Price Crusher Food Warehouse

PRICE CRUSHER FOOD WAREHOUSE 433 P. C. Foods, Inc., d/b/a Price Crusher Food Ware- house and Retail Store Employees Union, Local 655 Chartered by United Food and Commercial Workers Union, AFL-CIO, CLC, and Congress of Independent Unions, Party to the Contract Congress of Independent Unions and Retail Store Employees Union, Local 655 Chartered by United Food and Commercial Workers Union, AFL-CIO, CLC. Cases 14-CA-12877 and 14- CB-4642 May 9, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On January 21, 1980, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, Respondent P. C. Foods, Inc., d/b/a Price Crusher Food Warehouse filed exceptions and a supporting 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 brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that Respondent P. Respondent P. C. Foods, Inc., d/b/a Price Crusher Food Warehouse has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an admin- istrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings 2 Unlike the instant case, Gottfried Baking Company, Inc., 103 NLRB 227 (1953) enfd. in relevant part 210 F.2d 772 (2d Cir. 1954), relied upon by the Administrative Law Judge, did not involve an attempted deletion of an unlawful union-security clause from a contract. However, the dele- tion here occurred almost 2 months after the execution of the contract and only after the issuance of the complaint alleging that the contract contained an unlawful union-security provision. Consequently, we agree with the Administrative Law Judge's conclusion that the execution of the contract containing the offending provision violated Secs. 8(a)(3) and (I) and 8(b)(1)(A) and (2) of the Act. Under these circumstances, we find it unnecessary to reach the question of under what circumstances, if any, an expeditious deletion of an unlawful union-security clause would vitiate the detrimental effect of executing a contract containing such a provision. 3 We shall modify the Administrative Law Judge's recommended Order to include certain provisions customarily used by the Board in cases of this kind. 249 NLRB No. 60 C. Foods, Inc., d/b/a Price Crusher Food Ware- house, Ballwin, Missouri, its officers, agents, suc- cessors, and assigns, and Respondent Congress of Independent Unions, Alton, Illinois, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following paragraphs for para- graphs A,(a) and (b), respectively: "(a) Recognizing Congress of Independent Unions as the exclusive representative of its em- ployees for the purpose of collective bargaining, unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such em- ployees. "(b) Giving effect to its collective-bargaining contract with Congress of Independent Unions dated July 20, 1979, or any renewal, extension, or modification thereof; provided, however, that noth- ing in this Order shall authorize or require the withdrawal or elimination of any wage increase or other benefits, terms, and conditions of employ- ment which may have been established pursuant to the performance of said contract." 2. Insert the following as paragraph A,2(a), and reletter the subsequent paragraphs accordingly: "(a) Withdraw and withhold all recognition from Congress of Independent Unions as the exclusive representative of its employees for the purpose of collective bargaining, unless and until said labor or- ganization has been duly certified by the National Labor Relations Board as the exclusive representa- tive of such employees." 3. Substitute the attached Appendix A for that of the Administrative Law Judge. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing at which all parties had an op- portunity to present evidence and cross-examine witnesses, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act, as amended, and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT recognize Congress of Inde- pendent Unions (CIU) as the exclusive collec- tive-bargaining representative of our employ- ees, unless and until CIU has been duly certi- fied by the National Labor Relations Board as the exclusive representative of such employees. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT give effect to our collective- bargaining contract with CIU dated July 20, 1979, or any renewal, extension, or modifica- tion thereof, but we are not authorized or re- quired to withdraw or eliminate any wage rates or other benefits, terms, and conditions of employment which we have given to our em- ployees under said contract. WE WILL NOT assist CIU by soliciting au- thorization cards on its behalf from our em- ployees, or by granting access to our premises for the purpose of solicitation and conduct of meetings by CIU, and refusing to accord simi- lar access to Retail Store Employees Local 655. