Owen's IGA Foodliner

OWEN'S IGA FOODLINER William P. Owen d/b/a Owen's IGA Foodiiner and Retail Clerks Union Local 1439, Retail Clerks International Association, AFL-CIO. Cases 19- CA-4329 and 19-CA-4342 January 30, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On July 31, 1970, Trial Examiner George H. O'Brien issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take. certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. The Trial Examin- er further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the 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 proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner;nade at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, 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 Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, William P. Owen d/b/a Owen's IGA Foodliner, Spokane, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' 1 In footnote 5 of the Trial Examiner's Decision, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 277 GEORGE H. O'BRIEN, Trial Examiner : On June 9 and 10, 1970, a hearing was held in the above-entitled matter in Spokane, Washington. The complaint, issued May 5, 1970, is based on charges filed by the Union on March 25 and April 3, 1969, as amended April 11, 1969, and alleges viola- tions of Section 8(a)(1) of the National Labor Relations Act. Upon the entire record in this proceeding , including my observation of the witnesses and after due consideration of the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT William P. Owen d/b/a Owen's IGA Foodliner, herein called Respondent, owns and operates three retail grocery stores in Spokane, Washington. The gross annual sales of these three stores exceed $500,000 and include sales of goods from out of state valued in excess of $50,000. Respon- dent is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local 1439, Retail Clerks Interna- tional Association, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges in substance and the answer denies that: (1) All employees of Respondent's store 1 located at 29th Street and Regal Street, excluding supervisors and meat department employees constitute an appropriate unit for collective bargaining; (2) from and after February 19, 1969, the Union represented a majority of the employees in said unit; (3) between March 1 and 14, 1969, Respondent granted benefits to employees to induce them to abandon the Union; (4) the conduct of Respondent was of such a nature as to preclude the holding of a fair election; and (5) "Respondent has engaged in unfair labor practices of such an extensive and pervasive character as to require the is- suance of a bargaining order even in the absence of an 8(a)(5) violation. The Sinclair Company v. N.L.RB., 395 U.S. 575." B. Sequence of Events On February 18, 1969, Randall Munro, a clerk in store 1 went to the union office in Spokane and signed an applica- tion for membership in the Union. On the same date Allen Robert Annis, a box boy, signed an application. On the following day applications were signed by clerks Joan An- derson, Mark Weidman, and Catherine Usher. These five constituted a clear majority of the employees in the unit hereinafter found appropriate for collective bargaining. On the evening a,appropriate 19 union organizer Arnold Needam, called on Thelma M. Luckey at her home. Luckey had been employed as a clerk at Respondent's store 2 since 188 NLRB No. 37 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 1965. She signed an application after being told by Needham that a majority of Respondent's employees had joined the Union. On the following morning, February 20, Luckey learned by questioning her fellow employees at store 2 that none had beets approached by the Union. On the evening of February 21 she telephoned Needham and asked that h' application be returned, stating: I told iiim that I went to work the next day and I found out that no one else had been approached by the union or had signed a card from our store and he led me to believe a majority from our store had signed and there wasn't. Needham complied. Two other clerks at store 2, Rose Wal- ters and Violet Willms, signed applications on February 21 at the request of Needham. Within the week Luckey told her store manager, Paul Meyer, that she had signed a card and that it had been returned to her. Meyer made no comment. On some date toward the end of February or the begin- of March Munro had a conversation with William Owen. Munro told Owen that the employees at store 1 were "disappointed" by the fact that employees of a Safeway store under union contract less than a block away were receiving higher wages for the same work, and Respondent's employees were thinking about joining the Union. Munro asked Owen what he would do if the store went union. Owen replied: "There is nothing I can do. If the people want to join the Union there is no way I can stop them .... One of my stores is union, two of my stores are not union. What matters to me is the wage percentage. I can work with the union scale or without the union scale. It doesn't matter to me. It is what the people want .... I wish we could negotiate