Breezway Foods, Inc.

BREEZWAY FOODS, INC. 941 'Breezway Foods, Inc. and Retail Store Employees former job or, if that job no longer exists, to a sub- Union, Local No. 1614, AFL-CIO. Case stantially equivalent position." 19-CA-4457 June 23, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS ' While we agree with the Trial Examiner that the authorization card of Whitehead is valid , we disavow his comment in the penultimate sentence of the last paragraph of his concluding findings, I, C, 2, (f), which is unneces- sary to the determination of the validity of the card The Trial Examiner 's findings and conclusions are based , in part, upon his credibility determinations to which the Respondent has excepted The Trial Examiner 's credibility findings are not contrary to the clear prepon- derance of all relevant evidence Accordingly, we find no basis for disturb- ing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188F2d362(CA 3) On March 17, 1970, Trial Examiner Maurice Alexandre issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in op- position to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions 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 Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Breezway Foods, Inc., Twin Falls, Idaho, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, with the following modifications: 1. Delete from paragraph 2(a) of the Order the words "to her former or a substantially equivalent position," and substitute therefor the words "to her former job or, if that job no longer exists, to a sub- stantially equivalent position." 2. Delete from the paragraph of the Appendix that begins "WE WILL offer" the words "to her old job," and substitute therefor the words "to her TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner: This case was heard in Twin Falls, Idaho, on November 18 and 19, 1969, upon a complaint issued on Sep- tember 24, 1969,1 alleging that Respondent had violated Section 8(a)(1), (3), and (5) of the Na- tional Labor ' Relations Act, as amended. In its answer, Respondent denied the commission of the alleged unfair labor practices. Upon the entire record, my observation of the witnesses, and the briefs filed by the parties, I make the following: FINDINGS AND CONCLUSIONS2 THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion 1. The evidence Respondent, an Idaho corporation, operates a store in Twin Falls, Idaho, where it is engaged in the retail and wholesale distribution of food products. On June 18, 1969,3 representatives of the Union, Sullivan and Larsen, went to Respondent's store, and solicited and obtained authorization cards from four employees. Employee Morris testified without contradiction that, when Scholer, who was manager of the store at that time, learned of this event on his return from lunch, he stated that he was not going to have a union in the store; and that, if the Union came in, wages or worktime would be cut and some people would be laid off. Employee Plew testified that on the same day he was called to the office by Scholer, at which time the latter stated that union representatives had signed up employees; that Scholer had telephoned Respondent's president, Brezina; and that Brezina stated that the jobs of the said employees and of anyone else who signed up would not last. Plew ' Based on a charge filed on July 31, 1969, by Retail Store Employees Union, Local No 1614, AFL-CIO ( hereafter called the Union) 2 No issue of commerce is presented The complaint alleged and the answer admitted facts which, I find, establish that Respondent is an em- ployer engaged in operations affecting commerce within the meaning of the Act I further find that the Union is a labor organization within the meaning of the Act 3 All dates referred to hereafter relate to 1969 unless otherwise specified 183 NLRB No. 92 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further testified that later that day Scholer again called him to his office, repeated some of his earlier statements , stated that the store would not be unionized as long as he was there, told him that, if the Union came in, Plew would be the first to go because he was only a part-time employee, stated that Brezina had told him that, if the Union did not come in, he would pay time and a half for overtime and double time for Sunday work, instructed Plew not to talk to anyone in the store about the Union, and threatened to discharge him if he did. Em- ployee June Johnson testified that during the same day, June 18, Scholer told her that two employees had signed authorization cards, that he had talked on the telephone to Brezina who was very upset, and that the jobs of the two would not last very long. Johnson replied that she and employee Saun- ders had signed cards. Scholer testified that on June 18 he talked to Plew and to Johnson twice, and that he told them how he and Brezina felt about the Union. Scholer testified that he told Plew that Brezina was trying to obtain a store insurance policy, and that he sug- gested to Plew that it was best for the employees to wait and compare the policy with the Union's pol- icy to see which was better. Scholer further testified that, during his first conversation with Johnson, he similarly advised her that it would be best for the employees to wait and compare the two insurance policies; and that during their second conversation he referred to the cut in hours adopted earlier that week, stated that there was a limit on his payroll, and informed her that, if he exceeded the limit, Johnson would be the first grocery checker to be fired because she was the least experienced and the last one hired. Scholer also testified that during that week he suggested to most of the employees that they should wait to compare the two insurance