Quality Markets, Inc.

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-Notify the above -named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act , as amended , after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 327 Logan Building, 500 Union Street, Seattle , Washington 98101 , Telephone 583-4583. Quality Markets, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Amalgamated Food Em- ployees Local Union 590, AFL-CIO. Case 6-CA-3374. July 1, 1966 DECISION AND ORDER On March 30, 1966 Trial Examiner Thomas F. Maher issued his Decision 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 Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and rec- ommended that such allegations be dismissed. Thereafter, the Gen- eral Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision together with supporting briefs, and the Re- spondent filed a reply to exceptions taken to Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. 1. The Trial Examiner found, and we agree, that the Respondent, by the conduct described more fully in the Trial Examiner's Decision, threatened, restrained, and coerced its employees in violation of Sec- tion 8(a) (1) of the Act. 2. The Trial Examiner found, however, that the Respondent did not violate Section 8(a) (5) by refusing on July 1, 1965, to recognize the Union as bargaining representative of the employees in the ap- propriate unit. In determining whether the Union had been desig- 160 NLRB No. 1. QUALITY MARKETS, INC. 45 nated by a majority of the employees as their representative, the Trial Examiner found that there were 22 employees in the unit, and that 13 had signed cards. However, the Trial Examiner refused to count the card of Vera Vergith signed on June 22, 1965, on the grounds that she sought to retrieve her card from the Union on June 23, 1965, and he refused to count the card of David Kertcher, who did not work for the Respondent after June 26, 1965.1 Concluding therefore that the Union represented only 11 employees in a unit of 22 employees, the Trial Examiner reconmmended that the 8 (a) (5) allegations of the com- plaint be dismissed. We disagree. In the first place, unlike the Trial Examiner, we find that James Crisman should be excluded from the unit. The record shows that Crisman, a high school student, is a part-time clerk at the Respond- ent's store 41; that he Works for 2 hours each Wednesday morning un- loading trucks; that he has been so employed since December 26, 1964, except that he worked 31/2 hours for 2 weeks and 4 hours for 1 week, and was absent from work for a week in March 1965 and a week in July 1965. The Trial Examiner concluded that Crisman was a regu- lar part-time employee and included him in the unit. We disagree. It is true that as of the date of the union demand, Crisman had Worked for the Respondent on a more or less regular basis for a period of approximately 6 months. However, in view of the small number of hours which Crisman works each week,2 we find that he lacks the req- uisite community of interest with unit employees, and we will therefore exclude him from the unit 3 We therefore find that as of the date of the Union's demand for recognition, the appropriate unit comprised 21 employees. We also disagree with the conclusion of the Trial Examiner that Vergith's card should not be counted. Vergith, as noted, signed an authorization card on June 22, but on June 23 she asked the union representative to return her card. Concluding that Vergith sought the return of her card "strictly on her own initiative," the Trial Ex- aminer refused to count her card toward the union majority. How- ever, as found by the Trial Examiner, beginning June 22, the day that Vergith signed her card, the Respondent engaged in extensive violations of Section 8(a) (1), including interrogating employees as to whether they signed union cards, suggesting to them that they could withdraw from the Union by having their authorization cards i No exception was taken to the Trial Examiner 's conclusion that Kertcher 's card should not be counted. 2 According to the Respondent 's records , in July Crisman had worked a total of approxi- mately 69 hours since employed. 3 See Cab Operating Corp, 153 NLRB 878. We agree with the Trial Examiner that Baldwin, Campasino , Mae Crisman , and Slagle were regular part-time employees who should be included in the unit. We note , however, that the record shows that each of these employees worked at least 5 or 6 hours per week. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revoked, threatening employees with discharge because of union ac- tivity, and promising them benefits for withdrawal from the Union' While it is true, as the Respondent points out, that no representa- tive of the Respondent spoke directly to Vergith about the Union, the above-described coercive conduct was directed by the Respondent at a number of its employees, including employees who worked at the same store as Vergith, and Vergith testified without contradiction that employees at her store discussed the Union among themselves. In light of the small size of the unit which comprises 21 employees and the Respondent's unlawful conduct designed to coerce employees to withdraw from the Union, we must presume that Vergith's at- tempted revocation of her card was the result of the Respondent's unlawful conduct.' As no other question is raised as to the validity of Vergith's authorization card signed on June 22, we find that it should be counted toward the union majority and that as of July 1, the Union represented a majority of 12 employees in a unit of 21 employees. The Trial Examiner further concluded that even if the Union did represent a majority, the complaint should be dismissed because the Respondent, expressed a good-faith doubt as to the Union's majority status. However, in view of the Respondent's extensive unfair labor practices, we find that the Respondent's failure to accord recognition to the Union was not in good faith, but rather was born of a desire to gain time to subvert the Union's majority and to thwart unioniza- tion and therefore violated Section 8(a) (5).6 [The Board adopted the Trial Examiner's Recommended Order' with the following modifications : [1. Add the following as paragraph 1(g) of the Recommended Order and renumber the original paragraph 1(g) as 1 (h). [" (g) Refusing to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Amalgamated Food Employees Local Union 590, AFL-CIO, as the exclusive repre- sentative of its employees in the following appropriate unit : ["All regular part-time and full-time employees employed by the Respondent in its four Titusville stores, including Richard Hall, Louise Campasino, Scott Baldwin, Mae Crisman, and Homer Slagle, but excluding David Kertcher, James Crisman, the manager of stores 4 The Respondent also engaged in a single act of interrogation of employees on June 16. e Werstein's Uniform Shirt Company, 157 NLRB 856; TMT Trailer Ferry, Inc, 152 NLRB 1508, relied on by the Trial Examiner is distinguishable since there , unlike here, the Board found no violations of Section 8(a) (1). BJoy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F.2d 732 (C.AD.C.), cert. denied 341 U.S. 914. 