Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

May 12, 1952

99 N.L.R.B. 48 (N.L.R.B. 1952)

48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intervenor has continued to function, and has been recognized by
the Employer as the exclusive bargaining representative of the Em-
ployer's employees. It has held at least three meetings, each of which
has had a normal attendance. One of these was a special meeting-
held on January 17, 1952, attended by approximately 24 members,
at which it was voted to authorize a waiver of dues payments by
employees who had been laid off on January 2, 1952. Since the
December 6 meeting, the members of the Intervenor have rented a
union meeting hall. The Intervenor has continued to receive union
dues pursuant to checkoff authorizations.
In these circumstances, and for the reasons stated in the recent
Saginaw decision,4 we perceive no basis here for applying the "schism
doctrine" as enunciated in the Boston Machine case.5 Accordingly,
we find that the current contract between the Employer and the
Intervenor operates as a bar to an immediate determination of
representatives, and we shall therefore dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition in this case be, and it hereby
is, dismissed.
4 Saginaw Furniture Shops, Inc., 97 NLRB 1488. See also West Steel Casting Company,.
98 NLRB 153; American Cyanamid Company, Calco Chemical Division, 98 NLRB 9;
Phoenia, Manufacturing Company, 98 NLRB 803. Cf. Boyle-Midway, Inc., 97 NLRB 895.
3 Boston Machine Works, 89 NLRB 59.
SAFEWAY STORES, INCORPORATED and RETAIL CLERKS INTERNATIONAL.
ASSOCIATION, LOCAL 1614, AFFILIATED WITH THE AMERICAN FEDERA-
TION or LABOR. Case No. 19-CA -356. May 12,195:
Decision and Order
On October 29, 1951, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. Therafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
'Pursuant to the provisions of section 3 (b) of the Act,'the Board has delegated its
powers in connection with this case to a three -member panel . [ Chairman Herzog and
Members Murdock and Peterson.]
99 NLRB No. 9.
SAFEWAY STO4ES, INCORPORATED 49
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed 2 The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner , except as indicated below.
1. In adopting the Trial Examiner's findings that the Respondent
interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act, we do not rely upon the incident relating
to Store Manager Lytle's statement concerning the length of the work-
week for male employees-at the Eighth and State Street store. In our
opinion, the record fails to support the Trial Examiner's subsidiary
finding that Lytle's statement constituted a threat of reprisal in the
event the Union successfully organized the employees.
2. We find, in agreement with the Trial Examiner, that as of August
26,1950, and at all times thereafter, the Union was the duly designated
,collective bargaining agent of the Respondent's employees in an ap-
propriate unit,' and that on and after September 8, 1950, the Respond-
Vent refused to bargain with the Union in violation of Section 8 (a) (5)
of the Act. That the Union may have lost its numerical majority
after the Respondent's refusal to bargain, does not preclude issuing
the bargaining order recommended by the Trial Examiner. We have
consistently held, with judicial approval, that an unlawful refusal to
bargain by an employer can best be remedied by requiring bargain-
ing with the established representatives of the employees, upon re-
quest, even though it may no longer retain its majority status.'
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Safeway Stores,
Incorporated, Boise, Idaho, and their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Retail Clerks Interna-
tional Association, Local 1614, affiliated with American Federation of
Labor, as the exclusive representative of all employees employed in
2 On the basis of the entire record, we find no support for the Respondent 's contention
that it was denied the "right to determine the circumstances under which [the Union's]
cards or authorizations were signed."
8 Of the 29 employees found to have been in the unit, a majority of 15 signed union
authorization cards on or shortly before August 26, 1950. ,In addition to this majority
showing, it appears that 5 other employees signed cards in 1949 and that 3 of them
indicated their continued union adherence as of August 26, 1950, by written affirmations
of their original designations.
4 Frank Bi os Co v. N L. R. B , 321 U. S. 702 ; X. L. R B. v. P. Lorillard Co., 314 U. S.
512; Metropolitan Life Insurance Company, 91 NLRB 473; Joy Silk Malls, Inc, 85 NLRB
1263.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its three Boise, Idaho, stores, excluding meat cutters, supervisors as
defined in the Act, and part-time employees who normally work less
than 20 hours per week.
(b) Interrogating its employees regarding their union affiliation
or the union affiliations of their coworkers, threatening its employees
with reprisals if they continue their union adherence, or in any other
manner interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist Retail Clerks International Association, Local 1614,
affiliated with American Federation of Labor, or any other labor or-
ganization, to bargain collectively through representatives of their own
choosing, and to engage in any other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Retail Clerks Inter-
national Association, Local 1614, affiliated with American Federation
of Labor, as the exclusive representative of the employees in the above-
described appropriate unit, with respect to their rates of pay, wages,
hours of work, and other conditions of employment, and embody in a
signed agreement any understanding reached.