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL withdraw and withhold all recog- nition from CIU as the exclusive representa- tive of our employees for the purpose of col- lective bargaining, unless and until said labor organization has been duly certified by the Na- tional Labor Relations Board as the exclusive representative of such employees. P. C. FOODS, INC., D/B/A PRICE CRUSHER FOOD WAREHOUSE DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: This case was heard at St. Louis, Missouri, on October 15, 1979. The charges and amended charges were filed on August 14 and September 11, 1979, respectively, by Retail Store Employees Union, Local 655 chartered by United Food and Commercial Workers Union, AFL-CIO, CLC (herein Local 655). The consolidated complaint, which issued on September 19, 1979, alleges that P. C. Foods, Inc., d/b/a Price Crusher Food Warehouse (herein the Company), violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, and that Congress of Independent Unions (herein CIU), violated Section 8(b)(1)(A) and (2) of the Act. The gravamen of the complaint is that the Company allegedly gave CIU access to its employees on Company premises for organi- zational purposes, but denied such access to Local 655, and granted exclusive recognition to CIU as the repre- sentative of its employees, and agreed to a contract cov- ering those employees which contained a union-security clause, notwithstanding that CIU did not represent an uncoerced majority of the employees, and notwithstand- ing that the company did not then employ a representa- tive segment of its employee complement. The complaint further alleges that CIU violated the Act by accepting recognition and agreeing to the contract. The answers of the Company and CIU deny the commission of the al- leged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evi- dence, to argue orally, and to file briefs. General Coun- sel, the Company, and CIU each filed briefs. Upon the entire record in this case' and from my ob- servation of the demeanor of the witnesses, and having considered the briefs submitted by the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, a Missouri corporation, is engaged in the operation of a retail food market in Ballwin, Missou- ri, which is the facility involved in this case. The Com- pany meets the Board's retail and direct inflow com- merce standards, and is an employer engaged in com- merce within the meaning of the Act. 1I. THE LABOR ORGANIZATIONS INVOLVED Local 655 and CIU are each labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Until about May 1979,2 Local 655 represented the em- ployees of a retail food market known as Jansen's IGA, which was located at the same premises as the Compa- ny's present store. In May the store closed and the Com- pany subsequently occupied the premises for the purpose of opening a new store. The Company was actually formed as a corporate entity on July 20. Its principals were and are its president, Susan Pechacek (also known as Sue Cook), and its secretary, Jack Cook. In June the premises were being renovated in preparation for the store's opening. CIU represented the employees of a con- struction subcontractor. CIU National Executive Vice President Clark Libhart (CIU's No. 2 official) met Jack Cook at the store's premises. In the course of a conversa- tion, Libhart made known to Cook that his union also represented employees in the food industry. In the mean- time, Local 655, and specifically Director of Organizing Robert Littleken, was monitoring developments at the new store. The store opened for business on Sunday, July 29; however, Pechacek and Cook began hiring em- ployees on July 5. Two office personnel were hired on that date, and eight more employees were hired on July 13. The Company projected a full complement of about 45 employees. As of July 28, the day before the store opened for business, the Company had a complement of 43 employees. Thereafter, the complement remained at or about the same level until September, when it in- creased to a level of about 55 employees. Most of the employees work on a part-time basis, and a substantial number are high school students. I General Counsel's unopposed motion to correct the official transcript is hereby granted. The errors in the transcript have been noted and cor- rected accordingly. 2 All dates herein are in 1979 unless otherwise indicated. PRICE CRUSHER FOOD WAREHOUSE 435 On July 13, when the Company had 10 employees, Jack Cook assembled the employees (9 of whom were present) on store premises during working time, and in- troduced them to Clark Libhart. Libhart talked to the employees about CIU, and asked them to take a vote.3 Libhart and Cook then left the employees, who by a vote of show of hands decided to join CIU. They in- formed Libhart and the owners (Cook and Pechacek) of their decision, and Libhart handed out CIU application for membership cards. All nine employees present signed cards and turned them in to Libhart.4 On Monday, July 16, Libhart sent a letter to Cook, stating as follows: As a Representative of the Congress of Independ- ent Unions, I have met with your employees and I have in my possession application for membership cards from the majority of them. We therefore request you to recognize the CIU as the sole and exclusive bargaining agent for all of your employees. On July 19, at the store, Susan Pechacek handed Libhart a written response, in letter form, to Libhart's request for recognition. The letter stated as follows: We have received your letter of July 16, 1979 re- questing recognition as the bargaining agent for our employees. We would appreciate meeting with you at your earliest convenience to discuss your representation of our employees. [Emphasis supplied.] Pechacek and Libhart testified that they said nothing at the time. At no time did the Company either question CIU's alleged majority status, or ask that CIU prove such status. As indicated, the Company was already aware that as of July 13, most of its employees had signed CIU cards. In these circumstances, the plain meaning of the Company's letter and specifically