Treasure Island Food Store

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appleton Discount, Inc., d/b/a Treasure Island Food Store and Retail Store Employees Union Local No. 214, chartered by the Retail Clerks International As- sociation, AFL-CIO. Cases 30-CA-2003 and 30- RC-1734 August 9, 1973 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 12, 1973, Administrative Law Judge William J. Brown issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Contrary to the Administrative Law Judge and in agreement with Respondent's exception we find that Respondent's store manager, Brandt, did not violate Section 8(a)(1) of the Act during the course of the employee meetings of either May 31, 1972, or June 20, 1972. 1. The Administrative Law Judge found that Brandt, at the meeting of May 31, threatened the employees that they would lose the opportunity to take part in a new employee pension plan about to go into effect' unless they rejected the Union. In reach- ing this conclusion, the Administrative Law Judge credited the General Counsel's witnesses as to what Brandt said at the meeting. However, the Administra- tive Law Judge failed to take into account other testi- mony of the General Counsel's witnesses including those witnesses relied on to find the violation. From this other testimony, it is clear that the statements regarding the pension plan were made during a ques- tion-and-answer period after Brandt had delivered his prepared speech. It is also clear from the testimony that Brandt was in effect telling the employees, not that they could not have the pension plan unless they rejected the Union, but, rather, that if the Union won the election, the matter of the pension plan would be ' The General Counsel stated that he does not contend that the creation of the new pension plan is an unfair labor practice a subject of bargaining, that the Union might insist on the employees being covered by its own pension plan, and that the employees involved, like the meatcutters in the store who were already under a collective-bar- gaining agreement, could not have both the Employer's pension plan and the Union's pension plan. Thus, employee Curtis, when asked on cross- examination whether they (the employees) "would have to take what the Union had or that it would be bargained," testified, "[I] believe it was bargained." In these circumstances, we do not believe that the testi- mony of the General Counsel's witnesses carries the weight of establishing that Brandt's statements re- garding the pension plan constituted a threat to with- hold any such benefit unless the employees rejected the Union. Accordingly, we shall dismiss paragraph 5(e) of the complaint. 2. For the same reasons, we also find that the state- ments made during the question-and-answer period after the speech of June 20, 1972, do not constitute a threat to discharge part-time employees if the employ- ees selected the Union to represent them. Again, the testimony of the General Counsel's witnesses shows that Brandt, during the course of the discussion, and in reply to questions regarding the job security of part-time employees, conveyed to the employees his opinion that the Union preferred more full-time em- ployees and fewer part-time employees. As the Ad- ministrative Law Judge found in response to Objection 4, the counterpart to that portion of the complaint relating to this issue, "the evidence indi- cates that the company representatives did no more than present to employees their understanding that a labor organization would prefer full-time employ- ment for a smaller number of employees over a large part-time complement." Accordingly, we shall dis- miss paragraph 5(f) of the complaint. 3. While we agree that the evidence supports the Administrative Law Judge's finding that Brandt un- lawfully interrogated employee Curtis, solicited him to sign a withdrawal petition from the Union, and urged him to assist in soliciting other employees to sign the petition, we do not agree with his finding that such solicitation took place in mid-May 1972. While Curtis' testimony shows that he was convinced that the incident took place in mid-May, Curtis also testi- fied that employee Stenz was involved in the solicita- tion and that Brandt directed Curtis to assist Stenz in securing more signatures the next day. At the same time, the testimony of Stenz was that he prepared the petition on or about April 20, 1972. Stenz also testified that he was fired by Respondent for cashing several bad checks through the store and that the last day he worked was either the last Wednesday in April (April 26) or the first Wednesday in May (May 3). Thus, TREASURE ISLAND FOOD STORE Curtis' placing of the incident in mid-May is not sup- ported by the record, and the evidence indicates the date of the violation was on or about April 20, 1972. The Administrative Law Judge, in recommending that the election of June 22, 1972, be set aside, relied on Respondent's conduct with regard to the threat to deny the employees the pension plan unless they re- jected the Union and the interrogation and solicita- tion of Curtis to withdraw from the Union and solicit other employees to do likewise. As we have found that Respondent's statements with regard to the pension plan (as well as those related to the alleged threat to discharge part-time employees) were not