161 NLRB 676
Value Giant
676
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by it immediately upon receipt, and maintained thereafter for a period of 60 con-
secutive days. Reasonable steps shall be taken by the Union to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Furnish-to the Regional Director for Region 7 for transmittal to and posting
by Fleetwing in its warehouse and by American on its trucks, if either or both be
willing so to post, signed copies of the aforesaid notice.
(c) Notify the Regional Director for Region 7, in writing, within 20 days from
the date of receipt of this Decision, what steps it has taken to comply herewith .4
IT IS FURTHER RECOMMENDED that unless within 20 days from the date of receipt
of this Decision the Union notify the Regional Director, in writing, that it will
comply with the terms hereof, the Board issue an order requiring it to take such
action.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 299, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
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 you that:
WE WILL NOT induce or encourage any individuals employed by Fleetwing
Terminal Corporation or any other person engaged in commerce or in an
industry affecting commerce to engage in a refusal in the course of their
employment to process, transport, or otherwise handle any goods, articles,
materials, or commodities with an object of forcing or requiring Fleetwing
or any other employer engaged in commerce to cease doing business with
American Motor Lines, Inc.
LOCAL 299, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
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 members have and question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone
226-3244.
4In the event that this Recommended Order is adopted by the Board, this prosision
shall be modified to lead: "Notify said Regional Director, in writing, within 10 days
from the date of this Decision, what steps the Respondent has taken to comply herewith
Sonora Sundry Sales, Inc., d/b/a Value Giant and Retail Clerks
Union Local No. 588, Retail Clerks International Association,
AFL-CIO.
Case fO-CA-3674.
November 1, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in any of the alleged unfair labor practices
and recommending that the complaint be dismissed, as set forth in
the attached Trial Examiner's Decision. Thereafter, the Charging
Party and the General Counsel filed exceptions to the Trial Exam-
161 NLRB No. 53.
SONORA SUNDRY SALES, INC.
677
iner's Decision and supporting briefs; the Respondent filed a brief
in support of the Trial Examiner's Decision, cross-exceptions, and an
answering brief in opposition to exceptions; and the General Counsel
filed a brief in answer to the Respondent's cross-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, cross-exceptions, the briefs, and
the entire record in the case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations only to the extent con-
sistent herewith.
The Trial Examiner found, and we agree, that the Union, on
June 9, 1965, when it sought recognition, represented a majority in
an appropriate unit of the Respondent's selling and nonselling
employees. He nevertheless concluded that the Respondent's failure
and refusal to bargain with the Union was not violative of Section
8(a) (5) of the Act. For the reasons set forth below, we find merit
in the exceptions to this conclusion.
The facts, which are largely undisputed, show that Finch, manager
of the store here involved, learned on June 5, 1965, of the Union's
organizing campaign, which had begun a few days earlier, and so
informed Lase, president of the Respondent, by telephone on the
same day. Base replied that he would send Finch copies of a memo-
randum and ballots for distribution to the employees.
On June 7, Finch called a meeting of the employees at which he
informed them for the first time of the grant of company benefits,
including vacations, sick leave, and holidays. During the meeting,
Finch stated that a drug industry agreement that the union repre-
sentative had shown employees was not applicable to the Respondent's
store as it did not have a prescription pharmacy, that only the
"variety store contract" was applicable, and that the latter contract
provided lower starting wages than the employees were receiving.
On June 9, Finch received from Lase copies of a ballot and of a
memorandum explaining it, which were distributed to the employees,
who were requested to indicate on the ballots whether they wanted
representation based on a secret election or on a card check. The
Respondent claims thereafter 11 ballots were placed on Finch's
desk, all indicating a preference for an election.
On the afternoon of June 9, before all the ballots had been returned
to Finch and, in fact, before some of the employees had received
678
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots, Union Representatives Turner and Mierly met with Finch,
claimed to represent a majority in a unit of all the selling and non-
selling employees, and demanded recognition. At Finch's request for
proof of majority, Turner handed him 11 cards; there were 12 selling
and nonselling employees. After examining the cards, Finch stated
that it appeared that the Union "had them all signed up," although he
noted there were cards from three who were not currently employed.
There is come conflict in testimony as to the sequence of events
thereafter, but there is no dispute that Finch signed the following
recognition agreement :
Having examined proof of Retail Clerks Union, Local 588,
majority status, Sonora Sundries Sales d/b/a Value Giant
recognizes said Union as collective bargaining agent of its
employees employed at East Highway 108, Sonor[a], California,
and agrees to bargain collectively with said Union for terms and
conditions of employment of said employees. SONORA SUN-
DRIES SALES DBA VALUE GIANT By W. 11. Finch, Store
Manager, June 9, 1965.
