Dayton Food Fair Stores, Inc.

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dayton Food Fair Stores, Inc. and Retail Clerks Union , Local No. 1552 , Retail Clerks International Association , AFL-CIO. Cases 9-CA-3909 and 9-RC-6717. May 31,1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 14, 1967, Trial Examiner Thomas A. Ricci issued his Decision in the above- entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action. In addition, he found that Respondent had engaged in objectionable conduct prior to the election held in Case 9-RC-6717 and recommended that the election be set aside and a new election directed, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent did not engage in certain other unfair labor practices alleged in the complaint. The Respondent filed exceptions to the Decision and a supporting brief. The General Counsel filed limited exceptions and a brief in support thereof, and the Union joined with the General Counsel's limited exceptions to the Trial Examiner's Decision. Thereafter, Respondent filed an answering brief. 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. 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Dayton Food Fair Stores, Inc., Trotwood, Ohio, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the election held on April 14, 1966, among Respondent's employees be, 165 NLRB No. 12 and it hereby is, set aside, and that Case 9-RC-6717 is hereby remanded to the Regional Director for Region 9 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Text of Direction' of Second Election omitted from publication.] i An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 9 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear, Inc , 156 NLRB 1236 TRIAL EXAMINER"S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: These cases, involving objections to conduct affecting the results of an election and unfair labor practice charges, were heard by me at Dayton, Ohio, on October 25, 26, and 27, and November 28, 1966, pursuant to a complaint issued on June 30, 1966, and upon a report on objections issued on August 25, 1966. The two cases were consolidated for hearing. The complaint, against Dayton Food Fair Stores, Inc., herein called the Respondent or the Company, alleges violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. A brief was filed after the close of the hearing by the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation engaged in the operation of a retail food store in Trotwood, Ohio. During the past calendar year, a representative period, its gross retail sales exceeded $500,000. During the same period the Respondent had a direct inflow of goods and materials in interstate commerce valued in excess of $50,000, which it purchased and caused to be shipped from points located outside the State of Ohio to its Trotwood store. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local No. 1552, Retail Clerks International Association , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This is essentially a refusal-to-bargain case. In the 7 or 8 days immediately preceding February 15, 1966, the Union carried on a swift organizational campaign among the approximately 40 employees of the Company's Trotwood, Ohio, store. It then demanded recognition and bargaining DAYTON FOOD FAIR STORES, INC. rights based on authorization cards signed by a majority of the employees. The Respondent refused to bargain; it insisted that the Union first prove its majority status in a Board-conducted election . The Union filed a petition for an election, a consent-election agreement was made, and the election held on April 14. The Union lost. Thereafter, the Union filed objections to the election and unfair labor practice charges. The complaint alleges that between the time of the demand and refusal and the day of the election, company representatives engaged in conduct which illegally interfered with a free expression of choice by the employees, and coerced them within the meaning of Section 8(a)(1) of the Act. An employee who had been active in the union campaign was discharged on February 26; the discharge is said to have been motivated by an intent to discourage the organizational activities of the employees generally. All of the foregoing, still according to the complaint, proves that the initial refusal to bargain with the Union was an act of bad faith, reflecting rejection of the basic principle of collective bargaining , and therefore a violation of Section 8(a)(5) of the Act. The answer denies the commission of any unfair labor practices. Conceding the refusal to accord recognition on February 15, or at any time before an election, the Respondent contends that its sole purpose was to test the sentiment of the employees through the orderly procedure of the secret elections held by the Board, and argues that an employer who does not otherwise misconduct himself, may lawfully question the validity of signed cards as the true desire of its employees in the matter. A. Demand and Refusal On the morning of February 15, 1966, James Huntley and Frank Vandam, union business agents, came to the store and received from Norman Lee, one of the employees who had been active in soliciting authorization cards, 25 signed cards. The cards read: All I IIIIIII/A I ION I Mt III- I'll I,'. N I %110N I the nn,I,...4n.•.I .•nq,lo,..I b, IL•pl a 11 i•, 1 til.,. ,• I'ny,lo, ,•,, h, n•h, aal h.,nn lhr R.•l a.l 1 I, k, Ini, mat uu...l \^.^,. I.n nn. \1 I -1 111 I.. a.l .. 'm , Ill.•. uir 1.m4. umng a4. nl "Ign•.hur ..i h mpl.n ^, I .nn.• \....•.. 1 .Ii 7Inl.• Dal.. I I. I, ph.