together instead of going through a union, but that is up to them." Munro asked if Owen would meet with the employ- ees if they desired such a meeting and Owen replied that he would meet if requested. Owen suggested that Munro talk to the other employees and see what they wanted. A day or two later Munro described to his fellow employ- ees, Anderson, Usher, Annis, Tom Wolfe, and Bernard F. (Bud) Bishop, his conversation with Owen. They decided that they "would like to have a meeting with Owen directl' so they could personally talk with him about the situation. Munro reported this decision to Owen who agreed to meet with the employees of store 1 on the following Sunday, (probably) March 9, at 9 p.m. on the employees' own time after the store closed. The meeting was held as scheduled in Owen's office. The employees present were Bud Bishop and the five who had signedyunion applications. The only bargaining it em- ployees who did not attend were box boy Thomas Wolfe (hired in February) and bottle boy Paul Savanish. There was general discussion. One of the employees had a copy of the standard union contract. Owen suggested three alternatives. (1) They could leave things as they were. (2) They could have the union pay scale without the union contract, (3) They could have the Union. Owen explained that under any of these proposals the total wages paid could not exceed a fixed percentage of the gross sales of the store. If the employees selected either the second or the third alternative, they would work fewer hours per week for high- er rates of pay per hour. Owen exhibited a tentative sched- ule showing the name and days and hours which each employee would work under either the second or third alter- native, which contemplated identical hourly rates. He re- minded the employees that there was available, through Roundup Grocery Company, health and welfare insurance comparable to that in the union contract, and that Munro and Bishop had availed themselves of this privilege. At some time during this meeting one of the employees said "Some of us have signed a union card." After presenting his proposals, Owen left the meeting and waited in his car in the parking lot. The employees then had a discussion and an oral vote and decided "to go with Owen's plan rather than continue with the Union. Owen was informed of this decision by Usher, Munro, and Bishop, who then asked, "What are we going to do about the cards we signed?" Owen replied, "I suppose you ask for them back. Give Danny O'Bri en of the Retail Clerks a call and let him know." On the following day the new schedule and the new hour- ly rates went into effect at store 1. Munro went to the union office, reported to Mr. O'Brien on the occurrences of the night before, and asked that all five applications be returned to the signers. Early in March at store 2 clerk Violet Willms told Owen that since she was working nights she was entitled to more money. Owen agreed and raised her pay by 20 or 25 cents effective March 11, 1969. Union was not mentioned in the conversation. In mid-March or late March, when Owen and Willms were having a general conversation about unions, Owen "said he would be glad to meet union wages if that was what the employees wanted but he wished they would come to him with their problems before going to any place else." About the same time (mid or late March) Owen men- tioned to Luckey that store 2 employees could have a meet- ing and discuss `if they wanted to go union or whatever they wanted to do." Owen, in explanation of the foregoing, testi- fied: Q. At that time did you make any wage raises to the employees of your Monroe Street store. A. No, I did not. Q. Did you have a meeting with the employees? A. No, I did not. When the people came to me and asked me questions about that they had been ap- proached by the union, I said, "I don't want to know whether you have signed a card or not." I said, "If the people would like to have a meeting and J would be invited to it, then, fine," but I did not grant any wage raises or promise them anything unless they asked me first.... Under date of March 19, 1969, O'Brien wrote to Owen stating that the Union represented a majority of Respondent's employees at stores 1 and 2, offering to dem- onstrate the truth of the claim, demanding recognition of the Union, and suggesting a meeting at the union office on March 26.Owen posted this letter on the employee bulletin board at store 1 on March 20. That evening at her home Usher typed the following letter: Mr. Danny O'Brien, We the employees of Owen's IGA No. 1-29th and Regal have previously asked for the return of our Un- ion applications. As of now we have not received them and we the undersigned hereby ask for the immediate return of them. The above letter bearing the signatures of Munro, Ander- son, Usher, Annis, and Weidman was hand delivered to the union office by Munro on March 21. On March 25 the Union filed the charge docketed as Case 19-CA-4329 alleging intimidation and coercion at both stores in violation of Section 8(a)(1) of the Act. On March 26 Owen met at the union office with O'Brien and with Roger Clark, the Union's regional coordinator for