It is also undisputed that Finch signed documents verifying the
Union's majority status and acknowledging that the Union showed
him cards signed by a majority of employees; Finch telephoned the
Respondent's attorney and informed him of the Union's majority;
the attorney did not question the Union's majority status: and
Finch promptly forwarded copies of the signed documents to com-
pany officials.
On June 12, Robinson, a representative of Ames Mercantile Com-
pany, Inc., of which the Respondent is a subsidiary, in an address
to the employees here involved, stated that he understood they had
all signed cards; he did not think Ames would sign a "drug contract"
because the Respondent slid not have a prescription counte:•, and
other Aines stores had a "variety store contract" ; the beginning wage
under the latter contract was $1.35 an hour whereas the employees
were currently receiving $1.40; and, if they joined the Union, it
would take them longer to build up to top pay than it would without
a Union. Robinson also referred to the various benefits available to
the employees.
On the following work day, June 14, a letter was prepared by an
employee, which was signed by a total of nine employees and sent
to the Union on June 21, requesting return of their cards and a
secret-ballot election. Three of the employees who signed the letter
had not signed cards.
SONORA SUNDRY SALES, INC.
679
On July 18, the Respondent unilaterally announced an increase
in the wage rates from $1.40 to $1.45, effective retroactively to July 1,
and increases in the health and welfare coverage.
Although the Union, following Finch's signing of the recognition
agreement, attempted to arrange a meeting with the Respondent at
which to discuss a contract, the respondent notified it that "the
matter of the Union situation" was being discussed with its attorneys,
and, later, that a labor relations consultant had been engaged by the
Respondent and was checking into the matter. There was no other
response to the Union's request for negotiations.
As set forth above, Finch, on June 9, 1965, after examining the
Union's cards, acknowledged its majority status and signed a recog-
nition agreement. We find, contrary to the Trial Examiner, that
Finch, the highest official at the store, was clearly the Respondent's
agent with ostensible authority to acknowledge the Union's majority
showing. Moreover, although Finch notified the Respondent's attor-
ney and officials of the Respondent's parent corporation of his action,
the Respondent did not disavow Finch's action. In fact, at the hear-
ing it offered no evidence that Finch lacked authority to recognize
the Union, urging, rather, that he lacked authority to negotiate a
contract.' Furthermore, we find no merit, in the Respondent's con-
tention that it later entertained a good-faith doubt of the Union's
majority based on the results of its poll and of the employees' letter
to the Union seeking a return of their cards. Neither the poll nor
the letter, occurring after the Union's majority status had been
established, detracted from the Union's representative status.Z
It is clear, therefore, that the Union, on June 9, represented a
majority of the Respondent's employees in an appropriate unit,
that the Respondent had acknowledged this fact in writing, and that
the Respondent nevertheless thereafter met the Union's requests to
bargain with delaying tactics. At the same time, it was seeking to
discourage its employees' adherence to the Union by Robinson's
speech which, while recognizing the Union's majority status, notified
the employees that the effect of signing a union contract would be a
decrease in wages. The Respondent also thereafter unilaterally
granted an increase in wage rates and in other employment benefits.
Accordingly, we find, under the circumstances set forth above and
upon the entire record, that the Respondent failed and refused to
ISee, Colette Color Ph rts, Inc, 159 NLRB 1593
The Richman Rtothets Company
1,57
NLRB 1666, Pernmcold Industries, Inc, 147 NLRB 885, 886
2 See,
The Richman
Brothers Co , supra, Keller
Plastics
East ern,
Inc
157 NLRCi
583 ,
Universal
Gear Set t,,ce
Corporation , 157 NLRB 1169 ,
Han ntgtott, Ozella, d/b/a
Kimb, ough Trucking Co , 160 NLRB 954
680
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain- with the Union since on or about June 9, 1965, in violation
of Section 8(a) (5) and (1) of the Act.
We find further that the Respondent, by the threat in Robinson's
speech that execution of a union contract would result in decreased
wage rates, violated Section 8(a) (1) of the Act.3
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent set forth above, occurring in
connection with its operations described in section I of the Trial
Examiner's Decision, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices prohibited by Section 8(a) (5) and (1) of the Act,
we shall order it to cease and desist therefrom, and take certain
affirmative action designed to effectuate the purposes of the Act.
