Pangles Master Markets, Inc.

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pangles Master Markets , Inc. and Retail Clerks Un- ion Local No. 31, Retail Clerks International As- sociation, AFL-CIO and Amalgamated Food and Al- lied Workers District Union 626, AFL-CIO, Party to the Contract Amalgamated Food and Allied Workers District Union 626, ALF-CIO and Retail Clerks Union, Local No. 31, Retail Clerks International Association, AFL- CIO. Cases 8-CA-5688, 8-CA-5810, 8-CA-5820 and 8-CB-1462 May 13, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On January 4, 1971, Trial Examiner Sydney S. Asher issued his Decision in the above-entitled proceeding, finding that the Respondent Employer 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 Examiner also found that the Respondent Employer and the Re- spondent Union had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal of such allegations. Thereafter, the General Counsel and Respondent Union filed excep- tions to the Trial Examiner's Decision and supporting briefs. 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was commited. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, ' Under all the circumstances, and particularly in view of the fact that the Meat Cutters Union was lawfully recognized, we deem the reimbursement of dues order by the Trial Examiner in Case 8-CA-5810 unwarranted. Accordingly, we shall delete that portion of the Trial Examiner's recom- mended Order which we are adopting in all other respects. Pangles Master Markets, Inc., Lima, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Substitute the following as paragraph 2(b) of the recommended Order: "(b) Reimburse its present and former employees for all dues, initiation fees, and other moneys exacted from them pursuant to the July 23, 1970, collective-bargain- ing contract, with interest thereon at the rate of 6 per- cent per annum" 2. Substitute the attached notice for the Trial Ex- aminer's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by negotiating with a union bargaining committee containing super- visors, and by recognizing a union as the bargaining agent for some of our employees at a time when another union was claiming to be the exclusive bargaining agent for the same employees: WE WILL not interfere with the administration of Amalgamated Food and Allied Workers Dis- trict Union 626, AFL-CIO, or any other union, nor will we render illegal aid or support to any union. WE WILL not conduct collective-bargaining negotiations with any union committee or group which includes supervisors. WE WILL NOT recognize or contract with any union as the bargaining agent of our employees while another union is claiming to be the bargain- ing agent for the same employees. WE WILL NOT enforce or give effect to our col- lective-bargaining contract with the above-named Union dated April 14, 1970, or to any extension, renewal, or modification thereof or to any union dues checkoff authorizations signed by employees pursuant thereto, unless negotiated with a union committee which contains no supervisor; pro- vided, however, that nothing herein shall require us to vary or abandon any substantive provisions of that contract. WE WILL NOT enforce or give effect to the "Stipulation" entered into with the above-named Union on March 31, 1970, or otherwise recognize this Union, or any successor thereto, as the collec- tive-bargaining agent of our employees (other than those in our meat departments) unless and until 190 NLRB No. 58 PANGLES MASTER MARKETS, INC 333 that Union shall have been certified as such by the National Labor Relations Board. WE WILL NOT enforce or give effect to our col- lective-bargaining contract with the above-named Union dated July 23, 1970, or to any extension, renewal, or modification thereof, or to any union dues checkoff authorizations signed by employees pursuant thereto, unless and until that Union shall have been certified by the National Labor Rela- tions Board as the exclusive bargaining agent for our employees (other than those in our meat de- partments.) WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist Retail Clerks Union, Local No. 31, Retail Clerks International Association, AFL- CIO, or any other union, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, and to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union membership as a con- dition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE hereby withdraw and withhold all recogni- tion from Amalgamated Food and Allied Workers District Union 626, AFL-CIO, or any successor thereto, as bargaining agent for our employees (ex- cept those in our meat departments) for the pur- pose of dealing with them concerning grievances and working conditions, unless and until this un- ion shall have been certified as such by the Na- tional Labor Relations Board. WE WILL repay our present and former em- ployees all dues, initiation fees, and other funds exacted from them pursuant to the July 23, 1970, collective-bargaining contract, with 6 percent in- terest. PANGLES MASTER MARKETS, INC. (Employer) 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, 1695 Federal Office Building, 1240 E. Ninth Street, Cleveland, Ohio 44199, Telephone 216-522- 3715. TRIAL EXAMINER'S DECISION SYDNEY S. ASHER, Trial Examiner: On December 8, 1969, Retail Clerks Union Local No. 31, Retail Clerks Interna- tional Association, AFL-CIO, Mansfield, Ohio, herein called the Retail Clerks, filed charges in Case 8-CA-5688 against Pangles Master Markets, Inc., Lima, Ohio, herein called the Company or the Respondent Company. On the same day, the Retail Clerks filed charges against Amalgamated Food and Allied Workers District Union 626, AFL-CIO, Toledo, Ohio, herein called the Meat Cutters or the Respondent Un- ion. On January 23, 1970, the General Counsel of the Na- tional Labor Relations Board issued a complaint in Case 8-CA-5688 alleging that on or about November 20, 1969, and on various dates thereafter, certain named meat depart- ment managers, who were supervisors and agents of the Re- spondent Company, "met with representatives of the Meat Cutters ... and offered their assistance in obtaining signa- tures of Respondent [Company's] employees on Meat Cut- ters' authorization cards." It is further alleged that the named supervisors