Shirlington Supermarket, Inc.

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lished unit,4 I would not accord these employees separate representation. 4See my dissenting opinion in W. C. Hamilton and Sons, 104 NLRB 627. SHIRLINGTON SUPERMARKET, INC., and Its Subsidiaries, SHIRLEY FOOD STORE NO. 1, INC., SHIRLEY FOOD STORE NO. 2, INC., SHIRLEY FOOD STORE NO. 5, INC., SHIRLEY FOOD STORE NO. 6, INC., and WESTMONT SUPERMARKET, INC. and LOCAL 1501 , RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, Petitioner. Case No. 5-RC-1095. Au- gust 7, 1953 SECOND SUPPLEMENTAL DECISIONAND CERTIFICATION OF REPRESENTATIVES Pursuant to a Supplemental Decision, Order, and Second Direction of Election issued on January 15, 1953,1 an election was conducted in this proceeding on February 7, 1953, under the direction and supervision of the Regional Director for the Fifth Region, among the employees in the unit heretofore found appropriate. The results of the election, as shown by the tally of ballots, were that of approximately 62 eligible voters, 55 cast valid ballots, of which 32 were for, and 23 were against, the Petitioner. There were 2 challenged ballots. On February 12, 1953, the Employer filed timely objections to conduct affecting there sults of the election on seven grounds. The Regional Director investigated the objections, and on March 27, 1953, issued his report on objections, recommending that the Employer's objections be overruled, and that the Petitioner be certified as the collective-bargaining representa- tive of the employees in the appropriate unit. On April 3, 1953, the Employer filed exceptions to the Regional Director's report on objections. On April 21, 1953, the Board issued an order directing a hearing on the Employer's objection No. 7 because it appeared to raise substantial and material issues of fact, and further directing that the hearing officer designated to conduct the hearing prepare and cause to be served upon the parties a report containing resolutions of credibility of wit- nesses, findings of fact, and recommendations to the Board as to the disposition of said objection. Pursuant to the order of the Board, a hearing was held on May 11, 1953, before John M. Dyer, hearing officer. The Boards has reviewed the rulings made by the hearing officer 1102 NLRB 312. Z 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]. 106 NLRB No. 109. SHIRLINGTON SUPERMARKET, INC. 667 and finds that no prejudicial error was committed. The rulings are hereby affirmed. On June 11, 1953, the hearing officer issued his report on objections, a copy of which is attached hereto, recommending that the Employer's objection No. 7 be overruled. On June 29, 1953, the Employer filed exceptions to the hearing officer's report on objections, and a supporting brief. The Regional Director, in his report on objections, recom- mended that the Employer's objections Nos. 1, 2, and 3 be overruled because the Employer did not submit any evidence in support thereof. We, therefore, adopt this recommendation. The Employer's objection No. 4 alleges that for several days prior to the election the Petitioner promised the eligible employees wage increases and other benefits if they voted for the Petitioner. The Regional Director recommended that this objection be overruled on the ground that, even assuming the truth of this allegation, such statements fall within the category of customary and legally unobjectionable preelection propaganda used by unions in an organizational campaign. We also adopt this recommendation.3 The Employer's objections Nos. 5 and 6 allege that the Pe- titioner misrepresented to the eligible employees that the winning of the election by the Petitioner by itself would immedi- ately and automatically result in wage increases of a substantial amount and other substantial benefits. The Regional Director recommended that these objections be overruled on the same ground on which he recommended overruling objection No. 4. We also adopt this recommendation.4 The Employer's objection No. 7, on which the hearing was held, alleges that the Petitioner threatened, coerced, and intimidated the eligible employees into voting for it. In support of this allegation, the Employer introduced testimony by an employee that on 2 occasions prior to the election this employee was told by 2 different representatives of the Petitioner that the Petitioner would make it tough for those employees who didn't vote for the Petitioner. For the reasons set forth by the hearing officer in his report on objections, we find, as he did, that there is no factual basis for identifying the Petitioner with these alleged threats. Moreover, for the reasons set forth by the hearing officer, we also adopt his finding that these alleged threats were not made. Accordingly, we also adopt the hearing officer ' s finding that the Employer failed to establish the facts alleged in objection No. 7, and his recom- mendation that objection No. 7 be overruled. As we have overruled the Employer's objections, and as the tally of ballots shows that the Petitioner secured a majority of the valid votes cast in the election, we shall certify the Peti- tioner as the bargaining representative of the employees in the appropriate unit. 3 See Trinity Steel Company, Inc., 97 NLRB 1486. 4See Trinity Steel Company , Inc.. supra. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board certified Local 1501, Retail Clerks International Association, AFL, as the designated collective-bargaining representative of the Employer's employees in the unit here- tofore found appropriate.] HEARING OFFICER'S REPORT ON OBJECTIONS TO ELECTION On May 16, 1952, Local 1501, Retail Clerks International Association, AFL, hereinafter called the Union, filed a petition with the Regional Director for the Fifth Region alleging that a question concerning representation had arisen concerning the representation of the employees of Shirlington Super Market, Inc., and its subsidiaries, Shirley Food Store No. 1, Inc., Shirley Food Store No. 2, Inc., Shirley Food Store No. 5, Inc., Shirley Food Store No. 6, Inc., and Westmont Super Market, Inc.. hereinafter collectively called the Employer. After an investi- gation and hearing, the National Labor Relations Board, hereinafter called the Board, on August 18, 1952, directed the Regional Director for the Fifth Region to conduct an election of all employees employed as food clerks, handling food merchandise and other merchandise usually sold in grocery stores, in all of the Employer's stores within a radius of 25 miles of Washington, D. C., including all grocery clerks, produce clerks, dairy clerks, cashiers. porters, receiving clerks, and baggers, but excluding meat department employees, drivers, warehousemen, guards, watchmen, office clerical employees, and supervisors as defined in the Act. On September 6, 1952, an election was held in the above-described unit with the result that a majority of the employees voted against the Union. Timely objections to the election were filed by the Union, and the Regional Director after investigation, on November 28, 1952, recommended that the Board set aside the election. Thereafter the Employer filed objections to the Regional Director's report and recommenda- tion. On January 15, 1953, the Board adopted the recommendation of the Regional Director and set aside the first election, directing that a second election be held within 30 days. On February 7, 1953, the second election in this matter was held. The results were, that of approximately 62 eligible voters, 32 voted for the Union, 23 against the Union and there were 2 void ballots. On February 11, 1953, the Employer filed objections to the election on seven different grounds. After an investigation, the Regional Director, on March 27, 1953, issued his report on objections recommending that the Employer's objections be overruled. On April 3, 1953, the Employer filed exceptions to the Regional Director's report on objections. On April 21, the Board issued an order directing ahearing on Employer's objection 7, stating that it raised substantial and material issues of fact. Employer's objection 7 states, "The Union did, through its officers and agents, threaten, coerce and intimidate the eligible employees into voting for it.' In its order directing hearing, the Board ordered that the hearing officer designated for the purpose of conducting the hearing "Prepare and cause to be served upon the parties a report containing resolutions of the credibility of the witnesses, findings of fact, and recommenda- tions to the Board as to the disposition of said objection." Pursuant to the Board's Order the Regional Director, on April 29, 1953, issued a notice of hearing on objections and an order designating the undersigned as the hearing officer. This matter came on for hearing on May 11, 1953, before the undersigned, in Washington, D. C. The Employer and the Union were represented by counsel who participated in the hearing. All parties were afforded full opportunity to be heard, to examine and to cross-examine wit- nesses, and to introduce evidence bearing upon the issues. I. THE ALLEGED THREATS To substantiate its objection, the Employer produced one witness, Burnett H. Cline. As to the alleged threats, Mr. Cline testified that approximately 2 weeks before the last election of February 7, 1953, Mr. Monahan, a business representative of the Union, together with a person described as "a big stout gentleman" approached him in the store where he was at work. Monahan gave Cline some papers and then the big stout gentleman said, "Get this contract in, the members that don't vote for it, we are going to get tough with them." Mr. Cline was unable SHIRLINGTON SUPERMARKET, INC. 669 to identify the big stout gentleman except to say that Mr. Monahan introduced him as a co- worker in the Union . Mr. Cline stated that that was all that was said between Monahan, the gentleman, and himself. Under cross-examination, Cline testified that this was the only time he ever saw the big, unidentified gentleman. Under further cross -examination Cline admitted that in an affidavit submitted in connection with the incident, he stated that the big, unidentified gentleman "talked to him at least 3 times." Mr. Cline explained this statement by saying that the big gentleman talked to him three times meaning that he said three different things to him. When questioned further, as to what three things were said Mr. Cline completely dis- regarded and did not mention the "get tough" statement. Mr. Cline subsequently forgot and remembered the "get tough " statement several times in his testimony under examination by attorneys for the Employer and the Union and by the hearing officer. Mr. Cline testified that just prior to the election, a meeting was held at a Catholic school near one of the Shirlington stores and that the Company and the Union both appeared at this meeting. He testified that during the meeting the store receiving clerk, a Mr. Watson, asked Mr. Kennedy, a union representative who spoke in behalf of the Union at the meeting, about the termination of Mr. Cline from the Safeway Stores, stating that Cline thought he was ter- minated unjustifiably and that the Union had not done anything about it. Kennedy asked Cline for his name and address. Mr. Cline testified that all he gave was his name and address. Further on , during the course of the hearing, Mr. Cline testified that he got up and made a statement that he had been unjustifiably discharged and had received unfair treatment by the Union. According to Mr. Cline , after the meeting was over, Mr. Kennedy was talking to a group of workers in the hall outside the room where the meeting took place. Cline stated that while he was standing nearby , Kennedy turned to him and said, "I will look into the matter and see why you were