(b) Post at its three stores located in Boise, Idaho, copies of the
notice attached to the Intermediate Report, marked "Appendix A." 5
Copies of said notice, to be furnished by the Regional Director for the
Nineteenth Region, after being signed by the Respondent's representa-
tive shall be posted by the Respondent and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Nineteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
This notice , however , shall be, and it hereby is , amended by striking from line 3 thereof
the words " The Recommendations of a Trial Examiner " and substituting in lieu thereof
the words "A Decision and Order ." 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 "Pursuant to
a Decision and Order " the words "Pursuant to a decree of the United States Court of
Appeals, enforcing an Order."
SAFEWAY STORES, INCORPORATED
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
51
Upon a charge duly filed on September 11, 1950, by Retail Clerks International
Association, Local 1614, affiliated with American Federation of Labor, herein
called the Union, the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel and the Board, by the Regional
Director for the Nineteenth Region (Seattle, Washington), issued his complaint,
dated May 7, 19551, alleging that Safeway Stores, Incorporated, Boise, Idaho,
herein called the Respondent, had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act.
Copies of the complaint and the charge, together with notice of hearing
thereon, were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance that the Respondent (1) by means of certain
statements made by certain of its store managers interfered with, restrained,
and coerced its employees in the exercise of their rights guaranteed in Section
7 of the Act and (2) on or about August 25 and September 8, and thereafter,
refused to bargain collectively with the Union, although the Union was on
August 24, and thereafter, the duly designated collective bargaining repre-
sentative of the Respondent's employees in a certain appropriate unit.
The Respondent duly filed an answer denying the commission of the alleged
unfair labor practices.
Pursuant to notice, a hearing was held on September 27, 1951, at Boise,
Idaho, before the undersigned, the duly designated Trial Examiner. The Gen-
eral Counsel and the Respondent were represented by counsel and participated
in the hearing . Full opportunity to be heard, to examine and cross -examine
witnesses, and to introduce evidence pertinent to the issues was afforded the
parties. At the conclusion of the taking of the evidence, the General Counsel
moved to conform the pleadings to the proof with respect to minor inaccuracies.
The motion was granted without objection. Oral argument was then had in
which counsel for the Respondent and for the General Counsel participated.
Although informed that they might file briefs or proposed findings of fact and
conclusions of law, or both, with the undersigned, counsel stated that they
would waive their right to do so.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Safeway Stores, Incorporated, is a Maryland Corporation engaged in the
operation of food stores located in various States of the United States, including
the State of Idaho. As part of its multistate operations, the Respondent, during
all times material herein, operated three stores in Boise, Idaho, to which
annually is transported merchandise valued in excess of $25,000 from points
located outside the State of Idaho.
The Respondent admits, and the undersigned finds, that it is engaged in com-
merce within the meaning of the Act.
I Unless otherwise noted all dates refer to 1950.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It. THE ORGANIZATION INVOLVED
Retail Clerks International Association, Local 1614, affiliated with American
Federation of Labor, is a labor organization admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
In 1949 the Union began a campaign to organize the clerks employed at the
Respondent's stores in Boise, Idaho' It was not, however, until August 1950,
that the employees showed very much interest in the campaign. Between
August 22 and 26, 16 of the then 32 persons employed at the Respondent's 3
Boise stores signed cards expressly authorizing the Union to act as their collec-
tive bargaining representative.3
Under date of August 24, Robert Lenaghen, an international representative of
the Union, wrote A. R. Knowles, with offices in Salt Lake City, Utah, and who
is, during all times material herein has been , the Respondent's labor relations
director for the region which encompasses Boise, that the Union represented the
majority of the employees in the Respondent's Boise stores. The letter then
stated that since it was the Respondent's known policy not to enter into collective
bargaining negotiations with any union prior to a Board-conducted election, the
Union was filing a petition for certification with the Board. This, the Union
did on August 25.
