Garden Super Market, Inc.

GARDEN SUPER MARKET, INC. 583 founded principle by legitimizing the Employer's conduct because the Union also reached the employees with its campaign material. Comment amounting to threats is not diluted by such means, for threats by one having economic control over the voters cannot be dispelled or abated by a response from any outside source.4 The fact that a party has an opportunity to respond is material only in deter- mining whether a misrepresentation warrants setting an election aside. Time to reply is immaterial where interference with an elec- tion occurs by other conduct, such as threats or the undue creation of fears of economic loss. As set forth in my dissenting opinion in Shure Brothers, Incorporated,' the rationale behind this difference is the fact that misrepresentations are appeals to reason based on er- roneous facts, whereas other types of improper campaign material have their impact by generating fear. Misstatements of fact possi- bly can be met by the supplying of correct information, but an emo- tional reaction of fear is not responsive to denials or explanations and cannot be dissipated or counterbalanced by factual replies. Here the Employer's sustained emphasis on the probability of job loss if the Union were certified could only prevent the uncoerced vote which the Act envisions. Accordingly,,I would direct the Regional Director to hold another election. * Oak Manufacturing Company, 141 NLRB 1323; see also Trent Tube Company, Sub- sidusry of Crucible Steel Company of America, 147 NLRB 538 ( dissenting opinion) 5147 NLRB 43 Garden Super Market, Inc. and Retail Clerks ,Union, Local 1015, Retail Clerks International Association, AFL-CIO. Case No. 17-CA-2337. August 28,'1964 DECISION' AND ORDER On. May 5, 1964, Trial Examiner Robert E.. Mullin issued his De- cision in the above-entitled proceeding; finding that the Respondent had engaged in and was engaging in certain„unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's De- cision. Thereafter, the Respondent filed exceptions to the Trial Ex- aminer's Decision with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 148 NLRB No. 64. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 1'0(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the ' Trial Examiner, and orders that the Respondent, Garden Super Market, Inc., Omaha, Nebraska, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amended charge filed on November 8 and December 13, 1963, by Retail Clerks Union, Local 1015, Retail Clerks International Association, AFL-CIO, herein called Retail Clerks or Union, the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for Region 17 (Kansas City, Missouri), issued a complaint, dated December 20, 1963, against Garden Super Market, Inc., herein called Company or Employer. The complaint sets forth the specific respects in which it is alleged that the Respondent violated Section 8 (a) (1) and (5) of the National Labor Relations Act, as amended, herein called the Act. The Respondent duly filed an answer in which it conceded certain facts with respect to its business operations, but denied all alleged unfair labor practices with which it is charged. Pursuant to due notice, a hearing was held before Trial Examiner Robert E Mullin at Omaha, Nebraska, on February 3 and 4, 1964. All parties appeared at the hearing and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally after presenting the evidence, and to file briefs. The parties waived oral argument On March 23, 1964, the General Counsel and the Respondent filed briefs which have been fully considered. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Employer herein, a Nebraska corporation with its office and principal place of business in Omaha , Nebraska, is engaged in the retail sale of groceries and related products . In the course and conduct of its operations its annual sales of merchandise exceed $500,000 in gross value , and its annual volume of purchases directly from outside the State of Nebraska exceed $50 ,000 in value . Upon the foregoing facts the Respondent concedes , and the Trial Examiner finds, that Garden Super Market, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes and the Trial Examiner finds that the Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and sequence of events The Respondent in this case operates a large supermarket in Omaha, Nebraska At the time in question it had approximately 40 employees. Meyer Meyerson is the president, and Bernard Kauffman, his brother-in-law, is the only other officer. These two individuals are also the only stockholders in the Respondent corporation. Arthur Anderson is the store manager for Garden Super Market. GARDEN SUPER MARKET, INC. 585 Edwin H. Arnold, International representative for the Retail Clerks, began an oganizational campaign among the employees of the Respondent in October 1963. On October 17 he met with several of the employees at the home of one of their number and on this occasion persuaded those present