•n• -- Ii, The union officers then spoke to Michael McGee, store manager, and Charles Porter, vice president and former manager. Huntley offered to show the men the cards, said the Union represented a majority of the employees, and demanded recognition. He made clear the Union wished to represent all the store employees but excluding the meat department. The managers said they were not authorized to respond, and, after conferring in their office, told Huntley he would have to speak to Jerome Goldman, the Company's attorney in Cincinnati, whose telephone number they gave Huntley. Huntley called Goldman and repeated the same demand; the two talked for about 20 minutes on the 15 telephone. For the most part they discussed the question of the validity of authorization cards in such a situation, Goldman saying there were cases where employees first signed and then, in secret election, voted against union representation. Huntley agreed there had been such cases, but requested recognition nevertheless. Goldman admitted, at the hearing, that the business agent offered to submit to a card check, which he refused to accept. Huntley also again stated the unit he sought to represent must exclude the meat department. After the telephone conversation, still on the 15th, Huntley sent a formal written demand to the lawyer's office. The letter again offered to submit the cards to a card check by an impartial observer, and repeated the proposed exclusion of the meat department. Goldman answered by letter dated February 17. The three-page letter comments at length upon the variable influences which cause employees to sign cards and later repudiate them in Board election. The burden of the letter is to press the Company's view that: No one knows what a person thinks he is being asked to sign or what might influence a person to react at a particular time, what influence, persuasion or pressure is brought to bear on a man when he signs a card or when he refuses to sign a card. That is the reason for the National Labor Relations Board election, so as to give the man an opportunity to understand the significance of what he is doing, and then in secret, after having given the matter careful consideration, to decide whether he does or does not want a particular labor organization to represent him. Goldman promised to bargain in good faith if the Union on an election. He also referred to Huntley's warning to Store Manager McGee 2 days earlier that the Respondent should not make changes in the store affecting personnel while the matter was pending. Goldman defended the Company's right to operate the store as business exigency required. Upon receipt of this letter the Union filed its representation petition. There followed a conference among all parties with a Board agent on March 10. At this meeting there was a disagreement with respect to unit placement of eight employees-five constituting the meat department, and three (Lila Richardson, Harry Weisman, and Betty Wollenhaupt) whom the Union wished to exclude as supervisors. After some talk the Union agreed with the Company's position that the three disputed persons should be permitted to vote as nonsupervisory employees. Because the question of inclusion of the meat department could not be resolved, the petition was set down for formal hearing on March 23. When the parties gathered on the 23d, the matter was discussed anew and the Union agreed that the meat department employees should be included. On this basis the Respondent signed a consent-election agreement. At the balloting, on April 14, 12 employees voted for and 22 against union representation. The Union later filed objections. The charge of bad-faith refusal to bargain was filed on April 21. There is presented here the not uncommon Bernel Foam type situation, where, in defense to a refusal-to-bargain allegation the employer asserts that the union never represented a majority of the employees, and, anyway, even if it did, the admitted refusal to accord recognition was not illegal.' In the light of more recent Board decisions, this second question-whether the refusal to bargain was an act of bad faith-falls in the area of the I Bernet Foam Products Co , Inc., 146 NLRB 1277. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Serpa, Aaron Brothers, and H and W Construction cases.2 The rule of these last decisions is that where the union is in fact authorized by a majority of employees, the burden is upon the Government to prove that the employer's refusal to bargain manifested rejection of the statutory duty to bargain collectively with any labor organization. The General Counsel's witnesses admitted that lawyer Goldman's stated reason for his decision at the time was "no more than a distrust of cards." Does this record affirmatively show that the Respondent's purpose was, instead, to undermine the Union's representative strength and frustrate the employees' desire to bargain collectively? I think not. Whether or not the 25 authorization cards in the Union's possession on February 15 were valid, in the light of what evidence was received as to them, is therefore immaterial in this case. B. Violation of Section 8(aXl) and Alleged Discriminatory Discharge of Norman Lee The cardinal act of the Respondent said to prove bad faith in its response to the Union's demand is the discharge, 10 days later, of Norman Lee. Lee was one of three-together with Alan Godfrey and Shirley Knoth-who was shown on the record to have been active in soliciting signatures. There is indication of one Mrs. Bolkerth (Judy Folkerth, according to a stipulated list of employees) having also been an open advocate of the Union. Lee had been hired in October 1965, and was a full- time clerk in the produce department. He signed a union card and identified eight as signed in his presence. The other solicitors