Don's Super Valu

192 DECISIONS OF NATIONAL Bonnie Foods, Inc., d/b/a Don's Super Valu and Retail Store Employees Union, Local No. 444, af- filiated with the Retail Clerks International As. sociation, AFL-CIO. Case 30-CA-682 June 24, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS , AND ZAGORIA On February 29, 1968, Trial Examiner John F. Funke issued his Decision in the above -entitled proceeding, finding that Respondent had not en- gaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety , as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed an answering brief. 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 and briefs, and the entire record in the case , and hereby adopts the findipgs , conclusions , and recommenda- tions. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be , and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner : Upon a charge filed October 30, 1967, and an amended charge filed December 22, 1967, by Retail Store Em- ployees Union, Local No. 444, affiliated with the Retail Clerks International Association , AFL-CIO, herein the Union , against Bonnie Foods , Inc., d/b/a Don's Super Valu, herein the Respondent, the General Counsel issued a complaint dated LABOR RELATIONS BOARD December 28, 1967, alleging Respondent had un- lawfully announced and enforced a rule against union solicitation among employees and had refused to bargain in good faith with the Union by unilaterally adopting said rule against union sol- icitation in violation of Section 8(a)(1) and (5) of the Act. This proceeding , with all parties represented, was heard by me at Milwaukee, Wisconsin, on January 31, 1968 . At the conclusion of the hearing the parties were given leave to file briefs and briefs were received from the General Counsel and Respondent on February 21. Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent, a Wisconsin corporation , maintains a retail grocery store at Hartford, Wisconsin, where it is engaged in the sale of meats, groceries , and re- lated products. During a representative year Respondent 's sales exceed $500,000 and its purchases made from points outside the State of Wisconsin exceed $50,000. Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED VIOLATIONS OF THE ACT A. The Facts On or about July 14, 1967,1 the Union started or- ganizing the employees of Respondent's Hartford store. Michael Gazzana and John Decker, union representatives , did the organizing and according to their testimony the organizing was conducted dur- ing visits to the store and on store premises. On August 17 an election was conducted among the employees at the Hartford store and on August 28 the Union was duly certified as the collective- bargaining agent of the employees by the National Labor Relations Board. (Case 30-RC-684.) On October 12 a union shop election was conducted by the Wisconsin Employment Relations Committee. (Wisconsin law provided that at least two-thirds of the employees vote in favor of a union -security clause and that at least one-half the employees par- ticipate in the election .) Following this election the ' Unless otherwise noted all dates refer to 1967. 172 NLRB No. 27 DON'S SUPER VALU 193 Union sent to all employees a letter (G.C. Exh. 3) which read: TO EMPLOYEES OF: DON'S SUPER-VALU STORE: Dear fellow clerk: As you know, Local 444 of the Retail Store Employees Union, AFL-CIO won the Representation Election conducted by the Na- tional Labor Relations Board at your store. You have chosen this union to be your representative to bargain with your employer in all matters pertaining to your place of em- ployment. In order for this union to most effectively bar- gain for YOU, we must be aware of how many employees are backing our efforts to improve your wages , hours and other employment con- ditions. So that we may know the support YOU are giv- ing us, we request that, if you have not already done so , you join this union by not later than November 1, 1967. . With your vigorous support the union will know how far it may go in negotiating and securing improved wages and benefits for YOU. Without your support, the union cannot effec- tively perform the job for YOU and it would be futile to start negotiations without everyone pulling together. Representatives Decker & Gazzana will be in your store Friday, October 27, 1967 at 2:00 P.M. at which time you will be asked to join the union and pay November dues. Yours very truly, MICHAEL J. BURTAK, Sec-Treas. JOHN DECKER, Bus. Representative MIKE GAZZANA, Business Representative Charles Fuller , at that time store manager, testified that he received a copy of the letter on either Oc- tober 25 or 26. Donald Kerr , president of Respon- dent and sole stockholder since July 1, testified that he saw the letter about that time, that he and Fuller discussed it and decided: Simply that we were going to allow the Union to come in and bargain . We were going to bar- gain in good faith with them , but that we didn't have to bargain during working hours. Kerr then instructed Fuller to post a notice which had been prepared by Fuller after consultation with Respondent's attorney , Patrick Brigden . Handwrit- ten in broad crayon strokes the notice (G.C. Exh. 2) read: There will be positively NO solicitation from magazine salesmen, insurance men and other salesmen unless permission is granted. Charlie It was posted about 8 a.m. near the timeclock and adjacent to the area where the employees took their coffeebreaks . Although the notice was restricted by its language to salesmen there is no doubt that it was inspired by and directed at the union organizers. Calling attention to the last para- graph of the letter , counsel asked Kerr: Did you give Mr. Fuller any instructions with respect to the prospective visit of the union representatives? A. Yes, I did, I instructed him to post the notice that has been admitted here in evidence. TRIAL EXAMINER: General Counsel's Num- ber 2. A. Yes. 0. (By Mr. Brigden ) Did you give him any oral instructions? A. Yes. Q. What were they? A. That he was to post this. He was not to argue or fight with anybody but our policy would remain as it had been in the past, that these things had to be handled other than dur- ing working hours. Just why the notice was drafted in terms which con- cealed its real purpose and why Fuller in his testimony chose to be evasive on this issue is not readily discerned . In any event , Kerr's testimony resolved such doubt as might exist. On Friday the 27th Gazzana and Decker went to the store and Gazzana and Fuller had a conversa- tion in the parking lot as Gazzana was leaving the store and Fuller was entering . Gazzana 's testimony reads: A. Well, the first conversation we had he was going back inside the store after I had left and he didn't say anything to me when I said "hello" to him. That's what precipitated the conversation . As I said , he was going in the store and after I said "hello" to him he turned around and came back out and he started to inform me that the employees couldn 't talk to us, by "us" meaning John Decker and myself, you know, I thought- 354-126 O-LT - 73 - pt. 1 - 14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER: YOU were outside the store in the parking lot or the entrance? THE WITNESS: Yes, standing alongside the entrance to the store. TRIAL EXAMINER: All right. THE WITNESS: SO, like I said, he started telling us we couldn't bother the employees in the store anymore and we couldn't come in to see them until we had a definite provision in the contract stating that we could. I told him that I wasn't positive legally at the time if we could go in and talk to them the way we had been, so I told him it was for that reason that I left before any of the employees there would get themselves into trouble for talking to me because it seemed like they would. And then he mentioned, like I said, about us not having a provision in the contract. As to what he had done in the store, Gazzana testified: Q. Now, just backtracking for a moment, you had been in the store prior to that conver- sation? A. Yes, I had. 0. All right. What happened when you went into the store? A. Well, on the way in I was talking to Gene Derge, an employee there, this was just on the way into the store, and then immediately after entering the store I went to the bakery depart- ment and I inquired from the woman there if the baker was there, Mr. Steenbergen. She in- formed me that he'd gone for the day. I asked her if the employees there had gotten together at all to determine if they wanted to become union members or anything like this, you know, if they were going to sign up and join the union which I think we made it clear in our note that we sent to them that that was just about the reason we were coming up there for, and she told me that they hadn't gotten together or anything like that. So I asked her how she personally felt about it and she said she didn't know, and she mentioned that she wasn't supposed to be talking to us anymore in the store or anything like that. I got the impres- sion from her that she was- MR. BRIGDEN: Objection. TRIAL EXAMINER: Sustained. 0. (By Mr. Selby) Just tell us what you re- member being said? A. Well, without being definite I think she made mention to Charlie telling her that they weren't supposed to talk to us in the store or anything like that anymore. Fuller's version of their conversation is that he had seen Gazzana in the store and that he asked 2 The General Counsel offered some entirely irrelevant testimony in- dicating the employees engaged in soliciting for various causes , but Respon- dent placed no restrictions upon its employees him, on the parking lot, not to bother the em- ployees on a busy Friday afternoon and added that if Gazzana would play ball with him he would play ball with Gazzana. B. Conclusions The General Counsel has stated the issues as: A. Whether Respondent, on October 27, violated employee Section 7 rights because it discriminatorily promulgated a rule prohibiting union solicitation among employees? B. Whether such promulgation constitutes a refusal to bargain as it was accomplished without notice to or consultation with the Union? A great deal of testimony was taken as to whether Respondent had a rule