the ref- erence to "your representation of our employees" was that the Company acknowledge CIU as the representa- tive of its employees. I find incredible Libhart's testimo- ny that without saying anything to Pechacek or Cook, he simply assumed that the letter did not constitute rec- ognition, and thereupon decided not to pursue the matter. It is almost inconceivable that a union representa- tive, in the process of requesting recognition, would simply ignore an employer's invitation to meet promptly in order to discuss its representation of the employer's employees. At the least, if Libhart had any question as to the meaning of the letter, it is probable that he would have inquired further. However, he did not do so.5 I 1 find it unnecessary to determine whether, as testified by Cook and Libhart, Cook found Libhart already talking to some employees, or whether as argued by General Counsel, I should infer that Cook invited Libhart to the store. I credit the testimony of employee Teresa Cham- plain that Cook remained while Libhart spoke, but said nothing after he introduced Libhart. 4 The card of one employee, Pat Dolan, was undated. However, I credit the uncontroverted testimony of Libhart that Dolan signed her card on July 13 a The questionable validity of Libhart's alleged subjective reaction to the Company's letter is further evidenced by his testimony concerning events which took place on July 28 Libhart testified that after obtaining more signed cards, he believed that the had a majority and approached Moreover, the fact of recognition on July 19, if not earli- er is further confirmed by the fact, which will be dis- cussed, that on July 20 the Company and CIU executed a collective-bargaining contract containing a union-secu- rity clause, and consisting of terms which amounted to little more than a confirmation of existing conditions and an accommodation to the Company's needs. The fact of recognition on July 19, or earlier, is further evidenced by an admission in the Company's answer to the complaint. The Company's answer (but not CIU's answer) avers that "exclusive representative status was granted . . . on or about July 28," but that "for the period July 13 through July 28 [the Company] recognized [CIU] only as the representative of certain of its employees who had delegated bargaining rights to [CIU] and not as the ex- clusive representative of all of the [Company's] employ- ees." No evidence was adduced to demonstrate that such an alleged members' only recognition ever took place. The answer may be deemed as an admission that some form of recognition of CIU took place on July 13, or to- gether with other evidence adduced at the hearing, that the Company and CIU were simply shifting about from one defense to another in an effort to locate some vague- ly defined time for recognition which might be relatively immune from legal attack. On July 26, Local 655's organizer, Littleken, came to the store and informed Jack Cook that he would try to organize the store. Littleken testified that Cook told him that he already had a contract with a union. According to Littleken he facetiously said that "we are the only union in town," whereupon Cook replied that he had a signed contract with CIU. Littleken said that he would see Cook, and left. Cook, in his testimony, denied telling Littleken that he signed a contract with a union. Cook testified that Littleken asked what his feelings were toward unions, and Cook answered that he "didn't ever have any problems withs with unions and there was probably one in the store right now." I credit Littleken because, as will be discussed, the Company had in fact already signed a contract with CIU. On July 27, the Company posted a notice and in- formed its employees to the effect that there would be a special meeting for all employees the next day. On July 28, the day before the store opened for business, Cook and Pechacek assembled the employees at the back of the store. As of this date the Company had 43 employ- ees, exclusive of supervisory personnel, and nearly all of them were present at the meeting. Pechacek reviewed the Company's procedures and gave some last minute training. Cook made a few remarks, and then, as on July 13, introduced Clark Libhart, without indicating that the employees' continued presence at the meeting was any- thing less than mandatory. Pechacek and Cook walked away. Libhart again spoke to the employees about CIU, and he asked them to sign membership applications and Jack Cook, but that Cook said he was busy and would see Libhart later. Libhart testified that he took this remark to constitute recognition be- cause of the "reflection in [Cook's] voice and attitude toward me." In sum, Libhart would have me believe that he was convinced that Pecha- cek's letter concerning "your representation," did not constitute recogni- tion, but was equally convinced that Cook's "see you later" did consti- tute initial recognition. I do not believe Libhart 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD checkoff authorizations. Libhart told the employees that they could turn in their signed cards at the office, i.e., the Company's office. When Libhart finished speaking, Pechacek and office employee Mary Ann Spickler re- turned to the meeting. Pechacek asked employees to sign cards for CIU, and told them that CIU representation was for the protection of the store as well as the employ- ees. Spickler collected the