poli- cies. Johnson testified without contradiction 'that several days later Scholer told her that a union would not be good for the store; that Twin Falls was not a union town; and that, if the Union came in, two food checkers would be laid off, Johnson would be the first one because she was the last checker who had been hired, prices would go up, and it would be necessary to lay off the majority of the stockboys. On June 24, Scholer was replaced as store manager by Cook. On June 25, the employees held an organizational meeting at which additional authorization cards were signed. Employee Morris testified that Cook subsequently asked her what the employees had decided, and that she replied that all had signed cards. On or about July 10, the em- ployees held a second organizational meeting. Em- ployee Morris testified that on or about July 12, Cook called her to the telephone to talk to Brezina, that Brezina asked her what the employees had signed, that she read to him the contents of the cards which had been signed by employees, and that Brezina thereupon said, "it looks like we're hung then." Morris further testified that about a half hour later Cook told her that Brezina wanted a written statement from each employee setting forth what took place at the meeting. Employee Saunders testified that Cook asked her for a similar statement for Brezina. None of this testimony has been con- tradicted. That night, Cook called a meeting of store em- ployees. Employee Morris testified that at the meet- ing Cook warned that, if the Union came in, work- time would be cut and there would be some layoffs; that Cook stated that Brezina wanted to know which employees were for the Union and which were against; that Cook requested the employees to indicate their preference by a show of hands; and that he then told the employees they were not to mention the Union in the store. This testimony was largely corroborated by employees Saunders and Whitehead. In addition, employee Johnson testified that at the meeting Cook said that the Union was not going to get into Twin Falls because there was no reason for one, and that Brezina could match anything the Union would do for the employees; and that, when Johnson inquired whether the em- ployees would be able to obtain pay for work in ex- cess of 40 hours a week, Cook replied in the nega- tive. None of this testimony has been contradicted. 2. Concluding findings Based on the uncontradicted and credited testimony and the admissions described above, I find that Brezina, Scholer, and Cook made the vari- ous statements and committed the conduct at- tributed to them, and that such statements and con- duct constituted interference, restraint, or coercion violative of Section 8(a)(1) of the Act. Respondent contends that, if it "advised" any employees against joining the Union, such a statement was protected because an employer is entitled to communicate to his employees his views relating to unionization. The difficulty with this argument is that Respon- dent did not merely give advice. It unlawfully threatened employees with discharge if they joined the Union. Respondent further contends that the statements concerning a reduction in worktime were protected because such reduction had already been decided on. In support of this contention, Respondent relies on the testimony of Heaton, who became store manager about August, that he reduced the worktime of employees. Such testimony falls far short of establishing a manage- ment decision already arrived at before the state- ments in question were made . In any event, since the statements were made in the form of threats which would be carried out if the employees unionized, they were unlawful. Contrary to Respondent, the statements relating to layoffs were not predictions of "demonstrably probable consequences beyond [Respondent's] control." N.L.R.B. v. Gissel Packing Company, 395 U.S. 575. There is nothing in the record to show BREEZWAY FOODS, INC. that an increase in payroll costs and the resulting need for a reduction in the labor force were inevita- ble consequences of unionization. Moreover, the statements were not phrased as predictions, but rather were in the form of unlawful threats of reprisals if the employees should unionize. I reject Respondent's contention that no unlawful promises of benefit were made. The record establishes that Respondent told employees that it would pay overtime benefits if they did not unionize. It further establishes that Respondent im- plied to several employees that it would furnish them with insurance benefits which were superior to those which the Union could obtain for them. I find that, by dangling before its employees the pos- sibility of superior insurance benefits, Respondent unlawfully attempted to induce them to refrain from unionizing. I also reject Respondent's conten- tion that its request for a showing of hands respect- ing the employees' union sentiments did not con- stitute unlawful interrogation because Respondent allegedly had a good-faith doubt regarding the Union's majority and the request was not accom- panied by threats. Although polling of employees can be lawful, Respondent's poll did not satisfy the criteria set forth by the Board in Struksnes Con- struction Company, Inc., 165 NLRB 1062, which was cited with approval by the Supreme Court in N.L.R.B. v. Gissel Packing Co., supra; see N.L.R.B. v. Historic Smithville Inn, 414 F.2d 1358, fn. 10 (C.A. 3), cert. denied 397 U.S. 908. Thus, Respon- dent did not make clear to the employees that it had a legitimate purpose in taking the poll, nor did it reassure them that there would be no reprisals. In addition, the poll was not taken by secret ballot, and the record establishes other unfair labor prac- tices as well as a coercive atmosphere. I