Witbeck's IGA Supermarket

National Labor Relations Board - Board Decisions

Oct 6, 1965

155 N.L.R.B. 40 (N.L.R.B. 1965)

40 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
cient community of interest with the journeymen electricians to war-
rant ., his inclusion in the unit. Accordingly, we hereby overrule the,
challenge to his ballot and shall direct that it be opened and counted.
[The Board directed that the Regional Director for Region 18 shall,
within 10 days from the date of this Direction, open and count the
ballot' of Wayne Kanten and serve upon the parties a revised tally of
ballots.]
Marvin A. Witbeck d/b/a Witbeck's IGA Supermarket and Retail
Store Employees Union , Local No. 11, Retail Clerks Interna-
tional Association , AFL-CIO. Case No. 7-CA-4972. October 6,,
1965
DECISION AND ORDER
On June 8, 1965, Trial Examiner C. W. Whittemore issued his Deci-
sion 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 attached Trial Examiner's Deci-
sion . The Respondent filed exceptions to the Decision and a supporting
brief. The General Counsel filed a motion to strike the Respondent's
exceptions and brief. However, the Executive Secretary informed the
General Counsel that the National Labor Relations Board would not
rule on the motion at that time and granted an extension for receipt of
cross-exceptions and/or answering- brief.' Thereafter, the General
Counsel filed cross-exceptions and a brief in opposition to the Respond-
ent's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions, briefs, and
motion, and the entire record in this case, and hereby adopts the find-
ings, conclusions,2 and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
1 The General Counsel's motion to strike the exceptions and brief is denied.
Owe adopt the Trial Examiner 's conclusion that Respondent violated Section 8(a)(5)
because, we find, Respondent ' s refusal to recognize the Union and to check the authori-
zation cards submitted by the Union was motivated by bad faith , as evidenced by -the un-
fair labor practices committed by Respondent both before and after the Union made its
claim for recognition.
155 NLRB No. 14.
WITBECK'S IGA SUPERMARKET 41
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon an original and an amended charge in Case No. 7-CA-4972, filed respec-
tively on December 14 and 21, 1964, by the above-named labor organization, and
upon an investigation following timely objections to an election filed by the Union
in Case No. 7-RC-6523, the General Counsel of the National Labor Relations Board
on March 10, 1965, issued a complaint, an order consolidating the cases for hearing,
and a notice of a consolidated hearing. Thereafter the Respondent filed an answer
to the complaint. The complaint alleges and the answer denies that the Respondent
has engaged in and is engaging in unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. The one
issue raised in the objections to the election which is submitted herein for considera-
tion is also one of the chief issues raised in the complaint. the alleged unlawful dis-
missal of one employee. Pursuant to notice, a hearing was held in Mount Pleasant,
Michigan, on May 5, 1965, before Trial Examiner C. W. Whittemore
At the hearing all parties were represented and were afforded full opportunity t a
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from General Counsel and the Respondent.
Upon the record thus made and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Marvin A. Witbeck, the Respondent, is an individual proprietor doing business
under the trade name and style of Witbeck's IGA Supermarket, with office and place
of business in Clare, Michigan. It is engaged in the retail sale of groceries, produce,
meat, and related products.
During the year 1964 it derived gross revenues from its business operations of
more than $500,000. During the same period it purchased and received at its Clare
market, indirectly from points outside the State of Michigan, goods and materials
valued at more than $50,000.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
Retail Store Employees Union, Local No. 11, Retail Clerks International Associa-
tion, AFL-CIO, is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
All of the conduct involved herein as alleged unfair labor practices was on the
part of Marvin Witbeck, the proprietor, and began shortly after he learned, upon
his own admitted inquiries among his employees, that they were seeking bargaining
representation through the Charging Union.
As a witness Witbeck admitted, in effect, that he opposed such organizational
efforts and endeavored to dissuade employees from engaging in them. The broad
question is whether he exceeded the privilege of mere persuasion.
It is General Counsel's contention that he went far beyond the limits of permissible
persuasion by a course of interrogation and implied threats, by laying off and
discharging one employee, and by refusing to recognize and bargain with the Union
upon the latter's demand and offer to permit check of authorization cards and
although he had no doubt that the Union in fact possessed majority status.
As noted, the Respondent's answer denies the commission of any unlawful acts.
It does, however, admit the facts of the layoff and discharge and of the refusal
to bargain.