cards which were turned in at the meeting, and gave them to Libhart. However, at least one employee subsequently turned in a signed card to Susan Pechacek. The evidence fails to indicate that either CIU or the Company informed the employees that they were required to join CIU, or for that matter, that the Company recognized CIU or that there was a con- tract in effect between them.6 Libhart testified that as of July 28, he believed that he had signed cards from a majority of the employees and that he had recognition. In fact, even apart from the question of unlawful assistance, CIU did not have signed cards from a majority of the employees until at least the next day. Libhart testified, in sum, that he obtained 9 cards at the July 14 meeting and 13 additional cards (all dated July 28) at the July 28 meeting, for a total of 22 cards from the 43 employees then in the unit. However, employee Debbie Diel, who signed one of the cards dated July 28, testified that she did not then turn in the card. Instead she took the card home, asked her father's advice and turned in the card to Susan Pechacek "a few days later." Therefore, the card cannot be counted as of July 28. Multi-National Food Service, Division of Schwan's Sales Enterprises, Inc., 238 NLRB 1031 (1978). Six addi- tonal cards, dated respectively July 29, 30, and 31 and August 1, 2, and 3, were also introduced in evidence.7 However, Jack Cook testified that there was no contact between him and Libhart until August 3. In the mean- time, on July 28, Local 655 commenced organizational activity at the store. Litteken and two other organizers waited in the store parking lot and talked to employees as they left the store after the meeting. On July 30, Litte- ken came to the store and verbally made certain de- mands of Cook. Cook asked Litteken to put the demands in writing, and stated that Litteken would probably re- ' The foregoing findings concerning the meeting are based on the credited testimony of employees Steve Wunderlich, Michael Deckert, and Deborah Diel, all of whom were still employed by the Company at the time of this hearing. Spickler, a Company witness, was present at the July 13 meeting, and before and after Libhart spoke at the July 28 meet- ing. Spickler testified that she did bookkeeping and general office man- agement work, and substituted as a checker when needed. Spickler testi- fied that she sometimes "supervises" checkers, meaning that she makes sure that they do their jobs properly and have everything that they need Spickler further testified that she "supposeldl" that she had power to chew them out, that she could let employees leave early if they were sick, or for other reasons if Pechacek were not present, but that Pecha- cek was nearly always at the store. Spickler testified that she had no au- thority to hire or fire employees, never recommended a discharge, and did not normally check to see if employees were able to do their work. Spickler punches a timecard, and her rate of pay is that of a checker. No party contends that she is a supervisor. I find that the evidence is insuffi- cient to indicate that she is a supervisor within the meaning of the Act, although at least in the eyes of the employees she was closely associated with management. I Libhart testified that the cards dated July 30 and 31 and August 3 were in his possession by August 5 or 6, but that he was not sure wheth- er he had received the cards dated August 1 and 2. ceive a reply from the Company's attorney. By letter dated July 31, Litteken confirmed the demands, which were set forth as follows: 1. We demand complete and total access to all selling and nonselling areas at your store. 2. We demand a complete and accurate list of all employees employed by you including their address and phone number. 3. We demand at least two (2) meetings within your store with all of the employees employed by you. 4. We demand that you inform all of your em- ployes that they have a choice as to which Union represents them. By letter dated August 9, company counsel replied to Litteken as follows: We have been retained to represent Price Crusher Food Warehouse. That company has for- warded your letter of July 31, 1979 to us for reply. Our client informs us that members of your orga- nization have been interfering with its employees during their working time, both inside and outside the store. In view of these circumstances, we are declining to accede to your demands and we ask that you refrain from soliciting employees on the company's premises or distributing any literature on the company's premises, including its parking lots, at any time. Organizer Litteken testified that until he received the Company counsel's letter the union organizers continued to engage in organizational activity on the Company's parking lot, and would enter the store for the purpose of identifying personnel. Litteken testified that after receiv- ing the letter, the organizers occasionally came into the store, but ceased talking to employees in the store or on the lot, and instead made house calls. Cook and Pecha- cek testified in sum that they continued to observe orga- nizers on the parking lot or in the store, sometimes talk- ing to employees. However, they did not indicate that the organizers engaged in solicitation or distribution on Company premises after receiving the August 9 letter. I find that Local 655 continued to maintain contact with employees on the Company's