forwarded cards to him and he delivered them to Huntley on the morning of February 15. The Company knew he favored the Union. Davis, assistant store manager, himself wished to see a union in the store; he spoke to Lee about it more than once. Lee's uncontradicted testimony is that once, when asking him "if we could get it [the Union]," Davis added "to watch our step in the store for the company knew I was the one and later on ... told me . . . I couldn't tell you what day, we were going to make an example of Chuck Douglas to be fired."3 There is a Charles Douglas who was then a part- time bagger and who voted in the election 2 months later; there is no evidence of company discrimination against him. Lee was discharged without notice on February 26, and handed a letter signed by the store manager stating the reason. This is the first time such a letter had been used for this purpose. The reason given was that the produce department was overstaffed, the store planned greatly to increase prepackaging, and efficiency and economy required reduction in labor costs. There is much evidence supporting the affirmative defense that Lee was released as part of an overall plan to effect needed economies. Indeed it was a storewide program to tighten the entire operation, resented by the employees, which provoked the general move toward joining a union in the first instance. At the end of January the Respondent hired Malcolm Burnside, an experienced store manager, as consultant on what changes could be made on any aspect of the function of the store to reduce current losses. He arrived on January 31; Porter was then store manager, and Davis assistant manager. Weisman, the "leadman" in the produce department, was then on vacation. Burnside reported to Arthur Beerman, the company president; he recommended a number of changes, including much prepackaging in the produce department, elimination of much overtime labor in the various departments, and a general reduction of personnel wherever possible. He found three or four departments overstaffed. As a further step to achieve efficiency and economy, the Company hired a new manager, McGee, who reported on February 8. He was introduced to the employees and spoke to them as a group on February 9. The tenor of his remarks was that he would personally make all decisions in the store, that there would have to be a greater effort expended, and that the store would be run much more strictly than in the past. That same day the employees started signing union cards; in fact almost all of them are dated February 9, and a number of employees testified their reason was because they did not like the working conditions which McGee intended to impose upon them. McGee started right off to shift employees among departments and to reduce the hours of work in the store. Of special significance here is the fact that, at Burnside's urgings, McGee increased the amount of prepackaging in produce, apparently a system which meant less labor in the department. At that time, while leadman Weisman was away, there were two full-time men in produce-Lee and Anastas [Tony] Dane, plus one or two part-time clerks. Before Weisman left, on January 9, there had been three full-time clerks, Lee, Dane, and the leadman; all three of them used to work 50 to 60 hours each week and had two part-time men in addition. By mid-February McGee had reduced Lee to only 40 hours; he reduced Dane's hours similarly. Weisman returned to work on February 16 or 17; he disagreed with the prepackaging idea, reverted to his old ways, and McGee had trouble keeping him in line in this respect. McGee testified he waited for Weisman's return to ask could he get along minus a full-time man, as Burnside had recommended, and that Weisman agreed. Lee was released on the 26th; he has not been replaced. All of this testimony of economic distress in the store, of hiring a consultant to remedy a bad situation, of how the new manager determined to ride rough shod in an effort to make a good impression, of reduction in hours to effectuate economies, is not only uncontradicted but fully credible. Between January 9 and February 15 the produce department managed with two full-time men, and their hours were even reduced before there was any talk of a union. With Lee gone, the department continued with only two full-time clerks, and it was still getting along on this two-man basis, with only one part-time clerk, at the time of the hearing in October. In such circumstances there must be something very persuasive to prove that the 2 John P. Serpa, Inc., 155 NLRB 99; Aaron Brothers Company of California, 158 NLRB 1077, H & W Construction Company, 161 NLRB 852. 8 At the hearing the Respondent contended that Davis was not a supervisor, and that therefore his knowledge may not be imputed to the Company The contention must fail. When the election agreement was made in March, the Company agreed with the Union that Davis should be excluded as a supervisor, he therefore did not vote There is much testimony, by various witnesses, to Davis' exercise of authority in the store both before and after McGee arrived to take charge over everyone on February 8. The most revealing testimony was by McGee himself, who said that when he came "I told him and I told each of the department heads that John Davis was the assistant store manager and that he would assume that responsibility and that if he had problems in my absence, he was in charge of the store and, consequently, he was their immediate superior." DAYTON FOOD FAIR STORES, INC. Respondent's motive in discharging him was a purpose other than appears on the face of things. Stine, vice president, admitted he knew, before the discharge, that Lee was