Washington, British Columbia, and Alaska. The union rep- resentatives produced eight applications for membership and stated that these represented a majority of OWEN'S IGA FOODLINER Respondent's employees at both stores. Owen replied that these eight did not constitute a majority.)One of the union representatives then asked for the names of all the employ- ees that Owen had in the two stores. Owen testified: They asked me what some of the names were and I was half-way through when I thought I had better talk to my counsel before I opened my mouth too much. On April 3, 1969, the Union filed the charge docketed as Case 19-CA-4342 alleging that on February 21, 1969, Re- spondent destroyed the Union's majority status by conduct violative of Section 8(a)(1) of the Act and refused to recog- nize or bargain with the Union. On April 11, 1969, the second charge was amended to allege that Respondent de- stroyed the Union's majority on February 21, 1969, and has since refused to recognize and bargain with the Union, in violation of Section 8(a)(1) and (5) of the Act. The General Counsel's complaint issued on May 5, 1970. C. The Appropriate Units and the Union 's Representation Therein The General Counsel argues that store 1 constitutes a separate appropriate unit. The Union argues, in addition, that stores I and 2 also constitute a single appropriate unit. The Respondent argues: . in a situation of this sort, the Board could properly determine that either single stores or multiple store units are appropriate for bargaining purposes. Howev- er, the charging party has insisted that the unit consists of both stores, and it would be unusual indeed for a bargaining order to result for a different bargaining unit than that which the charging party contends exists. Respondent in this case would indeed be delivered a Hobson's Choice since by expression. of a good faith doubt that the union represented a majority in the bar- gaining unit demanded, he would, at his peril risk that the Board would select a smaller bargaining unit, there- by placing the employer in a position of refusal to bargain over a unit different than that for which de- mand was made. The factors favoring a two-store unit are the followings Owen controls the labor relations of both stores, spends about 40 hours per week at each store, and, in the absence of the respective store managers, directly supervises the store employees. Both stores are in the same city, only about 6 miles apart . The meat department employees at both stores are represented by the same union of Meatcutters in a single-multtistore unit, which also includes store 3. The factors favoring a single-store unit are: Each store has its own manager who has complete charge of hiring, firing, scheduling work, and directing all the employees in his respective store. There is no interchange of employees between stores. The stores are on opposite sides of the city, with communication between them impeded by the Spo- kane River, railroad tracks, and freeway. Respondent rec- ognized the appropriateness of a separate store unit in his negotiations with Munro and the store 1 employees. All parties agree that the store managers and the meat department employees should be excluded from either unit. They differ on the unit placement of the following individ- uals: i These eight included the applications of Weidman , who had resigned his employment on March 18, and of Forrest D. Wilbanks, an employee of store 2, signed March 24, 1969. The Union did not have the application of Luckey and did not present the photostatic copy which it had retained , It was thus clear to Owen that the Union held applications from only 7 of the 15 or 16 eligible employees in the two stores. 279 Guy Reed; Bernard Bishop, assistant manager, store 1; Paul Savanish, bottle boy, store 1; Louis Mendoza, store 2; and Jerome Carlson, store 2. Guy Reed had retired after working for more than 24 years for Albersons, the last 12 of which he was a supervisor. In February 1969 Owen engaged Reed for a salary of $125 per month to rearrange all three of Respondent's stores to put them in a better merchandising. situation. In February and March 1969 Reed worked at store 1, in'April at store 2, in May at store 3, and in June at store I, when his assignment was completed and his employment terminated. Reed reported directly to Owen and did not receive instruc- tion from any store manager. Neither did he wait on cus- tomers, man the check stand, or direct the work of any other employee. When Reed worked at store 3 where Respondent had a union-shop contract with the Union, Reed was not required to join. I find that Reed was either' a managerial employee, or an independent contractor and should be ex- cluded from either proposed bargaining unit. Bernard Bishop works as a clerk at store I from 2 to 9 U in., Monday through Saturday. The store manager, Chris Oster, is on duty from 7 or 8 a.m. to,6 p.m., Monday through Saturday. Owen Won duty and manages the store on Sun- day an Saturday. some evenings,during the week. In the absence of both Oster and Owen, Bishop is in charge of the store. Bishop has non of the statutory indicia of supervisory