Tom Thumb Stores, Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1951

95 N.L.R.B. 57 (N.L.R.B. 1951)

TOM THUMB STORES, INC. 57
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in other unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
[Recommended Order omitted from publication in this volume.]
Tom THUMB STORES, INC. and RETAIL CLERKS INTERNATIONAL
ASSOCIATION, LOCAL UNION 368, AFL. Case No. 16-CA-190. July
10,1951
Decision and Order
On March 9, 1951, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, 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. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board 1 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and, for the reasons indicated below, finds merit in certain of the
Respondent's exceptions.
On August 16, 1949, November 15, 1949, and November 28, 1949,
respectively, a charge, amended charge, and a second amended charge
were filed in this proceeding, alleging various violations by the Re-
spondent of Section 8 (a) (3) and 8 (a) (1) of the Act. On December
16, 1949, before any complaint in this matter was issued, the Board
dismissed a petition of the charging party herein for certification as
bargaining representative of the Respondent's employees,' stating:
"Although we do not find that the Employer's operations are unrelated
to commerce, we do not believe that the effect of such operations on
interstate commerce is so substantial that we should assert jurisdiction
over an enterprise of the character here involved."
Despite the Board's refusal to assert jurisdiction over the Respond-
ent's operations in December of 1949, the former General Counsel, who
by statute had sole authority over the disposition of charges, did not
a Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this ease to a three-member panel [Members Houston, Reynolds,
and Styles].
2 Tom Thumb Stores, Inc., 87 NLRB 1062.
95 NLRB No. 16.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismiss the pending charges . On November 17,1950, andNovember 21,
1950, after the Board 's Decision and Order of December 16, 1949, the
third and fourth amended charges in this proceeding were filed. These
charges dropped the 8 ( a) (3) allegations contained in the earlier
charges and alleged a refusal to bargain by the Respondent in violation
of Section 8 (a) (5) and ( 1) beginning in May and June 1, 194.9.
The charges remained on file until January 11, 1951, when the General
Counsel then issued the complaint in this matter alleging the refusal
to bargain as alleged in the last amended charges:
In October of 1950, shortly before the third and fourth amended
charges were filed, the Board reexamined its policy concerning juris-
diction and announced certain new criteria for the assertion of juris-
diction. It appears , as found by the Trial Examiner, that the Re-
spondent 's business at the time of the commission of the alleged unfair
'abor practices would fall within these new standards for the assertion
of jurisdiction . The question thus posed is whether the Board should
apply these criteria and assert jurisdiction , although subsequent to
the commission of the unfair labor practices alleged in the complaint
the Board refused to assert jurisdiction over the Respondent 's opera-
tions. The same question was before the Board in the recent Screw
Machine Products case,3 and was there answered in the negative. For
the reasons stated in that decision , and with the same qualifications on
our decision stated in that case , we shall dismiss the instant complaint
in its entirety .4
Order
IT IS REREBY ORDERED that the complaint herein be, and it hereby is,
dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a. fourth amended charge filed November 21, 1950, by Retail Clerks In-
ternational Association, Local Union 368, AFL, herein called the Union, the
General Counsel of the National Labor Relations Board,' by the Regional Di-
rector for the Sixteenth Region (Fort Worth, Texas ), issued a complaint dated
January 11, 1951, against Tom Thumb Stores, Inc., herein called the Respondent,
alleging that Respondent had engaged in unfair labor practices in violation of
Section 8 (a) (1) and (5) of the National Labor Relations Act, as amended,
61 Stat. 136 , herein called the Act, which may be summarized as follows :
(1) That on or about the first week of June 1949, and continuously thereafter,
Respondent refused to bargain collectively with the Union, which was then the
exclusive representative of Respondent 's employees in an appropriate unit ; and
3 C. A. Braukman and Lucille Braukman , d/b/a Screw Machine Products company,
94 NLRB 1609.
4 Member Houston , though dissenting in the Screw Machine case , deems himself bound
by the Board ' s decision therein.
I The General Counsel and his representatives are herein referred to as the General
Counsel and the National Labor Relations Board, as the Board. .
TOM THUMB STORES, INC. .59
(2) by the above and by a series of other specified acts, Respondent had inter=
fered with, restrained , and coerced employees in the exercise of rights guar-
anteed in Section 7 of the Act . Copies of the complaint , of said charge, and
of the notice of hearing were duly served on the parties.
On January 26, 1951, Respondent filed an answer which was superseded at
the hearing by an amended answer whose averments are summarized below.
Pursuant to notice a hearing was held at Dallas, Texas , on January 30, 31,
and February 1 and 2, 1951 , before George A. Downing , the undersigned Trial
Examiner , duly designated by the Chief Trial Examiner . The General Counsel
and the Respondent were represented by counsel and the Union by a representa-
tive. Full opportunity to be heard , to examine and cross -examine witnesses,
and to introduce evidence relevant to the issues was afforded all parties. As
the hearing opened the Trial Examiner denied Respondent 's motion for . a bill of
particulars and its motion to dismiss , based on jurisdictional grounds and on
the Board 's dismissal of an earlier representation petition . Various motions
made during the hearing by the General Counsel to amend the complaint' in
minor respects were granted , including a motion to amend the date of the refusal
to bargain to May 18, 1949.
Respondent 's motion to dismiss the complaint , renewed at the conclusion
of the General Counsel 's case, was again denied . -Respondent also moved for a
dismissal on the . ground that the Union 's majority representation had not been
established . Ruling was reserved on that motion ; it is disposed of by the find-
ings and conclusions herein made . The parties were afforded an opportunity to
make oral argument and to file briefs, proposed findings of fact, and conclusions
of law. Respondent and the General Counsel made a brief oral argument, but
no brief was filed by any party.