B. Interference, restraint, and coercion
Between September 14 and 22, 1964, Union Representatives Clark and Kuberski,
separately or together, visited employees at their homes and obtained signatures to
nine cards designating the Union as bargaining agent.
Witbeck apparently learned of this activity and began interrogation of his employ-
ees individually. Findings as to the following incidents rest upon the employees'
credible testimony which, in the main, was conceded by Witbeck to be the truth or
was not specifically denied.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) About September 15 Witbeck asked employee O'Dell if a union representative
had been to see him and if he had signed a card. He told the employee he "would
just as soon" he did not sign a card, "because it would cause a lot of trouble." About
2 weeks later Witbeck approached the same employee in the store and repeated
both the inquiry and the admonition.
(2) Also on September 15 Witbeck told employee Allen that "some union guys"
were coming around to see employees, and he would "appreciate it" if they would not
sign anything. Allen replied that he knew nothing about it. A week later Witbeck
again came to Allen and asked if the "union guys" had been to see him, and Allen
admitted that they had.
(3) About September 17 Witbeck asked cashier Mellin if she was "for or
against" the Union. She replied that she did not think she was obliged to tell him.
After admitting that fact, Witbeck inquired as to what complaints she had. She
mentioned wages. He then asked her why she had not come to him directly, instead
of seeking help. Some 2 weeks later he told her not to "do any talking about [the]
union around the store," and said he "didn't want anyone to talk union in the store."
There is no evidence that there was in existence any rule against talking about any
other subject. There is, however, considerable evidence that Witbeck, himself,
on many occasions approached employees in the store and asked them questions
concerning their union activity or adherence.
(4) Also on September 17 Witbeck asked stock clerk Cooper if the "union" man
had been to see him and if he had signed a card. Employee Ruby was also asked
if he had similarly been approached.
(5) During the same period Witbeck also approached employees Peltier and Cook
with similar questions as to whether they had been visited by union representatives.
Most if not all of Witbeck's above-described interrogation occurred before the
Union claimed majority representation status 1 and therefore cannot be condoned
as permissive inquiry to check a claim already made. When appraised in the con-
text of the outright refusal to bargain and the discharge, both described below,
Witbeck's course of interrogation, prohibition of any talk regarding the Union on
the premises by anyone except himself, and his threat of "trouble" was clearly
designed to discourage union activity and, in my opinion, constituted interference
with, restraint of, and coercion of employees in the exercise of rights guaranteed by
Section 7 of the Act.
C. The discharge of Eileen Hills
Hills was employed late in July 1964 to run a doughnut machine and a baking
machine and to bake pies, all for sale in the store She took over this work from
Witbeck's sister-in -law. Hills worked 1 full week without pay, learning the opera-
tion The second week she was complimented by Witbeck for setting a record in
selling doughnuts.
On September 17 union representatives visited the Hills home and she signed an
authorization card.
Two days later, on September 19, it is undisputed that Witbeck told her, upon
giving her her pay envelope, that he was letting her go because if the Union "got in"
he could not keep the doughnut machine open. It is also undisputed that he replied
in the affirmative when asked if he was satisfied with her work. She then inquired
if she could not be permitted to work part time, since she was putting a son through
college. He suggested that she get in touch with him the following week and, it is
undisputed, told her that if the Union did not get in she could have her job back.
On Monday, September 21, Hills reported to the two union representatives that
she had been fired. The next day, as described more fully in the next section, the
two representatives visited Witbeck with a demand for recognition. On the same
occasion they asked the owner to reinstate Hills
The next day Witbeck called Hills and asked her to come back to work, but only
for the last 3 days of each week. She continued such half-time work until Novem-
ber 14, just before a Board-conducted election was held. He gave her no reason
for dismissing her that day, but merely told her that if they opened up the doughnut
machine in the spring she could have the job.
Since, as above noted, it is undisputed that at the time of her first discharge Witbeck
not only told Hills he was satisfied with her work but also said the action was because
of the Union. and because as a witness he admitted having informed a Board agent,
in December 1964, that he had told her he was "discontinuing the operation" until
he saw "how the Union comes out," it appears hardly necessary to analyze in detail
'As found below, the Union first claimed to represent a majority on September 22
WITBECK'S IGA SUPERMARKET 43
his belated and confused efforts, as a witness, to make it appear that he actually
had some reason for the discharge other than what he told both the employee
and the Board agent.
As a witness Witbeck said that he "decided to quit the operation" the last week
Hills worked because her doughnuts were "greasy . .. and the bread was hard."
