Warehouse Groceries Management, Inc.

64 IDECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehouse Groceries Management, Inc. and United Food and Commercial Workers International Union, AFL-CIO, Local 442 and Retail Clerks Local 1657, United Food and Commercial Workers International Union, AFL-CIO. Cases 10-CA-14572, 10-CA-14573, and 10-CA- 14854 May 18, 1981 SUPPLEMENTAL DECISION AND ORDER On January 30, 1981, Administrative Law Judge Marion C. Ladwig issued the attached Supplemen- tal Decision in this proceeding.' Thereafter, Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has consid- ered the record and the attached Supplemental De- cision in light of the exceptions and brief and has decided to affirm the rulings, findings, 2 and conclu- sions of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Warehouse Groceries Management, Inc., Birmingham, Ala- bama, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. l This Supplemental Decision was issued pursuant to the Board's Deci- sion, Order. and Remand in this case, published at 254 NLRB No. 21 (1981). 2 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings As we are adopting the Administrative Law Judge's finding that Leta Dozier did not attempt to revoke her authorization card, we find it un- necessary to rely on his further finding that the purported revocation oc- curred (if at all) before February 9, 1979. 3 We shall make the bargaining order effective March 13, 1979, the date on which the Union acquired authorization cards from a majority of employees in the unit. Beasley Energy, Inc.. d/b/a Peaker Run Coal Com- pany. Ohio Division #1, 228 NLRB 93 (1977). For the reasons set forth in his separate opinion in that case. Chairman Fannling would issue only a prospective bargaining order. 228 NLRB at 97. SUPPLEMENTAL DECISION MARION C. LADWIG, Administrative Law Judge: On January 14, 1981, the Board issued its Decision, Order, and Remand, in which it remanded these cases for cer- tain additional findings. In my August 12, 1980, Deci- sion, I had found that 2 of the 38 union authorization cards could not be counted, leaving only 36 cards in a 256 NLRB No. 18 bargaining unit of 72 employees; that the General Coun- sel failed to prove that the Union attained majority status on March 13, 1979;' and that the remedial bargaining order sought by the General Counsel was therefore inap- propriate. The Board found to the contrary that one of the two uncounted cards did constitute a valid designa- tion of the Union; that another card signed by Leta Dozier is determinative of the issue of the Union's major- ity status; and that a remand was necessary for me "to make specific findings as to (1) whether or not Dozier attempted to revoke her authorization card by calling [union solicitor Melinda Zeigler], and (2) whether this at- tempted revocation, if it occurred, was subsequent to, and thus a result of, Respondent's unfair labor practices." The Board concluded that if Dozier's card is valid, the Union attained majority status on March 13, and the em- ployee sentiment thus expressed through the authoriza- tion cards "can be best protected by a bargaining order." The Board ordered the Respondent to take the action set forth in my recommended Order, as modified, to remedy other violations found, and ordered this remand for me "to reevaluate the record evidence in order to make credibility resolutions concerning the alleged revocation of an authorization card by Leta Dozier, and to make a finding whether that revocation, if it took place, oc- curred before Respondent began its campaign of unfair labor practices." Credibility Employee Melinda Zeigler testified that on February 5 (the same day she herself signed a union authorization card) she visited the home of cashier Leta Dozier, who, having been approached by Zeigler about signing a card, had "asked me to come to her home and talk with her because she preferred to talk at home." There in her home, Dozier completed the authorization card in her own handwriting, signed it, and gave it to Zeigler, who turned it in to the Union. Zeigler positively testified that "we never discussed it again," and that Dozier never asked for the card back. Dozier claimed that she did ask for her card back, but she gave conflicting testimony about what happened. At one point she testified that she signed the card because Zeigler told her there would be more benefits and "more pay." Later she claimed that Zeigler "came into my house and made me sign the card." (Emphasis supplied.) She testified that, after she signed the card, she asked Zeigler, "Are you sure this wouldn't cause any trouble?" and that Zeigler answered, "No, I'm positive . . . most of the employees have already signed it." However, she next claimed that Zeigler made that statement before she signed the card, testifying as follows: "[A]t first I was told that most of the employees have already signed the cards . . . so since most employees have already signed the card, I might as well join it, too. That's when I signed the card." Concerning her claim that she asked for the card back, she testified, "I can't remember" if it was the "same night" she signed the card (February 5) "or the next I All dates are in 1979 unless otherwise indicated WAREHOUSE GROCERIES MANAGEMENT, INC. 65 day" that she called Zeigler and "told her I wanted the card back .... And the next day-I'm pretty sure it was the next day-I called her again" and "told her I wanted the card back." She gave shifting reasons for changing her mind. At one point she testified that she talked to her husband about it "and he then told me, 'I think you ought not to."' (Emphasis supplied.) Later she acknowledged that her husband, a union member him- self, did not advise her against joining. (She testified that she thought that by signing the card she was joining the Union.) When asked if her husband told her to join or not to join, she answered, "Well, he can't really make up his mind because he is in one," and "He told me" it was "my own decision, whatever I wanted to [do]." She tes- tified that she changed her mind because she realized that she had been in one union before "and I know that I wasn't really getting any benefits from it" and "Because I got to thinking at that time I need the money. I have my family back home." When asked why she had signed the card if she felt that way, she claimed (contrary to her earlier testimony, as indicated above) that she had been told before signing that most employees had already signed, and then claimed that the next day at work "one girl came to me and asked me had I signed a card. I can't talk about it, but I noticed most people haven't signed a card, and that's what scared me . . . and I found out then that I didn't want to join a union." Thereupon she was asked how she found out that most people had not signed a card. (Earlier, she testified that, after signing the card, she never talked to another em- ployee about the Union "because, to my knowledge, you are not supposed to talk to anyone about it.") She an- swered, "That's what they said, most cashiers, really, and I'm around cashiers