7 As we are ordering the Respondent to bargain with the Union , we find it unnecessary to adopt those portions of the Trial Examiner ' s Recommended Order based on the Board decision in H. W. Bison Bottling Company, 155 NLRB 714. QUALITY MARKETS, INC. 47 11, 29, and 41, the vacation relief manager for these stores, the man- ager of the meat department of store 16, office clerical employees, guards, and supervisors as defined in the Act." [2. Delete the entire paragraph 2 of the Recommended Order and substitute the following : ["(a) Upon request, bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Amalgamated Food Employees Local Union 590, AFL-CIO, as the exclusive bar- gaining representative of Respondent's employees in the unit herein found appropriate with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. ["(b) Post at its stores in Titusville, Pennsylvania, the attached notice marked `Appendix.' s Copies of said notice, to be furnished by the Regional Director for Region 6, after being duly signed by the Company's representative, shall be posted by the Company and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. [" (c) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith." [3. Add the following to the Appendix attached to the Trial Exam- iner's Decision, before the last substantive paragraph (WWTE WILL NOT in any other manner . . . ) : [WE WILL, upon request, bargain collectively with the Union named above as exclusive bargaining representative of our em- ployees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: [All regular part-time and full-time employees employed in the four Titusville stores, including, Richard Hall, Louise Campasino, Scott Baldwin, Mae Crisman, and Homer Slagle, but excluding David Kertcher, James Crisman, and man- agers of stores 11, 29, and 41, the vacation relief manager for these stores, the manager of the meat department of store 16, office clerical employees, guards and supervisors as de- fined in the Act. 8In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals, Enforcing an Order " 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [4. Delete the next to last paragraph of the Trial Examiner's Recommended Order beginning with "IT IS FURTHER RECOMMENDED that upon request of the Union ...."] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amendment thereto filed on July 8 and August 30, 1965, respectively, by Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, Amalgamated Food Employees Local Union 590, AFL-CIO, herein called the Union, the Regional Director for Region 6 of the National Labor Relations Board. herein called the Board, issued a complaint on behalf of the General Counsel of the Board on September 29, 1965, and amended thereafter without objection, against Quality Markets, Inc , herein called Respondent, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.), herein called the Act. In its duly filed answer, as amended at the hearing, Respondent while admitting certain allegations of the complaint denied the commission of any unfair labor practices. Pursuant to appropriate notice a hearing was held before Trial Examiner Thomas F. Maher on December 13 and 14, 1965, at Titusville, Pennsylvania, where all parties were present and represented by counsel, afforded full opportunity to be heard, to present oral argument, and to file briefs with me. Briefs were filed on February 3, 19655. Upon consideration of the entire record, including the briefs filed with me and upon my observation of each witness appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE RESPONDENT Quality Markets, Inc., Respondent herein, is a New York corporation operating a chain of retail grocery and meat stores in Pennsylvania and New York During the annual period immediately preceding the issuance of the complaint in this matter it is admitted that the stores within the Commonwealth of Pennsylvania did a gross volume of business in excess of $500,000 and during the same annual period received at its stores within the Commonwealth of Pennsylvania from points outside that Commonwealth goods valued in excess of $50,000. Upon the foregoing conceded facts I conclude and find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I conclude and find that Amalgamated Meat Cutters and Butcher Workmen of North America, Amalgamated Food Employees Local Union 590, AFL- CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ISSUES 1. Supervisory status of store and department managers. 2. Determination of regular part-time employee status. 3. Revocation of union authorization card. 4. Interrogation, threats of discharge, promises of benefits, and encouragement of withdrawal from Union as unlawful conduct. 5. Remedy in the absence of majority status. IV. THE UNFAIR LABOR PRACTICES ALLEGED A. The alleged refusal to bargain 1. Background of union organization Although efforts in the past have been made by the Union and other labor orga- nizations to represent Respondent's employees in various bargaining units through- out its chain of stores, none had met with success. Thus petitioning unions were unsuccessful in 1957 and 1958 elections among the employees of the Titusville, Pennsylvania, stores, in 1961 and 1962 companywide elections among the meat de- partment employees and food clerks and again in a 1964 election among employees in the Jamestown, New York, stores. QUALITY MARKETS, INC. 49 In one of these, the 1961 companywide election, it appears from the Regional Director's report on challenged ballots, that a determination was made that part-time employees whose duties approximate those of employees in the instant case who are claimed to be casuals (infia, section IV, A, 3, b) should be permitted to vote and this determination was never thereafter referred on appeal to the Board.' Against such a background representatives of the Union again sought to organize the employees in Respondent's four Titusville stores, beginning on or about June 8, 1965, and between that time and July 1 secured signed authorization cards from the following 13 employees: Chester Barker Mary Granda David Kertcher Carl Bradley Richard Hall Olga Wagner (Mrs. Pat) Patrick Brown Lawrence Harvey Donald Wheeler Allen Dangel Clement Hopkins Vera Vergith John Emick 2. The refusal to bargain On the morning of July 1 the Union's