Ash Market and Gasoline

National Labor Relations Board - Board Decisions

Feb 23, 1961

130 N.L.R.B. 641 (N.L.R.B. 1961)

ASH MARKET AND GASOLINE 641
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All the Respondent 's hourly paid employees at its Chalmette Refinery, Arabi,
Louisiana , excluding machine shop employees represented by Lodge No. 37, Inter-
national Association of Machinists , guards, watchmen , and all supervisory employees,
as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. The Union on December 1, 1959, was , and all times thereafter has been, the
exclusive bargaining representative of all employees in such unit for the purposes of
collective bargaining.
4. By refusing to furnish the job descriptions requested by the Union in February
1960 the Respondent has refused to bargain collectively with the Union , thereby
engaging in an unfair labor practice in violation of Section 8(a) (5) of the Act.
5. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Mrs. Homer E. Ash and Bill H. B. Williams , a copartnership do-
ing business as Ash Market and Gasoline and Retail Clerks
International Association Local No. 1614, AFL-CIO. Case No.
19-CA-1923. February 33, 1931
DECISION AND ORDER
On May 19, 1960, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certa in unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Leedom and
Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications.
We agree with the Trial Examiner that on or about November 23,,
1959, and, at all times thereafter, the Respondent has refused to bar-
gain with the Charging Union as the representative of its employees
in an appropriate unit in violation of Section 8(a) (5) and (1) of the
Act.
130 NLRB No. 57.
597254-61-vol. 130-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleged, and the Trial Examiner found, that all em-
ployees at the Respondent's retail store in Boise, Idaho, including
grocery clerks, produce clerks, checkers, and gasoline attendants, but
excluding the meatcutters, wrappers, manager, assistant manager,
office clerical employees, guards, and supervisors as defined in the
Act, constitute the appropriate unit for collective-bargaining pur-
poses. This was substantially the unit for which the Charging Union
had requested the Respondent to bargain. The Respondent contends
that this unit is inappropriate because it should include the meat-
cutters.l
Contrary to the Trial Examiner, we agree with the Respondent's
contention that the appropriate unit should include meatcutters. The
Board has found that meat department employees may be excluded
from a unit of all other store employees only when a union seeks to
represent them in a separate unit.2 The record does not show that
any union requested separate representation of Respondent's meat-
cutters. Accordingly we find that the appropriate unit for collective-
bargaining purposes consists of all employees of the Employer's re-
tail store including grocery clerks, produce clerks, checkers, gasoline
attendants, and meatcutters, but excluding the manager, assistant
manager, guards, and supervisors as defined in the Act.
The issue to be decided therefore is whether the variance between
the requested unit of all employees excluding meatcutters and the
appropriate unit including such meatcutters is so substantial as to
excuse the Respondent from its statutory obligation to bargain with
the Union. The record shows, and the Trial Examiner found, that
the Respondent employed only one nonsupervisory meatcutter, one
Guy Miller. On November 19, 1959, when the Commissioner of Labor
for the State of Idaho made a card check among the employees of the
Respondent, and on November 23, when the Union on the basis of that
card check requested recognition as bargaining representative, the
Respondent employed, in addition to Guy Miller, seven other regular
employees in its store. Of this total of eight employees, the Charging
Union had five authorization cards.
As the unit placement of only one out of eight employees was there-
fore questionable, we believe that the variance between the unit pro-
posed by the Union, and the unit found appropriate herein, is insub-
stantial. Moreover, as the record shows and the Intermediate Report
relates in detail, the inclusion or exclusion of meatcutter Guy Miller
was not in issue between the parties at the time the bargaining request
1 The Respondent has no employees classified as wrappers or office clerical employees.
From the record it would appear that the Respondent uses the services of a bookkeeper
whose status as an employee has not been litigated . His name, like that of the store
manager, does not appear on the list of "payroll employees."
8 Schaeffers Prospect IGA Store , 124 NLRB 1433; The Great Atlantic and Pacific Tea
Company, 119 NLRB 1257 : and Weis Markets, Inc., 116 NLRB 1993, 1994.