That neither the doughnuts nor the bread were up to previous standards may very
well have been the case, but if so the fault clearly may not reasonably be attributed
to Hills, but to Witbeck, himself. It is undisputed that when the employee was per-
mitted briefly to return to work, although part time, Witbeck prevented her from
using the mix previously used, and provided her with materials which she protested
to him were inferior. Then, also as a witness, Witbeck strove, with the aid of
records which he finally admitted he had prepared himself, to have it believed that
while she worked there Hills had "falsified" her reports of the number of doughnuts
made. At last he conceded that he had no original records to support his claim.
I am unable to believe any part of this belated effort to blacken Hills' record and
reputation.
It is concluded and found that Hills was laid off, put on half time, and finally
discharged to discourage union membership and activity, and that thereby the
Respondent interfered with, restrained, and coerced employees in the exercise of
rights guaranteed by the Act.
D. The refusal to bargain
Between September 14 and 22, inclusive, 9 employees in an appropriate unit of
14 employees signed cards authorizing the Union to represent them for purposes of
collective bargaining. All nine cards are in evidence, properly identified. The
Respondent vaguely objected to the introduction of three such cards, claiming that
they did not represent the "wishes of the people that signed" them. Although
invited to present any affirmative evidence to support this claim, the Respondent
failed to adduce any.
It is therefore concluded and found that on September 22, 1964, and at all times
since then , the Union has been the exclusive representative of all employees in an
appropriate unit consisting of all regular full-time and part-time employees at the
Respondent's Clare, Michigan, store, including meat department employees, but
excluding the store manager, confidential employees, guards, and supervisors as
defined in the Act.
On September 22 the two union representatives met with Witbeck at his store,
claimed majority representation, and asked for recognition. They placed the cards
on a table before Witbeck and offered to have him select any disinterested person
he wished to check the authenticity of the cards. Witbeck refused both the demand
to recognize and the offer to have the cards checked, but made no claim that he
doubted the majority claim.
About a week later the same union representatives met with Witbeck and one
Worrall, apparently a labor relations consultant representing the employer. The
demand and the offer to prove majority were repeated. The refusal was repeated.
The Union thereafter filed a petition in Case No. 7-CA-6523. A consent election
was held on November 18, 1964. The Union lost the election. Timely objections
were filed by the Union. In his report on these objections, issued concurrent with
the complaint, the Acting Regional Director overruled all objections 2 except that
involving the discharge of Hills.
I conclude and find that the Respondent since September 22, 1964, has refused
and is continuing to refuse to bargain with the Union as the exclusive representative
of all employees in the above-described appropriate unit, and thereby has interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
2It appears that, consistent with Board policy, objections based upon conduct found
above to have been violative of Section 8(a) (1) were overruled not upon the merits, but
merely because such conduct occurred before a petition was filed.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices I will
recommend that it cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
I will recommend that the Respondent offer employee Hills immediate and full
reinstatement to her former or substantially equivalent position, without prejudice
to her seniority or other rights and privileges, and make her whole for any loss of
earnings she may have suffered by reason of the discrimination against her, by pay-
ment to her of a sum of money equal to that which she normally would have earned
from the date of the discrimination to the date of offer of reinstatement, less net
earnings during said period, and in a manner prescribed by the Board in F. W. Wool-
worth Company, 90 NLRB 289, and with interest on the backpay due in accordance
with Board policy set out in Isis Plumbing & Heating Co, 138 NLRB 716
I will also recommend that, upon request, the Respondent bargain collectively and
in good faith with the Charging Union and, if an understanding is reached, embody
such understanding in a signed agreement.
In view of the serious and extended nature of the Respondent's unfair labor prac-
tices I will recommend that it cease and desist from infringing in any manner upon
the rights of employees guaranteed by Section 7 of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Retail Store Employees Union, Local No. 11, Retail Clerks International Asso-
ciation, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discriminating against employee Hills, as described herein, to discourage
membership in and activity on behalf of the above-named labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
3. All regular full-time and part-time employees of the Respondent at its Clare,
Michigan, store, including meat department employees, but excluding the store
manager, confidential employees, guards, and supervisors 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.
4. By virtue of Section 9(a) of the Act the above-named labor organization has
been since September 22, 1964, and now is, the exclusive bargaining representative
of all employees in the above-described appropriate unit
5. By failing and refusing to bargain with the said labor organization on and
after September 22, 1964, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) of the Act.