Within a week or two after the aforesaid 16 authorization cards had been
signed, Louis Mendiola, manager of the Vista Avenue store, and Boyd Lytle,
manager of the Eighth and State Streets store; engaged in steps to destroy
the Union's majority status and thereby thwart the employees' organizational
plans. Thus, Scott Tibbetts testified by deposition that be formerly was em-
ployed at the Vista Avenue store but at the time of his deposition (July 15, 1951)
was employed in Roseville, California ; that while employed at the Vista Avenue
store he had signed an authorization card;' that on August 25, while replenish-
ing the store's shelves with merchandise, Mendiola came to him and asked him
if he had joined the Union ; that he replied that he had not joined, but had "signed
for an election for the Union" ; that in response to Mendiola's question regard-
ing the number of employees who "had signed," he replied that he believed that
all of them had ; that Mendiola then stated he would receive less money "if the
union comes in"; and that the conversation concluded with Mendiola remark-
ing that it made no difference to Mendiola if the Union "came in or whether it
didn't."
Regarding the aforesaid Mendiola-Tibbetts conversation, Ida Mae Hoover,
formerly employed at the Vista Avenue store and who was discharged for eco-
nomic reasons on August 26, testified that she overheard Mendiola ask Tibbetts
on August 25, whether Tibbetts had signed a union card and how many other
employees had done likewise, and that Tibbetts replied that, as far as Tibbetts
knew, all the employees in the store had signed cards.
When asked on direct examination by Respondent's counsel for his version of
the above conversation with Tibbetts, Mendiola testified, "I don't remember hav-
2 At that time the Respondent operated two stores in Boise. On July 14, 1950, it
opened, and since that date it has operated, another store known as the Vista Avenue Store.
3 Five additional employees had signed cards during the 1949 campaign. The said 32
employees includes John Naughtin, whose employee status is discussed below.
4 Mendiola and Lytle are, and during all times material herein were, supervisors within
the meaning of the Act.
The card, which is in evidence, is dated August 22.
SAFEWAY STORES, INCORPORATED 53
ing any conversation with Mr. Tibbetts." In answer to a further question by
Respondent 's counsel as to whether he had ever discussed the Union with Tib-
betts, Mendiola replied, "Not to my knowledge. I don't remember it at all."
Upon the record as a whole, the undersigned is convinced and finds that Tib-
betts' version of what transpired during his conversation with Mendiola on August
25, to be substantially in accord with the facts and that Mendiola made the
statements attributed to him by Tibbetts.
According to the undenied and credible testimony of Leonard P. Uram,6 which
was taken by deposition, he was formerly employed at the Vista Avenue store
and at the time of his deposition (July 15, 1951) was working in Roseville, Cali-
fornia ; he was discharged by the Respondent on August 26 for economic rea-
sons ,; while in Respondent's employ he signed an authorization card;' on two or
three occasions Mendiola talked to him about the Union; and the first conversa-
tion with Mendiola about the Union took place on August 25, during which the
following transpired ;
Well, he (Mendiola) came up to me and in a sort of whispering voice
asked me if I had joined the union . I told him I had signed , but I wasn't
a member of the union until it went into effect. And then, I said if it
did go through, that I was going to join, because I was a strong union
member. He told me the fellows in the Nampa store 8 weren't . . . getting
what they were supposed to get . . . I said , "Well, they are getting time
and half or double time for Sundays, weren't they?" He says, "No." And
then he said, "Well, I just wanted to find out if you were going to join
or not." He walked off.
Former employee Mary Lowry testified without contradiction, and the under-
signed finds , that about a week or two after she had signed an authorization
card ° she heard Mendiola tell an employee that if the Union successfully
organized the stores, the female employees' wage scale would be lowered and
that Mendiola further added that the Respondent would no longer permit the
employees to take the Respondent-required examinations on company time.
Former employee Buelah Popp testified that while she was employed at the
Eighth and State Streets store, she signed an authorization card (dated August
26) ; that in the latter part of August, but in any event after she had signed
the card, Lytle came to where she was working and asked her if "the union
man" had talked to her ; that when she replied in the affirmative, Lytle then
inquired what she thought of the Union to which query she replied "I [don't]
know anything about it"; and that Lytle then said, to quote Popp, "he didn't
think a union would do any good, that the [union] wage scale was below my
present wage , and that if we went union I wouldn't be allowed the privileges
that I had had, like going to the doctor and any time off." Popp also testified
that during the aforesaid conversation, Lytle told her that he "had no use" for
the Union and that District Manager Weisner was very much opposed to the
Union.
Popp further testified that a day or two after the afore-mentioned conversation
with Lytle, she overheard Lytle discuss the Union with a group of employees,
that during that discussion Lytle mentioned that Weisner was opposed to the
Union , and that when employee Brooks returned from his vacation, the men's
6 Mendlola admitted on direct examination that he spoke to Uram about the Union but
testified that he was unable to recall what was said.
' This card, which is in evidence, is dated August 23.
$ The Respondent operates a store in Nampa, Idaho, the employees of which are covered
by a contract with the Union . Nampa is about 20 miles from Boise.