ASH MARKET AND GASOLINE 643
was made, and not for some time thereafter. Respondent's copartner
and general manager, Bill Williams, prior to the card check, inquired
whether meatcutters were to be included in the unit and when told by
the union representative that the meatcutters in the area had their
own union, stated, "Yes, that's right, they have a union of their own."
It was not until December 22, 1959, that Respondent's counsel in a
telegram to the Board's Regional Office indicated a preference for a
unit including meatcutters, and it was only weeks after the complaint
herein issued that the Respondent filed a representation petition for
such unit.
Under these circumstances, we find that Respondent was obligated
to bargain with the Union notwithstanding our minor modification
of the unit as proposed by the Union.' As the record is clear that on
or about November 23 when its bargaining request was made, the
Union represented a majority of the Respondent's employees, even
including meatcutter Guy Miller, and as Respondent's conduct sub-
sequent to November 23, 1959, clearly shows its bad faith in refusing
to bargain with the Union, we find that the Respondent was in viola-
tion of Section 8 (a) (5) and (1) of the Act 4
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Mrs. Homer E. Ash
and Bill H. B. Williams, a copartnership doing business as Ash
Market and Gasoline, Boise, Idaho, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Retail Clerks Interna-
tional Association Local No. 1614, AFL-CIO, as the exclusive repre-
sentative of its employees in the following unit found appropriate :
All employees at the Respondent's Boise, Idaho, retail store, in-
cluding grocery clerks, produce clerks, checkers, gasoline attendants,
and meatcutters, but excluding the manager, assistant manager,
guards, and supervisors as defined in the Act.
(b) Conducting secret ballot elections among its employees.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist Retail Clerks Interna-
tional Association Local No. 1614, AFL-CIO, or any other labor or-
8 United Butchers Abattoir, Inc., 123 NLRB 946, 956, and cases cited in footnote 16
thereof ; Sunrise Lumber d Trim Corp., 115 NLRB 866.
' In the absence of exceptions thereto, we adopt pro forma the Trial Examiner' s finding
that the Respondent violated Section 8(a) (1) of the Act by conducting an election among
its employees on March 15, 1960.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purposes of
mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Retail Clerks Inter-
national Association Local No. 1614, AFL-CIO, as the exclusive
representative of the employees in the above-described appropriate
unit, and, if an understanding is reached, embody such understanding
in a signed agreement.
(b) Post at its establishment in Boise, Idaho, copies of the notice
attached hereto marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees customarily are posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER RODGERS, dissenting :
I agree with the majority's finding that the unit requested by the
Union was inappropriate, because it would have excluded meat-
cutters. I do not agree, however, that the Respondent violated its
obligation to bargain.
My colleagues first find that the exclusion of "meatcutters" from
the unit is a sufficiently substantial variance to warrant finding that
the requested unit is inappropriate, but they then go on to say that be-
cause there was at the time only one meatcutter employed, exclusion
of meatcutters from the unit was an insubstantial variance, and there-
fore the Respondent was obligated to bargain upon request. They
thus find, inconsistently, that the same variation was both substantial
and insubstantial.
The decision of my colleagues that the Respondent was obligated
to bargain for an inappropriate unit is contrary to Section 8(a) (5) of
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
ASH MARKET AND GASOLINE 645
the Act, and to the logical implication of the Board's decision in
Tom Thumb Stores, 123 NLRB 833. In that case the Board held that
an employer "acts at its peril" if he refuses to bargain because of an
asserted belief that the unit in question is not appropriate; and that
employer will be found to have committed an 8(a) (5) violation if,
ultimately, the Board finds the unit appropriate. From this, it would
necessarily appear to follow that if an employer is found to have cor-
rectly asserted that the requested unit was not appropriate, the em-
ployer may not be found guilty of an 8(a) (5) violation. And, of
course, Section 8 (a) (5) requires only that an employer bargain for an
appropriate unit.