therefore find that the poll was unlawful. There is no merit to Respondent's contention that it acted lawfully in soliciting from employees written statements respecting what took place at their meeting of July 10. In the context of Respon- dent's other unfair labor practices, such solicitation was coercive. For the same reason, I reject Respon- dent's contention that it was lawful for Scholer to tell Plew that the store would never be unionized as long as Scholer was there. Finally, I reject Respon- dent's contention that it was lawful to forbid discus- sion of the Union during store hours. The prohibi- tion was not confined to worktime, but extended to nonworktime. Absent a showing of special circum- stances requiring such a prohibition, I find that it was unlawful. B. The Discharge of June Johnson 1. The evidence Johnson was hired by Respondent as a grocery checker in April 1969. As noted above, Johnson in- 943 formed Store Manager Scholer on June 18 that she had signed a union authorization card; and he sub- sequently told her that, if the Union came in, she would be the first checker to be laid off because she was the least experienced and the last one hired 4 Cook, who replaced Scholer as store manager, testified that, at the time he received his appointment, Respondent's, district manager, Ed- wards, informed him that the store was going downhill and that the payroll was too high; that Ed- wards instructed him to reduce the payroll and lay off two female and several male employees who "were not doing the work"; and that Johnson was one of several employees whom he was instructed to terminate. At another point, he testified that he was told to lay off two employees, that one of them was not doing her job at the checkstand, that one of them was smoking at the checkstand, and that he "was told-to replace." Young, the manager of Respondent's store in Idaho Falls, testified that dur- ing the second week of June he heard Edwards tell Cook that the Twin Falls store was overstaffed and give instructions to eliminate unneeded employees in order to reduce the payroll; that Edwards told Cook to lay off Johnson and another checker; and that Edwards stated that the two checkers "just weren't up to par." Young admitted, however, that he was not certain whether Edwards had made the latter statement regarding Johnson. Cook testified that he did not let Johnson go when he took over the store because employee Ethel Johnson quit, as a result of which the store was "not up to full strength" and he "had to have a checker to fill her place." Johnson testified without contradiction that her work had not been criticized, and that on three separate occasions Store Manager Cook told her that she was a good worker and that her job was safe. On July 19, she was discharged by Assistant Manager Sour. Cook testified that he had been watching Johnson, that she was very slow in checking out customers and he had had complaints about her checking, that he decided that the time was right to release her, and that he instructed Sour to tell Johnson that Respondent would no longer be able to use her because of business conditions and because she was one of the last employees hired. Johnson testified that at the time he discharged her Sour told her that Cook had instructed him to let her go but had given him no reason; that she inquired whether she had done something to prompt the discharge; and that Sour replied in the negative and stated that she was a "good worker." Cook testified that he did not replace Johnson, and that, instead of discharging the second checker, he kept her on as a bookkeeper-checker. Heaton, who replaced Cook as manager in August, testified that, since he became manager, he has reduced the number of hours worked by the checkers. 4 Johnson testified without contradiction that , although she was the newest employee at the time of that conversation , two employees were hired thereafter 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Concluding findings The General Counsel contends that Respondent discharged Johnson because of her union activity. Respondent contends that, before Cook was ap- pointed store manager, Respondent had decided to reduce its overhead by discharging at least two em- ployees at the Twin Falls store, that Cook was in- structed to discharge Johnson and another checker, and that she was the logical choice because she was the least experienced and the last checker to be hired. I find that Respondent's explanation for discharging Johnson is unpersuasive. Cook gave conflicting evidence as to whether he was told to reduce payroll costs through layoffs or merely to replace certain employees. Moreover, neither Young nor Cook testified that the latter was instructed to include Johnson as one of the dischar- gees because she lacked seniority. Instead, they testified that Cook was instructed by Edwards to discharge two checkers whose work was unsatisfac- tory. Young was uncertain as to whether Johnson was one of those named; and, although Cook testified that she was named by Edwards, his con- tradictory testimony, poor memory, and demeanor lead me to conclude that Cook was an unreliable witness and I do not credit his testimony.' In addition , there is nothing to explain why, if Cook was instructed to discharge Johnson, he told her that her job was safe, or why he found it neces- sary to watch her. There is also no explanation for Cook's delay in following the alleged instructions to discharge Johnson. Since Ethel Johnson resigned, such instructions required him to discharge one more checker. But Cook's testimony is that, with Ethel Johnson gone, his work force was below par and he needed June Johnson. Accordingly, I am not convinced that Cook received such instructions. Other unexplained