to sign authorization cards in the Union. On October 21, Arnold and Dean Powers, the latter being secretary- treasurer of Local 1015, requested recognition from the Respondent. This was declined. Thereafter, the supervisory personnel of the Employer engaged in certain acts and conduct which the General Counsel alleges to have been violative of Sec- tion 8 (a) (1) . This is denied by the Respondent. B. The alleged acts of interference, restraint, and coercion; findings and conclusions with respect thereto At the outset of the union campaign to organize the Respondent's employees, Arnold contacted Alyce Chambers, one of the checkers. The latter signed an application for membership and on October 17 an organizational meeting was held at her home. This was attended by about nine of the Respondent's employees. Arnold spoke to the group, discussed the benefits which the Union would endeavor to obtain, and induced all present to sign authorization cards. He then gave a num- ber of other cards to Marvin Kellogg, one of the employees present, who promised to secure additional signatures. On October 18, Meyer Meyerson returned to the store after having been absent several months because of a serious illness On or about October 20, Meyerson questioned Chambers as to her knowledge of the union efforts to organize her co- workers. The latter acknowledged that both she and her fellow employees had an interest in the Union and that they had decided that a labor organization was needed at the store. According to Chambers, Meyerson then told her that "he felt there were a bunch of kids here that had gotten together and were incompetent of deciding what was really best for the store and the employees " Chambers testified that he concluded the conversation with the statement that "if the union was to come into the store that things would be changed. He would be a changed person . . . that . the employees had. a pretty good thing going . . . and pos- sibly he would not be quite so lenient with them as he had before " 1 On October 21, 1963, after several weeks of organizational effort among the Respondent's employees, Edwin Arnold and Dean Powers went to the Respondent's place of business where they sought out Store Manager Arthur Anderson. There, the union representatives told Anderson that the Retail Clerks represented a majority of the employees in the store, exclusive of those working in the meat department. They asked for recognition and presented to the manager several copies of a recogni- tion agreement. According to Arnold, Anderson responded to the latter request with the statement, "Do you want me to hang myself . I couldn't sign it, because I don't have the authority." Arnold testified that Anderson then asked for evidence as to the Union's claim to represent the employees and that he told Anderson that he had the authorization cards in his pocket. Arnold refuse to accede to Anderson's request that he be permitted to examine a specific card, but assured the store manager that the Union would agree to a card check. Arnold then asked him what he proposed to do and Anderson told him that he planned to do nothing, that "the employees do not need a union . you fellows just `go away." 2 Finally, in con- cluding the conversation, Anderson' agreed that he would discuss the matter with Respondent's attorney. Immediately after leaving the store, Arnold and Powers prepared a letter to the Respondent in which they reviewed their conversation with Anderson and renewed their demand for recognition and an opportunity to bargain as the majority rep- resentative. In this letter the union representatives also stated that they would be willing to have their claim to a majority determined through a card check made by a neutral party. Gene Alexander, one of the employees, testified, that shortly after Anderson received such a letter from the Retail Clerks, the store manager came to him and asked whether he knew who had started the Union. Alexander disclaimed knowledge as to the identity of the one responsible for initiating the campaign, but volunteered the information that Marvin Kellogg had passed out authorization cards among the employees On this same day, Anderson sought out Kellogg while the latter was at work in the stockroom and asked him why had he "started this Union?" Kellogg feigned complete ignorance of the subject and did not answer. 