Despite this, my colleagues now hold that if an employer refuses to
bargain upon request, asserts that the unit requested is inappropriate,
and the Board then finds that the unit is indeed inappropriate, the
employer is guilty of an unlawful refusal to bargain.
In short, I cannot agree with my colleagues' reasoning, nor with
their conclusion that an employer who questions the appropriateness
of a requested unit may be found guilty of an 8(a) (5) violation re-
gardless of whether the unit is in fact appropriate or inappropriate.
I would therefore dismiss the 8 (a) (5) allegations of the complaint
in their entirety.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Retail Clerks
International Association Local No. 1614, AFL-CIO, as the
exclusive representative of our employees in the following unit
found appropriate :
All employees at our Boise, Idaho, retail store, including
grocery clerks, produce clerks, checkers, gasoline attendants,
and meatcutters, but excluding the manager, assistant man-
ager, guards, and supervisors as defined in the Act.
WE WILL NOT conduct secret ballot election among our
employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise or their rights to
self-organization, to form labor organization's, to join or assist
Retail Clerks International Association Local No. 1614, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purposes of mutual aid or protection as
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act, or to refrain from any and all
such activities, except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with Retail Clerks
International Association Local No. 1614, AFL-CIO, as the ex-
clusive representative of our employees in the above-described
appropriate unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
MRS. HOMER E. ASH AND BILL H. B. WIL-
LIAMS, A COPARTNERSHIP DOING BUSINESS
AS ASH MARKET AND GASOLINE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the (late hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on December 21, 1959 ,1 by Retail Clerks International
Association Local No. 1614 , AFL-CIO, herein called the Union , the General Counsel
of the National Labor Relations Board , herein respectively called the General
Counsel2 and the Board , through the Regional Director for the Nineteenth Region
(Seattle, Washington ), issued a complaint , dated February 16, 1960 , against Ash
Market and Gasoline , herein called Respondent, alleging that Respondent had en-
gaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 ( a) (1) and ( 5) and Section 2 ( 6) and (7) of the National La-
bor Relations Act, as amended from time to time, 61 Stat. 136 , herein called the Act.
Copies of the charge, the complaint , and notice of hearing thereon were duly
served upon Respondent and upon the Union.
In its answer , duly filed on February 26, 1960 , Respondent admitted certain
allegations of the complaint but denied the commission of the unfair labor practices
alleged.
Pursuant to due notice , a hearing was held on April 7, 1960, at Boise, Idaho , before
the duly designated Trial Examiner. The General Counsel and Respondent were
represented by counsel and participated in the hearing. Full opportunity was
afforded the parties to be heard , to examine and cross-examine witnesses , to intro-
duce evidence pertinent to the issues, to argue orally at the conclusion of the taking
of the evidence , and to file briefs with the Trial Examiner . Briefs have been received
from the General Counsel and from Respondent's counsel which have been care-
fully considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS OPERATIONS
Respondent , a copartnership consisting of Mrs. Homer E. Ash and Bill Williams,
has its principal offices and retail store at Boise, Idaho, where it is engaged in the
1 Unless otherwise noted, all dates mentioned herein refer to 1959.
2 This term specifically includes counsel for the General Counsel appearing at the hearing.
ASH MARKET AND GASOLINE 647
sale of groceries , meat, sundry articles, and gasoline. During the 12-month period
immediately preceding the issuance of the complaint herein , Respondent 's gross sales
were in excess of $500,000 and its out-of-State purchases exceeded $50,000.
Upon the above admitted facts, the Trial Examiner finds that during all times
material Respondent was, and now is, engaged in commerce within the meaning of
Section 2(6) and ( 7) of the Act and that it will effectuate the policies of the Act
for the Board to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
Respondent's Refusal To Bargain Collectively with the Union
1. The appropriate unit
The complaint alleged that all Respondent's employees, including grocery clerks,
produce clerks, checkers, and gasoline attendants, but excluding meatcutters, wrap-
pers, manager, assistant manager, office clerical employees, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of the Act. In its answer, Respondent denied the
appropriateness of said unit "particularly that part . . . which excludes meat cutters,
wrappers and office clerical employees" therefrom.