premises after August 9, but that Local 655 honored the Company's request that it refrain from soliciting employees or distributing litera- ture on company premises. It is undisputed that follow- ing the letter, the Company never requested or ordered any organizer to leave its premises.8 Libhart testified that later in the week following the July 28 meeting, i.e., in early August, he told Cook that he was ready to negotiate, and that Cook told him a pre- pare a draft and then they could negotiate. Libhart testi- fied that he could not recall any discussion of CIU's ma- jority status at that time. However, Cook testified that on August 3, Libhart claimed to have a majority of 8 Litteken testified that about the time the store opened, Cook told the organizers to get off the parking lot. However, it appeared that Cook simply lost his temper, and they continued to go on the lot to talk to employees. PRICE CRUSHER FOOD WAREHOUSE 437 cards, and that he and Pechacek counted the cards which Libhart turned over to them. Cook's testimony was not corroborated by Pechacek, who said nothing about any card count in her testimony, nor did Libhart testify that he turned over the cards to the Company. Libhart testified that he and Cook negotiated from August 5 or 6 until January 15, and that "it was not easy." Just what they negotiated about was never made clear. The contract provided for a starting wage at the legal minimum wage rate of $93.10 per hour, with an in- crease of 10 cents per hour after 30 days. Libhart con- ceded that the wage rate involved no concessions to CIU. The contract provided for a 7-year duration, with annual increases of 20 cents per hour, and no provision for cost-of-living increases. The 7-year duration was an accommodation to the Company, because Cook wanted the contract term to coincide with the Company's fi- nancing arrangements; i.e., so that the Company would be assured of a suitably low wage rate while it paid off its loan. Libhart admitted that he did not argue about the matter. Cook testified that on August 15, they talked about part-time classifications, the number of holidays, and "termination agreements," but that such talk did not result in any changes in the contract, which had already been agreed on. The contract document, which was stip- ulated in evidence, bears no sign of a struggle. Rather, the text is completely typed except for blank spaces for the name and address of the employer, date of contract, location of the store, and the effective dates of the con- tract, which were filled in by handwriting. The job clas- sifications in the attached wage schedule do not even correspond to those used by the Company. As indicated, there was no dispute between the parties over the dura- tion of the contract. It is evident that whoever prepared this contract, it was not the product of anything but the most perfunctory negotiation, and that the parties simply signed the document and filled in the indicated blanks. Libhart, Cook, and Pechacek testified that Libhart and Pechacek signed the contract on August 15. Office em- ployee Spickler testified that she was present when the contract was signed on August 15. However, she testi- fied that she did not actually see the signing, because she was working on the books at the time. Moreover, in view of the close association with management, and her role in collecting authorization cards for CIU, I do not regard her as a substantially disinterested witness. The contract, which as indicated was stipulated in evidence, unambiguously purports to have been executed on July 20. The first page indicates that "this agreement" was en- tered into "this July 20, 1979," and the date was initialed by Pechacek and Libhart. The last page indicates that "this agreement shall be effective as of July 20, 1979" (with the dates initialed by Pechacek and Libhart), and closes with "witness our hands this 20th day of July," and is signed below by Pechacek and Libhart in their re- spective capacities. A space for "witness" is left blank. In a letter to Pechacek dated September 13, CIU National President Truman Davis referred to "[t]he contract signed by Mr. Clark Libhart on July 20, 1979 between [CIU] and your Company." 9 Pechacek and Cook testi- fied that with Libhart's acquiesence, they backdated the contract in order that employee wage progression might commence from July 20. This explanation makes no sense. The attached wage schedule expressly provides for progression from July 15. As indicated, the contract contains an effective date of July 20, and therefore, there was no legitimate reason why the parties could not indi- cate the actual date of execution, even if that date varied from the effective date of the contract. Moreover, Lib- hart admitted that he agreed that there would be no wage changes until the employees "had an opportunity to prove themselves." Thus, notwithstanding the con- tract, which provided for a wage increase after 30 days, Libhart agreed that the Company could decide when the employees would receive their increment. The contract purports to cover all of the employees at the Company's Ballwin store, excluding the owners, store manager, and other supervisory employees. The contract contains a union-security clause which provides as follows: It shall be a condition of employment that all of the employees covered by this Agreement who are members of the Union in good standing on the ef- fective date