discrepancies include Cook's testimony that, although he received instructions to discharge Johnson, he made the decision to discharge her; and his testimony that, although the reason for his decision was Johnson's slowness in her work and customer complaints, he told Sour to notify Johnson that she was selected for discharge because she lacked seniority. Johnson testified without contradiction that Sour told her that Cook had given him no reason for the discharge, and there appears to have been no reason why Sour should have lied to Johnson. Finally, it does not ap- pear that Johnson had the least seniority at the time of her discharge. She testified without contradiction that two other employees were hired by Respon- dent subsequent to June 18, and there is no evidence that the two were no longer in Respon- dent's employ at the time of Johnson's discharge. For the above reasons, I find that the reason for discharge asserted by Respondent is a pretext s There is nothing to show that any complaints had been made to Ed- wards regarding Johnson's work It seems unlikely that any such complaints had been made in view of Johnson 's uncontradicted testimony that her work was praised by Cook and by Assistant Manager Sour designed to conceal its true motive. I further find that Johnson's discharge was motivated by the fact that Respondent wished to eliminate a known union adherent in a small unit in order to prevent the Union from becoming the majority bargaining representative of its employees. I base that conclu- sion on Johnson's admission to Scholer that she had signed a union authorization card, the unlawful threats of discharge made to her and other em- ployees, the absence of a persuasive reason for her discharge, Respondent's other unlawful conduct in opposing the Union, and the timing of the discharge, i.e., some 2 weeks after Respondent was told that a cross-check of authorization cards showed a union majority, 1 week after the conver- sation of July 12 between employee Morris and Respondent's president, Brezina, which led the latter to believe that the Union might represent a majority of the employees, and 5 days after a further demand for recognition was made by the Union on July 14 (see infra). I therefore find that Respondent discriminated against Johnson in viola- tion of Section 8(a)(3) and (1) of the Act. C. The Refusal To Bargain 1. The evidence On June 25, Union President Sullivan met with District Manager Edwards and told him that the Union represented a majority of the employees at Respondent's Twin Falls store, i.e., 9 out of 14. Ed- wards replied that Respondent would not object to signing a contract if the Union could prove its majority. Sullivan replied that he had only three of the authorization cards with him at the time, and they agreed to meet again the following day. When they met on June 26, Sullivan again had only three cards with him,' and Edwards again stated that he would not object to signing a contract if the Union could prove a majority. Sullivan asked whether Ed- wards would consent to a cross-check of the cards. Edwards agreed and stated that, if he were not available, he would arrange to have the store manager take care of the cross-check. The Union then inquired of the Idaho State Labor Commissioner whether he would conduct the cross-check, and was informed that he would if the Union would furnish Respondent's written con- sent thereto. Thereafter, Sullivan sent to the labor commissioner a letter dated June 27, reading as fol- lows: Please use this letter as your authority to con- duct a card cross-check as pertains to Union Representation for the employees in the above named location for period ending June 28, 1969. Exluded from the bargaining unit are- one store manager and one assistant manager. 6 Sullivan testified that additional cards were in the Union's office in Boise, Idaho, that they had been mailed to him , but that they had not yet reached Twin Falls when he met with Edwards BREEZWAY FOODS, INC. 945 The commissioner's office received the letter on June 30, a representative of that office, Jones, telephoned Sullivan, and they agreed that the cross- check should be held on July 3. On that date, Jones went to the Twin Falls store, and Sullivan arrived shortly thereafter. When Jones requested Store Manager Cook to countersign the letter authorizing the cross-check, Cook telephoned Edwards and then signed the letter. Jones asked Cook whether he had a list of signatures of the store employees for use in the cross-check, but was told that he had none. Cook and Sullivan thereupon agreed that in making the cross-check Jones would regard as eligi- ble to vote only those employees whose signatures could be obtained that day. Cook furnished Jones with a list which purported to include the names of the employees on the payroll as of June 28. The list contained 12 names, and a 13th name (Bowman) was added. In addition, he informed Jones that 5 of the 13 employees were no longer on the payroll as of June 30 and that the remaining 8 employees on the list, plus another hired on the latter date, or a total of 9, were still on the payroll on July 3. Jones then requested availa- ble employees to sign their names on a sheet of paper, and obtained 9 signatures. However, he did not obtain Bowman's signature, but did obtain that of employee Jardine, whose name was not on the list furnished to him by Cook. Jones next proceeded to compare the signatures with those on the approximately 13 authorization cards furnished by Sullivan, and determined that there were genuine cards from 6 of the 9 employees whose signatures he had obtained. Accordingly, Jones in- formed Cook and Sullivan that he was satisfied that the Union had a majority. By letter dated July 14, the Idaho Labor Commissioner certified the Union as the ma ority bargaining agent in the unit set forth in the authorization for the cross-check. 