The record discloses, and the Trial Examiner finds, that (1) in 1952, the Board,
in a case involving the Boise, Idaho, area retail establishments of Safeway Stores
and of Albertson Food Center, found that clerks and meatcutters belong in separate
units; (2) meatcutters traditionally are members of a craft unit; (3) meatcutters
lack the requisite community of interest with clerks; (4) a meatcutter, in order to
become a journeyman, must take certain specialized training for approximately 3
years; (5) a clerk needs but a few months' training to become a competent employee;
(6) in the Boise area the normal weekly salary of a meatcutter is between $92 and
$97, whereas a clerk in said area normally earns about $77 per week; (7) there is
a no-raiding agreement in existence between the Union and the International Amal-
gamated Meatcutters; and (8) the Union does not desire to represent Respondent's
meatcutters.3 It is true, as Respondent pointed out at the hearing, the meatcutters
occasionally work in the grocery and produce departments. It is also true, that this
occasional aid of the meatcutters is given to the clerks only when the meat depart-
ment is not busy and the grocery and/or produce departments are.
Upon the entire record in the case, the Trial Examiner finds that all Respondent's
employees, including grocery clerks, produce clerks, checkers, and gasoline attend-
ants, but excluding meatcutters, wrappers, manager, assistant manager, office clerical
employees, and supervisors as defined in the Act, at all times material herein, con-
stituted, and now constitute, a unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act, with respect to grievances, labor disputes,
rates of pay, wages, hours of employment, and other conditions of employment. The
Trial Examiner further finds that said unit insures to said employees the full benefit
of their right to self-organization, to collective bargaining, and otherwise effectuates
the purposes of the Act.
2. The Union's majority status in the appropriate unit
At the hearing there was introduced in evidence by the General Counsel a list
containing the names of eight persons 4 in Respondent's employ on November 19.
This list was prepared by Garney Coffey, a representative of the Idaho State De-
partment of Labor, who had gone that day to Respondent's establishment to conduct,
as more fully discussed below, a card check at the request of the Union. Upon
arriving there Coffey explained his mission to Bill Williams, a Respondent partner
and its manager, and, after obtaining Williams' signature authorizing the making of
the card check, requested the names of Respondent's employees. Williams thereupon
instructed Respondent's bookkeeper to give Coffey the names of all "payroll employ-
ees," which the bookkeeper did.
Respondent's counsel introduced in evidence a letter, dated December 24, which
he sent to a field examiner of the Board's Nineteenth Region, to which is attached a
Cf Schaefers Prospect IGA Store, 124 NLRB 1433.
Namely, Margaret Brown, Betty Klink, Lois Ince, Marvin Baxter , Terry Miller, Blanche
Smith , Guy Miller , and Donald Fialkowski.
'648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"list of employees including the meat market but excluding the bookkeeper and
manager." In addition to the names appearing on the Coffey November 19 list,
Respondent's list contains the names of Walter Williams, Homer Mosley, Sandy
Blodgett, and Bob Smock.5
The record discloses, and the Trial Examiner finds, that Walter Williams is Re-
spondent's assistant store manager and a supervisor within the meaning of the Act;
that Mosley is (a) in charge of the meat department, (b) receives, unlike the other
employees, a certain stated percentage of the profits, (c) is, unlike the other
employees, a salaried employee, and (d) in the absence of Bill Williams and Walter
Williams, he acts as the store's manager; that Smock is a regular employee; and
that Blodgett is a regular part-time employee. Accordingly, the Trial Examiner
finds that, because of their supervisory status, Walter Williams and Mosley should
be excluded from the unit hereinabove found appropriate; that Guy Miller should
likewise be excluded from said unit because he is a meatcutter; and that Margaret
Brown, Betty Klink, Lois Ince, Marvin Baxter, Terry Miller, Blanche Smith, Donald
Fialkowski, Sandy Blodgett, and Bob Smock compose said unit.