of this Agreement shall remain mem- bers in good standing and those who are not mem- bers of the Union on the effective date of this Agreement shall, on the 31st day following the ef- fective date of this Agreement, become and remain members in good standing in the Union. It shall be a condition of employment that all employees cov- ered by this Agreement and hired on or after its ef- fective date, shall on the 31st day following the be- ginning of such employment, become and remain members in good standing in the Union. The union-security clause was never enforced, in that no employees w re told that they had to join the Union as a condition of employment, and the Company never checked off initiation fees or dues as provided in the contract. The parties stipulated into evidence an amend- ment to the contract, undated but effective as of Septem- ber 17, and signed by Libhart and Pechacek. The amend- ment deleted the union security and checkoff provisions of the contract, and provided that: "Authorized repre- sentatives of [CIU] shall have only such access to the employer's store and premises, as the employer accords to representatives of other labor organizations." B. Concluding Findings I find that on July 13 or 19, the Company recognized CIU as the exclusive collective-bargaining representative of its employees, and that on July 20, the Company and CIU executed a collective-bargaining contract covering those employees, which contract contained a union-secu- rity clause and provision for employer checkoff of union dues and initiation fees. The latter finding is virtually mandated by the parol evidence rule, which is applicable ' 13 his letter, I)a is purported to cancel he contract because it had not beenl approed or authorized by him Pechacek testified hat ihharl told her to disregard the letter 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Board proceedings. The contract unambiguousi pur- ports to have been executed on July 20. "The Board has long held that it will not accept parol evidence to estab- lish modification of written agreements." Schorr Stern Food Corp., 227 NLRB 1650, 1653-64 (1977); Prestige Bedding Company, Inc., 212 NLRB 690, 700 (1974). Even if the parol evidence rule were not applicable, the un- equivocal dating of the contract, coupled with CIU President Davis' reference to the contract as having been signed on July 20, constitute admissions that the contract was in fact executed on that date. Moreover, as indicat- ed, additional evidence, including the lack of any credi- ble and legitimate reason for falsely dating the contract, further tends to indicate that the contract was executed on July 20. If recognition was granted on July 13, as indicated by the Company's answer to the complaint, then the recog- nition and consequent execution of a contract was un- lawful because: (I) the Company did not then employ a work force which was substantially representative of its anticipated complement of employees; and (2) CIU ob- tained employee authorization cards through unlawful as- sistance by the Employer. As of July 13, the Company had 10 employees, 8 of whom had been hired that same day. This comprised less than 25 percent of the work force with which the Company began operations on July 29, and less than one-sixth of its complement at the end of September. Therefore, the Company did not have a representative segment of its ultimate complement, and the recognition was unlawful. See Cowles Communica- tions, Inc., 170 NLRB 1596 (1968), and cases cited there- in. As was stated in Cowles, supra at 1610-11: The Board has consistently held with court ap- proval that where an employer recognizes a union as the exclusive bargaining representative of its em- ployees on the basis of a majority demonstrated by cards or a petition, as here, such recognition is inap- propriate and unlawful if it is granted before the employer has recruited a work force that can be considered substantially representative of his antici- pated complement of employees. The basis for the position is that otherwise a nonrepresentative initial working force would be permitted to designate the bargaining representative which would not be the choice of a majority of the electorate but of an un- typical minority. The majority of employees on whose behalf the union would eventually act as ex- clusive representative would have no voice in that important choice even though they would come under the bargaining responsibility of the union. The Board's policy against premature recognition is also a necessary corollary to the well-established proposition that an employer may not recognize or bargain with a union which has not demonstrated majority support within the unit it is seeking to rep- resent. [Citing International Ladies' Garment Work- ers' Union [Bernhard-Altmann Texas Corporation], 366 U.S. 731, 737 (1971).] Moreover, CIU obtained its putative majority through improper employee assistance. See Vernitron Electrical Components, Inc.. Beau Products Division, 221 NLRB 464, 465 (1975), enfd. 548 F.2d 24 (st Cir. 1977). Here, as in Vernitron, the Company summoned its employees to a meeting, and turned over the meeting to the recognized Union for the purpose of soliciting union membership. Here, as in Vernitron, there were no employer threats or promises, and (as of July 13) no other labor organization in the picture. However, as the Board pointedly found in Vernitron, "supervisors were present and observed the solicitation and execution of the Union's authorization cards . . . no neutral source was brought in to verify the card majority. [And] the instant recognition granted by Respondent [employer] prevented employees who might have felt pressured by the presence of their supervisors from having the opportunity to take subsequent action to either revoke their authorizations or bring another union into the organizational campaign."' 