We have found that the Respondent has unlawfully failed and
refused to bargain with the Union as the representative of its employ-
ees in an appropriate unit. We shall therefore require the Respond-
ent to bargain, upon request, with the Union and, if an understanding
is reached, embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Clerks Union Local No. 588, Retail Clerks International
Association, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All selling and nonselling employees at the Respondent's Sonora,
California, store, excluding guards, watchmen, 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.
4. The aforesaid labor organization is, and at all times material
herein has been, the exclusive representative of the employees in the
above appropriate unit for purposes of collective bargaining, within
the meaning of Section 9(a) of the Act.
3 The complaint does not specifically allege violations of the Act based upon Finch's
June 7 speech , the Respondent 's poll of employees, or the Respondent's unilateral wage
increase
Although these matters were brought up at the hearing, we find, contrary to the
General Counsel' s contentions , that they were not litigated sufficiently to fully warrant
our basing any findings of violations of the Act thereon.
SONORA SUNDRY SALES, INC.
681
5. By refusing and failing to bargain collectively with the afore-
said labor organization, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (5)
and (1) of the Act.
6. By threatening employees that execution of a union contract
would result in decreased wage rates , the Respondent has violated
Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Sonora Sundry Sales, Inc., d/b/a Value Giant,
Sonora, California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Retail Clerks Union
Local No. 588, Retail Clerks International Association, AFL-CIO,
as the exclusive representative of all its employees in the appropriate
unit with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
(b)Threatening employees that execution of a union contract
would result in decreased wage rates , or in any like or related manner
interfering with, restraining, or coercing its employees in the exercise
of their right to self-organization , to form labor organizations , to join
or assist Retail Clerks Union Local 588, Retail Clerks International
Association, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from engaging in
such activities. except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment , as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Retail Clerks Union
Local No. 588, Retail Clerks International Association , AFL-CIO,
as the exclusive representative of the employees in the appropriate
unit with respect to rates of pay , wages, hours of employment, and
other terms and conditions of employment , and, if an understanding
682
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is reached, embody such understanding in a signed agreement. The
bargaining unit is:
All selling and nonselliug employees at Respondent's Sonora,
California, store, excluding guards, watchmen, and supervisors
as defined in the Act.
(b) Post at its store in Sonora, California, copies of the attached
notice marked "Appendix." " Copies of said notice, to be furnished
by the Regional Director for Region 20, after being duly signed by
an authorized representative of the Respondent, shall be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive clays thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
4111 the event that this Ordei is enforced by a deciee of a United States Court of
'appeal,, thcie sha11 he substituted for the words "a Derision and Ordei' the a,oi is "a
Device of the United States Court of Appeals Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
j\TE WILL, upon request, bargain collectively with Retail Clerks
Union Local No. h88, Retail Clerks International Association,
AFL-CIO, as the exclusive representative of all selling and
nonselling employees at our store in Sonora, California, exclud-
ing guards, watchmen, and supervisors as defined in the Act,
with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed
agreement.
W77 WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their rights to engage in or to refrain from
engaging in union activities by threatening employees that exe-
cution of a union contract would result in decreased wage rates,
SONORA SUNDRY SALES, INC.
683
or in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such
rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act, as modi fled by the Labor-
Management Reporting and Disclosure Act of 1959.
All our employees are free to become or refrain from becoming
members of the above-named Union, or any other labor organization.
SoN ORA S UN I)RY SALES, INC. n/B/A VALUE GIANT,
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 hav-e any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, Sun Francisco, California 94102, Telephone 556-
3196.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, with all parties represented, was heard before Trial Examiner James
R. Webster in Stockton, California, on March 15 and 16, and in San Francisco,
California,
on March 25, 1966, upon complaint of the General Counsel and
answer of Sonora Sundry Sales. Inc , d/b/a Value Giant, herein called Respondent.
The complaint was issued on December 20, 1965, upon a charge filed July 1, 1965,
and amended on December 8, 1965 The complaint alleges that Respondent has
refused to recognize and bargain with the Union since on or about June 9, 1965,
and has interfered with, restrained, or coerced employees in violation of Section
8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called
the Act.
Briefs have been filed by the General Counsel and by Respondent and the
Charging Party and have been carefully considered. Upon the entire record and
my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, acquired a retail store in Sonora, Cali-
fornia, on April 1, 1965, which is the store involved in this case. This store was
684
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opened to the public on May 27, 1965 . From the time it commenced operations to
June 30, 1965 , Respondent purchased and received products valued in excess of
$12,500 directly from suppliers located outside the State of California . Projected
on an annual basis, Respondent's purchases from supplier located outside the
State of California for the first year of its operations may reasonably be expected
to exceed $50,000, and gross sales for the same period may reasonably be expected
to exceed $500,000
Respondent is a wholly owned subsidiary of Ames Mercantile
Company, Inc.