an "active participant" in the union affairs, but not that he was a leader. For proof of union animus against Lee personally, the General Counsel relies primarily on Lee's testimony that when Weisman, the leadman, returned from vacation, he asked Lee "what about this union ... do you know anything about it and I said, yes sir, and he said can you stop it and I didn't answer him ... and he kept pointing his finger and said stop...." I believe Weisman did say this to Lee, for his attempted denial is unconvincing. He testified he learned of Lee's activities when he returned, and that he asked him "what about this union," but insisted he expected no answer and asked only "because I wanted to say it." There is a serious question, however, as to whether such talk from Weisman is enough to convert what on its face looks like a proper discharge for cause to an unfair labor practice. Weisman is the produce manager, and spends several hours each day at the market, making the purchases for his department; he is paid $150 a week and the other full-time clerks only $100. He otherwise devotes his time to regular manual work like the other clerks; he has no authority to hire or discharge employees. Dane, who testified Weisman does assign work and instruct clerks in the department, also said that when Weisman needs a man he tells the assistant manager, who brings a man over. Much was made of the fact Weisman used to arrange work schedules for the three or four men in his department ; it is clear this chore was taken over by McGee on February 9. With the evidence of supervisory authority so little, the Union's agreement before the election that he was no more than a rank -and-filer assumes significant importance. At the first conference after the Union filed its election petition, all parties agreed Weisman was not a supervisor and he was permitted to vote without challenge. If Weisman was a representative of management when Lee was discharged, he was indeed low in the hierarchy. I conclude he was not a supervisor within the meaning of the Act. As further support for the suggested inference that the Respondent aimed a particular union animus against Lee personally are two other items of testimony. Huntley, the union agent , testified that when he told Porter, the administrative chief of the store , on the morning of February 15 , not to take any independent personnel action, he also specified "Ronnie Lee was our key person in there and we advised him if he took any action against Ronnie Lee or any other employee that we would file the necessary charges." Vandam, who was with Huntley, also testified Huntley said this: "we wanted to stress that so that he would not at any time be interfered with by management in violation of his rights." Porter denied there was any reference to Lee in that conversation. I credit Porter's denial. For one thing, Alan Godfrey appears to have been as active as, indeed more active than, Lee in soliciting signatures , but there is no claim the union agents mentioned him that day. And the day following Lee's discharge, Vandam telephoned lawyer Goldman to ask that the man be reinstated, and charged he had been released because of his union activities . Goldman denied the accusation . Two months later the Union filed its charge respecting Lee, and on May 18 Vandam signed an affidavit for a Board investigator telling his story in support of the charge. The affidavit is silent on the Company ever having been advised of Lee's particular interest in the Union. Vandam simply said he "did not tell 17 the field examiner about it," a very unlikely story, had the union agents in fact held Lee out to be the principal organizer in the store. Also said to support an inference of a legal motivation in Lee's discharge is testimony given by Tony Dane of the produce department. According to him, at an employee meeting in the store after Lee was gone, Beerman said "these unions are very sharp and very smart and they train men to go ahead with these campaigns and programs ... as you well know, one of these men are no longer with us . they have another man to step into his place such as Tony, right there ... and he pointed his finger at me...." Dane also said McGee asked him several times "how do you think its going to go," "is the Union going to get in," "how are you going to vote," and that when he refused to say, the manager added "maybe you are on the wrong side of the fence," or "you better get on the right side of the fence." Dane further testified that within a 24-hour period sometime in February, McGee, Porter, and Weisman each separately asked him how he intended to vote in the election. All three of these denied having inquired of Dane concerning his union activities and intentions. McGee expressly denied telling anything to Dane about the right side of the fence, or which side he should be on. Where Dane was contradicted by other witnesses, I do not credit him. He was a pugnacious witness, argumentative , overly quarrelsome, and very unimpressive. He had been discharged for cause after the events. There is no reference in his earlier affidavit to statements by McGee about being on the wrong side, or about advice to put himself on the right side. Moreover, Dane told a story of improper conduct by an observer at the April election; he was contradicted both by that observer and by Caso March, the Board attorney who conducted the election. March was the truly objective witness at the hearing, and, on the basis of his demeanor if nothing else, gave testimony credible beyond question. There is no credible direct evidence, therefore, of an intent in the Company to select Lee for discrimination to give vent to a broad union animus. The