Tom Thumb Stores, Inc.

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.