Before making findings of fact on the evidence adduced at the hearing, it is
appropriate in this case to consider and to dispose . of certain preliminary de-
fenses pleaded by the Respondent , such as the limitations question, and certain
other defenses which were based, in various respects , on the fact that the Board
had, by its order of December 16, 1949, declined to exercise jurisdiction in, and
had dismissed an earlier representation petition filed by the Union. See 87 NLRB
1062.
As to the limitations question , Respondent contended that Section 10 (b) of
the Act would bar a finding of a refusal to bargain inasmuch as the third and
fourth amended charges, which first included that charge , were not filed until
November 1950, though they asserted a refusal . to bargain in June 1949 . Earlier
charges filed in August and November 1949, had charged either or both dis-
crimination and interference , restraint , and coercion , but not a refusal to bar-
gain. Respondent also contended that no findings could be made of unfair labor
practice under the earlier charges because they had been abandoned by the
filing of the amended charges.
Respondent 's contentions are rejected for the reasons set forth in Cathey
Lumber Company , 86 NLRB 157, enfd. 185 F. 2d 1021 ( C. A. 5) ; and see Seven
Up Bottling Company of Miami, Inc., 92 NLRB 1622, footnote 1.
The defenses which are based on the Board's dismissal of the representation
petition require more detailed consideration.
The lengthy and somewhat repetitious answer may be summarized as follows :
By reason of the dismissal of the representation petition , the Board was with-
out jurisdiction ; that no election was ever held and no proof furnished' to Re-
spondent that the Union had been designated or selected as the bargaining
representative ; that Respondent had'relied on the Board 's dismissal order, which
had never been set aside , modified, or amended ; that Respondent had a right
to rely on that order as "the law of the case" ; that its adherence thereto could
60. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not constitute a violation of the Act ; that Respondent did not have to. bargain
because the Board had declined jurisdiction; that the Union made no demand
for recognition subsequent to the dismissal order.; and that now to hold Respond-
ent'guilty of unfair labor practices because. of the acts "encompassed by the
previous decision of the Board" would be. a violation of the Act and of the due
process and other clauses of the Constitution. .
Though not too explicit, the answer also appeared to plead that , principles of
estoppel and of res judicata preclude the Board from proceeding on and adjudi-
cating the unfair labor practices charged in the present complaint. At any rate,
those defenses are implicitly contained in others.
But whether implicit or explicit, Respondent's defenses are based upon a'
misconception of the nature both of representation proceedings under Section 9
and of unfair labor practice proceedings under Section 10. Thus, it is apparent
'from, the face of the two sections that representation and unfair labor practice
proceedings are distinct, both in the issues and in the relief sought. A. F. L v.
N. L. R. B., 308 U. S. 401, 405, Warehousemen's Union v. N. L. R. B., 121 F. 2d
84,,94 (C. A. D. C.). Or, as held by the Board in Pacific Plastic and Manufactur-
ing Company, Inc., 68 NLRB 52, 76:
It is well settled that the Board's duty imposed by Section 9 to conduct
administrative, non-adversary investigations • to determine representatives
for collective bargaining is wholly different and distinct from the duty
imposed by Section 10 to determine if unfair labor practices have been
committed by an employer and if found to prevent their repetition. Accord=
ingly, the Board's purely administrative action in connection with the con=
sent election in 1941 may not be deemed to be dispositive of the issues in the
present proceeding.
Respondent also misconceived the content and the effect of the Board's order
dismissing the representation petition. Though Respondent urged in that pro-
ceeding, as it does here, that it is not engaged in commerce within the meaning
of the Act, the Board did not find that it was without jurisdiction of Respond-
ent's operations. What it found was that Respondent's operations were not un-
related to commerce ; and it chose not to assert jurisdiction because the record'
did not establish that the effect of Respondent's operations was so substantial
as to warrant the assertion of jurisdiction.
Furthermore, even were the Board's prior finding consonant with Respond-
ent's contentions, that fact would not prevent the Board from reexamining either
the underlying facts or the correctness of its prior administrative decision. For
the determination, findings, and order of the Board in a representation proceeding
are not res judicata in a subsequent complaint proceeding before the Board under
Section 10. Atlanta Brick and Tile Company, 83 NLRB 1154; Pacific Greyhound
Lines, 22 NLRB 111, 124; Pacific Plastic and Manufacturing Company, Inc.,
supra. And see Baltimore Transit Company, 47 NLRB 109, 112-113, and cases
cited. Indeed, in ordering enforcement in the last case, the court of appeals
referred to the principle as "well settled" that the doctrine of res judicata has no
application to the exercise by administrative agencies of their powers to make
administrative determinations (140 F. 2d 51, 54-55 (C. A. 4) ; cert. den. 321 U. S.
795). "Nor [the court continued] can the principles of equitable estoppel be
applied to deprive the public of the protection of a statute because of mistaken
action or lack of action on the part of public officials." Ibid. See also N. L. R. B.
v. Phillips Gas and Oil Company, 141• F. 2d 304 (C. A. 3), enforcing 51 NLRB 376,
citing 31 C. J. S., Estoppel, Section 138; and cf. The Wallace Corporation v.
N. L. R. B., 323 U. S. 248, 253.
m Which was deficient-as the Board pointed out-In'Its failure to Indicate the portion
of Respondent 's purchases received indirectly from extrastate origins.