General Counsel did not file a brief, and there is no clear statement of his theory of illegality. From his examination of witnesses, however, there is suggested a contention that because in this instance the Respondent for the first time took the precaution of putting the stated reason for discharge on paper, because it did not also discharge employees to effectuate needed economies in other departments, and because there was one other man-stock clerk Penwell junior to Lee at the time, it follows that there existed a hidden and improper objective. These are tenuous grounds for finding an unlawful purpose and for ignoring the direct and plausible explanations offered by the Company. Management had never before been threatened with litigation if it took any personnel action without union approval , and this could well explain the precaution of writing a discharge letter. It is true there were no other outright discharges, but there is also much evidence of reduction in hours worked by the total complement, and shifting of clerks from one part of the store to another. As to the comparative seniority against a single other employee, Lee had openly announced he was planning to leave the Company soon for unrelated reasons, in itself a possible basis for selection. By the time of the election, almost 2 months after Lee's discharge, it had become clear the Respondent was 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opposed to having a union in the store and tried to convince the employees to its view. Aside from this matter of general attitude, all that directly relates to Lee is President Beerman's reference to him at a later date that a "smart " man of the Union was no longer in the store, the testimony of Patricia Willis, which I credit, that when Lee visited the store McGee said he should be followed lest he talk "union" to the employees, and Assistant Manager Davis' statement before the discharge that Lee should be careful because the Company knew he was the "one." By the time Beerman referred to Lee as the Union's "smart" man, Business Representative Vandam had already accused the Company of discharging the union leader, and Lee had been seen visiting the store in company of Huntley, the now known president of the local. McGee may not have wanted Lee to talk of the Union with the employees, but the record shows, by the testimony of the General Counsel's own witnesses, that he was permitted to wander about, and even to sit in the lounge drinking Coca-Cola while chatting with employees and supervisors on the very subject. Davis was a supervisor, and although he favored the Union "I would like to see you fellows get it [the Union] ... in the capacity I serve I just can't commit myself," his statement that the employees "should watch their steps," and that the Company was aware of Lee's particular union interest were nevertheless coercive upon them, and therefore constituted improper interference with their self-organizational rights, in violation of Section 8(a)(1) of the Act, an unfair labor practice chargeable to the Respondent. All this notwithstanding, if the record as a whole is to be considered, it cannot be said that a preponderance of the substantial evidence in its entirety proves an unfair labor practice in the discharge of Lee. The affirmative defense of discharge for cause is in this instance too persuasive to be deemed a pretext. I shall therefore recommend dismissal of the complaint as to him. C. Good or Bad Faith in the Refusal to Bargain With the discharge of Lee no longer a factor in the case, the evidence of bad faith in the initial refusal to bargain is reduced to Assistant Manager Davis' one statement to Lee, in all probability heard by others also, that the employees should be careful in their union activities, and the incorrect statement later appearing in company election literature that employees could lawfully be discharged in the event of a strike. Virtually all references to Davis' activities show he was friendly with the employees, sympathetic to their program, and, indeed, desirous himself of joining the Union. He even called the union hall one evening during a meeting to inquire how matters were progressing. In these circumstances, any interrogation from him as to how the campaign was proceeding can hardly be called coercion by the Company. The pinpointed unfair labor practice finding that the assistant manager told the employees to watch their step, therefore, serves little to prove that Goldman, and the higher officials, questioned the validity of signed cards in bad faith. If, as the more recent Board decisions say, an employer may with impunity call for an election if he distrusts signed cards, and if, as I understand these holdings, it is the General Counsel who must prove, by affirmative evidence, a contrary and illegal motive behind the stated reasons for refusing to bargain on presentation of cards, the evidence in this record as a whole fails to prove a violation of Section 8(a)(5). This is an area of Board law where no two cases are alike, and it cannot be said that any one precedent predetermines a later situation. "In determining whether the employer's action was taken to achieve ... invalid purposes, the Board considers all the surrounding circumstances, as well as direct evidence of motivation. . Whether the conduct involved reflects on the good faith [or the bad faith] of the employer, requires an evaluation of the facts of each case."4 The mere fact that there may have occurred some limited and minor violations of Section 8(a)(1) of the Act, cannot alone serve to prove a pervasive determination to avoid collective bargaining in any circumstance.5 The improper conduct may not be