International Representative John T. Ritchey and Roy Briggs, a member of the Union , appeared at the main offices of Respondent in Jamestown, New York, and introduced themselves to Rollin J. Reading , Sr., the company president . They informed him that they represented a majority of Re- spondent's employees in the four Titusville stores and requested that the Union be recognized as the majority representative and that Respondent negotiate a collective agreement with it. To substantiate their claim the representatives presented Reading, Senior, the authorization cards for the 13 employees listed above . In addition to these cards Ritchey also gave Reading a recognition agreement form, in blank, which he asked be filled in and signed on behalf of the Company. Present at this meeting in addition to President Reading, was Vice President William J. Radack and Person- nel Manager Rollin Reading, Jr. Upon leafing through the cards and turning them over to Radack, Reading stated, according to Ritchey, "Well, this appears that you have a majority," but continued on, stating that "they had had experience with unions and that he would like to go through a normal , NLRB election," making specific reference to an earlier election held among Respondent's employees in its Meadville, Pennsylvania , stores Radack then proceeded to call off the names on the cards as he went through the pack, and as he did so, again according to Ritchey, "pointed out there was a question of whether the people wanted the Union ," noting that one of the individuals for whom there was a card was about to retire or had done so already , and that another had been known to have requested that her card be returned to her. On this note the meeting broke up, Ritchey leaving both the cards and the blank recognition forms in Reading's possession , and it being agreed that Ritchey would call back on July 7 after a company board meeting had been held In this specific, Ritchey, when asked on cross-examination whether this proposed call was not for the purpose of asking whether the Company had made a decision to recognize the Union, replied, "I think that would be involved, yes." On July 7 Ritchey telephoned Reading, as previously agreed . Reading informed him that he felt he could not recognize the Union without going through a secret- ballot election. Accordingly , the proposed meeting for the following day was canceled 2 3. The bargaining unit The voting unit of employees in which the Union claimed its majority were the four stores in Titusville where an election had previously been held under Board supervision These stores consisted of one large supermarket containing self-service and check out facilities and a complete meat department, and three so-called neigh- borhood stores, small in size and accommodation. Employees were frequently in- Cases 3-RC-2372 and 3-RMI-2093 z The foregoing is the testimony of Ritchey , substantiated in part by Personnel Man- ager Reading, Junior, and Vice President Radack While I accept Ritchey 's factual account of what transpired on these occasions I am not disposed to credit his interpretation of these facts as constituting the Company 's agreement to iecognize the Union Indeed by Ritchey's own description of the blank recognition form ishich he left with Reading and by equivocal discussion of telegrams sent to the Union by the Company on July 2 and 8 in which a doubt of majority was categorically stated , I am not disposed to accept Ritchey'.,; conclusions as to these matters in preference to contrary ones which I have made, based upon all the evidence at hand. 257-551-67-vol 160-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terchanged between these stores; and in the sale of fresh meat, the small stores received, on order, packaged meats prepared in the meat department of store 16, the supermarket. Because the nature and composition of each type of store bears sig- nificance to the issues presented, it would be appropriate to consider them separately. a. The large store 16 Store 16, managed by Raymond Bensink, a conceded supervisor, is a supermarket type bearing striking resemblance to the common variety familiar to everyone. It is sufficient to note, therefore, that the operation of the store and the duties of the employees, excepting only Lawrence Harvey, correspond in essential detail to those observed by anyone who has had (as most have) occasion to patronize this modern version of the general store. Lawrence Harvey, a member of the Union whose status in the bargaining unit is in question, is manager of the meat department and is supervised directly by Donald Minium, the superintendent of all the Company's meat operations. Employee Allan Dangel, formerly a meatcutter and called as a witness by General Counsel, identified Harvey as the "meat manager" and as being his "boss" when he was employed at store 16. - Harvey scheduled his working hours, issued him day-to-day orders, and saw to it that "the department was run right " Superintendent Minium, according to Dangel, appeared at the store once every other week, and in the meantime Harvey was responsible for the day-to-day operations of the department.3 While there is uncontradicted evidence that many elements of judgment concern- ing the operations of the meat department, including the setting of prices, purchasing, hiring, and firing, rests with higher management, I would nevertheless conclude that Lawrence Harvey possessed authority to responsively direct the operations of the meat department and of the other employees assigned to that department, and was therefore a supervisor within the meaning of Section 11 of the Act. I would further conclude and find that as such he was not a part of the bargaining unit and I would not include his card among those of employees entitled to representation by the Union. Richard Hall is claimed to have quit his job as part-time clerk at store 16 prior to July 1. Although it is undisputed that he notified Manager Bensink in early June of his intention to quit, it has been established by the testimony of Personnel Manager Reading that his last day of work was July 3. I would accordingly conclude and find that Hall was an employee when the Union made its demand for recognition on July 1, and that his authorization card should be included in any determination of the Union's majority status as of that date. David Kertcher was formerly manager of the store 16 meat department and re- tired from that position on March 15, 1965. The undisputed payroll information supplied by Personnel Manager Reading discloses that from time to time thereafter Kertcher returned to work at the store, taking the place of his successor, Harvey, when he was on vacation and of Dangel when he was sick. On the