0 If, as indicated by Pechacek's hand-delivered letter to Libhart, the Company recognized CIU on July 19, then the recognition was unlawful not only for the above rea- sons, but also because CIU did not even have a de facto majority as of that date. Until the July 28 meeting, CIU had only the nine cards which it obtained at the July 13 meeting. However, as of July 19 the Company had a complement of 20 employees. If, as vaguely suggested by Libhart, recognition took place following the July 28 meeting, CIU still did not have a majority, because, as indicated, CIU had a maximum of 21 signed cards in the unit which then comprised 43 employees. Moreover, the card solicitation which occurred at and following the July 28 meeting took place in circumstances which (were even more coercive than those at the July 13 meeting. Once again (and concerned because Local 655 was now in the picture) the Company summoned its employees to a meeting on working time, and permitted Libhart to take over the meeting in order to solicit membership ap- plications. This time the Company actively encouraged employees to join CIU. The Company also permitted itself to be used as an agent for the receipt of authoriza- tion cards. See Vernitron, supra; and B.E.F.G. Gourmet Foods, Inc., 236 NLRB 489 (1978). Compare, Springfield Retirement Residence, a Division of Episcopal Community Services, Inc. and Whelan Food Services, Inc., 235 NLRB 884, 885 (1978). The Company did not directly inform the employees that they were required to join CIU. However, on July 26 Jack Cook told Local 655 organiz- er, Litteken, that he had signed a contract with CIU. The Company never informed the employees that they had any choice in the matter, but instead, created condi- 'o In Vernitron, the Board distinguished the two cases on which the Company now principally relies; namely, Coamo Knitting Mills, Inc., 150 NLRB 579 (1964); and Jolog Sportswear, Inc., and Jonathan Logan, Inc., 128 NLRB 886 (1960), affd. 290 F.2d 799 (4th Cir. 1961). The Board pointed out: "that in Jolog no supervisors or other management personnel were present when the authorization cards used in seeking recognition were executed; a card check was conducted by the representative of a governmental agency; recognition was not granted until I month after the union's meeting on company premises; and, during the interim, the employer issued statements assuring employees of their free choice and its neutrality. In Coamo, attendance at the union meeting was not com- pulsory; all but 5 of 170 employees at the meeting were on nonwork non- paid time; and no supervisor or other employer official was in a position to view the employees executing the authorizations." These factors also distinguish Jolog and Coamo from the present case. 439 PRICE CRUSHER FOOD WAREHOUSE tions in which the employees were led to believe that management expected them to sign cards for CIU, and that there was some need for them to do so promptly. In these circumstances, it is significant that many of the em- ployees were young and inexperienced in the working world. Additionally, although Local 655 has expressed an intention to conduct an organizational campaign among the employees, the Company refused to give Local 655 the same opportunity that it gave CIU to so- licit memberships on the store premises on working time and, indeed, informed Local 655 that it could not engage in such activity on the store permises or the parking lot at any time. The Company thereby further unlawfully as- sisted CIU. See Samuel Liefier and Harry Ostreicher, a Co- partnership, d/b/a River Manor ilealth Related Facility, 224 NLRB 227, 236 (1976), enfd. 562 F.2d 37 (2d Cir. 1977). In sum, the Company violated Section 8(a)(2) and (1) of the Act by granting CIU access to its premises for or- ganizational purposes while denying such access to Local 655. and by recognizing and entering into a con- tract with CIU at a time when CIU did not represent an uncoerced majority of its employees and the Company did not employ a representative segment of its ultimate employee complement. CIU violated Section 8(b)(l)(A) of the Act by accepting such recognition and executing the contract. International Ladies' Garment Workers' Union, AFL-CIO v. NL.R.B., 366 U.S. 731 (1961). As the contract contained a union-security clause which re- quired membership in CIU as a condition of employ- ment, the Company and CIU violated Sections 8(a)(3) and 8(b)(2) of the Act, respectively, regardless of wheth- er the clause was actually enforced, and regardless of its subsequent deletion from the contract. N.L.R.B. v. Gott- fried Baking Co., Inc., et al., 210 F.2d 772, 780 (2d Cir. 1954). CONCI USIONS OF: LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 655 and CIU are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing CIU as the exclusive bargaining re- presenative of its employees and by executing a contract with CIU covering such employees at a time when CIU did not represent