6 Her card, which is in evidence , is dated August 23.
215233-53-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workweek would be to 48 hours ; that when Brooks did return the workweek of
the male employees was reduced to 48 hours ; and that because of this reduction
of the male employees, the work of the females, whose hours always were 48 per
week, was made more onerous."
Lowry also testified, and the undersigned finds, that about a week or 10
days after she had signed an authorization card she had a conversation with
Lytle during which he asked her if she had joined the Union and that she
replied in the affirmative.
Lytle admitted talking to Popp about the Union. When asked by Respondent's
counsel if he ever told Popp that the employees would not be permitted certain
time off if the Union came in, Lytle replied, "not to my knowledge, no." In
reply to Respondent's counsel's question, "Did you tell [Popp] that she couldn't
go and visit the doctor if she joined the Union," Lytle replied, "Not to my
knowledge." He denied telling Popp that if the Union "came in" she would
receive a lower wage scale.
Regarding the reduction of hours of the male employees incident, Lytle testified
as follows :
Q. With reference to this man Brooks, do you recall any conversation in
the back of the store with reference to how you were going to change the
hours when he came back?
A. No, I didn't have any-
Q. Will you explain to the examiner, please, just what you did state or
what you did down there with reference to your changing your hours after
you took over?
A. What I did in reference to them?
Q. Yes.
A. Well, I did the same thing I had always done in the store that I left.
When I first came to that store, I put everyone on a strictly 48 hour basic.
TRIAL EXAMINER MYERS : Came to what store?
THE WITNESS : The store on 8th and State. I came there from the store
on 15th and Main. It was my policy, at the store on 15th and Main, to work
my help 48 hours at 8th and State.
TRIAL EXAMINER MYERS : When did you come there?
THE WITNESS : Approximately the 25th or 26th of June, 1950.
Q. (By Mr. Weston) Well, what was the policy down there during 1950
with reference to 48 hours work? Did you pay overtime after 48 hours?
A. When I came?
Q. Yes.
A. If I worked them overtime, I either paid them overtime or gave them
time off.
Q. Do you do the same thing now?
A. I still do.
Q. Did you do the same thing all during 1950?
A. Yes sir.
Q. Did you change that in any way?
A. No sir.
Q. Did Mr. Brooks going or coming back have anything to do with.chang-
ing this system?
A. No sir.
10 The record clearly shows that after the hours of the male employees were reduced to
48 per week there was no male employee at the store to help the female checker-cashiers
to "box the orders" during the 5-6 o'clock evening rush hours, which, naturally , Increased
the workload of the checker-cashiers. Moreover, by reducing the hours of the male
employees their compensation was accordingly reduced.
SAFEWAY STORES, INCORPORATED 55
While not specifically denying having a conversation about the Union with
Lo„W,ry, Lytle testified that he never interrogated the employees "with reference
to their membership in the Union."
Popp impressed the undersigned as it sincere and credible witness. Lytle,
on the other hand, did not so impress the undersigned. It was evident to the
undersigned that Lytle, while he was on the witness stand, was withholding the
true facts Lowry was a very reluctant witness" and it was only after per-
sistent questioning by the General Counsel, and after she was shown and had
read an affidavit which she had previously executed, that Lowry finally testified
to the fact that Lytle had questioned her about her affiliation with the Union.
Under the circumstances and upon the entire record, the undersigned finds that
Popp's version of what was said by Lytle and by her during their conversation
in the latter part of August to be substantially in accord with the facts. The
undersigned further finds that Lytle made the statements regarding the reduc-
tion of the workweek for the male employees, which Popp testified she over-
heard , and that the statements were made solely for the purpose of pointing out
to the employees the futility of joining the Union.
The undersigned further finds that by (1) Mendiola's questioning of Tibbetts
and Uram regarding their union affiliations '2 and of their coworkers' afiiliations,1S
(2) Mendiola's statement to Tibbetts that if the Union successfully organized
the employees they would receive less pay," (3) Mendiola's statement to some
employees that certain privileges would be denied them if the Union "came in",
the Respondent's Boise stores, (4) Lytle's questioning Popp and Lowry re-
garding their affiliations with the Union, (5) Lytle's threat to shorten the work-
week of the male employees in the Eighth and State Streets store if the Union
successfully organized the employees, and (5) Lytle's statement to Popp that if
the employees "went union," she would lose certain privileges which she was
then enjoying, the Respondent interfered with, restrained, and coerced its em-
ployees in violation of Section 8 (a) (1) of the Act.
