against the Company appears
thin, further background facts may assist in understanding
the situation before us. The Unions here have been
mutually involved in other cases and with several
employers including this one. Those cases have served to
exacerbate the feelings of the various unions and to
encourage retaliation.18 Our concern is neither with the
frame of mind of the parties nor with their emotions; nor
with any desire by the Unions to retaliate. We continue
with the facts in this case: to the question of majority and
the validity of the collective-bargaining agreement.
"175 NLRB No 151.
"Had the Charging Union been in active competition here, we could say
that one stole a march on the other (Cf. Corning Glass, above .) In this
case , there is no evidence of sub rosa but actual competition , certainly not
QUALITY MARKETS , INC. 993
After the employees rejected a proposal and the
Company was given notice of strike sanction, a
collective-bargaining agreement, by its terms between the
Company and Local I, was executed on June 26, 1968,
and dated as of June 17. Although Local I appears as the
sole labor organization named as a party to the
agreement, the document was signed jointly by Ritzer,
representing Local I, and by Jack Draper, after whose
signature appears the following "B. R. Local 590 " It is
recognized that the letters B. R. stand for Business
Representative. The joint signatures, the fact that on June
7, Local I and Local 590 joined in a request for
recognition, and the further fact that both locals by
telegram dated June 9 notified the Company that its
contract proposal had been rejected at a meeting of the
employees warrants the finding that this was a joint19
venture by Locals I and 590 as argued by the General
Counsel, and that they would be jointly liable for any
violation based on the agreement.
The agreement was entered into after certification by
Professor Theodore Smith that "the union presented 199
valid cards out of total of eligible employees of 372.. .i20
The issue of authenticity of the cards (not their validity)
is thus readily disposed of. Although Smith had been
informed that there were 372 employees in the unit, it was
agreed at the hearing that the total complement was 377.
Also at the hearing, the total number of authenticated
cards grew from 199 to 203, to 204, to 213, to 214.
The issue here is not the number of cards which Smith
thus authenticated," but the number of cards now found
to be valid. We may and do rely on his findings, prima
facie, the burden being on the General Counsel to show
invalidity despite such findings and that the Company's
reliance thereon was in fact erroneous. The General
Counsel undertook here to show that various cards
accepted by Smith as apparently valid were, with
additional proof, actually not so. Thus we consider
testimony offered to show that illegality tainted the cards.
Whitney, employed at the Meadville store, testified that
on June 6 his manager, Anderson, told him that the
Union would be in later that day to see the employees
about signing up; Anderson said that "the supervisor" had
told him that. Anderson testified that he knew of the
court's order to recognize the Union in Titusville; further,
that Ammons had told him that the Company had fought
long enough and "had had it," that various employees
asked him about the organizational efforts, and that he so
informed employees when they asked him about it. He
denied the statement attributed to him by Whitney, telling
us rather that the latter had asked whether a union was
organizing the Company and that he had replied that he
had heard that they were, knew that the court had ordered
that a union be "accepted" in Titusville, and heard that
an election had been ordered in Warren and that "they
were going around to" the various stores. Anderson
appeared not to be telling all that he knew about the
situation. But even if everything testified to on behalf of
the Company is not to be credited, there is not enough in
the record to support the General Counsel's position. If
since February.
"This finding is made although Local 590 is not named in the CA
portion of the caption as a "Party to the Contract."
"Counsel stipulated what appeared to be the relevant facts with respect
to the cards , themselves not received.
"His good faith is not questioned , nor is acceptance of his determination
except insofar as we are concerned with the allegations and proof
concerning interference and unlawful assistance.
witnesses were reluctant , the need for proof still remains
While, were violation of Section 8(a)(l) in issue in this
connection , the Company could be held responsible for
interference by Anderson , such limited interference by the
manager of I of 31 stores (there were 29 employees in his
store, of a total of 377) does not warrant a finding of an
overall coerced majority. It would be fair and necessary to
consider whether a violation by Anderson is to be found,
by inference , to have spread to or affected employees of
the other stores.
Unlike other cases where cards are claimed to be
invalid because of coercion or other improper acts
vis-a- vis signatories directly (to be redundant), the
allegedly invalidating act here was directed only against
one employee ; and the General Counsel must seek, as he
does, an inference that some or all of the other employees
in that store and in other stores were thereby influenced,
and that their cards were therefore invalid.
It appears from the court ' s opinion in Clement
Brothers , 22 that in that case there were possibly 80
authorization cards in a 97-employee unit ; and that at
least 7 employees were coerced into joining the union,
with the likelihood that the coercion before the contract
was executed was substantially more widespread. The
court quoted from the Board ' s Decision that the question
of the union majority was not susceptible to resolution by
a simple mathematical formula, and that the coercion
should be measured in terms of its pervasive effect.
Recognizing that we are not to play "a strict game of
numbers," we must consider the pervasive effect of any
'interference and any support given the Meat Cutters. The
court in Clement Brothers noted , "The Board inferred
from 7 proven instances of coercion that other unproven
instances had occurred ." There is no basis in the instant
case for inferring that unproven instances occurred or for
finding an effect on other employees in the Meadville
store or at any of the 30 other stores or the warehouse; or
that violation by the manager of one store was itself
carried over to the other stores or their employees.
With all of this said , it is clear that none of the cards
submitted is from the Meadville store, so that there can
be no claim of direct invalidation on account of anything
which Anderson said or did at that store. There is no
support in the record , directly or by inference, for a
finding, to quote from the General Counsel's brief, "that
Respondents' conduct was of sufficient scope and
character as to generally taint the cards and destroy the
majority" or that it "was qualitatively and quantitatively
sufficient to establish that Quality ' s employees did not
have an opportunity to freely select a bargaining
representative."
If Anderson was not an altogether reliable witness, as
much can be said concerning employee Martin of the
Randolph store. He testified uncertainly and unreliably
that , not having remembered that he had signed the card,
he recognized his signature but could not say who had
handed the card to him ; he signed it in the store office
and just left it on the desk , no one else being present, and
he did not know who picked the card up; someone in the
store had told him that the cards were in the office to be
signed . Whatever Martin's evident hostility, such
testimony does not indicate " a grant of Company facilities
for organizational activities ," as claimed by the General
Counsel . I have not forgotten the testimony concerning
the signing of not more than three cards in the North
"N L R.B v Clement Brothers Company, Inc, 407 F 2d 1027 (C A 5),
enfg 165 NLRB No. 87
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warren store , where 11 were employed.
It has not been shown that any of the 214 authenticated
cards is invalid . Neither by direct attack on specific cards
nor by proof of a pervasive taint has the General Counsel
succeeded in showing that there was no majority. I find
and conclude that Local I represented an unassisted and
uncoerced majority of employees at all of the stores and
the warehouse when the Company recognized it on June 7
as the exclusive bargaining representative and on June 26,
when the collective-bargaining agreement was executed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the complaint be dismissed in its
entirety.