TOM THUMB, STORES, INC . - , , ^ 6'1
These, settled principles dispose of Respondent's foregoing contentions save
for the question whether Respondent was obligated,to bargain during the period
subsequent to the dismissal of the representation case and whether, if not, It
should now be ordered (in fashioning a remedy to effectuate the policies of- the
Act) to bargain upon request by the Union. That question is considered under
Section III, B, 2, c, infra, along with other pleaded defenses which go to the
merits of the case.
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
Respondent, a Texas corporation, is engaged in the retail grocery business
and operates nine retail stores in Dallas, Texas, and the vicinity. It operates
no warehouse or wholesale plant of its own ; all its sales are made locally. Its
purchases for the fiscal year, October 1, 1949, to September 30, 1950, were $3,-
319,329, and its total sales were $4,000,000. A tabulation of its principal pur-
chases from extrastate sources, both direct and indirect, is set forth in Appendix
hereto, which discloses that Respondent received directly from without the
State goods costing $93,804.44, and through indirect sources goods costing at
least $1,129,700.
The jurisdictional requirements recently specified by the Board (see The
Rutledge Paper Products, Inc., 91 NLRB 625, and cases there cited) have there-
fore been met without need to consider additional jurisdictional facts relied
upon by the General Counsel, consisting of Respondent's affiliation with an in-
tegration in the wholesale grocery business conducted by A. W. Cullum Com-
pany, of Dallas,' and of its affiliation with a group of independently owned retail
stores which comprise with it an association known as Tom Thumb Food Marts.'
It is therefore found that Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, 'Local Union 368, AFL, is a labor
organization admitting to membership employees of the Respondent.
III. THE 'UNFAIR LABOR PRACTICES
A. The evidence
There is no substantial dispute or conflict in the evidence as to any material
fact surrounding the commission of the acts alleged to constitute unfair labor
B That concern had annual sales in 1950, of $5,748,156 and annual purchases of
$5,400,920, of which approximately 40 percent, or over $2,000,000 was procured from
out-of-State sources. Robert B. Cullum is president and the active managing head of both
concerns. He and his mother, brother, and sister own approximately seven-eighths of the
capital stock of the Cullum Company. The Cullum Company, together with Cullum and
his brother and sister individually, own approximately three-fourths of the capital stock
of Respondent. Both at past and present locations, offices of the two concerns have
occupied the same building, and at present they occupy portions of adjoining office space
(with a common switchboard) In a building owned by a third corporation whose capital
stock is wholly owned by Cullum. Cullum's desk is in the portion of such office space
occupied by the Cullum Company, but from it he manages and directs also the affairs
of Respondent.
4 The conditions of membership in the association are prescribed and controlled by
the Cullum Company, which in effect licenses members through franchise contracts issued
by it. The members contribute to a common advertising fund ; and all member stores,
except Respondent's procure all their stocks of merchandise from the Cullum Company.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices . In May 1949, the Union was conducting a campaign to organize
Respondent's grocery clerks and checkers. On May 18, Dan W. Milsap, the
Union 's business representative , wrote to J. R . Bost claiming 95 percent .repre=
sentation among Respondent 's clerks and requesting recognition and a bar-
gaining conference . It is concluded ' and found on the basis of the facts stated
below 6 that the letter was actually received by Bost on May 19.
Bost did not acknowledge or reply to the letter, and Milsap called him on
May 23 and again requested a conference. Bost claimed he was too busy to
have a meeting that week but suggested Thursday of the following week. Milsap
called Bost again on May 30 and met with him, on May 31. Milsap had with
him the signed cards; he suggested a payroll cross-check against them, and
inquired whether if the Union had 51 percent of the employees signed up, Bost
would negotiate and sign an agreement. Bost declined on the ground that
lie was without authority and that it would be necessary for Cullum to act
on the matter. Bost declared, however, that Cullum was out of town but that
Cullum would call Milsap upon his return.
Cullum did not call, and around June 7,6 Milsap called again and arranged a
meeting for that day. Milsap,, accompanied by Van Buren (an International
representative), called first on Bost and they were referred to Cullum. Van
Buren asked Cullum for recognition and stated that if Cullum wanted proof
of representation and "would go along on 'a payroll cross check," the Union's
claim would be sustained by the membership cards which Van Buren had with
him.' Cullum stated that he could not recognize the Union without talking to
Bost. Van Buren then inquired whether Cullum would consent to an election
but Cullum did not agree. Cullum, also stated that he had made "a survey"
(since the time Milsap had talked with Bost) and he felt that the employees
did not want' the Union. However, Van Buren told Cullum he would have
the. Board send Cullum the necessary papers for a consent election on the
possibility that Cullum might change his mind.
On or about June 15, Milsap (accompanied by a committee of four) met again
with Cullum after calling for a conference. Milsap inquired whether Cullum
bad received the consent election papers from the Board and if he had changed
his mind about consenting. Cullum. replied. that he had not. That was the end
of the sheeting. On June 24, Milsap called Cullum again and requested another
meeting, which was held that day. Again Milsap inquired whether Cullum
had changed his mind about recognizing the Union and agreeing to a consent
election. Cullum replied again, that he had not.