so flagrant that it must necessarily have had the object of destroying the Union's majority status. Here, against the warning of Assistant Store Manager Davis must be considered the assurances given to all the employees by President Beerman that they had nothing to fear if they wished to vote for the Union. Patricia Willis, a clerk called by the General Counsel, testified that at a meeting of employees Beerman said, "We were to make up our own mind ... if we voted the Union in he would accept it," "He said we were not to listen to anyone-that no members of management were to talk to any of the employees about the union or any of their activities." According to Willis, Beerman said this at "several meetings." And Dane, antagonistic to the Respondent at the hearing, admitted that Beerman said ". . . none of his employer's [sic] would talk for or against the union to any member in the store, you know, to any employee, let's put it that way." And while Beerman may have spoken of the union training expert organizers, and even have referred to Lee as to one such who was no longer with the Company, all that came after Lee's separation, by which time his activities had not only continued, but may have been much publicized because of the discharge. So far as direct evidence is concerned regarding motivation, all it consists of is Goldman's repeated explanations of why he doubted the validity of signed cards. Quite apart from the paucity of evidence pointing to antiunion or other improper motive, there is the dispute which existed between the parties respecting the appropriate unit, whether the meat department employees should or should not be included. There had been a separate election in a unit limited to the five employees in the meat department in the prior November. Those employees had voted against union representation; apparently another union had then attempted to organize them. It was the Respondent's position, although not directly expressed in the lawyer's letter of February 17, that those employees too should be included and vote in the election. It is a close question on the record evidence in this case whether, under the pertinent facts, the unit sought by the Charging Union in the first instance-excluding the meat department-would be found appropriate under Board precedents ' Hammond and Irvtng, Incorporated, 154 NLRB 1071 ' Cosmodyne Manufacturtng Company, 150 NLRB 96, Clermont's Inc , 154 NLRB 1397. 6 Compare Clermont's Inc , supra. DAYTON FOOD FAIR STORES, INC. 19 That this position of the Respondent , at odds with the initial demand of the Union , was a further cause of disagreement between them is clear . Moreover, that this disagreement was a reasonable position for the Employer to take, is virtually admitted by the format of the complaint . There are two separate allegations as to the appropriate unit set out there ; one defined the bargaining unit as including the meat department , and the next simply excludes it. In turn , the refusal-to-bargain allegation is phrased in the alternative , charging the Company with having refused to bargain in either one or the other. What all this means is that even in the mind of the General Counsel, when it came time to proceed with the case at all, there existed a rational element of uncertainty as to which is the appropriate unit. In these circumstances , the least that must be said is that disagreement with a partial aspect of the Union's demand, if indicative of anything in this case , points to a greater likelihood of an honest question raised by the Company, instead of a deceptive fraud to cover illegal inner motivation. A rather complex question of majority status was extensively litigated at the hearing. Are all of the cards received in evidence to be counted in view of the fact that one or two employees were told by certain other soliciting employees that their purpose was to hold an election? Does it follow that because the immediate objective of the move toward unionization was to dampen the ardor of the newly arrived and very energetic store manager, all the cards are invalid ? Should the overall complement against which valid cards must be counted to measure majority include or exclude the meat department ? Should it include or exclude three employees whose supervisory status is disputed ? The failure of the General Counsel to prove that the refusal to accept a conclusive presumption of validity concerning authorization cards masked an illegal intent to deny self-organizational rights to employees , makes of these only academic questions . Include or exclude the meat department , count or discount a few of the cards in evidence , and the dismissal of the refusal -to-bargain allegation of the complaint must nevertheless stand. I therefore deem it pointless to burden this report by repeating the evidence relating to these no longer consequential matters.7 Were it necessary to decide these questions now, I would find that the Union did represent a majority on February 15, regardless of whether the meat department be included. IV. THE OBJECTIONS On the basis of his investigation the Regional Director found no evidence to support certain of the objections filed by the Union . In his recommendation for a hearing, he itemized the following as subjects for inquiry: (a) An "innuendo" in certain election literature distributed by the Employer that union representation would automatically result in a strike and that strikers would be released; (b) the discharge of Norman Lee; and (c) the "humiliation" of Anastas Dane by the Employer at an employee meeting and his later suspension and discharge . The Regional Director also referred for hearing a matter brought to his attention