2. Concluding findings The General Counsel contends that there were 14 employees in the appropriate unit on June 28, and that the Union had valid authorization cards from 10 of such employees; that, if July 3 is deemed to be the correct date for determining majority, there were 12 employees in the ap- propriate unit and the Union had valid cards from 8 of such employees on the latter date; and that, since the record thus establishes the Union's majority, Respondent's refusal to bargain with the Union was unlawful. Respondent contends that the Union's majority should be determined as of June 28, that there were 14 employees in the appropriate unit on that date, that the cross-check disclosed authorization cards from only 6 employees, and hence that the record fails to show a majority. Respondent further contends that there were 12 employees in the appropriate unit on July 3 and, ' Although the answer denied that the Union's majority had ever been properly determined in accordance with Idaho law, Respondent has ap- parently abandoned reliance on Idaho law and , as noted more fully below, therefore, that the 6 cards determined to be valid during the cross-check were insufficient to establish a majority even on the latter date. Finally, Respon- dent raises a question as to the validity of 2 of those 6 cards, asserting that they were obtained by the Union through misrepresentations. Where a union makes a request for bargaining and agrees with the employer to permit a state tribunal to determine whether the Union has majority status, the determination of the tribunal following a secret election will ordinarily be respected, provided that the election contained no substantial irregularities and was sheltered by procedural safeguards of secrecy and fairness. N.L.R.B. v. Western Meat Packers, Inc., 350 F.2d 804 (C.A. 10); Screen Print Corporation, 151 NLRB 1266. If, following a proper determination of majority by the tribunal, the employer refuses to bargain with the union, he commits an unfair labor practice. Where, however, deference cannot be given to the tribunal's determination, some other means of determining majority status must, of course, be used. The preferred method is a Board election. But if the employer engages in unfair labor practices which are so substantial as to make the holding of a fair and free election unlikely, still other methods of determining majority may ap- propriately be used. And if such majority status is established, a finding that the employer violated his obligation to bargain and the issuance of a bargain- ing order are warranted. N.L.R.B. v. Gissel Packing Co., supra. Assuming, without deciding, that similar respect should be accorded to the determination of a state tribunal based upon a cross-check of authorization cards, I find that no deference can be given to the certification of the Idaho State Labor Commis- sioner respecting the Union's majority status, that Respondent's unfair labor practices have made it unlikely that a free election could be conducted by the Board, that the record establishes that the Union had a majority at a time when it requested Respondent to bargain , that Respondent 's refusal to bargain with tha,,Union was thus unlawful, and that a bargaining order is required to effectuate the poli- cies of the Act. (a) The complaint alleged that from and after June 27, and particularly on July 3 and on or about July 14, the Union requested Respondent to bar- gain; and that since the latter date Respondent has continued to refuse to bargain. In its answer, Respondent denied that it has ever refused to bar- gain with a duly and properly designated bargaining agent.7 I construe the answer as an admission of fact. I accordingly find that the Union has requested Respondent to bargain since June 27, and that the latter has continued to refuse to bar- gain since July 14. argues in its brief merely that the record fads to establish the Union's majority 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) I find that Respondent's numerous unfair labor practices were so coercive as to destroy the likelihood of holding a free election among Respon- dent's Twin Falls employees. As found above, such unfair labor practices included threats of discharge, layoffs, and cuts in worktime, as well as promises of benefits, in order to prevent unionization, unlaw- fully polling employees regarding their union senti- ments, unlawfully soliciting written statements from them regarding what had occurred at an organiza- tional meeting, an invalid prohibition against discussion of union matters during nonwork as well as worktime, and the unlawful discharge of John- son. This conduct was even more serious than that which was found to justify a bargaining order in the Sinclair case, one of the cases covered in N.L.R.B. v. Gissel Packing Co., supra. It follows that if the record establishes that the Union had majority status at a time when it requested Respondent to bargain, the latter violated its obligation to bargain with the Union and the issuance of a bargaining order is appropriate. (c) The complaint contained the following al- legation: The following unit is now, and at all times al- leged herein has been, a unit appropriate for purposes of bargaining within the meaning of Section 9(a) of the Act: All employees at Respondent's Twin Falls location, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. Since the answer failed to deny that al- legation, it is admitted. In addition, the parties expressly stipulated at the hearing that the said allegation was correct. Despite the fact that the unit described in the authorization for the cross-check did not exclude