Shopwell, Inc.

National Labor Relations Board - Board Decisions

Sep 5, 1974

213 N.L.R.B. 186 (N.L.R.B. 1974)

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shopwell, Inc. and Local 1357, Retail Clerks Interna-
tional Association, AFL-CIO. Case 4-CA-6669
September 5, 1974
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On April 30, 1974, Administrative Law Judge Ber-
nard Ness issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel and the
Charging Party filed exceptions and supporting briefs,
and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
MEMBER FANNING, dissenting:
I disagree with the majority's dismissal of the com-
plaint in this case as I believe that the facts, as found
by the Administrative Law Judge, clearly show that
Respondent's actions constituted assistance to Local
196 of the Amalgamated Meat Cutters, in violation of
Section 8(a)(2) and (1) of the Act.
The facts show that Wooden, an organizer for Lo-
cal 1357 of the Retail Clerks Union, went to
Respondent's store on October 30, and told Owner
Sam Hornstein that he was there to organize the em-
ployees. The elder Hornstein replied that the store
would not be open until after Thanksgiving, and told
Wooden that Local 196 of the Meat Cutters had rep-
resented the employees at a store Respondent had
previously owned, and indicated that it would also be
the bargaining representative at the present store.
Two days later, Local 1357 notified Respondent by
telegram of its intent to organize Respondent's em-
ployees.
On the morning of December 11, Wooden and two
other Local 1357 representatives entered the store in-
dividually. When told by Sam Hornstein that the store
was not open, they left. Just prior to that time, one of
the representatives had seen Local 196 Representative
Saunders come out of the store.'
On the afternoon of December 11, Wooden re-
turned to the store, wherein he saw Saunders and
another Local 196 representative. Upon entering the
store, he was stopped by Allen Hornstein, son of Sam
Hornstein. After identifying himself to the younger
Hornstein, he complained that he should have the
opportunity to talk to employees in the store if the
Local 196 representatives were being permitted to do
so. Allen replied that he had been dealing with Saun-
ders for 6 years and was simply being courteous in
permitting him to walk around.
At this time, Wooden saw the Local 196 representa-
tives talking to two different employees. Hornstein
testified he saw them talking to one employee, but it
was someone whom Saunders had known before.
Wooden returned to the store on opening day, De-
cember 12, and saw Saunders in the store. Saunders
told him that Local 196 already had a contract, point-
ing to his briefcase under his arm but not displaying
the claimed document when Wooden asked to see it.
Sam Hornstein then came over and told Saunders to
tell Wooden that Local 196 already had a contract
with Respondent, and pointed to a Meat Cutters em-
blem in the office. Shortly thereafter, while Wooden
and another Local 1357 representative were talking
with Saunders, an employee of Respondent came up
and asked Saunders how "the union thing was coming
along." Saunders replied, "Everything's taken care
of."
Unlike my colleagues in the majority and the Ad-
ministrative Law Judge, I believe that Respondent's
disparate treatment of the two unions involved was
more than a "glimmer of favortism" for Local 196,
and rather that its actions constitute such assistance
to Local 196 as Section 8(a)(2) and (1) of the Act was
meant to prevent. Despite the lack of direct evidence
that Local 196 did solicit the employees whom Saun-
ders talked to at Respondent's store, the record clear-
ly shows that both unions had informed Respondent
of their intent to organize its employees and to seek
a contract with Respondent. Also, the question put to
Saunders by the employee on December 12 concern-
ing the "union thing" and Saunders' response lead to
an inference that some union activity was taking
place.2
Further, although it was found by the Administra-
tive Law Judge that there was in fact no contract
'Another Local 1357 representative had seen Saunders in the store on
December 10.
2 The record shows that Saunders' December 12 visit was at least his fourth
visit to the store.
SHOPWELL, INC.
between Local 196 and Respondent, there is no doubt
that the statement made to Wooden by both Saunders
and Hornstein indicating the existence of such a con-
tract would lead one to believe that the employees had
been organized, that recognition had already been
granted, and that further Retail Clerks activity would
be futile.
For the foregoing reasons, I would find that
Respondent's actions violated Section 8(a)(2) and (1)
of the Act.