apart from the objections filed: Was Rita Richardson , who acted as observer for the Company at the election, a supervisor and therefore acting improperly as election procedure participant? There is no evidence concerning any suspension from work of Dane. He was discharged after the election; there is no allegation in the complaint that his release was illegally motivated , and there is no evidence indicating his separation from the Company was for reasons other than proper cause. The objection relating to Lee parallels the complaint allegation , already found without merit , that he was discharged for union acitivities. Richardson is called " manager" of the delicatessen department, where she works with three other employees. So far as the Regional Director is concerned, and to the extent that the objections filed by the Union complained, the vice in her having acted as company observer is to be seen in her supervisory status, asserted by the Union, but disputed by the Respondent. The Board has held that a management representative acting as observer exerts an improper influence upon the employees as they cast their ballots. Richardson spends more than half her time doing the cooking of delicatessen products; the store is open about 90 hours weekly but she works only 40. She also waits upon customers , washes utensils, and cleans up. She is an hourly worker, earning about $200 weekly, while the other three clerks start at $1.25 per hour. She has no authority to hire or discharge employees , and added she never "really" recommended personnel action . When the store opened, in April 1965, she recommended two girls, who were hired. On one occasion, Porter, who had recently taken charge of the store, asked whether the regular periodic increases had been received by the other clerks in delicatessen; Richardson said they had not , and "recommended" that they receive it. She also testified the clerks were eligible for this raise because it was the "fixed time ... 30 or 90 days after hiring" for them to get it. There is also testimony that Richardson "orders" or "buys" produce for resale in her department . The record as a whole shows this function is almost entirely a matter of her telling the various managers what is needed-such things as potatoes , beef, chickens, all sorts of vegetables-for cooking, and that it is simply a transfer from one department of the store to another, with a record made of the interdepartmental charges. She used to prepare the work schedule for her department, but when Manager McGee arrived in early February he took this responsibility upon himself. The election came in April. All this is very weak evidence of supervisory status or managerial function . When the consent arrangement was made in March , the Union agreed with the Company that Richardson should be included in the bargaining unit as a rank-and-file employee ; she voted without challenge. More significant here is the further fact that Bill Douglas, the meat department "manager," was also included in the unit and voted freely, by stipulation in advance of the election. As to Douglas there does not appear to have been any question ever raised by the Union as to his nonsupervisory status. But what orders Richardson received to carry out her duties came from Douglas , a very persuasive indication that she was not herself empowered to exercise any significant authority over others. I cannot find on this record that she was in fact a supervisor as defined in the Act, or that the employees in her department looked upon 7 Compare Hammond and I ruing, l nc., supra 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her as the spokesman of management. The fact that she acted as company observer at the election, an activity to which the Union did not then and there object, cannot serve, therefore, as grounds for setting aside the election. There is a cumulative assertion advanced by the Union for upsetting the election, a ground expressly disavowed by the General Counsel on behalf of the Regional Director. The Union offered the testimony of Dane, who acted as union observer, that Richardson spoke to a number of employees to influence their votes as they entered the polling place. According to Dane, when Shirley Vineyard came to vote Richardson said, "This is my niece, she knows how to vote"; to Willie Reynolds, "Here is my sweetheart, now he knows what to do.... Where have you been"; to Bill Douglas, "Here comes my honey, he's going the right way"; to Bill Browder, "You know what to do ... do it right away." Dane said Richardson said things like this "half a dozen times," always in violation of the express instructions given by the Board agent in charge of the election. At the hearing Richardson denied having made any of these statements or anything like them. In support of her denials, the Respondent called Caso March, the Board agent who conducted the election. He recalled no such statements and denied they were made. March is very experienced in holding Board elections; he said unequivocally that his instructions were followed throughout and. that no report of improper conduct was brought to his attention at the time. The demeanor of the witnesses leaves no doubt in my mind that March must be credited. I find that Richardson did not speak out of turn to any of the employees. There is a final objection that is supported by the evidence and a sufficient reason for setting aside the election results and holding a new one. The Company embarked upon a literature distribution campaign designed to persuade the employees to vote no. Letters and leaflets were distributed and mailed to the homes of employees. While much of what is stated there falls within the