Milsap then questioned Cullum about a report that Cullum had polled his
employees at a dinner, and Cullum denied that he had done so. Milsap con-
tinued that he felt that, it was an unfair..labor practice for Cullum to poll his
employees and that the only true way to determine the desires of the employees
was by a secret Board election. Milsap also stated his intention of filing an
unfair labor practice charge. At that point, Cullum handed Milsap an envelope,
stating that he did not feel Milsap had "a claim for those employees any longer"
"Milsap testified that he addressed and mailed the letter in Dallas on May 18 by
registered mail, with return receipt. Though the signed receipt was not produced, Milsap
testified , without denial , that in a later conversation Bost admitted having received the
letter. The Trial Examiner observed during the hearing that be would assume that the
letter was received on the 19th. Though Bost was thereafter called as Respondent's
witness, he made no denial of receipt of the letter on that date.
Gin the meantime , Milsap had filed the representation petition on June 1.
7 It does not appear that Van Buren otherwise offered to show the cards to Cullum
or that Cullum asked to see them. However , Milsap testified that Cullum asked Van
Buren to read off to him the dates on the cards and that Van Buren did so on all 36
of the cards which Van Buren had with him.
TOM THUMB STORES, INC. 63
and that "when you get to your office you can see."
Milsap later opened the. envelope and found therein 37 resignation letters
(not all of which had been signed by employees who were members of the Union),
all dated June 20, 1949, and reading as follows :
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL
14001/2 South Main Street, Ft. Worth, Texas.
Attention : Mr. Dan Milsap.
GENTLEMEN : Please cancel my application for membership in your union,
as I do not wish to maintain such membership.
Cullum had also stated, at the time of delivering the envelope, and with refer-
ence to Milsap's threat to file charges, that "It didn't matter now" because he
"was not going to have [Milsap] to run his business for [him]."
Milsap also testified on cross-examination that neither Cullum nor Bost at
any time during the conferences raised any question concerning coverage.
Bost did not testify in denial of any portion of Milsap's foregoing testimony,
and Cullum's testimony (when called by the General Counsel) was not in sub-
stantial conflict with it. Thus Cullum admitted that when Milsap claimed to
represent a majority he stated he "would like to investigate the matter before
[he] took the information on its face value." Cullum admitted that Milsap and
Van Buren claimed to have the authorization cards with them, but that he told
tnem "I could not take that information for granted until I had seen some of our
employees first hand and had the knowledge from them first hand." Cullum
also admitted that he "very possibly could have asked . . . what the dates [on
the cards] were."
Cullum also admitted that in the conferences with the union representatives
he refused to recognize the Union because he doubted that it represented a ma-
jority, and that was his position up to the time he delivered the resignation let-
ters to Milsap. He testified further that the first time he took the position that
Respondent was not subject to the jurisdiction of the Board was about the time. of
the filing of the unfair labor practice charges (on August 16, 1949).8
Cullum's further testimony alone establishes the bulk of the unfair labor prac-
tices'charged in the complaint. Thus he candidly admitted that (as he had sug-
gested to Milsap and Van Burean be would do) he set about an investigation to
obtain from his employees the first-hand knowledge whether the Union represented
them or whether they desired it to. He testified that on his regular trips to the
stores he questioned a dozen employees concerning whether they wanted a union ;
that the conversations were held openly in the stores ; that the store managers
knew of the conversations ; and that he had also inquired of the store managers
what they had heard about the Union. Cullum also testified that -two other em-
ployees had approached him suggesting they wished to withdraw from the Union
because of alleged misrepresentations by the union representatives and that to
assist them in withdrawing.he prepared a form letter for their signature. Later,
he testified, when it appeared from the vote at the dinner meeting, now to be
adverted to, that antiunion opinion was "so predominant" he decided that the
form letter should be "offered to all employees who wanted to withdraw their
name[s]."'
9 When called later as Respondent's witness Cullum claimed to have been "under the
Impression" at all times during the conferences with the union representatives that
Respondent's operations were not subject to the Act, but he did not contend that he had
raised the question with Milsap at any time.
Cullum overlooked, however, his other testimony that he had mimeographed 100 of
such forms dated on June 20, whereas the dinner was held on June 21. It is obvious
that he had prepared the supply of forms in advance in anticipation of a favorable
reaction at the dinner meeting. .
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dinner at Sammy's
On the evening of 'June 21, Cullum invited Respondent's employees to a dinner
at Sammy's Restaurant. It was attended by approximately 40 persons, of whom
8 were supervisors. There, following the meal, Cullum made a talk in which
be referred to the Union's demand for recognition, expressed his surprise that
there should have been any hesitancy on the part of the employees to negotiate
with him personally, stated that he did not feel, because of the small size of the
organization, they needed union representation, but that he wanted them to de-
cide that for themselves, and for them to tell him how they felt about it and he
would be guided accordingly. Some 6 or 7 of those present (including store
managers, assistant managers, and 1 or 2 employees) spoke on the subject
of Cullum's remarks, all favorably to the views he had expressed. Thereupon,
according to Cullum's testimony, he asked for a show of hands on the question
whether or not the employees needed a union to represent them. The vote was
so preponderant that the employees did not need union representation that it
was unnecessary to make a formal count of the hands or to call for a vote on the
other side of the question 10 The employees' meeting then adjourned and was
followed by a store managers' meeting.
The next day the resignation forms were distributed among the store man-
agers for the purpose of obtaining the signatures of the employees ; and within
a day or two the managers had procured the 37 signed resignations which Cul-
lum delivered to Milsap on June 24.