I find that Respondent is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local No. 588, Retail Clerks International Association,
AFL-CIO, herein called the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
On May 27, 1965, Respondent opened its store in Sonora, California, to the
public. Most of its employees were hired between April 20 and May 27, 1965.
Between the peiiod of June 3 and 8, 1965, the Union obtained signatures on mem-
bership applications from 11 of Respondent's employees involved, and on June 9,
1965, the Union requested recognition as the bargaining representative for all sell-
ing and nonselling employees at Respondent's Sonora, California, store, excluding
guards, watchmen, and supervisors, as defined in the Act. I find that this unit of
employees constitutes a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.'
On June 5, Store Manager W. H. Finch first learned of the Union' s organization,
of his employees He was informed by an employee that he had signed a member-
ship application for the Union Finch then called by telephone Paul Kase, president
of Respondent, and informed him that the Union was
organizing the employees.
Kase told Finch that he would send him copies of a memorandum and ballots for
distribution to the employees on this matter.
On June 7, Finch assembled and spoke to the employees. The Sonora store
having recently opened and the permanent working force having been selected, a
primary purpose of this meeting was orientation of employees. Finch discussed
with them such matters as their dress, their relations with the customers, the areas
of their responsibility, and Respondent's employee benefits. He read to them, from
Respondent's operation manual, provisions on such matters as vacations , sick leave,
holidays, et cetera; and on this occasion or shortly thereafter, he distributed to
employees excerpts from Respondent's manual.
During the meeting, an employee asked Finch about a drug industry agreement
that a union representative had shown them. Finch stated that this agreement, as
such, did not pertain to the Sonora store and could not be signed by Ames as the
store did not have a prescription pharmacy; that the only agreement that this store
would fall under would be a variety store contract and the starting wage in it was
less than the employees were currently receiving.
1. Balloting of employees, June 9, 1965
On June 9, 1965, Finch received from Kase copies of a memorandum and ballots
for distribution to the employees. A copy of each was distributed to employees
working that day, and they were told that the Company would like for them to
mark the ballots and place them on Finch's desk, but if they did not wish to do
this, they did not have to.
I On June 9, Respondent had 12 employees in the appropriate unit, of vvhoni 8 had signed
cards
Three who had previously signed cards were not then employed.
SONORA SUNDRY SALES, INC.
685
The memorandum is quoted as follows:
MEMORANDUM
From: Paul D. Kase
June 8, 1965
To: TO ALL EMPLOYEES
Attached you will find a questionnaire which we would like to have you fill
out so that we may have your opinion concerning this matter. Please place
an "x" in the box that indicates your desires concerning this matter.
It is our understanding that the local union representative has been handing
out to you a contract which covers the Drug Industry. We sincerely hope that
you are not being mislead after reading this contract. The contract which you
have been handed by the Union representative and the wage rates contained
within it, do not apply to our type of Retail Operation. This contract covers
the Drug Industry which includes a Prescription Pharmacy. We do not now or
intend in the future to have a Prescription Pharmacy on the premises. We
would also like to point out that neither union nor any of its representatives
have ever contacted us and shown us the contract which you have been
handed. If they had, possibly some of the confusion that now exists could
have been cleared up.
We wish to express our thanks for helping us to have a very successful
opening in Sonora and would appreciate the return of the questionnaire to
Mr. Finch as soon as possible.
The ballot distributed to employees is quoted as follows:
SONORA SUNDRY SALES
ROUTE #2, BOX 700
SONORA, CALIF.
TO ALL EMPLOYEES
We expect that in the near future the Retail Clerks Union Local, may ask
us to recognize the union as your Collective Bargaining Agent solely on the
basis of a check of signed Union Application Cards without the opportunity of
your having a secret ballot election. Asking for recognition on the basis of a
card check is beginning to become a common practice of many labor unions in
our business . We, on the other hand, doubt very much that you would want
us to recognize the union unless you voted for the union in a secret ballot
election . We suspect that often times you may sign a Union Application Card
just to get rid of the union organizer who may be a nuisance to you, and
therefore we doubt whether Union Application Cards reflect your true wishes
in the same way that a secret ballot election would.
We would like to know your thinking on this subject . In order to clarify
your views, we request that you check the following statement which best
expresses your opinion.
I want to show my desires regarding union representation
q
by secret ballot election.
I want the company to recognize the union on the basis of
a card check without a secret ballot election.
This is not a survey to determine whether or not you want the union.