1 Chambers was a credible witness Meyerson did not deny or contradict her testimony when he was called to the stand 2 The quotation is from Arnold 's credible, undenied , and uncontradicted testimony 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During this same period, Anderson approached Gene H. Rose, another employee, to ask what he knew about the Union. Rose endeavored to avoid answering the question and Anderson concluded the discussion by telling Rose that he was being awarded a 10-cent raise.3 On or about October 25, Anderson questioned Gary D. Reynolds and Arthur J. Klabunde, two of the stockroom employees. Both were young, part-time workers who were still in high school. Both had also signed authorization cards in the Retail Clerks. On this occasion Anderson questioned them as to whether they had secured the union cards from Kellogg and they answered in the affirmative. Klabunde was then asked whether he knew of any other employees who had signed cards and the latter disclosed the most of those classified as "carry-out boys" had done so. Klabunde, however, did not identify any of the card signers by name. Ander- son closed his conversation with these two employees by telling them that if the Union succeeded in organizing the store the part-time workers, such as Reynolds and Klabunde, would have their hours cut and that the full-time employees, such as one John Janda, whom he mentioned, would be cut from $125 to $85 4 In the period immediately after the request of the Retail Clerks for recognition, Meyerson questioned a number of the employees as to their union activities. About October 28 he called Marvin Kellogg into his office and asked him why the em- ployees "go behind his back." 5 During the course of this conversation, Meyerson told Kellogg that if the Union organized the store, some of the regular employees would suffer a loss of from $25 to $30 a week because they would have no more overtime. The following day Meyerson engaged Kellogg in another conversation about the Union. On this occasion the Respondent's president showed the employee a contract which the Retail Clerks had with another supermarket. He then told Kellogg that if such an agreement were in effect at his store, one of the employees whom he named and who was generally regarded as an alcoholic, would have to be dropped because the Respondent could not afford to pay him what the Union would demand. John Janda, Jr., another employee, was off work on October 31. According to Janda, Meyerson telephoned him at his home and told him, "Johnny, this is Meyer . I don't want you to lie to me. . . . Did you sign one of those cards9" When Janda acknowledged that he had done so, Meyerson told him that if the Union came into the store Janda might lose as much as $30 a week Accord- ing to Janda, he closed the conversation with the admission that he was sorry that he had ever signed a card. On that same day, Meyerson called Gary Reynolds into his office and questioned the latter as to why Reynolds had signed an authorization card. According to the employee, Meyerson told him that "he was kind of angry because we had not waited until he got back and had done it . . . while he was flat on his back." Meyerson referred to the likelihood of a cut in the hours if a union represented them and concluded the conversation by asking Reynolds for the names of those who had signed cards. The latter then disclosed to the Respond- ent's president the names of all the coworkers whom he knew had signed authoriza- tions. On November 3, Meyerson called Reynolds to his office again and on this occasion reviewed the likelihood of a cut in hours if the Union came in, reminded Reynolds of his disappointment with the employees for having signed union cards, and told Reynolds that he was going to get some more money when Meyerson had an opportunity to straighten out certain records .6 On November 4, Meyerson ques- tioned Klabunde as to whether he had signed a union card. When Klabunde an- swered in the affirmative, Meyerson told him that he felt that it was wrong for the employees to have done such a thing while he was sick in a hospital and that "he was disappointed with the way we went behind his back . " Meyerson con- cluded the conversation by telling the employee that he had planned to give him a raise but that he could not do it at the moment because it would look like a bribe since the Union then had pickets in front of the store? 3 This was the first raise that Rose received while in the Respondent's employ. 4 The findings in this paragraph are based on the credible, undenled,'and uncontradicted testimony of the employees specified Anderson appeared at the hearing and testified but was not asked about these conversations which the employees attributed to him. 5 The question is from Kellogg's credible, undenied testimony 6 Meyerson testified that he could not recall having made these comments to Reynolds. He did not, however, deny that he ever had such a conversation Reynolds' version of this meeting was credible It is found by the Trial Examiner to be an accurate account of the conversation with Respondent's president 7 The Union began picketing the Respondent's supermarket on November 1. GARDEN SUPER MARKET, INC. 587 Concluding Findings The General Counsel alleges that the Respondent engaged in unlawful interfer- ence, restraint, and coercion of its employees through the activities of Anderson and Meyerson set forth above. This is denied by the Respondent and in its brief the latter relies upon Blue Flash Express, Inc., 109 NLRB 591, and related cases, to support its contention that none , of the foregoing