Testimony of other witnesses for the General Counsel added little of significance
to the facts admitted by Cullum. J. E. Daniel testified to a somewhat different
version of the dinner poll, but Cullum's testimony is corroborated by other wit-
nesses and affords ample basis for the findings herein made. Daniel also testi-
fied that his signature on the resignation letter was procured by the assistant
manager at his store who told him to read it and sign it and hand it back either
to him or to Mr. Bell, the manager.
Grover B. White, Jr. testified to separate interviews by Cullum and by Metzger,
a store manager, as to whether he,had signed the union card. Cullum had also
commented "We are just a small organization, we have a nice staff and we just
don't need that union and we just can't have it." - And Metzger had commented
Well, it won't do any good," by which, White testified on cross-examination,
he understood Metzger to mean. there would not be any union. White also
testified that his signature on the withdrawal letter had been procured by Walker,
store manager, who had told him the letter was on the checking stand and to go
and sign it.
B. Concluding findings
1. Interference, restraint, and coercion
The foregoing facts establish, without need of analysis or discussion, that
the Respondent engaged in interference, restraint,, and coercion within the
meaning of Section 8 (a) (1) by:
a. The interrogation of employees as to whether they had signed union appli-
cation or membership cards (Standard-Coosa-Thatcher Company, 85 NLRB 1358,
and cases there cited) and whether they needed or wanted union representation.
(Ibid.)
1° Cullum testified that his earlier refusal toconsent to an election was because he did
not want the "ripple in our family" to continue unnecessarily or to be excited again by
an election, but that to his. own personal satisfaction and conviction he had in effect,
conducted his own election at the dinner, and that it had confirmed his earlier feeling
that the employees did not desire union representation.
TOM THUMB STORES, INC. 65
:b. Cullum's statement to White that "We just can't have a union'," and Metz-
ger's statement to White that the Union, or White's act in joining. the Union,
would not do any good. These statements clearly implied that' Respondent
intended to resort to any measures it deemed necessary to defeat the organi-
zational campaign among its employees and were, therefore, violative of the Act.
Globe Wireless, Ltd., 88 NLRB 1262; cf. Falcon Tool Co., 60 NLRB 1262;
N. L. R. B. v. Vermont American Furniture Co., 182 F. 2d 842 (C. A. 2): Any
contention that statements of such character are protected by Section 8 (c) as
free speech is disposed of by N. L. R. B. v. Gate City Cotton Mills, 167 F. 2d 647
(C. A. 5) ; N. L. R. B. v. Ford, 170 F. 2d 735 (C. A. 6) ; N. L. R. B. v. Kropp Forge
Co., 178 F. 2d 822 (C. A. 7) ; and N. L. R. B. v. LaSalle Steel Co., 178 F. 2d 829
(C. A. 7).
c. The polling of" the employees at the dinner meeting on the question whether
they needed the Union to represent them. N. L. R. B. v. Alco Feed Mills, 133 F.
2d 419 (C. A. 5) ; Alliance Rubber Co., 76 NLRB 514; Victory Fluorspar Mining
Co., 72 NLRB 1356; Leslie County Lumber Co., 52 NLRB 1147; and cf. N. L. R. B.
v. Booker, 180 F. 2d 727, 729 (C. A. 5).
d. The preparation and circulation of the withdrawal letters and the procural
of signatures. thereon by the store managers, Earl Severin, Inc., 90 NLRB- 86,
and cases there cited ; The Red Rock Company, 84 NLRB 521, enfd. 187 F. 2d 76
(C. A. 5). And see N. L. R. B. v. Booker, supra; N. L. R. B. v. Lovvorn, 172 F.
2d 293, 294 (C. A. 5) ; and N. L. R. B. v. Gate City Cotton Mills, supra.
2. The refusal to bargain
a. The appropriate unit
All grocery clerks and checkers, including bakery and drug clerks of Re-
spondent employed at its Dallas, Texas, retail stores, exclusive of all office and
clerical employees, all meat market employees, all warehouse employees, guards
and watchmen, professional employees, and all supervisory employees as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
There was no dispute between the parties as to the appropriateness of the
above-described unit ; but when it developed late in the hearing that the Union's
majority might be marginal, contentions were made for the first time whether
the above unit properly embraced the following classes of employees : Extra
employees, porters, and female meat market employees.' A determination of
those contentions is essential to a finding whether the Union represented a
majority of the employees in the unit ; they will be resolved in the order stated.
Extra Employees
J. R. Bost, Respondent's vice president, when called as a witness by the General
Counsel, produced a list of employees which had been prepared at his direction
from Respondent's payroll for the week ending June 4, 1949 (General Counsel's
Exhibit 8). He identified on it a group of 16 employees appearing at the end
of the list, testified that they were employed as "extra help . . . not on the
regular payroll," and that their names were phoned in to the office by the store
managers on Saturday morning and added at the end of the payroll. Respond-
ents counsel thereupon expressly disclaimed any contention that the extras should
11 There was agreement among the parties that the store 'tanagers were to be excluded
as supervisors and that the assistant managers were not supervisors and were included
in the unit.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be included in the unit and agreed with the General Counsel that they should
be excluded.
On a later appearance as Respondent's witness, Bost's testimony was offered
to establish that some of the extras had worked beyond the number of hours
that an extra employee would, or might, ordinarily have worked, the inference
being that they thereby had become regular but part-time employees and there-
fore to be included in the unit. Bost's latter testimony is considered as wholly
inadequate to overcome his earlier unequivocal testimony identifying the 16
employees in question as extra help, nor does it overcome the similar unequivocal
agreement by. Respondent's counsel that they should be excluded from the unit.