On behalf of the General Counsel there were offered and received in evidence
five cards 6 expressly authorizing the Union to represent the signers thereof for
the purposes of collective bargaining. The genuineness of the signatures appearing
upon said cards was not questioned nor challenged.
The Trial Examiner has compared the names appearing upon said cards with the
lists received in evidence and finds that as of November 19, five employees in the
appropriate unit had signed cards expressly designating the Union as their collective-
bargaining representative.
On November 19, Coffey, after receiving the names of eight employees from Re-
spondent's bookkeeper, went to his parked automobile and, in the privacy thereof,
checked the eight names against the five union authorization cards which the Union
had furnished him.
The same day, November 19, W. L. Robinson, the Commissioner of Labor for
the State of Idaho, wrote Respondent a letter, sending a copy thereof to the
Union, reading as follows:
Pursuant to a request made by Donald Jordon, Secretary of Retail Clerks,
Local No. 1614, and pursuant to your written consent, Mr. Garney Coffey, a
representative of this department, made a cross-check of the employees of the
payroll of your establishment as of this date. His cross-check revealed that a
majority of said employees had signed authorization cards for representation by
the said Retail Clerks Union.
Upon the record as a whole, the Trial Examiner finds that as of November 19, and
at all times thereafter, the Union was the duly designated collective-bargaining repre-
sentative of the employees in the unit found appropriate. Pursuant to Section 9(a)
of the Act, the Union was, therefore, on November 19, and at all times thereafter,
the exclusive representative of all the employees in said unit for the purposes of
collective bargaining with respect to grievances, labor disputes, rates of pay, wages,
hours of employment, and other conditions of employment.
3. The pertinent facts as to the refusal to bargain
Tn January 1959, Union International Representative Fred Sullivan called upon
Bill Williams 7 and discussed with him the advantages of operating a union store.
At that time, Williams expressed himself as being in favor of unions and stated that,
as far as he was concerned, he saw no objection to Respondent's employees being
organized.
In April, Sullivan began organizing Respondent's employees. The first ones to
sign union authorization cards were Marvin Baxter, Bob Hale, and Hale's mother .8
Sullivan also contacted three other employees but was not able to obtain their
signatures to authorization cards.
In June, Sullivan again called upon Williams who stated that he would be willing
to sign a contract with the Union when the Union showed him that it had majority
representation.
8 Terry Miller's name does not appear on the December 24 list because he was not in
Respondent's employ on that date.
e One is dated April 9, 1959; two are dated November 12, 1959; and the remaining two
are dated November 14, 1959.
'For the sake of brevity, Bill Williams will hereinafter be referred to as Williams.
8 At no time material herein was either Hale or his mother in Respondent's employ.
ASH MARKET AND GASOLINE 649,
In October, Sullivan, accompanied by Don Jordon, the Union's secretary, made
another call upon Williams, and, after discussion was had about the advantages of
Respondent displaying a union card in its store, Williams stated that he had no ob-
jection to his employees joining the Union.
On or about November 15, the Union received signed authorization cards from
Lois Ince, Betty Klink, Terry Miller, and Margaret Brown.
On or about November 16, Sullivan and Jordon called upon Williams and after
informing him that the Union represented a majority of the employees, requested
that he bargain collectively with the Union. When Williams expressed his doubts as
to the Union's majority status, either Jordon or Sullivan inquired whether Williams
would consent to a card check being made by the State labor commissioner. Wil-
liams replied, according to Jordon's credited testimony, "Fine and dandy." Where-
upon Jordon, after leaving Respondent's establishment, telephoned the State labor
commissioner and arranged with him to have a card check conducted.