conversations and interrogation breached the Act. This latter argument, however, ignores the context of threats and promises of benefit in which these conversations occurred . Thus, on one of the first occasions when Meyerson questioned an employee (Chambers) about the organizational activity then under way, he told her that "if the union was to come into the store . . . things would be changed. He would be a changed per- son . he would not be quite so lenient with them as he had before ." He told Reynolds that their conduct had made him "angry" and Kellogg was questioned as to why the employees had gone "behind his back." Both Meyerson and Anderson told several of the employees that the advent of a union would mean a cut in wages and a loss of overtime . During this same period , Meyerson told Reynolds that the latter was going to "get some money" and Klabunde that a raise which was planned for this employee would be impossible because of the Union's picketing. In the meantime, upon questioning Rose, another employee, about the Union , Anderson told him that he was getting a 10-cent raise. On the facts found above , the Trial Examiner concludes and finds that the Respondent violated Section 8(a)( I) of the Act through the conduct of Meyerson and Anderson set forth in this paragraph. Further, it was likewise coercive and a violation of the same subsection of the Act: (1) for Anderson to interrogate Alexander, Kellogg, Ross, Reynolds, and Klabunde about their union activities ; and (2 ) for Meyerson to question Chambers , Kellogg, Janda, Reynolds, and Klabunde about their union sympathies and their support of the Retail Clerks. The Trial Examiner so finds s C. The evidence as to the alleged violations of Section 8(a)(5); findings and conclusions with respect thereto 1. The appropriate unit The General Counsel contends that all full-time and regular part-time employees of the Respondent, excluding meat department employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective- bargaining within the meaning of Section 9(b) of the Act. The Respondent entered a general denial as to the appropriateness of this unit , but offered neither evidence nor argument to support this position . The unit alleged as appropriate is the same as that which the Union sought when it first requested recognition 9 and it is the conventional unit found by the Board to be, appropriate in retail supermarkets. 8The General Counsel also alleged that the Respondent violated Section 8(a)(1) through the interrogation of employee Charlotte Legon by Vivian Oruch, the head checker at the store and, according to the General Counsel, a supervisor The testimony disclosed that although Oruch takes care of the cash for all the other checkers , she herself works at a checkout counter throughout the workday About 1 hour a week she is detailed to the store office and helps write checks for supplies and merchandise . She does not write any of the payroll checks . She has a key to the front door of the store and occasionally opens it when the manager has not arrived She effectively recommended the hiring of one employee during the course of 3 years' employment Meyerson testified, however, that this was not unusual and no index of supervisory status because he often solicits recom- mendations from any of the employees , including the carryout boys, as to friends and relatives whom they feel that the Respondent might hire Meyerson denied that Oruch had any authority to hire, fire, promote , or exercise any other prerogatives of supervision While it is obvious that Oruch has more responsibilities than any of the other checkers, it is the conclusion of the Trial Examiner that the General Counsel has not established by a preponderance of the evidence that she is a supervisor within the meaning of the Act. Accordingly, a motion of the Respondent to strike all testimony as to Oruch is granted . It will also be recommended that paragraph VIII( a) of the complaint be dis- missed insofar as it alleges that the Respondent violated the Act through the activities of Oruch 9 On October 21, 1963, Arnold and Powers asked that Store Manager Anderson sign an agreement which would recognize the Retail Clerks as the majority representative for a unit composed of "All employees of the employer, full- time and part-time, except the store manager , meat department employees, and those excluded by the National Labor Relations Act, as amended " - 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Weis Markets, Inc., 116 NLRB 1993, 1994-1995; Safeway Stores, Incorporated 110 NLRB 1718, 1730-1731. Cf. The Great Atlantic & Pacific Tea Company, Inc., 132 NLRB 799; Winn-Dixie Stores, Inc., and its subsidiary Winn-Dixie Green- ville, Inc, 124 NLRB 908. Accordingly, it is the conclusion of the Trial Examiner that the above-described unit is appropriate here. The Union made its first demand for recognition on October 21, 1963. The Gen- eral Counsel and the Respondent stipulated as to the payrolls for the weeks ending