basis of this employ- ment it is claimed that Kertcher is properly a member of the bargaining unit. Be- cause Reading's undisputed payroll information discloses that Kertcher's last working day was June 26, 1965, and he has not been since employed by the Company I would conclude and find that David Kertcher was not employed on July 1, 1965. I would accordingly not include his authorization card among those of employee members of the bargaining unit entitled to representation by the Union, b. The neighborhood stores 11, 35, and 41 (1) The managers The three smaller stores are managed by salaried individuals who are charged with full responsibility for the day-to-day operation of their respective store under the immediate supervision of one Tom Wall who is otherwise unidentified in the record, 3 Much of Harvey's testimony was contrary to the credited account of his duties supplied by Dangel and substantiated by Superintendent Minium, who testified that at the store level Harvey was entirely responsible for the market, sanitary conditions, profits, and scheduling of help. I do not credit Harvey. Upon my observation of him and the studied and hesitant manner in which he evaded directly answering questions concerning his duties I am persuaded that he was not entirely frank in the matter. Accordingly I shall rely only upon the evidence supplied by his subordinate, Dangel, and his superior, Minium. QUALITY MARKETS, INC. 51 and under the active supervision of Edson Ammons, the Company's superintendent of stores. In the course of their duties these managers direct the activities of the other employees, full and part time, in their stores, purchase produce for sale within the price limitations established by the Company and, to avoid spoilage, reduce the prices of spoilable merchandise. They are responsible to higher management for the cash receipts and reports of their respective stores and for the maintenance and replenishment of inventories. Upon the foregoing facts supplied by the managers themselves when called as wit- nesses by the General Counsel I conclude and find that Walter Campasino, Russell Baldwin, and Lillian Slagle, managers respectively of stores 11, 35, and 41, are managerial and supervisory employees and would not properly be included in a bar- gaining unit of the Company's Titusville rank-and-file employees whom the Union seeks to represent. (2) The part-time employees In each of the three small stores there is one or more employees, to the total of five, who work part time for a specified reason. As the reasons for this vary they will be discussed separately. Scott Baldwin, the son of Russell Baldwin manager of store 35, was employed on and before July 1, 1965 as a clerk at store 35, and for each of at least 26 weeks there- tofore, for at least 6 hours per week, and frequently for more hours, to as many as 22 per week. His regular working days were Tuesday, Wednesday, and Thursday, after school hours, and 1 hour on Saturday morning. Some time subsequent to July 1965, Scott Baldwin quit his job and has been replaced.4 Louise Campasino is the wife of the manager of store 11, and works regularly on Tuesday and Thursday afternoon for the purpose of stocking shelves Mrs. Campasino's working hours are determined by full-time Irene Ferguson's selection of her afternoon off. Records supplied by the Company indicate that Mrs. Campasino has worked regularly on either Tuesday or Thursday afternoons, or both, since the week ending April 3, 1965, and including the week ending June 6 and July 3 when she worked 40 hours each week as Mrs. Ferguson's vacation replacement 5 James Crisman, a part-time clerk at store 41, works every Wednesday morning for two hours, at the assigned task of unloading the truck which regularly delivers stock to the store at this time each week. Lillian Slagle, manager of store 41, credibly explained that Cnsman is regularly employed in this manner because no other male employees are available at this store during the weekday hours and some- one must necessarily do the lifting and hauling from the truck when it arrives. Com- pany records disclose that he has been so employed regularly since the week ending December 26, 1964. Mae Crisman is also employed part-time at store 41 where she regularly replaces another clerk, Olga Wagner, on Tuesday and Thursday afternoons. In addition employee Mae Crisman reports to work on call as the volume of work requires her services.6 Payroll records submitted in evidence disclose that this employee has worked every week in 1965, to and through the critical July 1 date, and her weekly hours range from 41/2 hours during the week of February 6 to 221/2 hours during the week ending May 22, and 101/2 hours during the week ending July 3. Homer Slagle is the husband of Lillian Slagle, manager of store 41. He works evenings at the store to the usual total of 6 or less hours per week. He has a full- time job elsewhere and appears at the store each evening and goes home with his wife, the manager. When the store is busy he helps out 7 Company payroll records disclose that he has worked regularly in this fashion between April 19 and August 21, 1965, averaging 4 hours each week. Upon consideration of the foregoing undisputed facts relating to the five disputed part-time clerks it is clear that their working assignments are regular and consistent, and can by no stretch of reason be considered sporadic or intermittent. Accord- ingly, and in keeping with established Board precedent, I would conclude and find that they are not casual employees but regular part-time employees with interests ' The foregoing is the credited testimony of Store Manager Baldwin, based in part upon the undisputed company records In evidence. 5 The credited testimony of Walter Campasino, Irene Ferguson, and the company payroll records admitted into evidence by stipulation. 