B. The Respondent's refusal to bargain collectively with the Union
1. The appropriate unit
The complaint alleged, the answer admitted, and the undersigned finds, that
alt flee persons employed in the three food stores operated by the Respondent'inl
Boise, Idaho, excluding meat cutters, supervisors as defined by the Act, and
part-time workers who normally work less than 20 hours per week, at all times
material herein constituted, and now constitute, a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the
Act, with respect to grievances, rates of pay, wages, hours of employment, and
other conditions of employment, and that the said unit insures to the Respond-
ent's employees the full benefit of their right to self-organization and collective
bargaining and otherwise effectuates the policies of the Act.
n Respondent 's counsel so admitted on the record.
12 See H. J. Heinz v. N. L . R. B, 311 U. S. 514 ; N. L. R. B . v Minnesota Mining & Manu-
facturing Co., 179 F 2d 323 (C. A. 8).; N L. R. B. v. National Products Co., 175 F. 2d
755 (C. A. 4) ; N. L R B. v. Sewall Mfg Co., 172 F. 2d 459 ( C. A. 5) ; Joy Silk Mills, Inc.
V. N. L. R., B, 185 F. 2d 732 (C. A. D. C , Standard-Coosa-Thatcher Co., 85 NLRB 1358.
13 N. L. it. B. v. Fruehauf Trailer Co ., 301 U S. 49; N . L. R B v. Laister -Kauffmann
Aircraft Corp., 144 F. 2d 9 (C. A. 8) ; N. L. R B v . Grower-Shipper Veg Assn., 122 F.
368 (C. A. 9).
14 N. L. R. B. v. Peterson , 157 F. 2d 514 ( C A 6) ; N. L. R B. V Ford, 170 F. 735 (C. A.
6) ; N. L. It. B . v. Consolidated Machine Tool Corp., 163 F . 376 (C. A. 2 ) ; N. L. R. B. V.
American Pearl Button Co., 149 F. 2d 311.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union's majority status in the appropriate unit
At the hearing, there was introduced in evidence by the General Counsel a list
prepared by the Respondent containing the names of all the Respondent's em-
ployees in the unit hereinabove found appropriate. The list shows that from
August 25 to September 8, 1950, both dates inclusive, the Respondent had in its
employ 29 persons 15 in the said unit. On behalf of the General Counsel there
were offered and received in evidence 16 signed cards each bearing a date in
August 1950, and 5 cards bearing 1949 dates, expressly authorizing the Union to
represent the signers thereof for collective bargaining 3° The authenticity of
the signatures appearing upon the cards was not questioned nor challenged.
The undersigned has compared the names appearing upon the cards with the
list submitted by the Respondent and received in evidence and finds that as of
August 26, 1950, 20 employees 17 in the appropriate unit signed cards expressly
designating the Union as their collective bargaining representative. The under-
signed accordingly finds that as of August 26, 1950, and at all times thereafter,
the Union was the duly designated collective bargaining representative of the
Respondent's employees in the unit found appropriate. Pursuant to Section 9 (a)
of the Act, the Union was, therefore, on August 26, 1950, and at all times there-
after, the exclusive representative of all the employees in such unit for the
purposes of collective bargaining with respect to grievances , rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain
As found above, the Union, under date of August 24, wrote the Respondent
that it represented the majority of the persons employed in the three Boise
stores of the Respondent. The letter did not demand that the Respondent
recognize the Union as the collective bargaining representative of the employ-
ees involved nor did it request the Respondent to negotiate with the Union as
1s In addition to the aforesaid 29 persons the list contains the names of Uram , Hoover,
and Naughtin. Since Uram and Hoover were discharged on August 26 for economic
reasons, which was prior to any refusal by the Respondent to bargain collectively with the
Union, the undersigned has not included Uram and Hoover in the unit. As to Naughtin,
the General Counsel contended at the hearing that Naughtin should he excluded from the
unit because of his supervisory status. Respondent 's counsel contended that Naughtin
was not a supervisor. The record clearly indicates that during Mendiola's absence from
the store, and especially when Mendiola is on vacation, on sick leave, or otherwise absent
for any length of time, Naughtin acts as store manager and is cloaked with all the
manager's duties and responsibilities; that the employees consider Naughtin to be a
supervisor and respect and obey his orders; and that, on at least one occasion , in blen-
diola's absence, Naughtin hired an employee. Contrary to the Respondent 's contention
the undersigned finds that Naughtin is, and during all times material was, a supervisor
within the meaning of the Act and hence should be excluded from the unit. .