On November 19, Coffey, after having the following signed by Williams and
Jordon, "I hereby consent to have Mr. Garney Coffey, a representative of the State
Department of Labor, make a cross-check of the employees on the payroll as of this
date with the signed applications," 9 conducted a card check which disclosed that
five of the eight persons whose names were given to Coffey by Respondent's book-
keeper had designated the Union as their collective-bargaining representative. Later
that day, the Union and Respondent were advised by the commissioner that the
card check "revealed that a majority of [Respondent's] employees had signed au-
thorization cards for representation by" the Union.10
On November 23 or 24, Jordon and Sullivan called upon Williams and, after re-
minding him that the card check revealed that the Union represented Respondent's
clerks, asked Williams to bargain with them. Williams stated that he was aware
that the Union represented the majority of the clerks because he had questioned
some of them, but that he could not negotiate a contract without his partner, Mrs.
Ash, being present, adding that she was presently in Tennessee and was not expected
to return to Boise until the first of the year.
Shortly after leaving Williams, Ince telephoned Sullivan to ascertain what prog-
ress he was making with Williams. Sullivan told her that Ash was in Tennessee and
that Williams was unable to negotiate a contract in her absence. Ince then informed
Sullivan that Ash was in Boise for she had just left the store with a bag of groceries.
Sullivan and Jordon then returned to the store and told Williams that they had been
informed that Ash was in town. Williams then telephoned Ash's home and dis-
covered that she had not left town. Thereupon Williams, Sullivan, and Jordon
went to Ash's home.
At Ash's home, Sullivan and Jordon, after introducing themselves, asked her "if
she was aware of the fact that the local union did represent a majority of her people
as was proven through a cross-check." When Ash replied in the affirmative, the
union representatives asked Ash and Williams to negotiate a contract. Ash replied,
to quote Jordon's undenied and credited testimony, "Well, before I do anything, I'll
have to contact my attorney," Clarence Ward. After further discussion, the meet-
ing concluded when Ash asked if the Union had a contract with the "area grocery
stores." When they replied in the affirmative, Ash asked for, and was given, a copy
of said contract.il
Under date of November 25, Jordon wrote Williams as follows:
Pursuant to the cross-check held in your store on November 19, 1959, by
the Idaho State Labor Commissioner, this Organization hereby requests that a
O Coffey credibly testified that when he asked Williams to sign this authorization he did
so, remarking, to quote Coffey, "Re could see no reason for a cross-check as he understood
most of the people had agreed to join the Union anyway."
10 Prior to said card check, at a meeting between Williams, Sullivan, and Jordon, Williams
asked whether the meatcutters were to be included in the unit. The union representa-
tives replied in the negative, adding that the Union was seeking to represent only the clerks
employed by Respondent. When the said representatives reminded Williams that the
meatcutters had their own union, the latter replied, according to Jordon's credited testi-
mony, "Yes, that's right, they have a union of their own "
"This was the contract in effect between the Union and about 36 stores in the area.
All said stores, although most of them are larger than Respondent's, operate grocery stores
with meat markets. In all said stores the meatcutters and the retail clerks are in
separate units.
It is significant to note that at the aforesaid meeting neither Ash nor Williams ques-
tioned the validity of the card check or the Union's majority status.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting be held with you on November 30, 1959 within your store for negotia-
tions for an agreement covering wages, hours and working conditions for em-
ployees therein.
We further request, that such meeting be held at 1:30 p.m. on the above
named day.
At 1:30 p.m. on November 30, Sullivan and Jordon called upon Williams and re-
quested him to negotiate a contract. Williams, without questioning the validity of
the card check nor the Union's majority status, stated "I'll sign a contract if Mrs.
Ash will." When Jordon said, "O.K. let's go over to Mrs. Ash's place and we'll talk
to her about it," Williams said he could not leave the store but that he would tele-
phone Ash.
Sullivan and Jordon then called upon Ash and informed her that they had just
left Williams and that he had stated he would sign a contract with the Union if she
would do likewise. When Ash stated, "Now, I don't believe he made a statement
like that," Jordon suggested that she telephone Williams and verify the statement.
Ash then left Sullivan and Jordon, presumably to telephone Williams. When she
returned she said that she would not sign any contract.