Obviously we cannot and would not want to recognize the union if it did not
in fact represent the majority of our employees . This is only a survey to help
us determine whether the union's majority or lack of majority should be
decided on a card check or by a secret ballot election.
Please do not sign this survey form . We do not wish to know how any
particular person feels. However, we hope you will help us resolve our doubts
by expressing your view, and be assured that you need have no reservations
in what you say. There will be no recriminations whatsoever no matter what
your views may be. We are just trying to determine your thinking on whether
in this stole application cards are a valid way to test the union 's majority
status or whether you would prefer to have a secret ballot election.
VALUE GIANT STORES
On June 10, memorandums and ballots were given to employees who had not
worked on June 9 and they were given the same instructions.
Twelve ballots were returned to Finch's desk. Eleven were marked with an "X"
in the square, for a "secret ballot election." One employee returned her ballot
686
DECISIONS OF NATIONAL
LABOR RELATIONS BOARD
unmarked to Finch. Finch did not observe any of the employees marking their
ballots but he did see some employees going into his office, presumably to place
their ballots on his desk. He kept these ballots in his desk until Saturday, June 12,
when he turned them over to Retail Supervisor Russell Robinson?
2. Union's request for recognition and proof of majority, June 9, 1965
On the afternoon of June 9, 1965, and before all of the ballots had been
returned 'to Finch, he was visited by Union Representatives Jerry Turner and Ray
Mierly. Turner informed him that the Union had been organizing the employees
and was requesting recognition as bargaining agent. He handed Finch two docu-
ments: (1) a letter advising that the Union had been selected by a majority of
selling and nonselling employees at the Sonora store, offering written proof of this
fact, and demanding recognition; (2) a document entitled "Recognition Agree-
ment," providing that:
Having examined proof of Retail Clerks Union, Local 588's majority status,
Sonora Sundries Sales, DBA Value Giant recognizes said Union as collective
bargaining agent of its employees employed at East Highway 108, Sonora,
California, and agrees to bargain collectively with said Union for terms and
conditions of employment of said employees.
Finch asked Turner on what basis did he claim to represent a majority of the
employees. Turner handed him the 11 authorization cards. Finch looked through
the cards and replied that it appeared the Union had them all signed up-although
he noticed cards from three employees who were not currently in Respondent's
employ. Finch questioned whether he could or should sign the document handed
him by Turner. Then he attempted to get in contact with Paul Kase or one of the
other officials of Respondent on this matter. He was unable to contact any person
in authority and he spoke with the secretary to Paul Kase. He suggested that she
try to contact an attorney.
After this telephone call, Finch reread the documents handed him by Turner.
Turner stated that the purpose of the recognition agreement was to acknowledge
the fact that the Union had a majority of the employees signed up. Finch replied
that since it appeared to be true, he could see no harm in signing the document.
Turner then signed the agreement form and Finch also signed it. Mierly left with
these two forms in his possession. Turner continued to talk with Finch, and shortly
after Mierly left the telephone rang. The call was from Albert Kesseler, attorney
for Respondent. He inquired as to the problem, and Finch informed him of the
visit from the union representatives and read to the attorney the two papers handed
him by Turner. The attorney told him that .he should not sign any documents and
that he should send all the papers to the Company's headquarters in San Francisco.
He then spoke to Turner.
Attorney Kesseler told Turner that Finch was not to sign anything and that the
matter would be taken up by the officials of the Company. They then discussed a
place for their meetings either in Sacramento or in San Francisco. At the con-
clusion of this"conversation, Turner told Finch that there appeared to be no prob-
lem. He then suggested to Finch that he sign a third document which acknowledged
that the Union had shown him the authorization cards of a majority of the
employees. Finch signed this document .3
2 Three employees were called on rebuttal on the matter of the ballots One denied hav-
Ing seen the ballot, another remembered it to have been on it shorter paper, and a third
thought that lie place(] his name or initials on the ballot that lie marked Finch gar e one
ballot to each employee with the memorandum attached thereto, these is no showing
whether or not the employees discussed the ballots among themselves or whether they
marked the ballot privately or in the presence of one another Respondent wakes no con-
tention that it v.as-a "secret election," but contends that it was it free expression from
employees that give it some indication as to their desires Only one employee denies hav-
ing seen a copy of the ballot I find, as indicated above, that the ballots were distributed
to each employee, and marked ballots were returned to Finch's desk pursuant to his request
3 There is some conflict in testimony rr to the sequence of events, particularly as to the
time'of' signrni of-'two' of the documents and whether Al three were read to Attorney
Kesseler
After careful evaluiitnin'of'tire testimony of'the witnesses and appraising their
'abiirty-anal accuracy in'recalling events, I find the sequencel'of facts to be as recited above.