It is therefore concluded and found that the 16 employees whose names appear
consecutively on the exhibit (and on Respondent's payroll, Respondent's Exhibit
1), beginning with Tom E. Carr and ending with Hubert R. Wall, were employed
as extra help and were not properly includible in the above-described unit.
The Porters
Late in the hearing the General Counsel suggested for the first time that
employees who were classified generally as porters might not be properly includ
ible in the unit. The evidence establishes however, that the porters spent approx-
imately two-thirds of their time engaged in the same activities as the employees
who were classified as clerks 'and checkers, though the;porters were not permitted
to engage in certain duties, such as the actual checking of purchases. Obviously
the interests of the porters were sufficiently identified and compatible with those
of the other employees that they may be included with them in the unit above
found to be appropriate and represented with them by a single bargaining repre-
sentative. Cf. Florsheim Retail Boot Shop, 80 NLRB 1312; Geo. B. Peck, Inc.,
71 NLRB 1211. Indeed, such fact seems to be conceded by the Union's acceptance
of an application for membership and a designation of representation from Ray
Lee Stubblefield, who was one of the porters in question, and by the Generale
Counsel's offer of his card in evidence in proof of the Union's claim of a majority.
It is therefore concluded and found that the employees who were classified
generally as porters are properly includible in the unit.
Female Meat Market Employees
Though Bost had purported to strike from the payroll list of employees (Gen-
eral Counsel's Exhibit 8) all meat market employees, it developed during his
examination by the General Counsel that he had overlooked striking the name
of Edna Mae Long, and he then acceded to the General Counsel's suggestion that
Long's name be stricken. Later, when Bost produced as Respondent's witness
the original payroll, it developed that there were three other female employees
who were classified on the payroll as meat market employees whose names had
not been stricken from the previous exhibit12
Bost then attempted to testify. that actually the Respondent "switched around"
the girls who were listed as meat market employees and that they were, in fact,
interchangeable between the grocery department and the meat market. He
specifically named` Edna Mae Long, Florence Metz, and Addie Powers as three
who had been so interchanged.
That testimony does not bear close scrutiny and is not credited. It is in direct
conflict with Bost's earlier agreement with the General Counsel that Long's name
was properly to be stricken as a meat market employee. Furthermore the pay-
12 Bessie Lee McLarty, Florence Metz, and Addle M. Powers. McLarty was shown on
the payroll as having earned $28 in the meat department and $7 in the grocery department.
TOM THUMB STORES, INC. 67
roll reflected the case of McLarty, that separate entries had been made and
separate pay figured for the separate portions of her time spent respectively
in the grocery and meat departments . Since 80 percent of McLarty's wages
were earned in the meat department that week, she is hereby found to be properly
excluded from the unit, along with Long , Metz, and Powers ," whose earnings
were wholly charged to that department."
b. The Union's majority representation
With the above determinations made, the evidence establishes , and it is hereby
found , that there were in the unit at the time of the Union 's request and Respond-
ent's refusal to bargain '' a total of 59 employees 1° The General Counsel filed
in evidence a total of 30 membership and designation cards, which included 1
for Bessie Lee (Mrs. Guy) McLarty, who, as found above, was not includible in
the unit. In addition , however, though the Union was unable to produce any
card signed by John Marshall Spears, the General Counsel offered his testimony,
which established that he had in fact signed a card and had become a member
of the Union prior to May 19, 1949, and that he had done nothing to terminate
or withdraw his membership until the signing of a form letter of resignation
which was procured by Respondent , as above recounted , sometime after June'
21.
It is therefore concluded and found that on May 19, 1949, the Union repre-
sented a total of 30 employees and a majority of the 59 employees in the unit:
e. The refusal to bargain
Respondent received the Union 's request to bargain on May 19. It did not
acknowledge or reply to the letter, and thereafter it delayed an actual bargain-
ing conference from time to time until June T. The earlier meeting with Bost
was obviously a time-consuming device, since Bost admitted that he was without
authority to consider the request for recognition and that Cullum would have
to act on it. Finally, when on June 7 Milsap and Van Buren met with Cullum,
the latter expressed doubt of the Union's majority claim.
But on the face of Cullum 's testimony , his doubts were specious and his position
was not taken in good faith, for he admitted he had already set about "a survey"
by direct inquiry among his employees and he stated his intention to continue his
investigation and to seek first-hand knowledge of his employees' desire for repre-
sentation by the Union. Cullum thereafter did in fact continue his open and
13 Since McLarty was the only one of the four who was a member of the Union, her
exclusion can in no case operate to Respondent 's prejudice.
14 The foregoing findings, which resolve the constituency of the unit, do not of course
imply that the unit as herein defined is the only appropriate unit, or the most appropriate
unit, or the ultimate unit which could or must be found in this case, but only that it is
an appropriate one "to assure to employees the fullest freedom in exercising the right
guaranteed by [the] Act." ( Section 9 ( b).) See Ilforand Brothers Beverage Co., et al.,
91 NLRB 409 ; Garden State Hosiery Co ., 74 NLRB 318, 324.
"The refusal to bargain is hereinafter found to have occurred on May 19, 1949, and
to have continued thereafter. Since the only evidence offered by the parties as the basis
for determining the number of employees in the unit related to the payroll week from
May 28 to June 4, inclusive , it must be assumed they agree or concede that such evidence
affords a proper basis for calculations of the size of the unit . In any event , the evidence
affords the basis for a reasonable inference, and it is hereby found, that there was no change
in the size of the unit from May 19 to May 28, 1949.
