Super Thrift Markets, Inc.

SUPER THRIFT MARKETS, INC. Super Thrift Markets, Inc. t/a Enola Super Thrift and Retail Clerks Local 1436, Chartered by Retail Clerks International Association, AFLCIO. Cases 4-CA-8351 and 4-RC-12347 November 11, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 1, 1977, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent and Charging Party each filed exceptions and a supporting brief, and General Counsel filed cross-exceptions and a brief in support thereof and in response to Respon- dent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. The General Counsel has excepted to the Adminis- trative Law Judge's refusal to find that Respondent violated Section 8(a)(l) of the Act in a conversation between Respondent's store manager, John Salitis, and employee Sandra Klinger on election day. According to Klinger, who was credited by the Administrative Law Judge, she was washing her hands in the breakroom when Salitis approached her and said, "Poor Sherry, she's out there working on the register all alone." Klinger replied, "Well what about me ... I work hard out there too." Salitis then said, "[w]ell she's a good girl . . . because she's not for the Union." The Administrative Law Judge found that the last statement did not violate Section 8(a)(l) since it "fell short of conveying that Sandra Klinger would be prejudiced by virtue of her union sentiment in any evaluations of her job perfor- mance." We disagree. Rather, we agree with the General Counsel that Salitis' statement does suggest that his appraisal of his employees' work would be I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In considering whether a second election should he directed, we are not 233 NLRB No. 66 affected by whether they were for or against the Union. Accordingly, the statement violated Section 8(a)(1) of the Act. The Charging Party has excepted to the Adminis- trative Law Judge's failure to recommend setting aside the election held herein. Although the Adminis- trative Law Judge found three separate violations of Section 8(a)(1) during the critical preelection period, he refused to direct a second election. 2 We agree with the Charging Party that under Board law a second election should be directed. Our normal policy is to direct a new election whenever an unfair labor practice occurs during the critical period since "[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." Da/-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87 (1962). The only recognized exception to this policy is where the violations are such that it is virtually impossible to conclude that they could have affected the results of the election. This determination is based, inter alia, on the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors. Here the unit includes some 24 employees, 2 of whom were subjected to statements the Administrative Law Judge found violated Section 8(a)(l). One of the two employees was subjected to two separate incidents of 8(a)(1)-proscribed activity. In these incidents, Re- spondent, by its store manager, John Salitis, interro- gated employee Keffer about her union statements; asked employee Pamela Klinger about her sister's union sentiments; and asked Pamela Klinger why she was so in favor of the Union. Further, in one of these incidents, Salitis also indicated to Pamela Klinger that presently everyone got along well but that he was unsure whether he would feel the same toward the employees if the Union won or whether he would stay on as store manager in that situation.3 On balance, we conclude the election should be set aside. Coercive statements were directed to 2 employees in a unit of only 24 employees. We have long held that statements made during election campaigns can reasonably be expected to have been disseminated and discussed among the employees. 4 The statement here involved a high-ranking official of Respondent who engaged in a number of interrogations and a serious threat; i.e., that working conditions might change if the Union won the relying on our finding of a fourth violation of Sec. 8(aXI) in the Salitis- Sandra Klinger incident noted above, since it is impossible to tell from the record whether that incident occurred before or after the employee had voted. 3 The record reveals that Salitis enjoyed a good relationship with his employees. 4 See, e.g.. Standard Knitting Mills, Inc., 172 NLRB 1122 (1968). 409 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election. Contrary to the Administrative Law Judge, we conclude these statements by Respondent clearly warrant the setting aside of the election and the directing of a second election.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Super Thrift Markets, Inc. t/a Enola Super Thrift, Enola, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Substitute the following for paragraph 1: "1I. Cease and desist from coercively interrogating employees concerning their own union activity or sentiments or that of their fellow employees; threat- ening employees with appraisals of their work performance based on their union sentiment; and in any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on November 23, 1976, in Case 4-RC-12347 be, and it hereby is, set aside, and that Case 4-RC-12347 be, and it hereby is, remanded to the Regional Director for the purpose of conducting a second election. [Direction of Second Election and Excelsior foot- note omitted from publication.] I See for this result Heartwood Avenue C orporation d'b/a The Heartwood, 225 NLRB 719 (1976); Vincent's Sleak House, Inc., 216 NLRB 647 (1975). The ratio of violations to the number of employees distinguishes this case from Essex International, Inc., 216 NLRB 831 (1975), erroneously relied on by the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties were represented and afforded the opportunity to present evidence