Ircespecht e-of ithe 'co»tlict 'in testimony,' there 'is no dispute as to the fact that Attorney
Kesseler informed Turner that Finch was not authorved to sign any documents
SONORA SUNDRY SALES, INC.
687
3. Speech of Russell Robinson, June 12, 1965
On Saturday, June 12, 1965, Russell Robinson, retail supervisor foi Ames Mer-
cantile Company, spoke to the employees of Respondent at 8 a.m. They had been
told the day before by Store Manager Finch to report to the store an hour early
for this meeting. Robinson was introduced by Finch, who told the employees that
Robinson was there to acquaint them with the union situation from the Company's
point of view, and that he was in no way advising them whether or not they
should join the Union Robinson stated that he understood they had all signed
union cards, and that it was entiiely up to the employees if they wanted a union
or not; he could not tell them to loin the Union or not, and there would be no
reprisals of any kind if they did, but that he did feel they had been shown the
wrong contract by the union representative; he did not think Ames Company would
sign a "drug contract" because Respondent did not have a prescription counter
and never would have one; and the other Ames Stores that did have a union were
under a discount or variety store contract. He stated that the beginning wage, under
the discount store agreement, was $1.35 per hour whereas they were currently
receiving $140 an hour. One employee asked whether they could get their cards
back from the Union, and he ieplied that they could contact the Union and ask
for the cards if they wanted to, but any action they took would be completely on
their own. He told them that whether they realized it or not, they had given the
Union the right to picket the store by signing the cards. An employee asked about
the $1.50 wage late he thought they were to get when the store opened, and Robin-
son said that that was a misunderstanding, and that he wanted to get the matter
straight as to the wage policy; the employees of Value Giant Stores start at $1.40
per hour, get a pay increase to $1.50 after a period of 65 days and an increase to
$1.70 after 1 year, and if they joined the Union in the meantime, then, under the
discount store contract, it would take them longer to build up to the top pay than
it would under Respondent's pay increase program. He also informed them of the
Company's program or policy on health and welfare, sick pay, and holidays.
4. Joint letter of employees to the Union, June 14, 1965
On Monday, June 14, 1965, employee David Tingle, in collaboration with
employee Jayne Casler, prepared a letter to Union Representative Turner as fol-
lows: "The undersigned employees of Value Giant or Sonora Sundry Sales do
request immediate return of their signed applications to Local 588 Retail Clerks
Union A F.L.C.I.O, and demand secret ballot procedures for selecting a bargaining
agent." This letter contains nine signatures; six were those of employees who had
signed union membership applications. This was dispatched to the Union, and a
copy was sent to Respondent on June 21, 1965.
5. Correspondence between Respondent and the Union
On June 15, 1965, Paul Kase, president of Respondent, sent a letter to Union
Representative Turner advising him that "the matter of the Union situation in our
Value Giant Store in Sonora is currently being discussed with out Attorneys. We
will contact you shortly." On June 21, 1965, the Union, by James F. Alexander,
its secretary-treasurer, wrote Kase as follows:
This is to acknowledge receipt of your letter dated June 15, 1965, to Jerry
Turner, our area representative in Modesto.
In view of the fact that your Operations Manager of Value Giant Store in
Sonora reviewed our authorization cards and confirmed that the Retail Clerks
Union Local 588 represents a majority of the employees, we are requesting
a meeting with you for the purpose of discussing a contract covering the
employees of this store.
We have set aside the following dates in order that we will be available for
this meeting: June 28, 1965; June 30, 1965; July 6, 1965; or July 7, 1965.
We suggest that the meeting be held at 10:00 a.m. on one of the above men-
tioned dates in our office located at 915 Broadway, Sacramento.
We would appreciate a reply as soon as possible.
On July 1, 1965, the charge of refusal to bargain in the instant case was filed. On
July 7, 1965, Kase wrote Alexander that Respondent had appointed Ray Vetterlein
of Labor Relations Associates to represent it in this matter and suggested that the
Union contact him.
688
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 12, 1965, while Vetterlein was talking by telephone with Alexander on
another matter, Alexander asked Vetterlein for the Respondent 's position on the
matter. Vetterlein replied that the recognition problem would have to be solved
before they could get to bargaining.