6 The credited testimony of Store Manager Slagle and employee Wagner, witnesses called by the General Counsel. ' The credited testimony of Store Manager Slagle 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD common to the other part-time and full-time clerks and properly included in the bargaining unit which the Union seeks to represent.8 Richard Mangel has been employed by the Company for 15 years, and for the past 12 years has been a stockboy at store 16. Each summer for the past 7 or 8 years he has been assigned in turn to the three small stores to substitute as manager while each of the regular managers, Slage, Baldwin, and Campasino are on their respective vacations. While thus functioning employee Mangel performs all the duties performed by the store managers, as described above, excepting only that he has no authority to reprimand employees and was obliged to report anything of an irregular or unusual nature to his superiors at store 16 for final decision. When the managers in question return from their respective vacations Mangel returns to his regular stockboy assignment at store 16. During 1965 he was so engaged as acting manager from June 12 until August 28. Although, as previously noted, Mangel has been similarly engaged each summer for the past 7 or 8 years, he credibly testified that he voted in a Board-conducted election in 1961 and his bal- lot was not challenged. In the determination of supervisory status it is the existence of the power which determines the classification," and not the frequency with which the power is exer- cised. Thus it was said of an employee devoting 50 percent of his average daily working time to nonsupervisory duties.9 Here Mangel devoted 21 percent of his work year uninterruptedly at duties which as to others I have found to be supervisory (supra, section IV, A, 3, b). Although he has no authority to reprimand employees while thus performing his duties and consults his superiors "when things go wrong," I would nevertheless conclude and find that while acting as a manager he does responsively direct employees and is accordingly a supervisor within the meaning of Section 11 of the Act. Accordingly, I would further conclude and find that as such Mangel was not a member of the bargaining unit which the Union sought to represent. In summary and based upon the findings and conclusions above I would define the appropriate unit herein as of July 1, 1965, as all the part-time and full-time employees in a unit of four Titusville stores which I find to be an integrated seg- ment of Respondent's operations,10 including the five regular part-time employees who work at stores 11, 29, and 21, namely Louise Campasino, Scott Baldwin, James Crisman, Mae Crisman, and Homer Slagle, and all other part-time or full- time employees working on July 1, 1965, including Richard Hall, but not includ- ing David Kertcher and excluding from the above-described group the managers of the three small stores, stores 11, 29, and 41, the vacation relief manager for these stores, and the manager of the meat department of store 16, office clericals, guards, and all other supervisors as defined in the Act. 3. The authorization cards As previously noted the Union obtained 13 signed cards authorizing it to repre- sent the employees and it presented them to Respondent on July 1 in support of its claim to majority status. Of this number two of the cards are in doubt. These are the cards of David Kertcher and Vera Vergith. David Kertchei has not worked for Respondent since June 26, 1965, at least a week prior to the critical July 1 date. It was accordingly found that he was not a member of the bargaining unit (supra, section IV, A, 3, a). Consequently any card signed by him authorizing the Union to represent him is of no force and effect for any time subsequent to June 26. I would conclude and find, therefore, that Kertcher's card not be included among those used to determine the union majority as of July 1, 1965. Vera Veigith credibly testified that on June 23, the day after she signed the union authorization card, she called Briggs of the Union and told him she was sorry she had signed the card and would like it back. Briggs informed her that he could not comply as he had sent the card on to International Representative Ritchey." There- 8 Cafner Automotive cC Machose, Inc., 156 NLRB 577, footnote l; Glynn Campbell, d/b/a Piggly Wiggly El Dorado Co, 154 NLRB 445; C T L Testing Laboratories, Inc, 150 NLRB 982. 9 Ohio Power Company v N.L R B , 176 P 2d 385, 388 (C A 6) 10 Weis Markets , Inc, 142 NLRB 708 11 In crediting Miss Vergith I also credit her testimony that no one from the Company had discussed her union card with her Neither Briggs nor Ritchey were questioned con- cerning Vergith' s request for the return of her card QUALITY MARKETS, INC. 53 after at the meeting on July 1 when the cards were inspected by Respondent's Vice President Radack he questioned one of the cards, stating to Ritchey that one em- ployee had been known to have requested her card be returned to her. It is well settled that were an employee revokes an authorization to a union to, represent it and seeks, however unsuccessfully , to retrieve the card prior to the date upon which majority status is sought that card may not properly be included among those whom the Union claims to represent . 12 As it has been established that Vera Vergith sought, strictly on her own initiative, to retrieve her card on June 23, I conclude and find that it cannot be included among those cards used to determine the Union's majority status on July 1. Upon the foregoing determinations whereby I would exclude the cards of Vergith and Kertcher I would further conclude and find that as of July 1, 1965, the Union represented a total of 11 of Respondent 's employees. 4. Analysis and conclusions Arithmetic computations disclose that the unit appropriate for bargaining is con- siderably less in number than the one claimed by the Company and considerably different from the one claimed by the Union Everyone agrees that there are 16 undisputed part- and full-time clerks in the unit Added to this are (1) the five regular part-time employees who assist in the op- eration of the three smaller stores (supra, section IV, A, 3, b) and (2) employee Hall, who was working on July 1. Thus there were on July 1, 1965, a total of 22 eligible employees. Not included in this group were the store 16 meat department man- ager, the vacation relief manager, and the three small store managers, and David Kertcher who has not worked since June 26. As the Union presented to the Company on July 1 only 11 valid authorization cards of presently employed individuals in the above-described unit (the cards of Vergith and Kertcher being excluded) it is clear that it did not represent a ma- jority of the 22 eligible employees. Consequently Respondent was under no ob- ligation to bargain with it when so requested. Moreover, even if there had been a majority, contrary to my findings herein, it is apparent from the testimony of General Counsel's own witnesses that when the cards were presented to Respondent what its officials said was not that the Union had a majority, but that they "appeared" to have one, and that in any event, because one of the card signers (Kertcher) had already retired, and another (Vergith) had sought to retrieve her card, they would prefer to go to a Board-conducted elec- tion, as had been done on previous occasions. Citation of authority is quite unnecesary to define this as a good-faith doubt, particularly since it was founded upon positive knowledge which has been further substantiated at the