Cullum had testified both during the representation hearing and during the present,
one that the unit contained 49 employees (including porters ). That testimony was
based on recollection and without referring to Respondent's payroll records, which were not
produced until shortly before the close of the hearing and from which the above
determinations are made.
961974-52-vol. 95-6
68 DECISIONS OF_ NATIONAL LABOR RELATIONS BOARD
forceful .(and successful) compaign to destroy the Union's majority by (1) ad-
mitted interrogation of a dozen employees, .(2) the preparation of the withdrawal
of membership letters, (3) the dinner meeting and the polling of the employees,
and (4) the final reaping of the fruits of the campaign by obtaining through the
store .managers the signatures of employees , both members and nonmembers to the
letters purporting to cancel or withdraw membership in, the Union.
Respondent's posponement and delay of the Union's request and efforts to
negotiate from May 19 to June 7 was obviously to gain time to plan and to in-
augurate a campaign to undermine the Union 's support ; and Cullum 's assertion
of doubt of the Union's majority, expressed in the conferences of June 7 and 15,
was to gain the necessary additional time to bring the campaign to a successful
conclusion. Cf. Stedfast Rubber Company, Inc., 91 NLRB 300; Joy Silk Mills v.
N. L. R. B., 185 F. 2d 732 (C. A. D. C.), enfg. 85 NLRB 1263; The Cuffman Lumber.
Company, Inc., 82 NLRB 296; Inter-City Advertising Company, of Greensboro,
N. C., Inc., 89 NLRB 1103. '
Certainly the evidence wholly fails to support the Respondent's pleaded defense
that it refused to bargain because of its doubt of coverage. Though that question
may have existed in Cullum's mind, as he testified, he admitted that in the con-
ferences with the Union's representative his refusal to bargain was based only on
his doubt of the Union's majority ; and his further testimony indicated clearly
that the coverage question was one which was injected some time later and after
Cullum had for the first time consulted the advice of his attorney.
Nor can Respondent, having proceeded to engage in unfair labor practices to
destroy the Union's majority, justify its refusal to bargain on the ground that it
was entitled to await the holding of an election and a certification of the Union.
Stedfast Rubber 'Company, supra; Inter-City Advertising Company, of Greens-
boro, N. C., Inc., supra; The Cuffman Lumber Company, Inc., supra; and cf.
Everett Van Kleeck & Company,- Inc., 88 NLRB 785. Furthermore, as herein
found, the Union's representative status was established at the time of the
request and the refusal to bargain ; and that status was unaffected by the later
defections in membership which were attributable to Respondent's unfair labor
practices. N. L. R. B. v. Lovvorn, supra; Franks Brothers Company v. N. L. R. B,
321 U. S. 702, 705; Joy Silk Mills v. N. L. R. B., supra.
The evidence therefore plainly establishes that on May 19, 1949, and thereafter,
Respondent refused to bargain in good faith. Joy Silk Mills, Inc., 85 NLRB 1263,
supra. That refusal continued certainly until the Board declined to assert juris-
diction on December 16, 1949. The question was suggested and argued during
the hearing whether the obligation to bargain (and with it the refusal) continued
thereafter, or whether it was terminated outright by the dismissal of the repre-
sentation petition, or only suspended, subject to later revival.
It is clear that none of the issues as to the Respondent's alleged unfair labor
practices were involved in the representation proceeding, nor could they have
been. Indeed, even the question of jurisdiction was not so involved or disposed
of as to, preclude reexamination and determination in the present proceeding.
See discussion at pages 59-61, supra, and cases there cited.
There is ample precedent for the finding of unfair labor practice during
periods both prior and subsequent to a declination or a failure to assert jurisdic-
tion by the Board under circumstances analogous to the present. The case of
N. L. R. B. v. Baltimore Transit Company, supra, is particularly persuasive. In
1937, the Board's Regional Director had refused to file a complaint and had dis-
missed a charge for "lack of jurisdiction." On appeal from the Regional Direc-
tor's ruling, the Board on April 29, 1938, had sustained the dismissal. Later, a
complaint was issued by the Board on unfair labor practice charges alleged to
TOM THUMB STORES, INC. 69'
have occurred during the period prior to the previous dismissal. In ordering
-enforcement of the Board's decision , the Fourth Circuit held :
There was no adjudication by the Board of the question of jurisdiction or
any other issue, but merely an administrative determination not to take
action ; and it is perfectly clear that the Board was not precluded thereby
from taking action at a later date, upon a new complaint and a different set
of facts, when its jurisdiction had been made clean by intervening decisions
of the Supreme Court and it appeared that the Act was being violated by
the company.
An analysis of the recent Tamed Sand and -Material Company case , 91 NLIIB
•868, also constitutes a "conclusive 'precedent . The Board had originally dismissed
a representation '. proceeding on August 2, 1948, on the ground ( substantially as
here ) that the. Respondent 's operations -were . essentially local in character and
that it would not-effectuate the policies of the Act to assert jurisdiction. See
78 NLRB 629. Thereafter, on June 13, 1949, the General Counsel issued a com-
plaint alleging the commission by the Company of unfair labor practices both
before and after the date of the Board's dismissal order. The Trial Examiner
granted a motion to dismiss . that complaint , after hearing the evidence on com-
merce, on the ground that the Respondent 's business was substantially of the
same character as theretofore found by the Board . On request for review by
the General Counsel the Board ordered additional evidence taken on commerce,
and thereafter, by order of February 28, 1950, decided to assert jurisdiction ; and
it remanded the case to the Trial Examiner for a resolution of the unfair labor
practice issues. See 88 NLRB 861.. Thereafter , the Trial Examiner found (and
the Board . affirmed ) that the Respondent had engaged in certain acts of inter-
ference, restraint , and coercion on dates both before and after the original dec-
clination of jurisdiction and that it had discriminated against an employee after
the declination.