10 Under date of November 10, 1950, three signers (nlcDougall, Hoopuagle, and Mellor)
of 1949 cards executed written affirmations of their former designations of the Union as
their collective bargaining representative and the said affirmations were received in evi-
dence. Jack Gardner and Floyd Carver, two signers of 1949 authorization cards, did not
execute written affirmations. There is no evidence in the record that the the persons
here involved ever withdrew their designation. In fact, the credible evidence is to the
contrary effect. The undersigned therefore finds that during all times material herein
the Union was the duly designated collective bargaining representative of the aforesaid
five persons.
11 The undersigned has excluded from his calculation the card of Irene Kidwell. She
testified without contradiction, and the undersigned finds, that she signed an authorization
card. only after Lenaghen had told her that if the Union succeeded in organizing the em-
ployees and she had not previously signed an authorization card she would lose her job.
Five cards are dated in 1949; 1 dated August 22; 10 dated August 23 ;, 3 dated August
24; and 1 dated August 26.
SAFEWAY STORES, INCORPORATED 57
such representative. Actually, the sole purpose of the letter was to notify
the Respondent of the Union's claim of majority and of its intention of filing
a petition for certification with the Board.
Subsequent to the filing of the certification petition, the Union and the Respond-
ent entered into a consent election agreement. The said agreement was approved
by the Regional Director for the Nineteenth Region, under whose auspices the
election was to be held.
On the morning of the scheduled election, September 8, Lenaghen notified
the field examiner of the Board who had been assigned to conduct the said
election that the Union desired to withdraw from the consent election agreement
because his investigation disclosed that the Respondent had engaged in certain
acts and conduct whidh, in his opinion, deprived the employees of their right
to a free and untrammeled election. The Union was permitted to withdraw
from its agreement and the field examiner then notified Knowles that due to
the fact that the store "managers had interfered with the free choice of the
employees" the election would not be held.
Lenaghen thereupon informed the said field examiner that he was willing to
submit the signed authorization "cards to a cross check by an impartial ob-
server to determine [the Union's] majority" and that after the Union's status
had been established he would request the Respondent to bargain collectively
with the Union.
The field examiner then conferred with Knowles and informed the latter of
Lenaghen's willingness to submit the authorization cards to an impartial third
party 18 to determine whether or not the Union actually represented the majority
of the employees in the agreed appropriate unit. Knowles declined to agree
to the suggested cross-check.
Later the same day, September 8, Knowles and Lenaghen conferred at the
Union's headquarters. There, Lenaghen informed Knowles that the Union "had
withdrawn from the election because of interference by the company and that
we desire to submit our [authorization] cards to a cross check to prove our
majority, and we wish the company to recognize us as the bargaining agent
and [to] enter into negotiations for a contract." Knowles replied that the
Respondent insisted that a Board election be held before it would recognize
or bargain collectively with the Union as the representative of the employees
involved.
In December, Lenaghen and Knowles again met at the Union's headquarters.
Again Lenaghen informed Knowles that the Union "offered to submit our cards
for a cross check and [asked] the company to recognize us and bargain on the
contract." Knowles replied, "Safeway would require an election."
Uncontroverted evidence establishes that as of September 8, when the Union
offered to submit the signed authorization cards for the purpose of checking
them against the Respondent's record, requested recognition of the Respondent
as the designated representative of the employees in the appropriate unit, and
demanded that the Respondent deal with it as such representative, the Union
was, in fact, the duly designated representative of the majority of the said em-
ployees for the purposes of collective bargaining. Under the circumstances, the
Respondent's refusal to recognize the Union, and deal with it, was a clear
violation of Section 8 (a) (5) of the Act, unless the Respondent at that time
had a bona fide doubt that the Union represented the majority. The fact that
the Respondent did not have such a doubt is amply supported by the credible
evidence.
18 Knowles testified that he was under the impression that the field examiner suggested
that he ( Knowles ) and Lenaghen conduct the cross-check.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's action, shortly after receipt of Lenaghen's letter of August
24, wherein he set forth the Union's claim of majority representation, in
embarking upon a campaign to destroy employee support for the Union through
means proscribed by the Act, clearly demonstrates that the refusal to bargain
and its demand for an election were not based upon any desire to resolve a bona
fide doubt of the Union's majority. Normally, the Board does not hold an
employer in violation of the Act if he in good faith questions the Union's majority
status, and asks to have the matter determined by an election, since that is
a conclusive means of establishing the extent of the Union's strength. But
here Mendiola and Lytle resorted to serious unfair labor practices, the effect
of which would have prevented the election from resolving the issue as to which
the Respondent allegedly was in doubt. The Respondent thereby destroyed the
efficacy of the very method it had insisted upon by its refusal to recognize the
Union. Under the circumstances, the Respondent "has transgressed the bounds
of permissible conduct to a sufficient extent to permit . . . [a conclusion] that
its refusal to bargain was as ill-intentioned as its other actions." 19
The Board and the courts have repeatedly and uniformly held, where, as here,
an employer withholds recognition from a union which is entitled to it under
the Act until its status is established in an election, and at the same time proceeds
by unfair labor practices to undermine and destroy the union, that it may rea-
sonably be concluded that the employer's refusal to bargain stems not from an
honest doubt of the union's status but rather from a desire to avoid his obligation
under the Act 20
The Respondent's contention that its refusal to bargain did not violate the
Act since it merely exercised its right to demand an election is without merit under
the circumstances disclosed by this record.