thereafter "solicited and encouraged employees of Respondent [Company] to sign authorization cards for the Meat Cutters; discouraged employees from signing authori- zation cards for the Retail Clerks; and accepted the return of signed authorization cards on behalf of the Meat Cutters." It is alleged that this conduct violated Section 8(a) (1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. The Respondent Com- pany filed an answer admitting that the named individuals were meat department managers and its agents and super- visors, but alleging that it lacked knowledge of the other allegations of the complaint and therefore neither admitted nor denied them. On March 30, 1970, the Retail Clerks filed charges against the Respondent Company in Case 8-CA-5810. On April 9, 1970, the Retail Clerks filed charges against the Respondent Company in Case 8-CA-5820. On April 29, 1970, the Gen- eral Counsel issued a complaint in Case 8-CA-5820 alleging that on or about December 2, 1969, the Retail Clerks made a demand on the Company for recognition as the exclusive bargaining representative of the Company's employees, ex- cluding meat department employees; that on or about March 23, 1970, the Retail Clerks filed with the Board a petition in Case 8-RC-7791 seeking representation of the employees of the Company in this unit; and that since on or about March 31, 1970, the Respondent Company has rendered unlawful aid, assistance, and support to the Meat Cutters by recogniz- ing and entering into collective-bargaining negotiations with the Meat Cutters as the exclusive bargaining representative of its employees, excluding meat department employees, and that it did so with knowledge of the existing claim of the Retail Clerks for recognition as the collective-bargaining rep- resentative for these employees. It is alleged that this conduct violated Section 8(a)(1) and (2) of the Act. On the same day, the General Counsel consolidated Cases 8-CA-5688 and 8-CA-5820. On May 14, 1970, the General Counsel issued a complaint in Case 8-CB-1462 alleging that on or about November 20, 1969, and on various dates thereafter, the Respondent Union requested the assistance of certain named supervisors of the Company "in soliciting and obtaining signatures of the [Com- pany's] employees on cards authorizing the Respondent [Un- 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ion] to be exclusive collective bargaining representative." It is further alleged that, on or about November 20, 1969, and on various dates thereafter, in response to this request, the named supervisors solicited employees of the Company "to sign authorization cards for Respondent [Union] and did, at Respondent [Union's] request, provide Respondent [Union] with additional assistance by encouraging the [Company's] employees to join and/or favor Respondent [Union]." It is alleged that such conduct violated Section 8(b)(l)(A) of the Act. On the same day the General Counsel issued a complaint in Case 8-CA-5810 alleging that since on or about December 1, 1969, certain named meat department managers, who were supervisors of the Respondent Company, "held positions as members of a Meat Cutters' negotiating committee," and in such capacity negotiated with the Company "concerning the wages, hours and working conditions of meat department employees represented by the Meat Cutters and over whom they held supervisory authority." It is further alleged that these activities were permitted to occur "with the knowledge, approval and acquiescence of Respondent [Company], no objection having been made thereto." It is alleged that such conduct violated Section 8(a)(1) and (2) of the Act. On the same day the General Counsel consolidated all four of the instant cases. The Respondent Union filed an answer in Case 8-CB-1462 denying that the meat department managers were supervisors and denying the other allegations of the complaint in that case. As an affirmative defense, the Re- spondent Union alleges "that the traditional recognized and contractual bargaining unit of meat department employees throughout Northwestern Ohio ... includes meat depart- ment managers; that meat department managers traditionally ... engage in traditional union activity on behalf of Re- spondent [Union] including the solicitation of fellow em- ployees to join the union." The Respondent Union further alleges in its answer that the Company "had no knowledge of these organizing efforts and activities of said meat depart- ment managers." Upon due notice, a consolidated hearing was held before me on June 11, 12, and 13, 1970, at Lima, Ohio. All parties were represented and participated fully in the hearing. At the hearing, the Company orally answered the complaints in Cases 8-CA-5810 and 8-CA-5820. In substance, these an- swers admitted all the factual allegations of the complaints in Cases 8-CA-5810 and 8-CA-5820, but denied the legal con- clusions which the complaints drew therefrom. The General Counsel moved for judgment on the pleadings in Cases 8-CA-5810 and 8-CA-5820. Ruling on this motion was re- served. It is now denied. After the close of the hearing, the General Counsel and the Respondent Union filed briefs which have been duly considered. On July 29, 1970, after the close of the hearing, the Retail Clerks filed a motion to reopen the hearing. On August 20, 1970, the motion was granted and the consolidated hearing was reopened. On October 2, 1970, all parties entered into a stipulation that, on July 23, 1970, the Company and the Meat Cutters had executed a collective-bargaining agreement cov- ering all employees of the Respondent Company except meat department employees. On October 5, 1970, the said stipula- tion was approved, the collective-bargaining agreement ex- ecuted by the Company and the Meat Cutters on July 23, 1970, was received in evidence, and the record was closed. Although all parties were afforded an opportunity to file sup- plemental briefs, no party had done so. Upon the entire record in these cases,' and from my obser- ' The transcript of hearing was amended by orders issued on August 20 and 26, 1970. During the hearing Respondent Union offered in evidence Resp. Exh. 1, vation of the witnesses, I make the following: FINDINGS OF FACT A. Preliminary Findings The Respondent Company