6 By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that the Respondent, Marvin A. Witbeck d/b/a
Witbeck's IGA Supermarket, his agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of Retail Store Employ-
ees Union, Local No. 11, Retail Clerks International Association, AFL-CIO, or
any other labor organization, by discharging, laying off, refusing to reinstate, or in
any other manner discriminating against employees in regard to hire or tenure of
employment, or any term or condition of employment.
(b) Refusing to bargain with the above-named labor organization
(c) Interrogating employees as to their union activities in violation of Section
8(a)(1) of the Act.
(d) Threatening employees with reprisals to discourage union membership and
activity.
(e) Promulgating or enforcing any rule against talking on company premises
when the single subject proscribed relates to a union.
WITBECK'S IGA SUPERMARKET 45
(f) In any other manner interfering with, restraining , or coercing employees in
the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to employee Hills, and make her
whole for any loss of pay suffered by reason of the unlawful discrimination against
her in the manner set forth above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay due.
(c) Upon request, bargain collectively with Retail Store Employees Union, Local
No. 11, Retail Clerks International Association, AFL-CIO, as the exclusive repre-
sentative of all employees at its Clare, Michigan, store in the appropriate unit
described herein, with respect to wages, hours, grievances, or other terms and condi-
tions of employment and, if an understanding is reached, embody such understanding
in a signed agreement.
(d) Post at its store in Clare, Michigan, copies of the attached notice marked
"Appendix." 3 Copies of said notice, to be furnished by the Regional Director for
Region 7, shall, after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained for a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision, what steps have been taken to
comply herewith.4
Finally, pursuant to the aforesaid order consolidating cases, Case No. 7-RC-6523
is hereby ordered severed and transferred to the Acting Regional Director for
Region 7.
s In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and
Order "
' In the event that this Recommended Order be adopted by the Board , this provision
shall read: "Notify the said Regional Director, in writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT unlawfully discourage you from being members of Retail Store
Employees Union, Local No. 11, Retail Clerks International Association,
AFL-CIO, or any other union.
WE WILL NOT threaten you with reprisals to discourage you from joining any
union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in any
union activities.
WE WILL offer reinstatement to Eileen Hills, and give her backpay.
WE WILL, upon request, bargain collectively with the Union named above
and, if an understanding is reached, sign an agreement covering such under-
standing. The unit represented by this Union is all our Clare, Michigan, regular
full-time and part-time employees, including meat department employees, but
excluding the store manager, confidential employees, guards, and supervisors
as defined by the Act.
MARVIN A. WITBECK D/B/A WITBECK'S IGA SUPERMARKET,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
46 DECISIONS OF NAT16NAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard , Detroit, Michigan, Telephone No.
226-3244.
The American Oil Company 1 and Research and Engineering
Professional Employees Association , Petitioner. Case No. 13-
R-2035. October 6,1965
SUPPLEMENTAL DECISION, ORDER, AND
CLARIFICATION OF CERTIFICATION
On March 1, 1944, the Regional Director for Region 13 issued a
report on cross-check in the above-entitled proceeding, finding and
determining that the Petitioner had been selected as the bargaining
representative of the professional employees in the research depart-
ment, engineering department, and conservation department of the
Utilities Division at the Whiting, Indiana, refinery of Standard Oil
Company (Indiana). On November 17, 1958, the Regional Director
issued a certification of representative in Case No. 13-RC-6206,
certifying the Petitioner as the bargaining representative of the pro-
fessional employees in the engineering sections of the supply and
transportation department and general manager sales -operations en-
gineering department, at Standard Oil Company's (Indiana) general
office, Chicago, Illinois.
On December 17, 1963, Research and Engineering Professional
Employees Association, herein called Petitioner, filed a motion to,
clarify the bargaining unit, alleging that the employees involved in
Case No. 13-RC-6206 were incorporated in the prior established unit,
and that differences have arisen between the Petitioner and the Em-
ployer with respect to "the supervisory status of certain employees,
both as to their designation as supervisory and as to their retention in
supervisory status while no longer performing supervisory functions."
In its motion, the Petitioner requested the Board to designate the "com-
ponent inclusions and exclusions." On January 28,1964, the Employer
filed its answer, requesting the Board to conduct a hearing for the
purpose of ascertaining the facts bearing on the issues involved.
On February 26, 1964, the Board issued an order referring the mat-
ter to the Regional Director for Region 13 and directing that a hearing
be held for the purpose of taking testimony on the issues raised by the
motion. A hearing was held March 12,13, and 20,1964, before Hearing
i Name as amended at the hearing.
155 NLRB No. 3.