hearing, as to both Vergith and Kertcher. Accordingly, even were there a majority on July 1, I would conclude and find that Respondent's offi- cials Reading, Senior, and Radack expressed such good-faith doubts of the Union's claim as would justify Respondent's refusal to recognize and bargain with it. Because, therefore, the Union did not represent a majority when it requested bargaining I would recommend that so much of the complaint as alleges a refusal to bargain in violation of Section 8(a)(5) be dismissed. And in the event that it should be determined upon review that the unit is other than found herein I would also conclude and find upon the credible evidence of General Counsel's wit- nesses that the good-faith doubt expressed by Respondent would similarly justify my recommendation that the Section 8(a)(5) allegations be dismissed. B. Interference, restraint, and coercion When the Union commenced its campaign of organizing the Titusville employees in early June 1965 this fact soon became common knowledge among the employees and promptly came to the attention of Vice President Radack and other officials at the Jamestown offices of the Company.13 Whereupon Edson Ammons, superin- tendent of store operations, "got busy on this job of selling Quality Markets," to use his own words. To this end he made several special trips to the Titusville stores during late June and early July and engaged the employees, individually, in con- versations designed to "sell them" on Company's point of view in opposition to the 12 TMT Trailer Ferry, Inc., 152 NLRB 1495. 13 Superintendent of store operations Ammons testified that one of the Titusville em- ployees had communicated this information to President Reading. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. It was Ammons' campaign, supplemented by similar activities of other members of the management staff, that forms the basis of the alleged interference, restraint, and coercion. On visits to store 16 on or about June 22 and thereafter on the 28th, Ammons spoke individually to the employees, expressing to each one his hope that they had not or would not sign union cards. In some cases, as recalled by employee wit- nesses, he prefaced his remarks by asking them if they had signed cards. This oc- curred in conversations with employees Bradley, Emick, Hopkins, Brown, on two occasions, Barker, whom he also asked what he knew of the Union's campaign and finally Meat Manager Harvey, of whom he inquired if the union people had been around and who of the employees had signed the cards.14 During this same period Donald Minium, supervisor of meat departments, engaged in similar factfinding, seeking out Meat Manager Harvey and asking him first if he had signed a card, and thereafter upon learning independently that Harvey had joined the Union, ask- ing him why he had done so.15 During the course of these same conversations Ammons, and to a lesser degree, Minium engaged the employees in discussions concerning the benefits to be intro- duced either on July 1 or when store 16 moved into its new quarters. Thus on his June 22 and 28 visits Ammons discussed the 5-cent wage increase that was to be placed in effect on July 1, and he explained to each one to whom he spoke that benefits of insurance and hospitalization were to be added to existing coverage.16 This, Ammons explained at the hearing, was an outgrowth of company action taken as a result of earlier employee meetings in Jamestown at which gripes had been aired and future plans developed. He denied that anything in the nature of promises were intended. In his conversation with employee Barker, Ammons not only gave him what he described was the "Company's side," but in addition he elaborated upon the opportunities that were available within the Company to an alert young man. In explaining the advantages of becoming a manager Ammons interspersed the conversation with references to employees who had joined the Union and had indicated to him their desire that employees withdraw their union memberships.17 Indeed the withdrawal of union cards later became a most active subject of con- versation between store 16 Manager Bensink and a number of employees, including Emick, P. Brown, Hopkins, and Harvey, and also Barker, to whom withdrawal had already been alluded by Ammons. In each case, these individuals credibly state, Bensink suggested in early July that the employee could retrieve his union authori- zation card if he so wished. He explained that this could be effected by means of a registered letter to Briggs 'of the Union.18 In the course of their respective conversations with the employees during late June and early July, Ammons, Minium, and Bensink extended their remarks to suggest possible consequences of union representation of the employees. Thus on July 2 in the course of explaining the "Company's side" to employee Dangel, the subject of his absence record, caused by a recurring illness, came up and Minium stated that union membership would not insulate him from discharge.19 I do not, however, place Mmium's conversations with Harvey in the same category. Harvey, whom I have not credited generally as a witness, appears to have been overly sensi- tive to supervisory suggestions and seems to have considered every conversation with his superiors as one, requiring self-defense. Accordingly I place no con- struction of threat upon Minium's several conversations with him wherein efforts were being made to increase Harvey's and the meat department's efficiency. 141 do not credit Ammons' denial that in the course of his conversations with these people he studiously avoided questioning them, threatening them, or promising them bene- fits Ammons concedes that he engaged them in conversations along these lines In the very nature of things there is the strong likelihood that in the course of conversations of this sort the distinctions between statements and questions, promises, threats and specula- tions, can become so blurred as to be indistinguishable Accordingly, in assessing the facts herein, I am guided by what I deem to be the impressions left by Ammons and the other supervisors upon their listeners, in an atmosphere charged with contention and suspicion 151 do not credit Minium's denial that he questioned, promised, or threatened employees in the course of his conversations with them on the subject of the Union 16 The credited testimony of employees Granda, Bradley, P. Brown, Emick, Barker, and Hopkins. 17 The credited testimony of employee Barker. 