October 19 and 26. Exclusive of Meyer Meyerson, Bernard Kauffman, and Arthur Anderson, who appear on these lists and whom the Respondent concedes to be supervisors, 38 employees are listed for the period ending October 19 10 Of this number, the parties further stipulated that 11 employees'were in the Respondent's meat department and should, therefore, be excluded from the unit.il Another em- ployee on the list, E. Meyerson, was the mother of the Respondent's president. Although carried on the rolls as a checker and with no specific supervisory duties, Meyerson conceded that he realized that the employees "respect her more because she is my mother " It is manifest that because of her relationship to the owner of the business, Mrs. Meyerson "enjoys a special status which allies [her] interests with those of management." Adam D. Goettl and Gust Goettl, d/b/a International Metal Products Company, 107 NLRB 65, 67. For this reason the Trial Examiner concludes and finds that she should be excluded from the unit. Cf. N.L.R.B. v. 0. U Hofmann, O. F. Hofmann, and Phillip Hofmann t/a O. U. Hofmann & Sons, 147 F. 2d 679, 680-681 (C.A. 3). Meyerson testified that 12 of the individuals on the Respondent's payroll during this period were part-time employees.12 Meyerson further testified that he tried to keep the part-time workers on the same schedule from one week to the next. As a result these 12 employees are in the category generally described as regular part- time employees and, therefore, should be included in the unit. The Great Atlantic & Pacific Tea Company, Inc., supra, at 802; Winn-Dixie Stores, Inc., etc., supra, at 912-913 With the exclusion of the 11 meat department employees and Mrs. Meyerson, the rest of the full-time and part-time employees in the unit on the date in question totaled 26 The General Counsel established that 18 employees signed authoriza- tion cards between October 14 and 20, 1963 These cards were received in evidence.13 At the hearing, the General Counsel stated that Marshall Legon, one of the card signers, was only employed for a period of from 4 to 6 weeks and could not, therefore, be considered either a full-time or a regular part-time employee. In addition, in his brief, the General Counsel conceded that the name of Jerome Adams, another card signer, does not appear on the payroll for October 19. The names of all the other 16 employees who signed authorization cards appear on the pay- rolls for both October 19 and 26.14 Thus on October 21, with 16 authorizations in a unit of 26 employees, the Retail Clerks had a clear majority. 2. The refusal to bargain As found earlier herein, on October 21, both in a meeting with Store Manager Anderson and by letter, the Retail Clerks requested recognition as the majority representative for a unit herein found to be appropriate. At the same time, both in their conversation with Anderson and in the letter dispatched to the Resnondent on the same date, Arnold and Powers offered to establish the Union's majority status by having an impartial third party examine the authorization cards and check them against the company payroll. Anderson's initial response was to tell the representa- 1" With the exclusion of Meyerson, Kauffman, and Anderson, the payroll for October 26 lists only 27 employees 11 The meat department employees were E Bratetic. A M Oruch, M. Maher, G Bratetic, A C Johnson, F Vincent, 11M Kill, T. Waite. M J Schiesow, C Thompson, and R Hooks 19 These were A J Klabunde, F Conley, J Bell, Al T Legon, J. Adams, G Reynolds, B Howard C. Brown, C E Davis, L Santo, Ni. Dingle and C J. Dearborn 13 Although at the time of this offer the Respondent objected to the introduction of these cards on the ground that no proper foundation had been laid, its counsel conceded that there was no dispute as to the authenticity of the signatures Thus, Attorney Kratz stated: "I don't think there is any question that they actually signed them, that [these arej the signatures of the persons in question, I don't think there is any question on it" 34 Viz, Alyce Chambers, Jerry Adams, Dorothy Chambers, Marvin Kellogg, Charlotte Legon, David Russ Norwood Dingle, Garv D Reynolds, Gene H Rose, Arthur John Klabunde, John Janda, Jr, John Howard, Carlton Dearborn, Freddie Cornley, Otis Brown, and John Bell. GARDEN SUPER MARKET, INC. 589 tives of the Retail Clerks that the employees did not need a union and that the organizers should "just go away." Finally, he concluded the meeting with a promise that he would contact the Respondent's attorney. By letter dated October 23, 1963, the Union renewed its request for recognition and stated that if this was not accorded it would establish a picket line at the Re- spondent's store to advertise to the general public the position of the Company. On October 28 and 31, Arnold discussed the union demand with Attorney Richard M. Fellman, counsel for the Respondent. At this time Respondent's counsel told Arnold that Meyerson would insist on an election before recognizing the