6. Wage increase, July 18, 1965
On July 18, 1965, the employees received their paychecks for the period of
July 1 to 15. With each paycheck they received a memorandum advising them as
follows:
In keeping with current industry rates, the following wage rates will become
effective July 1, 1965. They will be as follows:
First 1000 hours------------------------------- $1.45
Next 700 hours-------------------------------- 1.60
Thereafter -----------------------------------
1.70
During the first part of 1965, your Health and Welfare coverage was also
increased to include the following:
1. An increase in Surgical Benefits from $300 to $750;
2. A reimbursement of Doctors calls to home and office for employees;
3. The addition of family benefits under X-ray and laboratory expenses;
4. $200 Maternity Benefits;
5. An extension of from three to six months in which to accumulate the
deductible of our Major Medical Coverage.
We would also at this time like to thank each and every one of you for the
efforts you have put forth in making our past year a very
successful one.
Further recognition of this fact was brought out in our last Annual Report in
which Mr. Frank Kase, President and Chairman of the Board, said, "We can-
not neglect proper recognition of our employees who have continued to give
their utmost to make the past years the success they have been."
It will be our continuing aim to provide wages and fringe benefits to all our
employees that are equal to or better than the prevailing industry rates.
The increases to $1.60 and to $1.70 have not been given to employees at the
Sonora store because of the pendency of this case. Pursuant to this memorandum,
however, wages of the employees at the Sonora store were increased from $1.40
to $1.45, effective July 1, 1965. This same memorandum was distributed to
employees of Value Giant Stores in Woodland, Watsonville, and Livermore, Cali-
fornia, and to employees of Ames Mercantile Company concessions in Reno and
Las Vegas, Nevada, and in Seaside, California.
7. Solicitation of authorization cards
Union Representative Turner showed and gave to employees a copy of a form
contract entitled "Drug Industry Agreement." He told them that this was the agree-
ment that the Union would negotiate for with the employer. He told employees
Janet Canfield and Billy Canfield that a majority of the employees had signed cards
and that he had only one other person besides them to talk to.
B. Issues and conclusions
The principal issue in this case is whether Respondent had a good-faith doubt
as to the Union's majority status in June 1965.
On June 9, 1965, when the request for recognition was made, the Union had
membership applications from 8 of the 12 employees in the appropriate unit. (Three
additional cards in the possession of the Union were signed by employees who were
not retained on Respondent's permanent work force and were not employed on
June 9, 1965.) The eight cards were duly authenticated, and no representations
were made by Union Representative Turner that would invalidate any of these
cards.4
The fact that the Union had cards from a majority of- the employees was
acknowledged by Store Manager Finch; but he had no authority to recognize the
John Kinkel & Son, 157 NLRB 744; General Steel Products, Inc., 157 NLRB 636;
Merrill Axle and Wheel Service, 158 NLRB 1113.
SONORA SUNDRY SALES, INC.
689
Union, and Union Representative Turner was so informed on June 9 by Respond-
ent's attorney. The matter was to be considered by officials of Respondent at its
main office in San Francisco, California.
Upon learning of the Union's request for recognition based on a presentation of
membership or authorization cards, and of the fact that Union Representative
Turner had given copies of a "drug agreement" to employees with representations
that this was the contract the Union would negotiate for, Respondent immediately
sought to reply to these representations and to ascertain if the employees wanted
representation based on a secret-ballot election or based on a card check.
Respondent contends that it had a good-faith doubt that a majority of its
employees wanted the Union as their bargaining agent, or wanted representation
without an opportunity to express their choice by secret ballot.
Respondent bases its contention of good-faith doubt of majority (1) on the fact
that after distributing ballot forms to employees on this matter, 11 ballots were
placed on the store manager's desk indicating a preference for a representation elec-
tion rather than recognition based on a card check, and (2) on the fact that 6 of
the 8 employees signing union application cards signed a letter to the Union
requesting an immediate return of their signed applications and demanded election
procedures for selection of bargaining agent.
The General Counsel contends that as of June 9, 8 of the 12 employees in the
appropriate unit clearly designated the Union as their bargaining representative
by signing membership application cards; this is adequate and sufficient proof to
establish the Union as the bargaining representative, as of June 9, the Union's
status as bargaining representative was a fail accompli; and then Respondent sought
to dissipate the employees' interest in the Union, and also did so by the commission
of unfair labor practices.
Precedent establishes the principle that, in the absence of a bad-faith doubt of
the union's majority status, an employer may require a union to establish its
majority through a representation election, rather than accept a count of member-
ship or authorization cards.5 This, however, gives an employer the opportunity to
express himself on the matter and to attempt to dissuade employees from union
representation, prior to the finality of the election. Persuasion free of illegal inter-
ference, threats, or coercion, the law permits, and it is anticipated that on occasions
such persuasion may be effective; but where an employer engages in unfair labor
practices in his persuasion, this has generally been found to be strong indicia of
lack of good faith in questioning majority status.