18 The credited testimony of employee Emick. I do not credit Bensink's denial of this conduct attributed to him. 19 Minium admits to this conversation but places it in a context of explaining, to Dangel bow generous the Company had been to him in the matter of absences, QUALITY MARKETS, INC. 55 Such was not the case, however, with Bradley's conversation with Ammons on July 1. In the course of Ammons' "selling the company point of view" it was explained that union or no union a man could be gotten rid of by the simple ex- pedient of assigning him to a cash register and thereafter firing him for his first mistake. Ammons' explanation of this conversation was to the effect that he was explaining how other markets handle such matters, not Quality Markets. Be that as it may, and assuming the validity of Ammons' explanation, it was evident from the testimony of Bradley, whom I credit, that he received what I have found to be the intended message. And finally in a conversation with employee Hopkins on July 1 Assistant Man- ager Bob Brown stated that if the Union got in the employees would lose their profit-sharing program. Hopkins credibly stated that Ammons, who was present when this conversation took place, said nothing but was observed to have nodded his head. A full consideration of the foregoing conversations attributed to Respondent's officials Ammons, Minium, and Bensink, suggest that they can be viewed as either run-of-the-mill discussions of the Company's position in labor relations matters, or as a determined effort to forestall the Union; but it is to Ammons whom we would look for the context, and he describes this most clearly, relating to his June 28 visit- My purpose that day was to talk to everybody in the store and sell Quality Market. To remind them how we got along without a union. We could exist without one. I do remember I talked to seven or eight people and the pitch was the same every time. In such a context it is quite evident that Respondent recognized there was a line beyond which its conversations and statements could not go. Thus each of Respondent's officials testified that they were conscious of their obligation not to question, threaten, or promise. Viewed against the purpose of the conversations, as described by Ammons and the others, it remains to be seen whether this pur- pose was achieved without infringement upon the employee rights guaranteed by Sections 7 and 8(a)(1) of the Act A review of these statements as found above disclose that continually throughout the Union's campaign to organize Respondent's employees Respondent's officials intruded themselves into an area that was not of their concern Thus, although their inquiry as to whether an employee had or had not signed a union card might be innocuous when standing alone,20 here it was made in a context of what benefits the Company was about to put into effect.21 Albeit it was a routine wage increase , and that the hospitalization and insurance benefits had been increased pursuant to prearranged plans, the simple fact remains that these were placed in force at what everyone recognized to be the height of the Union's organizing campaign; and they were discussed with the employees as the "Company's side." It has long been recognized that this sort of statement and conversation, so intimately timed with the Union's effort, is a promise of bene- fit calculated to interfere with, restrain, and coerce the employees in their selec- tion of a representative.22 Similar are the veiled threats that union or no union a named employee could be discharged for existing deficiencies such as an absentee record, or that employees are being disposed of summarily via the cash register at other stores, and that the employees stood to lose their profit-sharing benefits. All or any of these observations could not help but affect the employee's ultimate point of view in selecting or not selecting the Union.23 And in like view, management's unsolicited suggestion as to how to withdraw from a union has consistently been held to be unlawful interference.24 In summary I would conclude and find that by the foregoing instance of inter- rogation, threats, promises of benfit, and encouragement to withdraw from the Union, Respondent has interfered with, restrained, and coerced its employees in the exercise of their statutory rights to freely select their bargaining representative, thereby violating Section 8(a)(1) of the Act. 20 Briggs IGA Foodliner, 140 NLRB 443, 440. 2L L. & H. Trucking, Inc, 155 NLRB 104 22 Western Saw Manufacturers , Inc, 155 NLRB 1323. 2a Cf The Standard Oil Company ( an Ohio corporation ), 155 NLRB 302; Cleveland Woolens, 140 NLRB 87, footnote 5 2+Warrensburg Board & Paper Corporation, 143 NLRB 398; Safeway Cabs, Inc, 140 NLRB 1334. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in con- nection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. VI THE REMEDY I have found and concluded that Respondent has not refused to bargain with the Union in violation of Section 8(a)(5) of the Act only because the Union never obtained a majority and I will recommend that the complaint be dismissed in that respect. I have, however, found and concluded that contemporaneously with the incidents embodied in the foregoing allegations, Respondent interrogated its em- ployees, threatened them with discharge because they belonged to the Union, prom- ised and granted them benefits and promotions to dissuade them from joining or remaining in the Union and instructed them to withdraw from the Union and in the manner in which they could do so. Accordingly, I will not only recommend Respondent cease and desist therefrom and in any other manner interfering with, restraining, or coercing their employees in the exercise of their statutory rights 25 but because there is a strong possibility that but for Respondent's contemporaneous conduct the Union would have received the additional support if needed herein (supra, section IV, B) to achieve majority status I will recommend further reme- dial action that Respondent may be thereby precluded from benefiting from the misconduct which I find to have been committed. Therefore, because of Re- spondent's resort to individual interviews with employees it is deemed appropriate that it take steps to inform each of its employees, individually, of his statutory right to be free from interference, restraint, and coercion. I shall accordingly recommend that Respondent mail to each individual in its employ in the four Titus- ville stores on July 1, 1965, or who have thereafter been employed in these stores a copy of the notice, attached herein as Appendix, after it has been signed by Re- spondent, in addition to posting copies thereof in its Titusville stores where notices to employees are customarily posted. As it has violated the rights of those employees who had not yet a chance to formulate their desires with respect to representation as well as the rights of those who had done so, it is deemed appropriate that