against solicitation by outside solicitors prior to October. Although the testimony is confusing and contradictory, I find it did not. Certainly no such rule had been reduced to writing nor had it been made known to all the em- ployees. There is no evidence that such a rule had been enforced prior to October 27. On that day the rule was posted and, as has been found, it was directed against union activity by union organizers on store premises. The U.S. Supreme Court has agreed upon the right of an employer to restrict solicitation by nonemployee organizers on company premises in N.L.R.B. v. Babcock & Wilcox, 351 U.S. 105. This rule respecting nonemployee organizers has been stated by the Board in Walton Manufacturing Com- pany, 126 NLRB 697, 698, as follows: 3. No-solicitation or no-distribution rules which prohibit union solicitation or distribu- tion of union literature by nonemployee union organizers at any time on the employer's pro- perty are presumptively valid, in the absence of a showing that the union cannot reasonably reach the employees with its message in any other way, or a showing that the employer's notice discriminates against the union by al- lowing other solicitation or distribution. It seems therefore clear that the rule posted by Respondent was proper and lawful even though its manifest intent was to include nonemployee or- ganizers within its proscription. The sole question is whether it was discriminatively applied to the or- ganizers. As to this there is no evidence for neither Gazzana nor Decker requested permission to enter the premises after that date and there is no testimony that any salesmen or other nonemployee solicitors were given or denied permission.' There is Kerr's testimony, self-serving and therefore suspect but nevertheless uncontradicted,3 that had the union organizers asked for permission to speak 8 I did, however, find Kerr a credible witness. DON'S SUPER VALU 195 to the employees during slack or break periods it would have been granted. The organizers never put him to the test. Prior to October 27 the organizers were never denied access to the store or its employees so no claim of discrimination can be raised despite the amount of testimony taken on this irrelevant issue.' The posting of the notice was prompted by the union letter dated October 24 when Respondent was put on notice that the organizers would visit the store for the purpose of soliciting memberships and collecting dues. The visit was to take place not only during working hours but during a peak work- ing period.' If the General Counsel contends that Respondent was prohibited from protecting its legitimate interests and uninterrupted service of its customers because it had not previously interfered with the organizers he seeks to impose another limitation upon the no-solicitation rule. I do not find it within the province of a Trial Examiner to extend the rule for the purpose of finding a viola- tion on these facts absent any indication that the Board would so extend or apply it. As to the second issue, Respondent admittedly posted the notice without consultation with the Union. This raises the question of whether union solicitation of employees by nonemployees during working hours constituted a "condition of employ- ment" on which the Respondent was required to bargain.' I would say that the answer to that question was provided by Babcock & Wilcox, supra, and by that hallowed cliche of labor law that "working time is for work." I am not going to hold that an employer must bargain as to whether the public area of a retail store be turned over to union organizers during working hours to assist the union's recruitment campaign. There are questions which arise in the field of labor-management rela- tions which can be answered by the application of common sense , however heretical that may seem, and this appears to be one of them. To hold other- wise would be to put the Union in a position to de- mand a quid pro quo at the bargaining table if it acquiesced in an employer's assertion of his right. Based on the foregoing findings and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent has not violated Section 8(a)(1) of the Act. 2. Respondent has not violated Section 8(a)(5) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. ' For what it is worth , Gazzana and Fuller had a conversation in a backroom of the store in which union benefits were discussed and which lasted 15 or 20 minutes . This was at a time when Fuller was assistant store manager and took place at his request ' There is no denial of the testimony of Respondent 's witnesses that Friday afternoons and evenings constituted a peak period and it is certainly a matter of common knowledge among those who market 6 It might be noted that the foreclosure of union solicitation was not ab- solute- it was qualified by the "permission " language As has been stated, the Union made no request to speak to the employees at a "reasonable" time Nor was there any showing that the usual means of access to the em- ployees were not available to the Union See N L R B v. Avondale Mills, 357 U S. 359, 363,364