is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional stand- ards.' The Retail Clerks and the Meat Cutters are, and at all material times each have been, labor organizations within the meaning of the Act. B. The Meat Department Managers The Company owns and operates 10 supermarkets in and around Lima, Ohio. Each supermarket is under the charge of a store manager. Among other departments, each supermar- ket has a meat department, which is under the charge of a meat department manager, also referred to in the record as head meat cutter. The total number of meat department em- ployees in all 10 stores is about 75. The individual meat departments vary from 4 or 5 employees in the smallest stores to 11 or 12 in the largest. There is some interchange of employees from the grocery and produce departments to the meat departments, but transfers in the other direction (from the meat departments to the grocery and produce depart- ments) occur only "very seldom." The Company has within its management hierarchy a meat supervisor who, together with his assistant, has supervision over the meat managers and the meat departments of all 10 stores. Meat department managers have, and at all material times have had, authority to hire, discharge, and otherwise discipline the employees under their supervision. They schedule the working hours of each employee in their depart- ment. They also perform production work; that is, cut meat. Prior to April 14, 1970, when the collective-bargaining con- tract for the meat departments was signed, as described be- low, each meat department manager had received a salary and a bonus. Since the contract's execution each has con- tinued to receive a bonus, but has been changed from a salary to an hourly pay basis; his hourly rate has been higher than that of the employees whom he supervises. It is clear, and I find, that the Respondent Company's meat department managers possess some of the attributes of a supervisor and that they are, and at all material times have been, supervisors, as defined in Section 2(11) of the Act.' The record herein contains ample evidence, and it is found, that in the supermarket industry in Northwestern Ohio it is, and at all material times has been, customary and usual for collective-bargaining units of rank-and-file meat department employees to include the meat department managers. 3, 5, and 7 which purported to be copies of certain contracts. These were not confirmed. They were received in evidence, subject to being conformed within 5 days after the close of the hearing. This has not been done. Accord- ingly, Resp. Exh. 1, 3, 5, and 7 are stricken from the record. ' The Respondent Company is, and at all material times has been, an Ohio corporation with its principal office and place of business in Lima, Ohio. It owns and operates 10 supermarkets in Northwestern Ohio. It annually receives more than $500,000 from the retail sale of groceries and related items and annually causes products valued at more than $50,000 to be shipped to its Lima, Ohio, place of business directly from sources outside the State of Ohio. It is a wholly owned subsidiary of Scot Lad Foods, Inc., an Illinois corporation located in Chicago, Illinois. ' The Respondent Company's answer in Case 8-CA-5688 admits that these individuals are supervisors. Likewise, the Meat Cutters, in its brief, concedes: "the supervisory status of the meat department managers ... cannot be denied." PANGLES MASTER MARKETS, INC 335 C. Significant Events 1. The unit of meat department employees In the fall of 1969 the Meat Cutters began a campaign to organize the Company's meat department employees. On November 11, 1969, an official of the Meat Cutters demanded that the Company recognize the Meat Cutters as the bargain- ing representative of the employees in the meat departments of all the Company's stores. The record does not show whether this was an oral or a written demand. The Com- pany's reply was a request for a Board-conducted election. No recognition having been tendered, the Meat Cutters, on November 20, 1969, called a strike of the meat department employees and conducted picketing of the stores. All but 11 or 12 employees of the meat departments participated, in- cluding 6 of the 10 meat department managers. The strike, which lasted less than a day, succeeded. On the same day the Company and the Meat Cutters executed a "Stipulation" whereby the Company recognized the Meat Cutters as the bargaining agent for its meat department employees and agreed to enter into negotiations.' Negotiations began in December 1969. In all there were approximately 7 or 8 sessions. The Meat Cutters was repre- sented by its president, Robert L. Parker, Glen Fahey, not otherwise identified on the record, and a committee of 10 members of the unit; 7 rank-and-file meat department em- ployees and 3 meat department managers.' No representative of the Company objected to the presence on the Meat Cutters' negotiating committee of the three meat department manag- ers. On March 17, 1970, the negotiators reached agreement on a collective-bargaining contract covering the meat depart- ment employees, subject to ratification by the employees in- volved. Ratification was attained by vote of the meat depart- ment employees on March 22, 1970, but the actual execution of the formal document did not take place until April 14, 1970. By its terms the contract includes meat department managers. It is effective from March 22, 1970, to June 26, 1971, with annual automatic renewal in the absence of 60 days' written notice of termination. So far as the record shows, it is still in effect. 