employees be afforded further op- portunity to engage in organizational efforts. To this end it is recommended that, upon request of the Union made within one month of the Board's Order herein, Respondents immediately grant the Union and its representatives reasonable access for a three-month period to its bulletin boards in its Titusville stores and to all places in these stores where notices to employees are customarily posted Furthermore, in order to redress the imbalance created by Respondent's action in communicating pri- vately with its individuals with respect to the Company's position in labor relations matters it is recommended that the Union be given an opportunity to present its view under similar circumstances. Accordingly it is recommended that, upon request of the Union, Respondent shall permit union representatives reasonable access to its Titusville store facilities so that the Union may converse individually with the em- ployees. Finally, it is recommended that upon request of the Union made within 30 days immediately following compliance herewith by Respondent, that the Regional Director for Region 6 conduct an election in the unit found appropriate herein 26 RECOMMENDED ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act,-as amended, I recommend 27 that Quality Markets, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees concerning their union membership, activities, or desires. 25 N L R B v Express Pubhshinq Company, 312 U.S. 426 23 H W Elson Bottlrnq Company/, 155 NLRB 714 27 In the event that this Recommended Order be adopted by the Board, the word "Reconi mended" shall be deleted from its caption and wherever else it thereafter appears, and for the words "I Recommend" there shall be substituted "The National Labor Relations Board Hereby Orders " QUALITY MARKETS, INC. 57 (b) Threatening employees with discharge because of their membership in Amal- gamated Meat Cutters and Butcher Workmen of North America, Amalgamated Food Employees Local Union 590, AFL-CIO, or any other labor organization. (c) Promising wage increases and insurance and hospitalization benefit increases to employees in order to encourage them to abandon the Union for bargaining pur- poses and to defeat the Union. (d) Granting wage increases and increases in insurance and hospitalization bene- fits to discourage further activity and support for the Union. (e) Promising promotions to employees to encourage employees to abandon the Union. (f) Instructing employees to withdraw from the Union and in the manner in which this withdrawal might be effected. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds necessary to ef- fectuate the purposes of the Act: (a) Mail to each employee and post at its stores in Titusville, Pennsylvania, at- tached notice marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Director for Region 6, shall be signed by a representative of the Company Thereafter a copy shall be mailed to each of its employees by the Company, and additional copies shall be posted by it and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material (b) Upon request of the Union made within 1 month of this Decision, immedi- ately grant the Union and its representatives reasonable access for a 3 month period to its bulletin boards and all places where notices to employees are customarily posted. (c) Upon request of the Union, make available to the Union and its representa- tives at a mutually agreeable time within 3 months of this Decision, suitable facilities where representatives of the Union may meet individually with employees so that the Union may present its views to the employees on company time. Such facilities shall be made available at each of Respondent's stores (d) Notify the Regional Director for Region 6, in writing, within 20 days 29 from the date of this Recommended Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that upon request of the Union made within 30 days immediately following compliance of the foregoing Recommended Order by Respond- ent, that the Regional Director for Region 6 be hereby directed to conduct an election among Respondent's employees in the unit found appropriate. IT IS FURTHER RECOMMENDED that so much of the complaint in this proceeding as alleges an unlawful refusal to bargain be dismissed. 24 In the event that this Recommended Order is 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 If the Board's Order is enforced by a decree of it United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order" 29 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read "Notify the said Regional Director, in writing, within 10 days, from the date of this Order, whit steps the Respondent has taken to comply hereR ith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT unlawfully interrogate our employees concerning their union membership, activities, or desires. WE WILL NOT threaten them with discharge because of their membership in Amalgamated Meat Cutters and Butcher Workmen of North America, Amal- gamated Food Employees Local Union 590, AFL-CIO, or any other labor organization. WE WILL NOT promise our employees wage increases or increases in insurance and hospitalization benefits, or promotion in order to encourage them to abandon the Union for bargaining purposes and in order to defeat the Union. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT grant wage and insurance and hospitalization benefit increases to discourage further, activity and support for the Union. WE WILL NOT instruct our employees to withdraw from the Union or in the manner by which they might do so. WE WILL NOT in any other manner interfere with, restrain , or coerce our em- ployees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. QUALITY MARKETS, 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board 's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh , Pennsylvania, Telephone 644-2969. River Togs, Inc. and Local 107, International Ladies' Garment Workers' Union, AFL-CIO. Case 29-CA-187. July 1, 1966 DECISION AND ORDER On January 3, 1966, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices, and recommended that these allegations of the complaint be dismissed. Thereafter, Respondent and General Counsel filed exceptions to the Trial Exam- iner's Decision and supporting briefs. The Charging Party also filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and 'The General Counsel has excepted to the credibility findings made by the Trial Exam- iner. It Is the Board's established policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the clear preponder- ance of all the relevant evidence convinces us that the resolutions were incorrect Stand- ard Dry Wall Products, Inc, 91 NLRB 544, enfd . 188 F 2d 3G2 (C A 3) 160 NLRB No. 2.