in support of their respective positions, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following. The National Labor Relations Act gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT question our employees concern- ing their own activity or sentiments or those of other employees. WE WILL NOT threaten employees with apprais- als of their work performance based on whether or not they support a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. SUPER THRIFT MARKETS, INC. T/A ENOLA SUPER THRIFT DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: Upon an original unfair labor practice charge filed on November 26, 1976, a complaint was issued on January 26, 1977, which, as amended, alleged that Respondent independently violated Section 8(a)(1) of the Act. In its duly filed answer, Respondent denied that any unfair labor practices were committed. Pursuant to a representation petition filed on September 23, 1976, in Case 4-RC-12347 and a Stipulation for Certification Upon Consent Election Agreement approved on October 26, 1976, a secret-ballot election was conducted on November 23, 1976, among employees in the appropri- ate unit. The tally of ballots showed that of approximately 24 eligible voters 7 were for, and 16 against, representation by the Petitioner. There was I challenged ballot which was insufficient to affect the results. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. On January 21, 1977, the Regional Director for Region 4 issued a "Report on Objections to Election," in which he indicated that the pending unfair labor practice charge in Case 4-CA-8351 was meritorious, that a complaint would issue thereon, and that said complaint would involve issues raised during the course of the investigation of the objections concerning alleged employer interrogation of employees as to their protected concerted activity. Accordingly, the aforesaid Regional Director 410 SUPER THRIFT MARKETS, INC. stated that Case 4-RC-12347 would be consolidated for hearing with Case 4-CA-8351.' On February 18, 1977, the aforesaid Regional Director issued an order consolidating Case 4-RC-12347 with the pending complaint in Case 4-CA-8351 for hearing, ruling, and decision by an administrative law judge. Pursuant thereto, a consolidated hearing was conducted before me in Harrisburg, Pennsylvania, on May 13, 1977. After close of the hearing, briefs were filed by General Counsel, the Charging Party-Petitioner, and the Respon- dent-Employer. Upon the entire record in this proceeding, including my observation of the witnesses while testifying, and consider- ation of the posthearing briefs, I find as follows: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT-EMPLOYER Respondent-Employer is a Pennsylvania corporation engaged in the operation of retail grocery stores, including a retail supermarket located in Enola, Pennsylvania, the sole facility involved in this proceeding. In the course of said operations, Respondent received gross revenues during the year preceding issuance of the complaint, a representative period, exceeding $500,000 in value, and purchased goods valued in excess of $50,000 directly from points located outside the Commonwealth of Pennsylvania. The complaint alleges, the answer admits, and I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Retail Clerks Local 1436, Chartered by Retail Clerks International Association, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. IlI. CONCLUDING FINDINGS A. The Issues Primarily at stake in this proceeding is the validity of an election in which the employees participating rejected union representation by a better than 2-to-I margin. The Charging Party-Petitioner seeks a rerun election based on allegations in the amended complaint. Those allegations are limited to independent 8(a)(1) violations imputed solely to Respondent's store manager, John Salitis, and relate to his alleged remarks to but three members of the voting group. In this respect, it is alleged that Salitis on three occasions coercively interrogated employees Pamela Kling- er and Janet Keffer, in separate conversations. It is also alleged that a statement imputed to Salitis and addressed to I The Regional Director's report on objections failed to include a clear disposition of the specific misconduct set forth in Objections I. 2, and 3, which related to matters beyond the scope of the compla'it. as amended. At the hearing, counsel for the Charging Party-Petition :r withdrew these allegations, and opted to contest the validity of the election solely on the basis of the unfair labor practices set forth in the complaint. employee Sandra Klinger was also violative of Section 8(a)(1). Although material questions of credibility exist, even if resolved so as to substantiate the complaint, a substantial question would remain in Case 4-RC-12347 as to whether the proven unfair labor practices could have had a sufficient impact on the results of the election to warrant a rerun. B. The Alleged Unfair Labor Practices I. The allegations involving Pamela Klinger The complaint alleges that Respondent violated Section 8(a)(X) by the coercive interrogation of employee Pamela Klinger in two separate confrontations with Salitis. It will be recalled that the election was conducted on November 23, 1976.2 About 2 weeks prior thereto, Klinger was in the breakroom when Salitis approached her. According to Klinger, Salitis asked what she had against him. Klinger asked what Salitis meant. Salitis explained that she was strong for the Union and that he wondered why. Klinger indicated that she did not know why. Salitis then indicated that he felt that the store didn't need a union in that benefits were good enough, arguing that the Union would not help employees much. According to Klinger, Salitis went on to state that while everyone got along well under present conditions, he did not