2. The unit of grocery and produce department employees In the spring of 1969 the Retail Clerks began a campaign to organize the Company's grocery and produce department employees. The Company distributed a letter to its employees outlining its position regarding this campaign, which is not part of the record herein. The Retail Clerks' campaign has been continuous and was still under way at the time of the hearing herein. ' Although this " Stipulation," on its face, excludes "supervisors ," Rich- ard B Evans, the Company's Vice President and General Manager, testified Q You became aware, if not sooner, when you recognized Local 626 [the Meat Cutters] that the meat department managers were now a part of the bargaining unit? A Yes, sir Beginning on November 20, 1969, when the Meat Cutters obtained recognition as bargaining agent for the Company's meat department employees, the Meat Cutters launched its own effort-in opposition to the Retail Clerks-to organize the employees of the Company's grocery and produce depart- ments. At the request of officials of the Meat Cutters, some of the meat department managers aided the Meat Cutters' campaign by passing out blank authorization cards for signa- tures and returning the signed cards to that union's agents. Management officials of the Company knew that this was going on, but neither encouraged such conduct nor hindered it. Both rival unions campaigned vigorously. Their represent- atives were frequently in and outside the various stores, solic- iting support. Both utilized the Company's bulletin boards for the display of notices. The Company, which had no rules against distribution of literature or solicitation, apparently adopted a "hands off" policy and neither interfered with nor encouraged these various organizational activities. On December 1 the Meat Cutters, by a certified letter addressed to Richard B. Evans, the Company's vice president and general manager, claimed to represent a majority of the Company's employees, excluding meat department em- ployees (for whom it was already recognized), and demanded recognition. On the next day, by telegram addressed to the Company's parent corporation, the Retail Clerks requested recognition as bargaining agent for all the Company's em- ployees. The President of the Retail Clerks testified that, at that time, the Retail Clerks lacked a majority. The Company, on December 16, 1969, in letters from its attorney to both unions, suggested a card check, to be supervised by an impar- tial party acceptable to both unions. This suggestion was rejected by the Retail Clerks. Both unions continued to press their demands for recognition in the produce and grocery department unit. The Company's attorney, by letter to the Retail Clerks dated March 19, 1970, requested that a repre- sentative of the Retail Clerks attend a card check set for March 27.6 On March 23, the Retail Clerks filed with the Board a petition in Case 8-RC-7791 seeking to represent all employees of the Company, excluding meat department em- ployees. This was accompanied by sufficient authorization cards to demonstrate that the Retail Clerks had obtained a 30 percent showing of interest in the unit described in the petition. On March 24 the attorney for the Retail Clerks, by telegram addressed to the Company's attorney, requested that the card check scheduled for March 27 not be held. On March 26 the Company's attorney, by telegrams, notified both Unions that the card check was cancelled "until further notice." On March 30 Parker telephoned to Evans and, after remarking that the situation had gone far enough, threatened that unless the Company recognized the Meat Cutters as bargaining agent for the remaining employees (the Meat Cut- ters were already recognized for the meat department em- ployees) the Company "would have a strike." He demanded that a card check be made. The Company capitulated. On March 31 a card check was conducted by a representative of the Company's accountant in the presence of representatives of the Company and the Meat Cutters. The Retail Clerks was not represented. The Meat Cutters submitted its cards, which were checked against a payroll roster of the Company's hourly rated em- Q Did you consider them [meat department managers] a part of the bargaining unit for purposes of collective bargaining? A Yes Francis C Williams, meat department manager of the Northland store in Lima, who supervises nine employees, Vernon Bryan, meat department manager of the Van Wert store, and Roy Morlock, meat department manager of the Sidney store Each was elected to the committee by vote of the employees in the meat department of his particular store ployees, except those in the meat departments. The signatures on the cards were not verified. At the completion of the check, the accountant announced that the Meat Cutters represented a majority of the employees on the roster. The representatives of the Company and the Meat Cutters there- Unless otherwise noted, all dates hereafter refer to the year 1970 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon executed another "Stipulation" whereby the Company recognized the Meat Cutters and agreed to negotiate with it as the bargaining representative of its employees , excluding those in the meat departments. In accordance with this stipu- lation, the parties negotiated. They ultimately reached agree- ment and, on July 23, 1970, signed a collective-bargaining contract for this unit, effective from July 19, 1970, to June 30, 1973, and automatically renewable from year to year there- after in the absence of 60 days' written notice of desire to terminate. So far as the record shows, it is still in effect. D. Contentions and Conclusions 1. Case 8-CA-5688 The complaint in this case alleges that, since on or about November 20, 1969, three of the Company's meat depart- ment managers "offered their assistance" to representatives of the Meat Cutters "in obtaining signatures of [the Com- pany's] employees on Meat Cutters' authorization cards" and solicited and encouraged employees "to sign authorization cards for the Meat Cutters"; discouraged them "from signing authorization cards for the Retail Clerks; and accepted the return of signed authorization cards on behalf of the Meat Cutters." For the purposes of this Decision, it will be as- sumed, without deciding, that the facts are as alleged. In the landmark decision of Nassau and Suffolk Contrac- tors' Association, Inc., 118 NLRB 174, the Board majority held that participation in intraunion affairs by low-level supervisors, who by longstanding practice are members of the same unit and union as the rank-and-file employees, does not constitute illegal interference with the administration of the union, absent proof that the employer encouraged, author- ized, or ratified such conduct. Specifically, under such cir- cumstances the employer is not accountable for the action of such supervisors in soliciting rank-and-file employees to sup- port the union of which the supervisors are members. That principle, which has been iterated and reiterated by the Board since Nassau,' is determinative here. The meat managers are minor supervisors in an industry in which they are customarily regarded as within the bargaining unit; the Company considers them in the unit; the conduct in which they engaged (solicitation of rank-and-file employees on be- half of the supervisors' own union) consists of traditional union activity; and the Company did not inspire, encourage, or ratify the managers' conduct. Under all the circumstances, 7 Geilich Tanning Company, 122 NLRB 1119, remanded sub nom. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO v. N.L.R.B., 276 F.2d 34 (C.A. 1); Anchorage Businessmen 's Associa- tion, 124 NLRB 662; Jan's Services, Inc., 131 NLRB 341; Banner Yarn Dyeing Corporation, 139 NLRB 1018; and Allied Chemical Corporation, Wilputte Coke Oven Division, 175 NLRB No. 164. But Cf. Nitro Super Market, Inc., 161 NLRB 505, in which the Board found that an employer who operated a supermarket violated Sec. 8(a)(1) and (2) of the Act by the meat department manager 's "presence and active participation " at a meet- ing of the Retail Clerks (of which he was a member) at which the employer's contract with that union was ratified; the Nassau decision was not men- tioned. Nassau does not apply where the supervisors are high level or not otherwise in the bargaining unit, Detroit Association of Plumbing Contrac- tors, 126 NLRB 1381; and Geilich Tanning Company (on remand), 128 NLRB 501. Nor does it apply where the employer specifically ratifies the activities in question. Niagara Frontier Services, Inc., 186 NLRB No. 107. Meyer Bros. of Missouri, Inc., 151 NLR$ 889; and Malcolm-Konner Chevrolet, Inc., 141 NLRB 541, cited by the General Counsel, are distin- guishable on their facts. In Meyer the supervisor involved was lot manager of parking firm and in Malcolm-Konner he was service manager of a fran- chised automobile dealer. Neither case involved a minor supervisor tradi- tionally included in a rank-and-file unit. and on the authority of the Nassau decision, it is concluded that the conduct in question did not contravene the Act.' 2. Case 8-CB-1462 The complaint in this case alleges that since on or about November 20, 1969, representatives of the Meat Cutters re- quested the assistance of three meat department managers "in soliciting and obtaining signatures of the [Company's] em- ployees" on authorization cards for the Meat Cutters, and that in response thereto the three managers solicited "em- ployees of the [Company] to sign authorization cards for [the Meat Cutters] and ... at [the Meat Cutters] request, provi- de[d] [the Meat Cutters] with additional assistance by en- couraging the [Company's] employees to join and/or favor [the Meat Cutters]." Here again, for the purposes of this Decision, it will be assumed without deciding that the facts are as alleged. We must assume that the request of the Meat Cutters' representatives that the meat department managers actively solicit rank-and-file employees-to which the managers agreed-constitutes the managers the agents of the Meat Cut- ters, and that consequently the Meat Cutters is responsible for the managers' conduct in soliciting employees on the Meat Cutters' behalf. Thus we are presented with the con- verse of Case 8-CA-5688. It has been found above, in dis- cussing that case, that the Company did not violate the Act by the manager's solicitation because the managers were mi- nor supervisors customarily within the unit and the solicita- tion contituted traditional union activity. For the very same reason, and again under the authority of the Nassau case, it follows that the Meat Cutters was not in violation of the Act for inspiring and initiating this traditional union activity. 3. Case 8-CA-5810 The complaint in this case alleges that , since on or about December 1, 1969, meat department managers employed by the Company "held positions as members of a Meat Cutters Negotiating Committee" and that in this capacity the manag- ers "enter[ed] into negotiations with [the Company] ... con- cerning the wages, hours and working conditions of meat department employees represented by the Meat Cutters and over whom they held supervisory authority," and that these activities took place "with the knowledge, approval and ac- quiescence of [the Company, which made] no objection ... thereto." At the hearing the Company admitted these factual allega- tions. The Meat Cutters does not seriously dispute these facts, which were amply proved by the General Counsel's wit- nesses. We therefore turn once again to the Board majority's opinion in Nassau. There, it was said at page 187: ... it is improper for supervisors, even those with predominantly union loyalty, to serve as negotiating rep- resentatives of employees; and to the extent that the employer acquiesces in such participation the employer is guilty of unlawful interference with the administration of the Union.... Employees have the right to be repre- sented in collective-bargaining negotiations by individuals who have a single-minded loyalty to their interests. .. . [The employers] were under a duty, we think, when confronted with a union negotiating committee which included their own agents, to protest the composition of the committee and to refuse to deal with it because it was tainted with an apparent employer interest. By failing to It follows that the Meat Cutters' majority--demonstrated in the strike of November 20, 1969- was,not tainted and that accordingly the "Stipula- tion" signed that day is valid. PANGLES MASTER MARKETS, INC. 337 register such protest and by actually dealing with the committee as constituted, Respondents ... interfered with the administration of the Union in violation of Section 8(a)(2) and (1) of the Act. Other cases have followed Nassau in this regard,' and it must be deemed controlling here. The Meat Cutters, how- ever, urges in its brief that "there is no evidence that the employer had participated in the selection of these super- visors as members of the bargaining committee." But of course this was true as well in Nassau. The Meat Cutters also argues that for all practical purposes Parker was the sole effective bargainer on the Meat Cutters' behalf, the