It is well established that neither an employer nor his employees have the right
to demand that the Board conduct an election. The Congress left to the Board
the discretion to determine how and when the bargaining status of employee
representatives should be ascertained 21 Had the Regional Director held the
election scheduled for September 8, and subsequently, but timely, learned of the
Respondent's unfair labor practices, he would have been free to set that election
aside.22 Obviously, the Regional Director cannot be compelled to conduct an
election after he has reason to believe that the results thereof will not represent
the employees' free choice, and thus permit the Respondent to benefit by its own
wrongdoing.u
Upon the entire record in the case, the undersigned finds that on September 8,
1950, and at all times thereafter, the Respondent failed and refused to bargain
collectively with the Union as the duly designated representative of the majority
19 Joy Silk Mills, Inc., v. N . L. it. B., 185 F 2d 732 (C. A. D. C.). See also Frank Bros.
Co. v. N. L R. B, 321 U. S. 702; N. L. it. B. v. Federbush Co., Inc., 121 F. 2d 954 (C. A.
2) ; N. L. R B V. Louisville Refining Co , 102 F . 756 (C. A. 6).
20 See N. L. it . B. v. Consolidated Machine Tool Corp., 163 F. 2d 376 ( C. A. 2) ; N. L R. B.
v Remington Rand, Inc, 94 F. 2d 61 ( C A. 2) ; N L. R. B. v . Chicago Apparatus Co., 116
F 2d 753 (C A 7) ; N. L. R. B. v. Morris P. Kirk & Son, 151 F. 2d 490 ( C. A. 9) ; Joy
Silk Mills, Inc. v. N. L. it. B., supra.
n N. L. R . B. v. Falk Corp ., 308 U. S 453 ; N. L. it. B. v. Waterman S S Corp., 309 U. S.
206; Southern S. S Co. v. N. L. it . B., 316 U. S. 31 ; N. L. it. B. v. Garfunkel, 162 F. 2d
256 (C. A. 2).
22 Cf. N. L. it. B v. American Laundry Machinery Co., 152 F. 2d 400 (C. A. 2 ) ; Fairfield
,Engineering Co v. N. L. R B., 168 F. 2d 67 ( C. A. 6) ; D . H. Holmes Y . N. L. it. B., 179
F. 2d 876 ( C. A. 5) ; Joy Silk Mills, Inc, supra.
22 See Frank Bros. Co. v. N . L. it. B., supra ; N. L. it. B. v. Bradford Dyeing Assn., 310
U. S. 338; Int Assn. of Maehsnssts v. N. L. R. B., 311 U. S. 72; D. H. Holmes v N. L. R. B.,
supra; Joy Silk Mills v. N. L. It. B., supra.
SAFEWAY STORES, INCORPORATED 59
of its employees in the unit hereinabove found appropriate in violation of Section
8 (a) (5) of the Act, thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to constitute un-
fair labor practices, tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, via
lative of Section 8 (a) (1) and (5) of the Act, it will be recommended that it
cease and desist therefrom and take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent has refused to bargain collectively with the
Union as the representative of the majority of its employees in an appropriate
unit, the undersigned will recommend that the Respondent, upon request, bargain
collectively with the Union as the exclusive statutory representative of all the
employees in the unit herein found appropriate, and if an agreement is reached,
embody such understanding in a signed agreement.