know whether he would feel the same way towards employees if the Union were to represent them, also expressing his uncertainty as to his ability to continue on as a manager if the Union were designated. After this there was some discussion as to Klinger's view that the Union would help part-time employees, including her sister, Sandra Klinger. Salitis then observed that Sandra would not work there forever, and that Pamela should worry about herself. The conversation closed with a reminder by Salitis that he had done Pamela a favor in the past, and his request that she now do him a favor.3 Salitis admitted that he had a conversation within the time frame related by Pamela Klinger concerning her support of the Union. Asserting knowledge that Pamela Klinger was a protagonist of the Union at that time, 4 Salitis admits going to the breakroom, asking her "why she was so strong for the union after we did get along and . . . the company and myself had helped her in a lot of ways." Although Salitis denied recollection of his commenting on what his feelings would be or the impact of the Union on his relations with employees, in this respect I credit the testimony of Pamela Klinger whom I regarded as the witness with the clearer capacity for recollection. I accept her account fully. In agreement with the General Counsel, I find that Salitis, by singling out Pamela Klinger for questioning as to the reasons for her union support, while at the same time reminding her of favorable treatment extended to her by the Employer, and suggesting the possibility of changed 2 All dates refer to 1976, unless otherwise indicated. 3 At some time before the instant proceeding, Pamela Klinger had requested a leave of absence for the summer, which was granted. 4 Pamela Klinger indicated that she had spoken for the Union among fellow employees on a selective basis, but admitted that, with the store being so small, news travels "easily." 411 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer-employee relationships if the Union came in, engaged in coercive interrogation violative of Section 8(a)(1). See, e.g., CBS Records Division of CBS, Inc., 223 NLRB 709 (1976). Pamela Klinger testified to a second confrontation with Salitis shortly before the polls were scheduled to open on November 23, the day of the election. On this occasion, Salitis again approached Klinger, as she was working, asking "Is Sandy with us?" Pamela Klinger indicated that she was, whereupon Salitis walked away. 5 Here again, I credit Pamela Klinger's testimony. Salitis could not recall specifically having made the inquiry, but asserts a denial on his own assumption that he would have been too cautious to have done so on the day of the election. As was true of the earlier conversation, I regarded the account of Pamela Klinger as the more reliable. The questioning of Pamela Klinger as to the union sympathy of a fellow employee was lacking in justifiable purpose, and constituted unlawful interrogation tending to impede employees in the exercise of their Section 7 rights. Therefore, I find that Respondent further violated Section 8(a)(1) of the Act in this respect. 2. The allegation involving Janet Keffer The complaint also predicates an 8(a)(l) violation upon the coercive interrogation of Keffer. In support of this allegation, Keffer testified that on November 17, 1976, account, she was working in the bakery department, she approached Salitis and asked for more work hours or higher wages. Salitis indicated that he couldn't give her higher wages, but expressed a willingness to try to get her additional hours. According to Keffer, Salitis then asked what Keffer thought about the Union. When Keffer responded that she was confused and did not know what to think, Salitis suggested that, if she had any questions, she could speak to Jim McKinley, the Respondent's personnel manager. Salitis confirms that such a conversation occurred, but denies having questioned Keffer as to her union sympathy. According to his account, on the day in question, Personnel Manager McKinley was present in the store. Contrary to Keffer's account, Salitis relates that he ap- proached Keffer, indicating that he hadn't talked to her about the Union, but figured that she was as confused as everyone about it. He claims that Keffer responded affirmatively, admitting that she was confused, whereupon he told her of the presence of McKinley, indicating that the latter might be able to enlighten her on the Union or any problems that she had.6 At this point, according to Salitis, Keffer indicated that the only problem that she had was her need of more hours and more money. Salitis claims to have responded that hours depended on the volume of business in the bakery and rate of pay was controlled by a fixed schedule. When Keffer indicated that she would be s This reference was obviously to Sandra Klinger. Pamela Klinger's sister. 6 McKinley did not testify, and apart from the testimony of Salitis, there is no evidence that he was present on the day in question. It clearly does not appear that Keffer sought to allay any confusion concerning the Union by conversing with McKinley. I Salitis sought to explain his criticism of Sandra Klinger as prompted by willing to work in areas other than the bakery to earn more, Salitis told her he would keep her request in mind as openings in other positions developed. My mistrust of Salitis is already apparent on the face of this decision. As for the conflict with Keffer, she was regarded as the more reliable witness. In addition to considerations of demeanor, her account of the conversa- tion seemed more probable. Based on Keffer's credited testimony, I find that Salitis engaged in an additional instance of coercive interrogation, and that Respondent thereby engaged in a further violation of Section 8(a)( I) of the Act. 3. The allegations