DECISION
STATEMENT OF THE CASE
BERNARD NESS , Administrative Law Judge: This case was
heard on March 6, 1974, pursuant to a charge and first
amended charge filed on December 12, 1973, and January
31, 1974, respectively, by Local 1357, Retail Clerks Interna-
tional Association, AFL-CIO, herein referred to as Local
1357, and a complaint issued on January 31, 1974.1
The General Counsel alleges in his complaint that the
Respondent rendered unlawful assistance to Local 196,
Amalgamated Meat Cutters & Butcher Workmen of North
America, herein referred to as Local 196, in violation of
Section 8(a)(1) and (2) of the Act.2 Respondent in its answer
has denied any unlawful conduct.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel, the Respondent and the Charging
Party, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
I find , as the complaint alleges and the answer admits,
that the Respondent , a Pennsylvania corporation, is en-
gaged in the operation of a food market at 7123 Ogontz
Avenue, Philadelphia , Pennsylvania . Respondent began op-
erations on about December 12, 1973, and during the period
from December 12, 1973, through January 31, 1974, in the
course and conduct of its business operations , Respondent's
gross income exceeded $175,000; gross income for the first
12 months of operations is projected to be in excess of
$500,000 . During the same period , in the course and con-
duct of its business operations , Respondent received goods
valued in excess of $1,500 which were shipped to it from
points located outside the Commonwealth of Pennsylvania;
therefore, the value of goods to be received from points
outside the Commonwealth of Pennsylvania during the first
12 months of operations is projected to exceed $10,000.
Based on the foregoing , I find that Respondent is engaged
in commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
1 The formal papers were amended at the hearing to show the correct name
of the Respondent as it appears in the caption above.
2 Although served with a copy of the complaint, no representative of Local
196 appeared at the hearing.
II. THE LABOR ORGANIZATIONS INVOLVED
187
The complaint alleges, the answer admits, and I find that
Local 1357 and Local 196 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
For a number of years, Samuel Hornstein and his son,
Allen, had owned and operated a retail food market, Em-
pire Food Market, located in Philadelphia, Pennsylvania.
They sold this store on or about July 15, 1973.3 For about
5 or 6 years prior to the sale, the employees at Empire Food
Market had been represented by Local 196. On October 11,
the Hornsteins rented the premises at 7123 Ogontz Avenue,
in Philadelphia 4 The premises had formerly been occupied
by Acme Food Market and the employees under Acme had
been represented by Local 1357. After the Respondent took
possession of the premises, it embarked on a renovation
project and opened its doors to the public on December 12.
No accretion or successorship issues or contentions were
advanced by the parties. The sole issue is whether or not
Respondent, on December 11 and 12, permitted Local 196
to solicit employees in the store while prohibiting and dis-
couraging Local 1357 from equal privileges in violation of
Section 8(a)(1) and (2) of the Act.
Herman Wooden, Local 1357 organizer, first visited the
store on October 30 while the store was being renovated. He
identified himself to Sam Hornstein and said he was there
to organize the employees.5 Sam replied that the store would
not be open until after Thanksgiving and mentioned that he
had had contractual relations with Local 196 at his previous
store and indicated Local 196 would be the bargaining rep-
resentative at the present store. Local 1357 notified Respon-
dent by telegram, 2 days later, of its intent to organize the
employees and upon attaining a majority, it would then
request recognition.
On the morning of December 11, Wooden met two other
Local 1357 representatives outside the store, Henry Giam-
marco and Hugo McKissic. Giammarco, who had arrived
at the store before Wooden, told Wooden that he had seen
Joe Saunders, a Local 196 representative, come out of the
store. They then decided to go into the store individually.
Giammarco and McKissic did not present themselves to
Sam Hornstein as Local 1357 representatives but merely
indicated they were potential customers living in the area.
Sam told them they should come back the following day
when the store would be open to the public. Wooden testi-
fied that when he entered the store, Sam told him the store
was not open for business so he turned around and left.
That afternoon, Wooden returned to the area and noticed
Joe Saunders, accompanied by another Local 196 represen-
tative, Mary Smith, enter the store. Wooden then entered
and was stopped by Allen Hornstein. He then identified
himself to Allen. Wooden complained that if Saunders and
Smith were permitted in the store to talk to employees he
should have the opportunity also. According to Wooden,
3 Unless otherwise noted , all dates hereinafter refer to 1973.
° A new corporation was formed by the Hornsteins to own and operate the
new business-Shopwell , Inc., the Respondent herein.
3 No employees were hired until the end of November.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allen replied they were his friends and that Respondent's
employees were going to be represented by Local 196.