terminated." Mr. Cline, at that point, stated that that was all that was said. After a number of efforts to refresh his recollection, Mr. Cline stated that Mr. Kennedy said that if the members didn't vote for the Union that they would make it tough on them. Cline was positive as to where the statement had been made, that is in the hall, and positive that there were a group of employees standing around Mr. Kennedy at the time . Thereafter , under sub- sequent examination, Mr. Cline sometimes remembered and sometimes forgot to mention the "tough" statement allegedly made by Kennedy. Under examination by the hearing officer toward the close of the hearing, Mr. Cline stated that "someone said if they didn't vote for it, the ones didn't vote for it, they were going to make it tough for them." Under subsequent interrogation , Mr. Cline stated that he was walkingaway from the group with his back towards them and he heard a voice which said that if they didn't vote for it they were going to make it tough for them. Cline admitted that he did not know who made the statement , didn't know whose voice it was but it was a voice that came from the group surrounding Kennedy. Testifying on behalf of the Union Mr. Monahan denied that he had ever made any threat to Mr. Cline or that he had ever heard a threat to Mr. Cline made in his presence . Only two men were identified as filling the "big, stout gentleman " description provided by Cline. One of them was a Mr. Clifford. Cline stated that it was not Mr. Clifford, as he knew Clifford. Sidney Mehr, the president of Local 1501,, is theother person who fitted the general physical descrip- tion. Subsequent testimony established the fact that Mr. Mehr was present during the meeting held at the school. Since Mr. Cline stated that the only time that he had ever seen the big, stout gentleman was in the store and that he never saw him thereafter , I am unable to con- chide that Cline had reference to either of these gentlemen. Further, Mr . Monahan testified that Mr. Mehr never accompanied him to any of the Shirley Food Stores. Mr. Kennedy spe- cifically denied making the "tough" statement at first attributed to him by Cline. Moreover, the preponderance of testimony establishes that no group was present in the hall at the time referred to by Mr. Cline. IL FINDINGS OF FACT AND RESOLUTIONS OF CREDIBILITY Considering the testimony adduced at the hearing, the hearing officer concludes that there is no factual basis whatever for identifying the Union with the alleged threats . Further, based on observation of witness Cline, his demeanor, his shifting and contradictory testimony, his obvious prejudice against the Union for what he considers a past wrong and the complete and specific denials of the persons said to be involved, the hearing officer does not believe that the alleged statements were made. Withnothing further to substantiate its position , the hearing officer finds that the Employer has failed to establish that the Union engaged in threats, co- ercion, and intimidation, and further finds that there is no basis for setting aside the election on Employer's objection 7. 67 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. RECOMMENDATION Upon the basis of the above findings of fact and upon the entire record in the proceeding, I 'therefore recommend that the National Labor Relations Board dismiss the Employer's ob- jection. As provided in the order directing hearing on objection, any party may within ten days from the issuance of this report, file with the Board in Washington, D. C., an original and six copies of exceptions thereto. Immediately upon filing of such exceptions, the party filing the same shall serve a copy thereof upon each of the other parties and the Regional Director. If no exceptions are filed thereto , the Board will adopt the recommendations of the hearing officer. KUNER-EMPSON COMPANY and JULIA SCHMIDT CANNERY WORKERS LOCAL UNION NO. 23260, AFL and JULIA SCHMIDT. Cases Nos. 30-CA-271 and 30-CB-28. August 10, 1953 DECISION AND ORDER Upon charges filed on November 4, 1952, by Julia Schmidt, an individual, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Seventeenth Region, issued a consolidated complaint dated March 26, 1953, against Kuner-Empson Company, herein called the Respondent Company, and Cannery Workers' Local Union No. 23260, AFL, herein called the Respondent Union, alleging that the Respond- ents had engaged in and were engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (a) (1) and (3), 8 (b) (1) and (2), and Section 2 (6) and (7) of the Act. Copies of the complaint, the charges, and notice of hear- ing were duly served upon the Respondents and Julia Schmidt. With respect to the unfair labor practices, the complaint alleges in substance that on or about October 31, 1952, the Respondent Company discharged Julia Schmidt at the request of the Respondent Union because she had refused to tender her initiation fee and the current month's dues, as was required by and in conformity with the labor agreement. On April 8, 1953, the Respondents filed separate answers alleging that the discharge was valid. The Respondents and the General Counsel also filed briefs. Thereafter , desiring to avoid the need for a hearing , all the parties entered into a stipulation , which set forth an agreed statement of facts. The stipulation provides that: (1) The parties have waived their right to a hearing before a Trial Examiner and to the preparation and filing of Intermediate Report; (2) the parties reserve their right to file briefs and argue orally before the Board should oral argument be deemed desirable by the Board; (3) the Board may issue a Decision and Order based upon the stipulation and the record described in the stipulation; and (4) the charges; the affidavits of service of the charges; the complaint; the order consolidating the cases and notice of hearing; affidavit of service of order 106 NLRB No. 116.