permissible scope of the free speech proviso of the statute, in its total picture the literature instills fear in the employees that selection of the Union would be a futile act and surely bring suffering in the future. Thus, again and again, the statement is repeated that in all likelihood the Union would make unreasonable demands and strike, that the employees would lose money never to be recovered, that the Company would not be obligated to agree with "any" demands that might be made-"not even one"-that the Union would "spoil your life," result in "phony contracts," and such phrases. At one point, the Union is called the harbinger of "bitterness, tension, friction, headaches, uncertainty and trouble." A leaflet distributed shortly before the election sets out in bold type a union dues checkoff form, calling for a $5.50 monthly payment, and announces, in still heavier type: "If you vote for a union, this is what you may be required to sign." And below all this, in the same leaflet, appears the prominent statement : "If you don't want to give the Union the right to demand that you be fired, vote no." Here the Respondent grossly misled the employees as to the very point of the imminent election. One of the leaflets twice repeats the threat that if the Union did. call a strike "the Company can fire you," "Whose pay stops? Whom does the. law allow the company to fire and permanently replace? You know who. Not the organizers !" And at the end, just before the election, a final bulletin again repeated emphatically the Company's prerogative not to concede to any demand whatever which the Union might make and which could likely lead to strike. Toward its close this leaflet reads: The only recourse the Union would have if their demands were not met would be to strike. Why doesn't the Union play fair with you and tell you that under the law and National Labor Relations Board decisions, if the Union calls an economic strike every employee who leaves his or her job can be fired at once and permanently replaced. This was not temperate talk in the proper exercise of the privilege to express views concerning the desirability of collective bargaining or union representation. Rather, such repeated promises of discharge to follow any attempt to exercise the right to engage in concerted activities, particularly so effectively coupled with constant refrain equating a vote for the Union to a step toward strike, constituted a wrongful interference with the laboratory conditions necessary for the exercise of a free and untrammeled choice in the election. Accordingly, I shall recommend that the result of the election be set aside and a new one held, when, in the opinion of the Regional Director, it becomes timely. I also find that by misleading its employees with the statements that they could lawfully be discharged in the event they should engage in a strike, the Respondent unlawfully coerced them in their free exercise of the right to engage in concerted activities, and thereby violated Section 8(a)(1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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. VI. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Section 2(5) of the Act. 3. By telling the employees they should conceal their union activities , by telling them the Company is aware of the identity of prounion employees , and by telling them they may lawfully be discharged for engaging in strike action, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices ' affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the DAYTON FOOD FAIR STORES, INC. 21 Act, I recommend that the Respondent, Dayton Food Fair Stores, Inc., Trotwood, Ohio, its officers, agents, successors, and assigns , shall: 1. Cease and desist from telling employees they should conceal their union activities, that the Company is aware of the identity of prounion employees, that employees may lawfully be discharged for engaging in strike action, or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its store in Trotwood, Ohio, copies of the attached notice marked "Appendix."8 Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including places where notices to 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. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.9 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges the commission of unfair labor practices other than those found in this Decision. On the basis of the above findings of fact and conclusions of law, it is hereby recommended that the objections filed by the Union to the April 14, 1966, election be sustained, and that the results of the election be set aside. It is further recommended that the Regional Director hold a new election when in his opinion the effects of the unfair labor practices found shall have been dissipated. 6 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. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, for Region 9, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT tell our employees that they should conceal their union activities, tell them that the Company is aware of the identity of prounion employees, or tell our employees that they may lawfully be discharged for engaging in strike action. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to join Retail Clerks Union, Local No. 1552, Retail Clerks International Association, AFL-CIO, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining, including strike action, or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining members of any labor organization. DAYTON FOOD FAIR STORES, 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 provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686. 299-352 0-70-3