commit- tee's ... only participation ... as far as management could see was to answer specific questions regarding specific instances of fact raised in the discussions by the spokes- man for the Union, Robert Parker, its President.... [the meat department managers ] didn't play anymore of a role than as representatives of their classification.... There was no evidence that there was any results from their participation ... that in any way deterred from the collective bargaining process of long arm bargaining. This attempt to denigrate the participation and effective- ness of the managers cannot be squared with the facts. The managers constituted 30 percent of the full committee. The record shows that one manager attended three to five bargain- ing sessions and that each of the other two attended all but one of the sessions. Moreover Evans, one of the Company's negotiators, testified: Q. Did these meat managers participate in the negotia- tion sessions on behalf of the union? A. Do you mean verbally? Q. Did they speak up at times and voice their opin- ions? A. At times, yes. I conclude that the meat department managers par- ticipated effectively, freely, and fully in the negotiations. It follows that, by failing to protest the composition of the bargaining committee on and after the start of negotiations in December 1969, and by following through the negotiations to the final execution of a formal contract with the Meat Cutters on April 14, 1970, the Company illegally interfered with the affairs of the Meat Cutters, in violation of Section 8(a)(1) and (2) of the Act. 4. Case 8-CA-5820 The complaint in this case alleges that on or about Decem- ber 2, 1969, the Retail Clerks demanded recognition as the exclusive bargaining agent for the Company's employees, ex- cluding meat department employees; that on or about March 23, 1970, the Retail Clerks filed with the Board a petition seeking bargaining rights for these employees , a copy of which was timely served on the Company, and that since on or about March 31, 1970, the Company has recognized and has negotiated with the Meat Cutters as the exclusive bar- gaining representative of these employees "with knowledge of the continuing claim of the Retail Clerks for recognition." At the hearing, the Company admitted these allegations, and the Meat Cutters does not seriously challenge them. Indeed, they are amply attested by documentary evidence and oral tes- timony, as well as a stipulation of the parties that the Retail Clerks' representation petition, filed on March 23, 1970, "was accompanied by sufficient cards showing that the Retail ' Anchorage Businessmen 's Association, etc., supra, 666, DetroitAssocia- tion of Plumbing Contractors, supra, 1383, and Coca-Cola Bottling Com- pany ofSacramento, 146 NLRB 1045, 1046, enfd as modified 346 F 2d 625 (CA 9) Clerks had a 30 percent showing of interest in the unit as petitioned for." In the lead case of Midwest Piping and Supply Co., Inc., 63 NLRB 1060, the Board laid down the following rule at page 1069-70: . the respondent violated the Act by entering into a "union shop" agreement with the Steamfitters. The re- spondent knew, at the time that the contract was ex- ecuted, that there existed a real question concerning the representation of the employees in question. The record shows that both the Steamfitters and the Steelworkers had vigorously campaigned in the plant, had apprised the respondent of their conflicting majority representa- tion claims, and had filed with the Board conflicting petitions, which are still pending , alleging the existence of a question concerning the representation of the em- ployees covered by the agreement. Under such circum- stances, the Congress has clothed the Board with the exclusive power to investigate and determine representa- tives for the purposes of collective bargaining. In the exercise of this power, the Board usually makes such determination, after a proper hearing and at a proper time, by permitting employees freely to select their bar- gaining representatives by secret ballot . In this case, however, the respondent elected to disregard the orderly representative procedure set up by the Board under the Act, for which both unions had theretofore petitioned the Board, and to arrogate to itself the resolution of the representation dispute against the Steelworkers and in favor of the Steamfitters. In our opinion such conduct by the respondent contravenes the letter and the spirit of the Act, and leads to those very labor disputes affecting commerce which the Board's administrative procedure is designed to prevent. That principle, which has been followed by the Board," is decisive of the issue here. The Company was confronted with conflicting claims of rival unions; the Retail Clerks filed a representation petition accompanied by an adequate showing of interest; thereafter the Company recognized the Meat Cut- ters, despite its knowledge of the pendency of the Retail Clerks' petition before the Board . Under the Midwest Piping doctrine, this was a clear violation of the Company's duty to maintain neutrality. The Meat Cutters, in its brief, urges that because the Retail Clerks "kept shifting its demands from ten stores to eight stores and back again that there was no true question con- cerning representation at the time the Meat Cutters were (sic) given recognition." I cannot agree. The Retail Clerks' repre- sentation petition, filed before the Meat Cutters was accorded recognition, contained a clearcut and unambiguous descrip- tion of the unit" sufficient to raise a genuine question con- cerning representation. The Meat Cutters also argues that because the Retail Clerks "first says it represents the majority and then refuses to participate in a card check after blocking the chances for a secret election ... with a charge of violation of Section 8(a)(2) .. the employer need not continue the doctrine of neutrality." There is no basis in any Board deci- sion for such a position and I find it lacking in merit. Indeed there was a "blocking charge" filed by the nonrecognized 10 Novak Logging Company, 119 NLRB 1573, Shea Chemical Corpora- tion, 121 NLRB 1027, Nitro Super Market, Inc, supra, Woodmere, Inc, 175 NLRB No 69, enfd 432 F 2d 559 (C A 9), and Doctors Hospital, Freeport, New York, 185 NLRB No 