clerical em- ployees, I find that the unit set forth above is an appropriate unit and should be utilized in determining whether the Union had a majori- ty.8 (d) The parties stipulated at the hearing, they agreed in their briefs, and I find, that there were 14 employees in the above unit on June 28, and that they-were as follows: Judy Saunders Terry Pierce Hazel M. Morris Doug Gilbert June W. Johnson Jay Ulrich Jerilyn Whitehead Roger Krueger Vaila M. Kinney Andy Bristol David Plew Ethel Johnson 'Shortly before the close of the hearing , Respondent raised some question regarding the unit alleged in the complaint It appears , however, that the burden of Respondent 's assertion was that employee Jardine should be included in that unit despite her clerical duties , and not that the unit should be amended to include clerical employees In its brief, Respon- dent no longer asserts that Jardine was in the unit ( See fn 10, infra ) " After the close of the hearing, the parties entered into stipulation relat- ing to Sharp 's employment history at the Twin Falls store That stipulation, which is in the form of a letter dated December 16, signed by counsel for the General Counsel and countersigned by counsel for Respondent, is hereby marked Joint Exh 1 for identification , and it ordered that the said exhibit be , and it hereby , is made a part of the record herein David Pinkston Donald Bowman Although there appears to have been some dis- agreement at the hearing regarding the number of employees in the unit as of July 3, the parties now agree in their briefs that there were 12 employees in the unit on that date. At the hearing, it was stipu- lated that the following 11 employees were in the unit on July 3: Saunders Plew Morris Gilbert June Johnson Ulrich Whitehead Krueger Kinney Bowman Duane Bolman Respondent contends, and the General Counsel now concedes in his brief (p. 8), that employee Cliff Sharp should also be included in the unit as of July 3.9 The record thus establishes, and I find, that there were 12 employees in the appropriate unit as of July 3.10 (e) With respect to the issue of the Union's majority, Respondent argues that the cross-check disclosed only six valid authorization cards, and that this represented less than a majority of the 14 unit employees on June 28, and of the 12 unit em- ployees on July 3. But Respondent cannot have it both ways. If it wishes to rely on the results of the cross-check, it must also accept the agreement between Cook and Sullivan that the unit would be deemed to include only the nine employees whose signatures were readily available. If, however, Respondent takes the position that the unit con- sisted of 14 on June 28 and 12 employees on July 3, it cannot properly insist on using the card count made at the cross-check because Jones, although given approximately 13 authorization cards by the Union, disregarded those signed by employees other than the 9 who were deemed to be the eligi- ble voters. The question is whether the Union's majority should be governed by the results of the cross-check or determined by some other method. I find that the certification of the Idaho Labor Commissioner does not constitute satisfactory evidence of the Union's majority if for no other reason than that the cross-check was seriously de- fective in several respects. It was made in a unit dif- ferent from that which the parties now agree, and which I have found, to be appropriate." In addi- tion, the unit was deemed to include only 9 em- ployees for purposes of the cross-check, although 10 As noted above, Respondent contended at the heanng that employee Jardine should be included in the unit as of July 3 However , Respondent now asserts in its brief (p 9) that the unit on that date consisted of 12 em- ployees, i e , the I i employees included in the aforementioned stipulation, and employee Sharp it thus appears that Respondent has abandoned its contention respecting Jardine 11 Whereas the unit found appropriate excluded clerical employees, the unit agreed on in the cross-check authorization did not contain such an ex- clusion it is probable that for that reason employee Jardine was included as an eligible voter for purposes of the cross -check , although the parties now agree that she should not be included in the unit BREEZWAY FOODS, INC. 947 the parties have stipulated, and I have found, that there were 14 unit employees on June 28 and 12 unit employees on July 3. Finally, some of the authorization cards given by the Union to Jones were not counted. It follows, and I find, that these irregularities are so substantial that it would not ef- fectuate the policies of the Act to defer to the findings of the Idaho State Labor Commissioner. Accordingly, we must look to other evidence to determine whether the Union had a majority. (f) The record shows that four unit employees signed union authorization cards on June 18,12 that one signed a card on June 19,13 and that three signed cards on June 25.14 In addition, the parties stipulated that Gilbert was a member of the Union in good standing on June 28. Such membership constituted authorization to the Union to represent him for purposes of collective bargaining. Nashville Lumber Co., 162 NLRB 1027, 1030, fn. 10. Thus, on that date, the Union ostensibly represented 9 of the 14 employees in the unit." Of the 12 unit employees on July 3, 6 signed cards on or before June 25.16 In addition, Ulrich signed a card on July 3, and the parties stipulated that Gilbert was a member of the Union in good standing on that date. Thus, the Union ostensibly represented 8 of the 12 employees in the unit as of July 3. Respondent attacks the validity of the authoriza- tion cards signed by employees Kinney and Whitehead on the ground that they were obtained through