violative of Section 8(a)(1) of the Act and that the interrogation of Curtis took place on or about April 20, 1972, there are no outstanding violations of the Act subsequent to April 28, 1972, the date the petition for an election was filed herein. Accordingly, the only violations or objectionable conduct found, occurred prior to the filing of the petition herein and outside the critical period, and no basis exists for setting aside the elec- tion.2 As we have found that certain conduct of the Re- spondent was not violative of the Act, we shall dismiss those allegations of the complaint related thereto and issue an appropriate Order, and, as we have found that there was no objectionable conduct occurring after the filing of the petition for election herein, we shall certify the results of the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Ap- pleton Discount, Inc., d/b/a Treasure Island Food Store, Appleton, Wisconsin, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Coercively questioning employees concerning their activity on behalf of the Union. (b) Threatening employees with the loss of employ- ment benefits in reprisal for activity on behalf of the Union. (c) Soliciting employees to withdraw from the Union and soliciting employees to induce other em- ployees to withdraw their support of the Union. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under the National Labor Relations Act, as amended. 2. Take the following affirmative action which ap- pears necessary and appropriate to effectuate the poli- cies of the Act: (a) Post at its Appleton, Wisconsin, store copies of 395 the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Direc- tor for Region 30, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint herein be dismissed with respect to allegations therein of unfair labor practices not herein specifically found to have been engaged in. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Retail Store Employees Union Local No. 214, chartered by the Retail Clerks International Association, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, with- in the meaning of Section 9(a) of the National Labor Relations Act, as amended. 2 The Ideal Electric and Manufacturing Company, 134 NLRB 1275 3 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the Decision of an Administrative Law Judge of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT coercively question employees concerning their activity on behalf of Retail Store Employees Union, Local No. 214, or any other labor organization, or threaten them with loss of benefits because of such activity. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT urge employees to solicit employ- ing: ee defections from support of the above-named or any other union. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. All our employees are free to join or assist the above-named Union or any other labor organization of their choosing. APPLETON DISCOUNT, INC, D/B/A TREASURE ISLAND FOOD STORE (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 compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 532 03, Telephone 414-224-3870. DECISION WILLIAM J. BROWN, Administrative Law Judge: This con- solidated proceeding under Sections 9 and 10 of the Nation- al Labor Relations Act, as amended, came on to be heard at Appleton, Wisconsin, on October 25, 1972,' before me. The original petition in the representation case was filed on April 28 by the above-captioned labor organization, herein- after sometimes referred to as the "Union," and a stipula- tion for certification upon consent election was executed and approved on May 25. The election herein was conduct- ed on June 22 resulting in the defeat of the Petitioner labor organization. Objections, timely filed by the Petitioner and identified as Objections 2 through 5, have been consolidated with the unfair labor practice hearing resulting from charges filed by the Union in Case 30-CA-2003 on June 28 and a complaint issued on August 29. At the consolidated hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. Subsequent to the close of the hearing the General Counsel and Respondent Employer, hereinafter sometimes referred to as the "Company," filed briefs which have been fully considered. On the entire record herein and on the basis of my observation of the witnesses, I make the follow- 1 Dates hereinafter , unless otherwise noted, relate to the calendar year 1972 FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER The pleadings and evidence establish and I find that the Company is a corporation organized and existing under and by virtue of the laws of the State of Nebraska and engaged in the operation of a retail food store at Appleton, Wiscon- sin. During the calendar year preceding issuance of the complaint herein, the Company received at its Appleton food store goods valued in excess of $50,000 and shipped directly to said store from points outside the State of Wis- consin. In the same period the Company derived gross reve- nue in excess of $500,000 from its retail sales. I find, as the Company concedes, that it is an employer engaged in com- merce within the purview of Sections 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES AND OBJECTIONS TO CONDUCT AFFECTING RESULTS OF THE ELECTION A. The Unfair Labor Practices 1. Interrogation and threats Organizational efforts on