31 " "Included All employees of the Employer working at there (sic) Retail Stores located in Lima Delphos Van Wert Cridersville Sidney Troy Ohio [all 10 stores] Excluded Meat department employees , guards, Professional employees and supervisors as defined in the act " 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union in the original Midwest Piping case, but the Board did not deem this an adequate justification for the employer's conduct.12 It is concluded that the Company, by recognizing the Meat Cutters on March 31, 1970, as the exclusive bargaining agent for its employees (except those in its meat departments), and by thereafter implementing such recognition by bargaining with the Meat Cutters to the signing of a formal agreement on July 23, 1970, in the face of the representation petition previously filed by the Retail Clerks and then pending before the Board, accorded the Meat Cutters unwarranted prestige, thereby rendering unlawful aid and assistance to the Meat Cutters in violation of Section 8(a)(2) of the Act, and inter- fered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in these cases, I make the follow- ing: CONCLUSIONS OF LAW 1. Pangles Master Markets, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Food and Allied Workers District Union 626, AFL-CIO, and Retail Clerks Union, Local No. 31, Retail Clerks International Association, AFL-CIO, are, and at all material times have been labor organizations within the meaning of Section 2(5) of the Act. 3. By negotiating concerning the working conditions of the employees in its meat departments with a union committee containing supervisors, without protesting, and by continuing to negotiate with a union committee so constituted until the execution of a collective-bargaining contract, the Respondent Company illegally interfered with the administration of the Meat Cutters and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By recognizing the Meat Cutters as the exclusive bar- gaining representative of its employees (other than those in its meat departments) at a time when a genuine question concerning the representation of such employees was pending unresolved before the National Labor Relations Board, the Respondent Company rendered illegal aid and support to the Meat Cutters and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 5. By the above-described conduct, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, the Re- spondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)of the Act 6. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and constitute unfair labor prac- " Of this, the Board stated at p. 1070: As we have previously held, a neutral employer, on being confronted with conflicting representation claims by two rival unions, "would not negotiate a contract with one of them until its right to be recognized as the collective bargaining representative had been finally determined under the procedure set up under the Act." Here, the respondent knew that the Board already had jurisdiction over the existing question concerning the representation of the employees covered by the contract, and that, in accordance with its usual practice, the Board would not proceed to a resolution of that question until it had passed upon the then pending original complaint.... [Emphasis sup- plied] tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. The General Counsel has failed to establish that the Respondent Company violated the Act by the conduct de- scribed in the complaint in Case 8-CA-5688, or that the Respondent Union violated the Act by the conduct described in the complaint in Case 8-CB-1462. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary that the Respondent Company be ordered to cease and desist from the unfair labor practices found and from like or related invasions of its employees' Section 7 rights, to take certain affirmative action, and to post appropri- ate notices. With respect to the unit of meat department employees, the Meat Cutters had established its majority status by the strike of November 20, 1969, and the recognition "Stipulation" signed that day is valid. The Respondent's illegal interference came later, beginning in December 1969. Consequently there is no necessity for a requirement that the Respondent Com- pany withdraw recognition from the Meat Cutters as the exclusive bargaining agent for the employees in its meat de- partments." However, the contract executed on April 14, 1970, was the fruit of the Respondent Company's illegal bar- gaining with a union committee which included supervisors. Accordingly, it will be recommended that the Respondent Company cease giving effect to that contract, or to any exten- sion, renewal, or modification thereof, or to any union dues checkoff authorizations executed by employees pursuant thereto, unless and until negotiated with a union committee which does not include supervisors. However, nothing herein shall be deemed to force or require the Respondent Company to vary or abandon any substantive provision of that contract. This contract, covering meat department employees, contains a union-security clause and a provision for the checkoff of union dues upon authorization of the employee. It will ac- cordingly be recommended that the Respondent Company reimburse all present and former employees of its meat de- partments for all dues, initiation fees, and other funds exacted from them after the execution of this agreement on April 14, 1970, with 6 percent interest." The situation regarding the grocery and produce depart- ments unit is quite different. There, the very recognition of the Meat Cutters was illegal, whether or not the Meat Cutters then represented a majority of the employees in that unit." Accordingly it will be recommended that the "Stipulation" of March 31, 1970, be set aside; that the Respondent Company withdraw and withhold recognition from the Meat Cutters, or any successor thereto, as bargaining agent for its em- ployees (except those in its meat departments) unless and " See Sterling Precision Corp., Instrument Division, 131 NLRB 1229, 1242; and Geilich Tanning Company, 128 NLRB 501, 502. " Nitro Super Market, Inc., supra; Sunset House, 167 NLRB 870, 874; Intalco Aluminum Corporation, 169 NLRB No. 136; Sheraton-Kauai Cor- poration, 177 NLRB