Wooden stated it would be an unfair labor practice and left.
Wooden testified that when he first entered the store, he
noticed Saunders and Smith towards the rear of the store
talking to an employee and as he left he observed them
talking to another employee. The record does not disclose
the nature of the conversations between the Local 196 repre-
sentatives and any of the employees. Neither Saunders,
Smith, nor any employee was called as a witness. Allen
Hornstein credibly testified he first noticed Saunders and
Smith after they had entered the store. He permitted them
to look around the store and observed them talking to one
employee whom he knew was acquainted with Saunders
from his previous employment. Allen did not observe Saun-
ders talking to any other employee. According to Allen, he
would not have permitted solicitation in the store, that "We
weren't even open for business yet, and, you know, if they
wanted to do the signing up, it should be done outside the
store area ." When Wooden complained to him about Saun-
ders and Smith being permitted to walk around, Allen told
Wooden that he had been dealing with Saunders for 6 years
and was simply being courteous in permitting him to walk
around. Allen specifically denied telling Wooden that Re-
spondent had decided to recognize Local 196. I credit Allen
Hornstein's version of the conversation .6
Wooden again returned to the store on opening day, De-
cember 12, and saw Saunders in the store . Saunders told
him that Local 196 already had a contract, pointing to his
briefcase under his arm but not displaying the claimed doc-
ument when Wooden asked to see it . Then Sam Hornstein
came over and told Saunders to tell Wooden, Local 196 had
a contract with the company and pointed to a Meat Cutters
emblem in the office? After Sam walked away, Giammarco
appeared on the scene and while the three union representa-
tives were discussing the need for the two unions to cooper-
ate with each other an employee came up and asked
Saunders how "the union thing was coming along" and
Saunders replied , "Everything's taken care of."
The General Counsel concedes that an employer may
express his preference for one of several competing unions
in a noncoercive manner. He contends however that in the
instant case the Respondent 's conduct in its treatment of the
two competing unions constituted unlawful assistance and
interference with the Section 7 rights of the employees. The
General Counsel argues that Respondent knowingly per-
mitted Local 196 representatives Saunders and Smith free
reign to roam throughout the store and solicit employees on
December 11 while at the same time refused access to Local
1357 representative Wooden. However the record does not
disclose that Saunders or Smith engaged in soliciting of
6 Local 1357 representative McKissic testified he saw Saunders in the store
on December 10 but the nature of his visit is not disclosed in the record.
7 In his initial testimony , Sam Hornstein testified he jokingly said he had
a contract with Local 196 but later in his testimony denied it. Whether
jokingly or not, I find he did say he had a contract with Local 196. I credit
Wooden's testimony of the events of December 12 as he related it.
employees. The only evidence to support the General
Counsel's contention in this connection is that Wooden saw
the Local 196 representatives converse with two individual
employees. But as Allen Hornstein credibly testified, one of
the employees who spoke to the representatives had been
acquainted with Saunders. It would be unwarranted specu-
lation to conclude that Saunders was engaging in solicita-
tion based on this testimony. It may be that the Hornsteins'
relationship with Local 196 was a friendly one and that
ultimately they would not be averse to again enter into a
bargaining relationship. But I do not believe Respondent
was about to recognize any labor organization at that time.
Although I consider Sam Hornstein's testimony generally
unreliable, I do believe, as he stated, he did tell the union
representatives he was just opening a new store, was heavily
in debt, and wanted a year's time to establish himself before
being tied down to a union contract. I also credit the Horn-
steins' testimony that they had no contract or under-
standing with Local 196. It may be that when Sam
Hornstein led Wooden, on December 12, to believe he had
a contract with Local 196, he was not joking but rather this
was a means to discourage Local 1357 from seeking to
become the bargaining representative. There is nothing in
the record to establish that Respondent had indicated to
employees it favored Local 196, let alone that it had estab-
lished a bargaining relationship with that labor organiza-
tion. A glimmer of favoritism towards Local 196 has been
displayed but in my view has not reached the proportion
necessary to support a finding of unlawful assistance.
Accordingly, I find that the evidence is not sufficient to
sustain the burden of establishing that the Respondent un-
lawfully assisted Local 196 or otherwise violated the Act. I
shall therefore recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 1357 and Local 196 are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER8
The complaint is dismissed in its entirety.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and order and all objections thereto shall be deemed
waived for all purposes.