concerning Sandra Klinger By amendment to the complaint, it is alleged that Respondent violated Section 8(a)(1), when Salitis, on the day of the election, told Sandra Klinger that another employee was a "good girl" because the latter was not in favor of the Union. Factually, this allegation is substantiat- ed by the testimony of Sandra Klinger. She relates that on November 23, the day of the election, between 4 and 5:30 p.m., she went to the breakroom to wash her hands. Salitis apparently was on a break at that time. Salitis addressed Klinger, stating, "poor Sherry, she's out there working on the register all alone." Sandra Klinger asked, "well what about me . . . I work hard out there too." Salitis said "(W]ell she's a good girl . . . because she's not for the Union." In contrast with Sherry, Salitis indicated that he didn't know about Sandra Klinger.7 The General Counsel argues that statements by Salitis in this conversation violated Section 8(a)(1) on either of two grounds: (1) His remarks suggested that Sandra Klinger's job performance would be appraised according to her support or failure to support the Union, or (2) his remarks created the impression of surveillance by identifying an employee who had no interest in the Union. The General Counsel's construction of the conversation strikes me as strained and unpersuasive. The remarks by Salitis were no more than a random expression of peeve concerning the issue at hand, and fell short of conveying that Sandra Klinger would be prejudiced by virtue of her union sentiment in any evaluations of her job performance. Finally, the fact that Salitis expressed knowledge of another employee's lack of union sympathy was too isolated and vague to rise to the level of an unfair labor practice warranting a Board remedy. Accordingly, I shall dismiss the allegations of the complaint insofar as they relate to this incident. C. The Objections I have found that Respondent, during the critical preelection period,8 violated Section 8(aX1) through the coercive interrogation of employees Pamela Klinger and Janet Keffer. Both violations were somewhat isolated, and her presence in the breakroom at a time when she was supposed to be working. Salitis explains that, it was in this context, that he said "Well Sherry is a good girl, and she's out there working, how about you." I regard the account of Sandra Klinger as the more credible. I I would note that with respect to the dismissed 8(aXlI) allegation involving Sandra Klinger, there is no evidence that the substance of her conversation with Salitis was conveyed to any other employee, and 412 SUPER THRIFT MARKETS, INC. both occurred beyond the earshot of other employees. Said unfair labor practices though not to be condoned, and sufficient to warrant a cease-and-desist remedy, were of the less flagrant variety. Furthermore, it does not appear that the election, and the misconduct attributable to the Employer, occurred against a background of prior unfair labor practices. The unlawful inquiries, as far as the instant record discloses, were not pursuant to a pattern of systematic interrogation or harassment of employees. Although the voting group was small, the unlawful elements in the conversations were devoid of threats, and consisted of subject matter not likely to be transcommuni- cated to other employees under conditions likely to have a meaningful impact on employee choice. Considering all relevant factors, it is my view that the rejection of union representation by a better than 2-to-1 vote stemmed exclusively from considerations other than unlawful con- duct, and, hence, I find that no basis has been established on this record to disturb the already-recorded choice of employees. Accordingly, I find that the questioning of Pamela Klinger and Janet Keffer by Salitis involved unfair labor practices too minimal to have interfered with the conduct of a free and fair election, and it is recommended that the objections based on this conduct be overruled, and that the results of the November 23 election be certified. 9 CONCLUSIONS OF LAW I. Respondent-Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party-Petitioner is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent-Employer violated Section 8(a)(I) of the Act by coercively interrogating employees as to their own and as to the union sentiment of other employees. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be ordered that Respondent furthermore the General Counsel failed to establish by convincing proof that this event could have had an impact on the election. Klinger herself could not recall whether the incident occurred before or after she voted. 9 See, e.g., Essex International. Inc.. 216 NLRB 831 (1975). 'o 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. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER '0 Respondent-Employer, Super Thrift Markets, Inc. t/a Enola Super Thrift, Enola, Pennsylvania, its officers, agents, successors, and assigns, shall: I. Cease and desist from coercively interrogating employees concerning their own or the union activity or sentiments of their fellow employees, or in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its store in Enola, Pennsylvania copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 4, shall be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots in the election conducted on November 23, 1976, have not been cast for Retail Clerks Local 1436, Chartered by Retail Clerks International Association, AFL-CIO, and said labor organization is not the exclusive representative of employees in the appropriate unit within the meaning of Section 9(a) of the National Labor Relations Act, as amended. its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. I' In the event this Order is enforced by a Judgment of the 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." 413