No. 13, enfd. 429 F.2d 1352 (C.A. 9); Leasure Coal Company, 182 NLRB No. 149, fn. 1; and Niagara Frontier Services, Inc., 186 NLRB No. 107, in. 3. But compare Doctors Hospital, Freeport, New York, supra. I am aware that the United States Court of Appeals for the Ninth Circuit refused to enforce the reimbursement provisions of the Board's order in Intalco, 417 F.2d 36 (C.A. 9). But, as a Trial Examiner, I am required "to apply established Board precedent which the Board or the Supreme Court has not reversed." Novak Logging Company, supra, 1575-6. See also the Ninth Circuit's explanation of its Intalco holding in Sheraton-Kauai Corpo- ration v. N.L.R.B., supra fn. 6 at 2937. " For this reason, I need not, and do not, decide whether the card check held on March 31, 1970, established the Meat Cutters' majority status. PANGLES MASTER MARKETS, INC. until it has established its majority status in a Board-con- ducted election; and that the Respondent Company cease giving effect to the contract with the Meat Cutters consum- mated on July 23, 1970, as the result of that illegally granted recognition, and any extension, renewal, or modification thereof, or to any union dues checkoff authorization executed by employees pursuant thereto, unless and until the Meat Cutters shall have been certified by the Board as the bargain- ing agent for the employees in this unit. Once again, this should not be deemed to force or require the Respondent Company to vary or abandon any substantive provisions of that contract. And as this agreement likewise includes a un- ion-security clause and a provision for checkoff of union dues on authorization of the employee, it will be recommended that the Respondent Company reimburse all present and former employees, except those in the meat departments, for all dues, initiation fees, and other funds exacted from them after the execution of this agreement on July 23, 1970, with 6 percent interest. Finally, it will be recommended that Cases 8-CA-5688 and 8-CB-1462 be severed, and the complaints in those cases dismissed. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:16 ORDER The Respondent Company, Pangles Master Markets, Inc., Lima, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the administration of Amalgamated Food and Allied Workers District Union 626, AFL-CIO, or any other labor organizations. (b) Rendering illegal aid or support to the above-named or any other labor organization. (c) Entering into, conducting, or carrying on collective- bargaining negotiations with any union committee or group which includes supervisors, as defined in the Act. (d) Recognizing or contracting with any labor organization as the bargaining representative of its employees while there is in existence a claim for recognition as the collective-bar- gaining representative for the same employees made by another Union. (e) Maintaining, enforcing, or giving effect to its collective- bargaining contract with the above-named labor organization dated April 14, 1970, or to any extension, renewal, or modifi- cation thereof, or to any union dues checkoff authorizations executed by employees pursuant thereto, unless and until such contract shall have been negotiated with a union com- mittee which contains no supervisors; provided, however, that nothing contained herein shall require the Respondent Company to vary or abandon any substantive provision of the said contract. (f) Maintaining, enforcing, or giving effect to the "Stipula- tion" entered into with the above-named labor organization on March 31, 1970, or otherwise recognizing the above- named labor orgainization, or any successor thereto, as the collective-bargaining representative for its employees (other than those in its meat departments), unless and until the above-named labor organization shall have been certified as such by the National Labor Relations Board. 16 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, 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 339 (g) Maintaining, enforcing, or giving effect to its collective- bargaining contract with the above-named labor organization dated July 23, 1970, or to any extension, renewal, or modifi- cation thereof, or to any union dues checkoff authorizations executed by employees pursuant thereto, unless and until the said labor organization shall have been certified by the Na- tional Labor Relations Board as the collective-bargaining representative for its employees (other than those in its meat departments); provided, however, that nothing contained herein shall require the Respondent Company to vary or abandon any substantive provision of the said contract. (h) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Withdraw and withhold all recognition from Amal- gamated Food and Allied Workers District Union 626, AFL- CIO, or any successor thereto, as collective-bargaining repre- sentative for its employees (except those in its meat departments) for the purpose of dealing with them concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employement, unless and until the above-named labor organization shall have been certified as such by the National Labor Relations Board. (b) Reimburse its present and former employees for all dues, initiation fees, and other moneys exacted from them pursuant to the two above-described collective-bargaining contracts, with interest thereon at the rate of 6 percent per annum. (c) Preserve and until compliance with any order for reim- bursement made by the Board, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to compute the amount of reimbursement due under the terms of this recommended Order. (d) Post at all 10 of its stores in Northwestern Ohio copies of the attached notice marked "Appendix."" Copies of the said notice, on forms provided by the Regional Director for Region 8, after being duly signed by the Respondent Com- pany's representative, shall be posted by the Respondent Company immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent Company has taken to comply herewith 18 " 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 " 16 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply herewith " 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that Cases 8-CA-5688 and 8- CB-1462 be severed, and that the complaints in those cases be dismissed.