behalf of the Union com- menced among company employees on or about April 12, 1972, when employee Richard Mannebach, a stocker, tele- phoned Union Representative Dave Tesch from whom Mannebach received a supply of union authorization cards which he distributed to fellow employees Accord, Schmidt, and others. A sufficient number of employees supported the Union to warrant the holding of an election following a stipulation for certification upon consent election on June 22. The Union, defeated in the election, filed objections to conduct affecting results of the election. The Regional Di- rector, finding that material and substantial issues of fact and credibility were raised, consolidated the issues for hear- ing as noted above. The complaint alleges in paragraph 5(a), and the answer denies, that Store Manager Brandt and Comanager Don- nermeyer at some date in late April interrogated employees concerning their union sympathies. The supervisory status of Brandt and Donnermeyer is established by the pleadings. Employee Mannebach testified that on April 17, in the com- pany snack bar, Brandt asked him about reports he heard that Mannebach was starting a union among company em- ployees. Mannebach testified that Brandt further admon- ished him with the reminder that he could lose the opportunity for promotion and pay increases . Although Brandt denied interrogating Mannebach, I credit Mannebach's account and find that the allegations of the complaint in this regard are sustained by Mannebach's TREASURE ISLAND FOOD STORE 397 credited testimony. By such questioning and the utterances of such threats, the Company engaged in unfair labor prac- tices as alleged in the complaint. Paragraph 5(b) of the complaint alleges, and the answer denies, that in late April, Brandt and Donneymeyer threat- ened employees that there would be no wage increases or promotions for employees who supported the Union. Man- nebach testified that on April 17, while at the store's snack bar with employees Accord and Donnemeyer, Brandt ques- tioned them as to their interest in the Union and stated that they could risk the loss of promotions and pay raises. Al- though Brandt denied making such a comment, I credit the testimony of Mannebach and find that the allegations of the complaint in this regard are sustained by his credited testi- mony. It is alleged in paragraph 5(c) of the complaint, and de- nied in the Company's answer, that Brandt in mid-May interrogated an employee respecting his union activities. Dean Curtis, a 3-year employee of the Company and the fourth man in the local management scheme, testified that sometime in mid-1972 Brandt, in the office, asked him why he had signed a union card and thereafter tendered him for signature of a letter addressed to the Union and containing other employee withdrawal signatures . According to Curtis' account Brandt asked that he obtain additional signatures. I credit Curtis' account and find that Brandt by questioning Curtis and urging the circulation of union withdrawal peti- tion engaged in unfair labor practices within the scope of Section 8(a)(1) of the Act, as alleged in paragraphs 5(c) and (d) of the complaint. Paragraph 5(e) of the complaint alleges an unfair labor practice in the conduct of Brandt, at a May 31 store meet- ing, in promising employees a new savings and pension plan if they voted against the Union in the forthcoming June 22 election. Employee Mannebach testified that at the May 27 meeting at a motel, Brandt told the employee group that if the Union came into the store, employees would lose the opportunity of membership in the company pension plan. Employee Leisch testified that at the meeting Brandt in- formed employees that they would have the Pennco profit- sharing plan only if they rejected the Union in the forthcom- ing election. This testimony is corroborated by that of employee Curtis and that of Schmidt. I credit the accounts of the aforementioned witnesses as against contrary testi- mony adduced by the Company and find and conclude that by such statements the Company engaged in the unfair labor practices alleged in the complaint. It is alleged in paragraph 5(f) of the complaint that the Company, through Robert Brandt, at a store meeting on June 20, 1972, engaged in unfair labor practices by threaten- ing employees with discharge of part-time employees if em- ployees selected a union as their bargaining representative. Employee Ralph Leisch testified that at the storewide meet- ing of June 20, Brandt told the employees, in reply to an employee question, that if the Union came in, the store would have to lay off part-time workers and/or cut their hours because of the Union's preference for full-time em- ployees. I credit Leisch's testimony and find that the Com- pany engaged in unfair labor practices by Brandt's announcement of the Company's prediction of union action in this regard. The complaint alleges in section 5(g) that the Company engaged in unfair labor practices by the action of Brandt in late June and early July in compelling employees to work on their own time, or off the clock in reprisal for their participation in activities on behalf of the Union. The em- ployees in question, Curtis and Schmidt, testified that they were ordered on earlier occasions, prior to the advent of the Union to work off the clock, usually on cleanup