Respondent attempted to convince the employees that the "drug agreement"
would not be an appropriate agreement form for the Sonora store, and Respondent
balloted employees on the issue of representation by secret election or by card
check. Respondent represented to employees that a discount store agreement would
be the type that the Sonora store would fall under, and that wage rates would be
better and top pay reached more quickly under Respondent's pay program than
under the discount store agreement. I find that Respondent's representations come
within the scope of Section 8(c) of the Act, and that the balloting was objectively
conducted, and under the circumstances of this case, not an unfair labor practice.6
I find no evidence that employees were told that they would not receive a projected
wage increase if they selected the Union to represent them.
On July 1, 1965, the charge in the instant case was filed. On July 18, 1965,
Respondent announced to employees at a number of its stores, including the Sonora
store, an increase in wages and a new system of timing increases; and these increases
were effective with the pay period of July 1 to 15, 1965. Prior to this announce-
ment, the pay schedule was $1.40 per hour at start, with an increase to $1.50 after
65 days, and an increase to $1.70 after 1 year; by this announcement, employees
were to receive $1.45 per hour at start and for the first 1,000 hours, $1.60 for the
next 700 hours, and $1.70 thereafter.
Effective July 1, 1965, the wages of the employees at the Sonora store were
increased to $1.45 per hour, a 5-cent hourly wage increase; but the other increases
have not been given as they have become due under this new system because of
the pendency of this unfair labor practice proceedings. Was this announcement of
s Hammond & Irving, Incorporated, 154 NLRB 1071; John P. Serpa, Inc, 155 NLRB
99; Aaron Brothers Company of California, 158 NLRB 1077.
9 Belknap Hardware and Manufacturing Co , 157 NLRB 1393 ; American Sanitary Wipers
Company, 157 NLRB 1092.
264-188-67-vol. 161-45
690
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 18 and the 5-cent per hour wage increase effective from July 1 an inter-
ference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act,
in view of the pending request to recognize based on a count of membership cards?
Normally an increase in pay to employees in the face of a request to recognize,
supported by membership cards from a majority of employees in an appropriate
unit, violates the Act and indicates a lack of good faith in a respondent's doubt of
majority. But, in the instant case, Respondent's doubt of majority is well founded
on events that occurred in June 1965-the results of its balloting of employees and
the letter from employees to the Union. I have found no unfair labor practice to
have been committed in connection with these events. The charge was filed on
July 1, 1965. Respondent sought to have the Union clear the representation ques-
tion by filing a petition for an election, but the Union pressed its right to represent
the employees based on the signed membership cards in its possession from a
majority of employees. The increases announced on July 18, 1965, were not solely
for the Sonora store, but included Value Giant stores in Woodland, Watsonville,
and Livermore, California, and employees of Ames Mercantile Company conces-
sions in Reno and Las Vegas, Nevada, and in Seaside, California. Under Respond-
ent's wage increase program that existed prior to the July 18 announcement,
employees would have received an increase to $1.50 after 65 days of employment?
Under all the circumstances of the case, I find that the General Counsel has not
sustained the burden of proof as to any unfair labor practice by Respondent or
conduct showing that Respondent questioned the Union's majority in bad faith.8
It is recommended that the complaint be dismissed.
7 The wage increase announced on July 18 Is not alleged in the complaint as a violation
of the Act
8 McQuay-Norris Manufacturing Company, 157 NLRB 1661 ; Hammond it Irving, Incorpo-
rated, 154 NLRB 1071 ; Strydel Incorporated, 156 NLRB 1185; John P. Serpa, Inc, 155
NLRB 99; Oklahoma Sheraton Corporation, 156 NLRB 681 ; also see reasoning of Board
in Jem Mfg, Inc., 156 NLRB 643
TRW Inc., TRW Michigan Division and International Union,
United Automobile, Aerospace and Agricultural
Implement
Workers of America (UAW), AFL-CIO.
Case 7-CA-5046.
November 1, 1966
DECISION AND ORDER
On January 3, 1966, Trial Examiner W. Edwin Youngblood issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief."
Pursuant to 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 [Chair-
man McCulloch and Members Fanning and Jenkins].
" Respondent has requested oral argument . As the record , the Trial Examiner ' s Decision,
and the exceptions and brief adequately set forth the issues and the position of Respond-
ent, this request is hereby denied.
161 NLRB No. 63.