Union. Arnold, on the other hand, stated that at that point the Union would no longer agree to an election because the employees had reported to him that since the original request for recognition the management had engaged in various acts of interference and coercion. On November 1, the Union established a picket line at the Respondent's store. On November 4, representatives of both the Union and the Employer met at Fell- man's law' offices. Present for the Respondent were its attorneys, Fellman and Kratz, and Meyerson. The Union was represented by Arnold and Powers. Also present was one Silhasek, a business agent for the Amalgamated Meat Cutters 15 Both Arnold and Meyerson testified with respect to what transpired at this meet- ing. There was no substantial conflict in their respective versions of'what occurred. According to Arnold, he stated at the outset that the Union was entitled to im- mediate recognition, that it had authorization cards from a majority of the employees in the unit, that it was renewing the offer to have an impartial third person, judge, minister, or priest, or anyone agreeable to the parties, check the payroll against the cards, and that at that point the Union expected to be recognized. According to Arnold, Attorney Fellman then stated, "We don't doubt but what you represent a majority of the people or else you wouldn't have made a demand on us for rec- ognition, nor would you have sent the letters which you did or commenced picket- ing on November 1." Meyerson, however, insisted that there should be an election. According to Arnold, the latter stated, "I don't doubt but what you represent a majority of the people, but I still believe the democratic way is to have an election conducted by the government." Arnold then stated that the Union would no longer consent to an election because of what it then knew about the conversations which Anderson and Meyerson had had with the employees during the preceding weeks. When called as a witness, Meyerson did not deny or contradict any of the fore- going testimony which Arnold had given. He reiterated the Respondent's position that an election was needed and added that at this conference the Employer sought to have the Union join with it in petitioning for an election. The meeting closed with neither side having changed its position. On November 5, Meyerson and Arnold met outside the store for a short while, and discussed the possibilities of a contract. Meyerson concluded the meeting with the statement that he would contact Arnold the following day. Arnold testified, at the hearing, however, that thereafter he heard nothing further from Meyerson. 3. The refusal to bargain In response to the General Counsel's allegation that the Company violated Section 8(a) (5) of the Act, the Respondent contends that it had a good-faith doubt whether the Retail Clerks represented a majority of the employees in an appropriate unit so that it was not required to bargain until the Union had established its majority in a Board election. In -the event an employer has an honest doubt as to a union's purported majority or the unit which the Board would find appropriate, it is well settled that he may insist on a formal representation proceeding and a Board-conducted election to resolve such doubts before being obligated to bargain. N.L.R.B. v. Jackson Press, Inc., 201 F. 2d 541, 544-545 (C.A. 7); Joy Silk Mills, Inc. v. N.L R.B., 185 F. 2d 732 (C.A.D.C.); cert. denied 341 U.S. 914. However, such a position on the part of an employer is not tenable - should the evidence develop that he did not entertain any real doubt of the Union's majority and.that his insistence on certifica- tion was motivated largely by a desire to gain time to destroy the Union's support. NL.R.B. v. Wheeling Pipe Line, Inc., 229 F. 2d 391, 393 (C.A. 8); N.L.R.B. v. W. T. Grant Company, 199 F. 2d 711, 712 (C.A. 9), cert.;denied 344 U.S. 928; N.L.R.B. v. Ken Rose -Motors, Inc., 193 F. 2d 769, 771 (C.A. 1). 15 The 11 employees' of the Respondent's meat department are represented by the latter- named union. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Earlier herein, it was found that from the time when the Respondent first learned that the employees were interested in securing a labor organization to represent them, the Respondent engaged in a continuing series of violations of Section 8(a) (1) of the Act through the actions and conduct of Meyerson and Anderson set forth in detail above. In the light of this course of conduct, as well as the statements of Meyerson and his counsel on November 5, the Trial Examiner concludes and finds that the Respondent did not have a bona tide doubt as to the majority status of the Retail Clerks and that, by its refusal to bargain with that union on October 21, 1963, or at any time subsequent hereto, it violated Section 8(a) (5) of the Act. Joy Silk Mills, Inc. v. N.L.R.B., ibid, at 741-742, National Furniture Manufactur- ing Company, Inc., 130 NLRB 712, 724-725; The Bedford-Nugent Corp., 137 NLRB 1030, 1036-1037. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner recommends that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully refused to bargain with the Retail Clerks the conventional remedy includes a provision that the' Employer bargain with that Union. - CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All full-time and regular part-time employees of the Respondent , excluding meat department employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since October 20, 1963, the Union has been the exclusive representa- tive, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid appropriate unit. 4. By refusing, on and since October 21, 1963, to bargain collectively in good faith with the Union as the exclusive representative of its employees in the aforesaid appropriate unit the Respondent has engaged in and is engaging in unfair labor prac- tices 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, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings and conclusions and the entire record , and pursuant to Section 10(e) of the Act, the Trial Examiner hereby recommends that the Respond- ent, Garden Super Market, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with Retail Clerks Union, Local 1015, Retail Clerks International Association, AFL-CIO, as the exclusive representative of all its employees in the following appropriate unit : All full-time and regular part- time employees of the Respondent , excluding meat department employees , guards, and supervisors as defined in the Act. - (b) Coercively, or otherwise 'unlawfully, interrogating employees concerning their own union activities or, those of their coworkers. (c) Warning employees that the advent of a union will result in a cut in hours of employment and a loss of overtime. (d) Soliciting employees with promises of wage raises or other economic favors to induce them to abandon their affiliation with, or support of, any labor organization. (e) In any like or related manner interfering with , restraining, or coercing em- ployees in the exercise of their rights guaranteed under Section 7 of the Act. GARDEN SUPER MARKET, INC. 591 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its store in Omaha, Nebraska, copies of the attached notice marked "Appendix." 16 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by the Respondent, The posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps the Respond- ent has taken to comply herewith.17 18 In the event that this Recommended Order shall be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " 17In the event that this Recommended Order is adopted by the Board this provision shall be modified to read, "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain with Retail Clerks Union, Local 1015, Retail Clerks International Association , AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement . The bargaining unit is: All full-time and regular part-time employees, excluding meat department employees, guards, and supervisors as defined in the Act. WE WILL NOT coercively, or otherwise unlawfully, interrogate employees concerning their own union activities or those of their coworkers ; warn em- ployees that the advent of a union will result in a cut in hours of employment and loss of overtime ; solicit employees with promises of wage raises or other economic favors to induce them to abandon their affiliation with or support of any labor organization ; or refuse to bargain collectively with the aforesaid union as the exclusive representative of the employees in the bargaining unit described above. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing , to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. All our employees are free to become or remain , or to refrain from becoming or remaining, members of any labor organization. GARDEN SUPER MARKET, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 731, if they have any question concerning this notice or com- pliance with its provisions. Lamar Electric Membership Corporation and International Brotherhood of Electrical Workers, AFL-CIO. Case No. 10-Cf1-5580. August 28, 1964 DECISION AND ORDER On May 12, 1964, Trial Examiner George Bokat issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, Lamar Electric Membership Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard at Barnesville, Georgia, on March 17, 1964, before Trial Examiner George Bokat, pursuant to a charge filed the preceding January 8 and a complaint issued on February 7, 1964. At issue is whether the Respondent violated Section 8(a)(5) and (1) of the Act following the certification of the Charging Union. Disagreeing with the validity of the certification and to test that issue, Respondent, as it concedes, has refused to bargain with the Union in respect to the employees in the unit embodied in the certification, though requested to do so. Upon the entire record, and after due consideration of the brief filed by the Respondent, I make the following: 148 NLRB No. 73.