a lot, and I know most cashiers haven't signed a card. Anyway, that's what they tell me. That's what they told me." From her demeanor on the stand, she appeared to be attempting to fabricate a plausi- ble answer to support Respondent's cause, rather than giving a candid account of what happened. As indicated in my August 12, 1980, Decision, Zeigler "impressed me most favorably as a sincere witness, with generally a good memory for details." Although in her extensive testimony she was unable to recall some of the exact words used by General Manager Roger Dreyer in his March 16 speech, and although she had a faulty rec- ollection concerning the solicitation of one of the author- ization cards (that of Mike Merchant), she appeared to have a clear memory that Dozier never asked for the card back. I credit her denials and discredit the claim made by Dozier (who impressed me as being less than candid) that she asked Zeigler to return the authorization card. Accordingly I find that Leta Dozier did not attempt to revoke her authorization card by calling Melinda Zeigler and asking for its return. Commencement of the Unfair Labor Practices Concerning when Respondent began its campaign of unfair labor practices, I found in my August 12, 1980, Decision that, "[a]bout the first week in February," Meat Market Manager Gene Taylor called meat merchandiser Carol Abdoo into the office (there making an implied threat of discharge and giving the impression of surveil- lance in violation of Sec. 8(a)(l) of the Act), and, "[a]lso in early February," Director of Perishables Stuart Pody spoke to Abdoo in the meat market office (coercively in- terrogating and threatening her in violation of Sec. 8(a)(1) of the Act). The dating of these incidents was based on Abdoo's credited testimony that Taylor talked to her in the "first part of February, maybe the first week of February," and that on the "same day I talked to Mr. Stuart Pody." The evidence does not disclose the exact date these initial unfair labor practices began. The only evidence of any unfair labor practice being committed by Respondent before February 5, 6, or 7, when employee Dozier claimed that she was seeking the return of her authorization card, is the testimony of Pody. He testified that his conversation with employee Betty Dunn (found to be coercive interrogation in viola- tion of Sec. 8(a)(1) of the Act) occurred "around the first of February." In view of Dunn's recollection that the conversation was "probably" in the latter part of Febru- ary, I found in my Decision merely that the conversation was "in February." In the absence of further evidence more definitely es- tablishing when these incidents occurred, and in view of the fact that February 9 is the earliest date on which unfair labor practices were alleged in the complaint to have occurred, I find that Respondent's campaign of unfair labor practices, found to have begun "[a]bout" the first week in February (Taylor's conversation with Abdoo) and "[a]lso in early February" (Pody's conversa- tion with Abdoo), did not begin until February 9; and that Pody's coercive interrogation of Dunn, contrary to Pody's inaccurate estimate of "around the first of Febru- ary," occurred later in February. Accordingly, I find that Dozier's purported revocation of her union authorization card (which she claimed she was asking Zeigler to return to her in the period from about February 5 to 7) occurred (if at all) before Re- spondent began its campaign of unfair labor practices. CONCLUSIONS OF LAW 1. The union authorization card which employee Leta Dozier signed on February 5 and which she did not at- tempt to revoke constituted a valid designation of the Union. 2. The Union attained majority status on March 13, and the employee sentiment thus expressed through the authorization cards can be best protected by a bargaining order. THE REMEDY Having found above that the Union attained majority status, and the Board having found that in this event a bargaining order is the appropriate remedy, I find it nec- essary in order to effectuate the policies of the Act to order Respondent to recognize and bargain, upon re- quest, with the Union as of February 9, 1979, the date it embarked upon its campaign of unfair labor practices which have made the holding of a fair election an unlike- ly possibility. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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: ORDER 2 The Respondent, Warehouse Groceries Management, Inc., Birmingham, Alabama, its officers, agents, succes- sors, and assigns, shall take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain in good faith with Retail Clerks Local 1657, United Food and Com- mercial Workers International Union, AFL-CIO, as the exclusive representative of the employees in the follow- ing appropriate unit and embody in a signed agreement any understanding reached: All full-time and regular part-time employees em- ployed by Respondent at its Birmingham, Alabama, facility, including all cashiers, courtesy clerks, secu- rity receivers, night and day stock clerks, produce clerks, floormen, non-food clerks, dairy and frozen food clerks, the head cashier, and the head stocker, but excluding the store manager, assistant store manager, the shift supervisors, the produce man- ager, the front end manager, the bookkeeper, all office clericals, guards and supervisors as defined in the Act, and all other employees. (b) Post at its store in Birmingham, Alabama, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained 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 2 In the event no exceptions are filed as provided by Sec. 10246 of the Rules arid Regulations of the National Labor Relations Board, the find- ings, conclusions. nd recommended Order herein shall, as provided in Sec 102.48 of te Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, ad all objections therci, shall be deemed waived for all purposes. 3f 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 Pursu- ant to a Judgment of the United States Court of Appeals [.nforcing an Order of the National Labor Relations Board" by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 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 has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL, upon request, recognize and bargain with Retail Clerks Local 1657, United Food and Commercial Workers International Union, AFL- CIO, and put in writing and sign any bargaining agreement we reach covering employees in the fol- lowing appropriate bargaining unit: All full-time and regular part-time employees em- ployed by the Employer at its Birmingham, Ala- bama, facility, including all cashiers, courtesy clerks, security receivers, night and day stock clerks, produce clerks, floormen, non-food clerks, dairy and frozen food clerks, the head cashier, and the head stocker, but excluding the store manager, assistant store manager, the shift super- visors, the produce manager, the front end man- ager, the bookkeeper, all office clericals, guards and supervisors as defined in the Act, and all other employees. WAREHOUSE GROCERIES MANAGEMENT, INC.