misrepresentations made by union representatives. Since representation of these two employees is crucial to the Union's majority, Respondent's contention must be considered. For the reasons noted below, I find that the Union represented Kinney and Whitehead and, therefore, that it represented a majority of the unit employees on both June 28 and July 3. Kinney testified that she is a union member and had taken out a withdrawal card; that she was given the authorization card at the Twin Falls store, took it home, signed it, and mailed it to the Union; that a union representative told her that she could be "blackballed" from the Union if she did not sign the card; but that she was not certain whether the state- ment was made before or after she had signed the card. Union President Sullivan testified that the card was for the purpose of a cross-check; that he pointed out to her that she was a union member who had taken out a withdrawal card; and that he informed her that, under the Union's constitution, the withdrawal card would be revoked if she failed to "deposit" the card or "sign up" with the Union and failed to pay dues within 30 days after she ob- tained employment in any establishment within the Union's jurisdiction. Respondent contends that Kinney's card is tainted because union representatives told her that the card was for the purpose of a cross-check and that she could be blackballed from the Union if she did not sign the card. I credit Sullivan's testimony regarding the remarks be made to Kinney. Such re- mi'rks did not amount to misrepresentation or coer- cion which invalidates her card. They merely pointed out the possible consequences to her under the Union's constitution if she failed to reactivate her union membership. Moreover, since Kinney took the card home and then signed it, she had ample time to read the card which, on its face, clearly authorized the Union to represent her for purposes of collective bargaining. As a union member, she undoubtedly understood the sig- nificance of such authorization. And, by signing the card, she indicated her desire to avoid revocation of the withdrawal card and to remain a member of the Union. I accordingly find that there is no basis for rejecting Kinney's authorization to the Union to represent her for purposes of collective bargaining. Whitehead testified that Union President Sullivan told her that the card was for the purpose of a cross-check, i.e., "to see if the store wants to go Union or not"; that she inquired whether he "had O.K.'d it" with Respondent's district manager and the store manager; that he replied in the affirma- tive; and that he further stated that he had also talked to Brezina, Respondent's president, that "everything was A.O.K.," and that all she had to do was sign the card. She further testified that she signed the card without reading it, that she did not know what the card was for, and that she had completed high school and 1 year of college. Sul- livan testified that Whitehead had been a union member for some time; that, when he solicited her signature, he asked her whether she would like to see the store go union and wanted overtime pay and certain other benefits; and that he pointed out that the Union had organized other stores on the basis of a cross-check and could do the same at the Twin Falls store if she signed the card. Respondent argues that Whitehead's card should not be counted because she was told by union representatives that it was for the purpose of a cross-check, that she did not know the effect of a cross-check, and that she signed the card on the Union's misrepresentation that Respondent's pre- sident had stated that he had no objection. I find that Whitehead's membership in the Union con- stituted sufficient authorization to the Union to represent her for purposes of collective bargaining. Nashville Lumber Co., supra. I do not credit Whitehead's testimony that she did not know what the authorization card was for. Her failure to read it is immaterial, since there is nothing to show that 12 Saunders, Moms, Johnson, and Whitehead 13 Kenney. 1' Plew, Pinkston, and Pierce 15 In asserting a majority of 10 on that date, the General Counsel may have incorrectly included the card which, the parties stipulated , was signed by Ulrich on July 3 16 Saunders , Morris, Johnson, Whitehead , Kinney, and Plew 427-258 O-LT - 74 - 61 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she was prevented from doing so. McEwen Mfg. Co., 172 NLRB 990, fn. 33. Moreover, Sullivan's explanation clearly informed her that it would be used to determine whether the store should be unionized . By signing the card, she indicated her desire to remain a member of the Union. As for the implied misrepresentation (which Sullivan did not expressly deny) that Brezina had no objection to her signing the card, I find that it was not the kind of misrepresentation which prevented Whitehead from exercising a free choice. If Whitehead had refrained from signing the card because of a belief or fear that Brezina disapproved, her decision would not have been an unfettered one. The effect of indicating to her, albeit untruthfully, that Brezina had no objection was to enable her to exercise a choice unaffected by the irrelevant wishes of her employer. I find that there is no basis for rejecting Whitehead's authorization to the Union to represent her for purposes of collective bargaining. (g) Since the record establishes that the Union had a majority on June 2 and July 3, it is immaterial which of the two dates is used for determining the Union's majority. For, as already stated, it is ad- mitted that the Union has continued to request Respondent to bargain since June 27, and that it made a specific bargaining request on July 3. Thus, the Union had a majority