a uncoerced majority of such employ- ees and when the Company did not employ a work force which was substantially representative of its anticipated complement of employees; by maintaining such contract in effect; by assisting CIU in obtaining union authoriza- tion cards from its employees; and by refusing Local 655 access to its premises and employees for organizational purposes while according such privileges to CIU; the Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(l) and (2) of the Act. 4. By including in said contract a union-security clause, the Company has violated Section 8(a)(l), (2), and (3) of the Act. 5. By accepting recognition and executing a collective- bargaining contract with the Company at a time when CIU did not represent an uncoerced majority of the Company's employees, and the Company did not employ a work force which was substantially representative of its anticipated employee complement, CIU has violated Section 8(b)(1)(A) of the Act, and by including in said contract a union-security clause, CIU has violated Sec- tion 8(b)(l)(A) and (2) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMtEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that they be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Company be ordered to withdraw all recognition from CIU as the representative of its employees, and that CIU be ordered not to act or purport to act as the representative of the employees unless and until CIU shall have demonstrated its majority status pursuant to a Board-conducted elec- tion among the Company's employees. It will also be recommended that the Company and CIU be ordered to cease giving force and effect to their contract executed on July 20, 1979, or any renewal, modification, or exten- sion thereof. As it appears that no dues or initiation fees were actually deducted from employees' wages or other- wise collected by CIU, I shall not recommend any reim- bursement remedy. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER t" A. Respondent P.C. Foods, Inc., d/b/a Price Crusher Food Warehouse, Ballwin, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing or bargaining with Congress of Inde- pendent Unions as the collective-bargaining representa- tive of its employees, unless and until said CIU is certi- fied by the Board as the collective-bargaining representa- tive of said employees pursuant to Section 9(c) of the Act. (b) Giving effect to its collective-bargaining contract with said CIU dated July 20, 1979, or any renewal, ex- tension, or modification thereof. (c) Assisting Respondent CIU by soliciting authoriza- tion cards on its behalf from its employees; and granting access to its premises for the purpose of solicitation and conducting of meetings by Respondent CIU and refusing to accord similar access of Retail Store Employees Local 655. ' In the event no exceptions are tiled 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. P R I C C R s E F O O W A R E H O U is E .. _ .A 4 , ._ ., 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: Post at its store in Ballwin, Missouri, copies of the at- tached notice marked "Appendix A." Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. Respondent Congress of Independent Unions, its of- ficers, agents, and representatives, shall: 1. Cease and desist from: (a) Giving effect to its collective-bargaining agreement with P. C. Foods, Inc., d/b/a Price Crusher Food Ware- house, or any renewal, extension, or modification there- of. (b) Acting or purporting to act as the collective-bar- gaining representative of the employees of said employ- er, unless and until it shall have been certified by the Board as the collective-bargaining representative of said employees pursuant to Section 9(c) of the Act. (c) In any like or related manner restraining or coerc- ing employees of said employer in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Post at its office copies of the attached notice marked "Appendix B."'3 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent CIU's representative, shall be posted by Respondent CIU immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. 12 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United Sates Court of Appeals Enforcing an Order of the National Labor Relations Board." Reasonable steps shall be taken by Respondent CIU to insure that said notices are not altered, defaced, or cov- ered by any other material. (b) Furnish to the Regional Director for Region 14, signed copies of said notice for posting by Respondent- Company in places where notices to employees are cus- tomarily posted. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent CIU has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, having found after a hearing that we violated the National Labor Relations Act, ordered us to post this notice and to carry out its provisions. WE WILL NOT give effect to our collective-bar- gaining contract with P. C. Foods, Inc., d/b/a Price Crusher Food Warehouse, dated July 20, 1979, or any renewal extensions, or modification thereof. WE WILL NOT act or purport to act as the collec- tive-bargaining representative of the employees of P.C. Foods, Inc., unless and until we demonstrate our majority status in a Board-conducted election. WE WILL. NOT in any like or related manner re- strain or coerce employees in your rights to engage in union or concerted activities, or to refrain there- from. CONGRESS OF INDEPENDENT UNIONS