The scope of the Respondent's illegal conduct discloses a purpose to defeat
self-organization among its employees. It sought to coerce them in the exercise
of the rights guaranteed them by the Act by, among other things, refusing
to bargain collectively with the statutory representative of its employees, in-
terrogating its employees regarding union affiliations and the affiliations of their
coworkers, and by threatening its employees with reprisals if they persisted in
their unionizational activities. Such conduct, which is specifically violative of
Section 8 (a) (1) and (5) of the Act, reflects a determination generally to in-
terfere with, coerce, and restrain employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or protection,
and presents a ready and effective means of destroying self-organization among
employees. Because of the Respondent's unlawful conduct and since there ap-
pears to be an underlying attitude of opposition on the part of the Respondent
to the purposes of the Act which is to protect the rights of employees gener-
ally' the undersigned is convinced that if the Respondent is not restrained from
committing such conduct, the danger of their commission in the future is to be
anticipated from the Respondent's past conduct, and the policies of the Act there-
by will be defeated. In order, therefore, to make effective the interdependent
guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strife which burdens and obstructs com-
merce, and thus effectuate the policies, the undersigned will recommend that the
-ReSpoh'dedt cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
21 See May Department Stores v. N. L. R. B, 326 U. S. 376.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Retail Clerks International Association, Local 1614, affiliated with American
Federation of Labor, is a labor organization, within the meaning of Section
2 (5) of the Act.
2. All persons employed by the Respondent in the three food stores it operates
in Boise, Idaho, excluding meat cutters, supervisors as defined by the Act, and
part-time workers who normally work less than 20 hours per week, constitute
a unit appropriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
3. Retail Clerks International Association, Local 1614, affiliated with Ameri-
can Federation of Labor, was on August 26, 1950, and at all times since has been,
the exclusive representative of all the employees in the above-described ap-
propriate unit for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
4. By refusing on September 8, 1950, and thereafter, to bargain collectively with
Retail Clerks International Association, Local 1614, affiliated with American
Federation of Labor, as the exclusive representative of all the employees in the
appropriate unit the Respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (a) (5) of the Act.
5. By the said refusal the Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (a) (1) of the Act.
6. By interrogating its employees regarding their union membership and the
union membership of their coworkers, by threatening the employees with repris-
als if they persisted in their unionization, and by otherwise interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL bargain collectively upon request with RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, LOCAL 1614, AFFILIATED WITH AMERICAN FEDERATION
OF LABOR, as the exclusive bargaining representative of all employees in the
bargaining unit described herein and if an understanding is reached embody
such understanding in a signed agreement. The bargaining unit is:
All persons employed in our three Boise, Idaho, stores, excluding meat
cutters, supervisors as defined by the Act, and part-time workers who
normally work less than 20 hours per week.
WE WILL NOT question our employees concerning their union membership
or activities or the union membership of their coworkers, threaten them
with reprisals for engaging in union activities or penalize our employees
because of their union membership or activities.
J. D. JEWELL, INC. 61
WE wILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor
organizations , to join or assist RETAIL CLERKS INTERNATIONAL ASSOCIATION,
LOCAL 1614, AFFILIATED WITH AMERICAN FEDERATION OF LABOR, or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
SAFEWAY STORES, INCORPORATED,
Employer.
Dated ------------------------ By --------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced , or covered by any other material.
J. D. JEWELL, INC., AND MARVIN ALLEN, WILLIE ANGLIN, WILLIE LEE
BARTLETT, TAYLOR BENNETT, LEONARD CAGLE, ERNEST CANTRELL,
THOMAS DECKING, JAMES GAZAWAY, DUSTUS (BILL) GOWAN, JAMES
H. SMITH, EARL STEI'HENS, FLETCHER WHITMIRE, VESTON WILLIAMS,
ROBERT SEALEY, J. O. MCLENDON, ED PIERCE, LEWIS PORTER, GEORGE
VAN GIESEN, ROBERT ROPER, CECIL JARRARD and AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case
No. 10-CA-1226. May 12,1952
Decision and Order
On September 17, 1951, Trial Examiner Lee J. Best, issued his Inter-
mediate Report in the above-entitled proceeding finding that the cor-
porate Respondent and certain of the individual Respondents had en-
gaged in and were engaging in unfair labor practices in violation of
Section 8 (a) (1) of the Labor Management Relations Act, as amended,
and, recommending that the Respondents cease and desist therefrom
and the corporate Respondent take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also found that some of the individual Respondents
had not engaged in unfair labor practices in violation of Section 8
(a) (1) of the Act and consequently recommended dismissal of the alle-
gations of the complaint alleging participation in the said unfair labor
practices by Marvin Allen, Taylor Bennett, Leonard Cagle, Thomas
Decking, Earl Stephens, Fletcher Whitmire, Veston Williams, Ed
Pierce, and George Van Giesen 1 The Respondents as to whom no dis-
I The Intermediate Report, part D, 3, indicates that Van Giesen went to the aid of Harold
Reid and Ed Roper , as well as Scheurich and Ackerman . Apparently the reference to
Roper was an oversight , without effect upon our findings , as Van Giesen 's testimony
Indicates it was Reid whom he twice helped, making no reference to Roper.
99 NLRB No. 20.