status at a time when it requested Respondent to bargain. Because Respon- dent's conduct has made the holding of a free elec- tion unlikely, I find that such majority status was sufficient to establish Respondent's obligation to bargain and that its refusal to fulfill that obligation violated Section 8(a)(5) and (1) of the Act. For the same reason, I find that a bargaining order is the appropriate method to remedy the refusal to bargain. CONCLUSIONS OF LAW A. By interfering with, restraining, and coercing its employees, as found herein , Respondent en- gaged in unfair labor practices in violation of Sec- tion 8(a)(1) of the Act. B. By unlawfully discharging employee June Johnson, as found herein , Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. C. By unlawfully refusing to bargain with the Union, as found herein, Respondent engaged in un- fair labor practices in violation of Section 8(a)(5) and (1) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, and that it take certain affirmative action designed to effectu- ate the policies of the Act. Specifically, I shall recommend that Respondent offer to June Johnson immediate and full reinstatement to the position which she held at the time of the discrimination against her or to a substantially equivalent position, without prejudice to her seniority and other rights and privileges. I further recommend that Respon- dent make Johnson whole for any loss of earnings she may have suffered by reason of the discrimina- tion against her, by paying to her a sum of money equal to that which she would have been paid by Respondent absent such discrimination, less net earnings during the said period. The loss of earnings shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In ad- dition, for the reasons already noted above, I shall recommend that Respondent bargain with the Union as the majority representative of Respon- dent's employees in the unit found herein to be ap- propriate. RECOMMENDED ORDER Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating, polling, or threatening its employees, unlawfully promising them possible benefits in order to induce them to vote against unionization, or unlawfully prohibiting discussion of union matters during nonworktime. (b) Unlawfully discharging employees or other- wise unlawfully discriminating in regard to their hire, tenure of employment, or any term or condi- tion of employment. (c) Unlawfully failing or refusing to bargain col- lectively with Retail Store Employees Union, Local No. 1614, AFL-CIO, as the exclusive representa- tive of the employees in the following appropriate unit: All employees in Respondent's Twin Falls loca- tion, excluding office clerical employees, guards, professional employees, and super- visors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action: (a) Offer to June Johnson immediate and full reinstatement to her former or a substantially equivalent position, and make her whole for any loss of earnings she may have suffered by reason of Respondent's discrimination against her, in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and make available to the Board or its agents , on request, for examination and copying, all payroll records and reports and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Recommended Order. (c) Notify the above-named employee, if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Ser- BREEZWAY FOODS. INC. vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Upon request, bargain collectively with Retail Store Employees Union , Local No. 1614, AFL-CIO, as the exclusive representative of the employees in the unit found herein to be ap- propriate , and embody in a signed contract any un- derstanding reached. (e) Post at its stolre _ in Twin Falls, Idaho, copies of the attached notice marked "Appendix."17 Co- pies of said notice , on forms provided by the Re- gional Director for Region 19, after being duly signed by Respondent 's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted . Reasonable steps shall be taken by it to insure that said notices are not altered, defaced , or covered by any other material.18 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 19 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 19 , in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all em- ployees these rights: _ To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things WE WILL NOT do anything that interferes with these rights. 949 WE WILL NOT unlawfully discharge em- ployees or otherwise discriminate against them because of their union activities. WE WILL NOT unlawfully question, poll, or threaten our employees__ WE WILL NOT unlawfully offer possible benefits to employees to induce them to vote against unionization. - - WE WILL NOT unlawfully prohibit employees from discussing union matters during nonwork- time. WE WILL offer to take back-June Johnson to her old job and pay her for all the wages she lost because of her discharge. WE WILL, upon request, bargain collectively with Retail Store Employees Union, Local No. 1614, AFL-CIO, as the exclusive representa- tive of all our employees in the following unit with respect to rates of pay, wages, hours of work, and other terms and conditions of em- ployment, and embody in a signed agreement any understanding reached. The bargaining unit is: All employees in Respondent's Twin Falls location, excluding office clerical employees, guards, professional em- ployees, and supervisors as defined in the National Labor Relations Act, as amended. Dated By (Representative ) (Title) Note: We will notify June Johnson if presently serving in the Armed Forces of the United States of- her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone-.- This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 583-7473.