au- thority. His interests are identical with -those of his fellow clerks and he should'be included in the bargaining unit. Paul Savanish worked at store 1 one-half hour every da , Monday through Friday, and 3 hours on Saturday. HYs duties were to keep the basement cleaned up, take out,the used cartons and put them in the incinerator, and take care of the empty soft drink bottles which had been returned for refund. He was paid weekly. •I find that Savanish was a regular part-time employee whose,interests were closely re- lated to those of box boys and that he should be included in the bargainin unit. Louis Mendozg a worked at store 2. He was required to be on duty at 6:30 a.m. to help unload the freight when it arrived on Tuesdays and Fridays. If he completed this task before time for him to report for his regular job as a dish- washer at a neighboring establishment he performed the normal clerk's tasks of stamping and stocking merchandise. I find that Mendoza was a regular part-time employee and that he should be included in the bargaining unit deemed most appropnate by the Union. Jerome Carlson was a college student and worked part time at store 2 'as a box boy and checker and helped, to unload the truck. In the first quarter of 1969 he earned $318. Carlson was a regular part-time employee and should ,be included in the unit deemed most appropriate by the Union. I find that a unit limited to the employees of store I is appropriate for the purposes of collective bargaining. Purity Food Stores Inc., etc., 60'NLRB 651, and cases there cited. I further find that from February 19 through March 9, 1969, the Union held valid designations from five employees in an appropriate unit of eight employees at store I.i At no time did the Union 'represent a majority,of the employees in a two-store unit. There were, between Feb- ruary 19 and March 10, 1969, 16 employees in the unit? The Union in this period held valid designations from only seven of these employees. The application of Luckey was obtained under a misunderstanding and was promptly returned. There is no,competent credible evidence that Luckey's re- 2 The unit employees at store I were : Anderson, Annis, Bishop, Munro, ,Usher, Weidman, Wolfe, and Savanish i The unit employees at store 2 were - Carlson, Jannsen, Luckey, Senter, Walters, Wibanks, Wilms, and Mendoza 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quest for the return of her card was influenced in any way be any action of Respondent. D. Concluding Findings Respondent was enticed into the commission of unfair labor practices by the conduct of Munro in inviting Owen to bid" against Munro's threat to go to the Union. All of Owen's statements and actions prior to the moment on the night of March 9 when he was informed, "some of us have signed union cards," were within the protective ambit of management prerogative and free speech . Prior to that mo- ment Owen could reasonably believe that Munro was speak infor a majority of his employees at store 1 , as in fact he was.-The proposals made by Owen were fair and open and honest. He was abiding by contracts with two unions and other than expressing a mild preference for direct deal- ings made no antiunion statements. One of his alternatives contemplated that his employees would, after making their decision, request union representation and that Owen would, on request, sign the standard union contract. When, however, Owen was informed : "some of us have signed union cards," he was put on notice that the Union was currently interested in securing the right of representa- tion, and put on notice that the Union might be, as it was in fact at that very moment, the exclusive statutory repre- sentative of his employees for collective bargainingy con- tinuing to offer improvements in wages and working conditions and by implementing improvements in wages and hours after notice of the pendency of union activity, Respondent violated Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 . The Union contributed to this enticement by failing to advise Respondent of the fact that it represented a majority of the employees at store 1, while it attempted to secure sufficient authorizations from employees at store 2 to support a demand for recognition at both locations . Other than the grant of higher wages and shorter hours to store I employees, Respondent engaged in no unfair labor practices. The wage increase to W llms was granted at her request in conformity with established prac- tice and in ignorance of her involvement with the Union and ignorance of the existence of any attempt by the Union to organize. The hours of one employee were reduced, but at her own request, and this did not constitute an unfair labor practice. The comments of Owen to Willms and to Luckey were protected by Section 8(c) of the Act. Finally there is no explanation on this record for the fact that the General Counsel held this charge for a full year before deciding to issue complaint. See N.L.R.B. v. Mike Trama, 293 F.2d 28 (C.A. 9, 1961) and Clark's Gamble Corp. v. N.L.R.B., 422 F.2d 845 (C.A. 6, March 4, 1970). There has been no refusal to bargain within the meaning of Section 8(a)(5) of