assign- ments. Curtis testified that he had done so on many prior occasions, and Schmidt conceded that he had worked off the clock on three different occasions. The evidence falls short of preponderating in favor of the conclusion that any order to work or sufferance of such work on the occasions here involved cannot be said to appear from the preponder- ance of the testimony to constitute an unfair labor practice. B. The Objections to Conduct Affecting Results of the Election The Board has assigned to me the preparation and is- suance of a report containing findings necessary to disposi- tion of the Union's Objections 2, 3, 4, and 5.2 Objection 2: This objection alleges that on or about May 27, Brandt at a voluntary meeting made promises of full- paid health and welfare benefits if the employees voted against representation by the Union. Employee Richard Mannebach testified that at the May 27 meeting of employ- ees at a nearby motel, Brandt told the assembled employees that if the Union came in employees would lose the benefits of the plan and also face the possibility of losing their dis- count on store purchases. Employee Leisch testified that at the May 27 meeting Brandt told employees that they could have the Pennco plan only if they rejected the Union in the pending election. Dean Curtis, the fourth man in the man- agement level, testified that in the course of the May 27 meeting Curtis spoke of the availability of the new Pennco insurance plan and said that it would be available only if employees rejected the Union. Donald Schmidt, a part-time employee, testified to the same effect. I credit the testimony of these witnesses, particularly that of Curtis, and find that Objection 2 has merit and warrants the setting aside of the results of the election. Union Objection 3 to conduct affecting results of the election is to the effect that in mid-May 1972, Brandt threat- ened union adherents among employees that they would not be considered for promotions, questioned them regarding their union sympathies, and coercively solicited return of their authorization cards. In view of the findings above respecting the conduct of Brandt, I find that Objection 3 has merit and warrants the setting aside of the results of the election conducted herein. With respect of Objection 4, to the effect that Brandt and Comanager Donnemeyer at a June 20 meeting threatened discharge of the part-time em- ployees if the Union was voted in and promised wage in- creases if the Union were voted out, I conclude that this objection is lacking in merit inasmuch as the evidence indi- cates that the company representatives did no more than 2 The Regional Director found Objection 1 to lack merit 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present to employees their understanding that a labor orga- nization would prefer full-time employment for a smaller number of employees over a large part-time complement. I recommend dismissal of Objection 4. Objection 5 constitutes no more than a compendious and conclusionary statement generally alleging interference and is disposed of under the individual items herein discussed. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company set forth in section III, above, and there found to constitute unfair labor practices, occurring in connection with the Company's busi- ness operations as set forth in section I, above, have a close, intimate, and substantial relation to trade traffic and com- merce among the several States and tend to lead to labor disputes burdening and obstructing such commerce and the free flow thereof. V THE REMEDY In view of the findings set forth above to the effect that the Company has engaged in unfair labor practices affect- ing commerce it will be recommended that it be required to cease and desist therefrom, and from like or related unfair labor practices. In view of the findings of employer conduct affecting the results of the election it will be recommended that the representation proceedings be severed and remand- ed to the Regional Director for the conduct of a new elec- tion as such time as, in hisjudgment, the effects of employer interference with the first election have been dissipated. The posting of an appropriate notice should be required. On the basis of the foregoing findings of fact and upon the entire record in this case I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their activity on behalf of self-organization under the Union, by threatening employees with loss of wage increas- es in reprisal for support of the Union, by soliciting an employee to solicit fellow employees to defect from support of the Union, by promising employees improvements in their savings and pension program in return for rejection of the Union, and by threatening loss of employment for part- time workers in the event the Union secured representation rights, the Company has engaged in unfair labor practices defined within the scope of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act. 5. Union Objections 2 and 3 to conduct affecting results of the election herein have merit and warrant setting aside the results of the election. Proceedings in the election case should be severed from those in the complaint case and remanded to the Regional Director for further proceedings not inconsistent with this Decision. [Recommended Order omitted from publication.]