Though no refusal to bargain ' was involved in the foregoing cases, it is clear
from them that the findings on the unfair labor practice charges under Section
8 (a) (1), (2 ), and (3 ) were unaffected by the Board's failure to assert juris-
diction in the respective representation case, i. e., unfair labor - practices were
found to have been committed without regard to whether they occurred prior or
subsequent .tatlie dismissal of the proceedings . No reason appears why a differ-
ent result should obtain because a refusal to bargain in violation of Section 8
( a) (5) is here involved.
It is true that in fashioning a remedy to effectuate the-policies of the Act,
the Board has recognized a distinction in a case such as_ this and has in the
exercise of its administrative discretion eliminated from the period for which
a Respondent is required to make whole employees discriminatorily discharged
and to reimburse them for dues illegally checked off to a dominated Union
the period between the prior administrative determination and the issuance of
the complaint in the unfair labor* practiceproceedings. See Baltimore Transit
Company, supra, 47 NLRB at 112-113. The Board's action was expressly affirmed
by the court (140 F. 2d, supra, at 55)
The fact that the Board had taken the position in 1937 that the company
was not subject to its jurisdiction was not a matter precluding action. but
one to be considered in determining what action would be appropriate to
wipe out the effects of the unfair labor practices found to exist . In con-
sideration of'its prior position , the Board limited the back-pay awards in
the case of discriminatory discharges , and the refund of dues paid to the
company dominated union, to the period subsequent to its filing of the com-
plaint herein against the company . The date of the filing of the complaint
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the time when the company was notified that the -Board was no longer
adhering to the position taken in 1937 that it. was without jurisdiction of
unfair labor practices by the company; and there is nothing unreasonable
in requiring the company to take action to undo the effect of unfair labor
practices allowed to continue after that date.
But there are no similar violations to be remedied here. The acts of inter-
ference, restraint, and coercion can be remedied, as usual, by a cease and desist
order. The refusal to bargain can. be remedied only by an- order requiring
Respondent to bargain, for only so can the' status quo be restored, is e., only so
can the Board restore the Union to itsiposition as bargaining agent as it existed
prior to Respondent's unfair labor practices. The usual order will, therefore,
be recommended that Respondent bargain upon request with the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in
connection with the operations of Respondent described in Section I, above,
have a close, intimate,. and substantial, relation to trade, traffic, and commerce
among the several States and tend to lead: to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain
affirmative actions designed to effectuate the policies of the.Act.
It having been found that Respondent refused to bargain collectively with.
Retail- Clerks International Association, Local Union 368, AFL, it will be recom-
mended that Respondent, upon request, bargain collectively with said Union;
and its having been found that Respondent has engaged in certain acts of inter-
ference, restraint, and coercion, it will be recommended that Respondent cease
therefrom.
The violations of the Act which Respondent committed are, in the opinion of
the undersigned, persuasively related to other unfair labor practices proscribed
by the Act and the danger of their commission in the future is to be anticipated
from Respondent's conduct in the past. The preventive purposes of the Act will
be thwarted unless the order is coextensive with the threat. In order, therefore,
to make more effective the interdependent guarantees of Section 7, to prevent
a recurrence of unfair labor practices and thereby minimize the industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the
Act, it will be recommended that Respondent cease and desist from infringing
in any manner 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:
- CONCLUSIONS OF LAw
1. Retail Clerks International Association, Local Union,368, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All grocery clerks and checkers, including bakery and drug clerks of
Respondent employed at its Dallas, Texas, retail stores, exclusive of all office and
clerical employees, all meat market employees, all warehouse employees, guards
and watchmen, professional employees, and all supervisory employees as defined
in the. Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
PHILADELPHIA ELECTRIC ' 'COMPANY 71
3. At all times since May. 19 , 1949, the Union has been and now is the exclusive
:representative of all the employees in the aforesaid unit for the purposes of col-
lective bargaining within the meaning of Section 9 ( a) of the Act.
4. By failing and refusing at all times since May 19, 1949, to bargain . collec-
tively with Retail Clerks International Association , Local Union 368 ; AFL, as
the exclusive representative of the employees in the aforesaid unit, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of.
Section 8 ( a) (5)'of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
-the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act. .
[Recommended order omitted from publication in this volume.]
PHILADELPHIA. ELECTRIC 'COMPANY,- PETITIONER and LOCAL No. 1184,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A: :F. OF L.
Case No. 4=BM-84. July 10, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act; a hearing was held before Barney Donovan,,hearing
'officer. The hearing officer's rulings made at the hearing are free from
prejudicial error. and are hereby affirmed.
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 [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the:Employer.
3. The quest-ion concerning representation :
The Employer and the Union have had contractual relations for 8
years. The last contract between the parties, which expired on April
2, 1951, contained an authorized union-security clause. When the
Union, on January 26, 1951, requested that the Employer. negotiate
a new contract,'the Employer refused and filed the petition herein.
The Union contends that as all employees of the Employer had to
be members of the Union under the union-security contract when the
petition was filed, the Board does not have reasonable grounds to
believe that a question concerning representation exists as. required
by Section 9 (c) of the Act, and, therefore, the petition should be dis-
95 NLRB No. 25.