the Act. The Supreme Court held in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 614 (1969), that the Board "has long had a ... policy of issuing a bargaining order, in the absence of a Section 8(a)(5) viola- tion or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor prac- tices ...." And in the Sinclair case, one of the cases covered by the Gissel decision, the Supreme Court sustained a bar- galning order even though the findings which the Court deemed necessary for a Section 8(aX5) violation were lack- ing. The Court said (p. 615): "the Board made a finding, left undisturbed by the First Circuit [397 F.2d 157] that the employer's threats of reprisal were so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those threats." Neither of the conditions suggested by the Supreme Court is satisfied here, and there is, on this record, no sup- port for an order requiring Respondent to bargain with the Union in any unit. IV. 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 operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices I will recommend that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I recommend that the Respondent cease and desist from interfering with, restraining, or coercing his employees in the exercise of the rights guaranteed under Section 7 of the Act by granting economic benefits and by changing the terms and conditions of employment. However, nothing herein shall be construed as requiring the Respondent to vary or abandon any economic benefit or any term or con- dition of employment which he has heretofore established. Upon the basis of the above findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. William P. Owen d/b/a Owen's IGA Foodliner, Re- spondent herein, is an employer within the meaning of Sec- tion 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local 1439, Retail Clerks Inter- national Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By granting certain economic benefits to his employ- ees and by changing certain terms and conditions of em- ployment at a time when the Union was seeking to organize his employees, the Respondent has interfered with, re- strained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(axl) 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 con- clusions of law and upon the entire record in this case, I hereby recommend that Respondent, William P. Owen d/b/a Owen's IGA Foodliner, his agents , successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing his em- ployees in the exercise of rights guaranteed in Section 7 of the Act by granting them economic benefits or by changing the terms and conditions of their employment; provided, however, that nothing in this Recommended Order shall be construed as requiring Respondent to vary or abandon any OWEN'S IGA FOODLINER economic benefit or any term or condition of employment which he has heretofore established. (b) In any like or related manner interfering with, re- straining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Retail Clerks-Union Local 1439, Retail Clerks International Association, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosingg, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at his store 1 located at 29th Street and Regal Street in Spokane, Washington, copies of the attached no- tice marked "Appendix."4 Copies of said notice, to be fur- nished by the Regional Director for Region 19, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by him for a period of 60 consecutive days thereafter, in conspicuous places, all 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 said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.5 APPENDIX NOTICE TO EMPLOYEES- 281 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act by granting them economic bene- fits, or by changing the terms or conditions of their employment, provided, however, that nothing in this Decision and Order requires us to vary or abandon any economic benefit or any term or condition of employ- ment which has heretofore been established. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the right to self-organization, to form labor organizations, to join or assist Retail Clerks Union Local 1439, Retail Clerks International Association, AFL-CIO, or any other la- bor organization, to bargain collectively through repre- sentatives of their own choosing, 'and to eng sge in concerted activities for the purposes of collective bar- gaining 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 labor or- ganizations of their own choosing. WILLIAM P. OWEN d/b/a OwEN's IGA FOODLINER (Employer) 4 In the event no exceptions are filed as provided by Sec., 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 Sec. 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 National 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." s In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Re- gion 19, in writing, within 10 -days from the date of this Order , what steps it has taken to comply herewith." Dated By (Representative) • (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Repub- lic Bldg., 10th Floor, 1511 Third Avenue, Seattle, Washing- ton 98101, Telephone 206-583-7473.