On December 3 or 4, Jordon and Sullivan were advised by Clarence Ward, Re-
spondent's then counsel, that he intended to advise Respondent that it would be all
right to execute the contract submitted by the Union as far as the legality of the
instrument was concerned. He also told them that he had not been given any
authority to negotiate a contract on behalf of Respondent.
Sometime between December 4 and 10, the Union was advised by Williams that
the matter was in the hands of Eli A. Weston, its present counsel.
On or about December 10, the Union placed a picket line at Respondent' s store
which was still there at the time of the hearing.
Under date of December 15, Jordon wrote Williams as follows:
Reference is made to the cross-check, held by the Idaho State Labor Com-
missioner, proving majority representation by the Local Union for collective
bargaining concerning the employees within your store.
In view-of the above, it is requested that you or a bonafide representative of
your Company meet with us for the purpose of negotiating an agreement cover-
ing wages, hours and working conditions, for the employees in your store on
Friday, December 18, 1959 at 10 a.m. in the AFL-CIO Labor Temple, 613
Idaho Street, Boise, Idaho, Room 201.
We request that the Company refrain from granting any wage increases, mak-
ing any promotions, shortening the work day or work week, laying off of any
employees, or taking any other action that would influence the thinking of the
employees as to being represented by the Retail Clerks Union, until the question
of representation is absolved and a working agreement has been signed.
Under date of December 22, Respondent's present counsel telegraphed the afore-
mentioned field examiner of the Board's Nineteenth Regional Office as follows:
Re Ash Market 2494. Employer requests immediate election covering both
retail clerks and meat cutters preferably as one unit and seeks petition asking
Board to enjoin picketing on grounds among others picketing has induced indi-
viduals employed by other employers to refuse to pick up or deliver goods in
the course of his employment and refuse to perform services. Request immedi-
ate action.
The record indicates that prior to December 22 the Union filed a representation
petition (Case No. 19-RC-2494). With respect to said petition Respondent's present
counsel wrote, under date of December 24, the aforementioned field examiner as
follows:
As per your request, I enclose herewith list of employees including the meat
market but excluding the bookkeeper and manager. I have filled out the perti-
nent parts of the questionnaire. You have the firm name as listed in the tele-
phone book and the store has retail sales exceeding $500,000 per year. They
do no defense work.
We are asking for an immediate election under the provisions of the new
law but do not wish to sign the usual form of consent agreement inasmuch as
it precludes the employer from certain rights which we think should be pro-
tected.
For your information there has been no legal consent to a cross check for
the purposes of collective bargaining although we admit that a representative
ASH MARKET AND GASOLINE 651
from the State Department of Labor asked for written permission to see our
payrolls, which we granted . The State of Idaho has no authority to conduct a
cross check as we interpret the law . It is our position that any actions taken
by the State of Idaho are void.
On or about March 5, 1960 , Respondent filed a representation petition wherein
it alleged that "All employees including clerks, checkers , meat cutters and non-
supervisory personnel" compose the appropriate unit. The petition further alleged
that eight employees comprise the unit.
On March 15, 1960, about 30 days after the issuance of the complaint herein, Re-
spondent had its accountant conduct an "election" among its employees . The record
is silent as to who voted, the question posed , and the results thereof.12 After the
"election ," the accountant sent the Union a letter , the contents of which are not
revealed in the record , which was signed by seven employees , including Margaret
Brown, Marvin Baxter , Guy Miller, Blanche Smith , and Don Fialkowski.
4. Concluding findings as to the refusal to bargain
Uncontroverted credible evidence establishes that as of November 23 or 24, when
Sullivan and Jordon called upon Williams and , after reminding him that the card
check revealed that the Union represented a majority of the employees in the ap-
propriate unit , requested him to negotiate a contract on behalf of those employees,
the Union , in fact, had been designated by a majority of said employees in the ap-
propriate unit as their collective-bargaining representative . The fact that Respondent
knew of the Union 's majority status is not open to dispute for not only was it advised
thereof by the State labor commissioner but Williams verified that fact by questioning
his employees . Under the circumstances , Respondent was under a statutory duty to
recognize the Union as the exclusive representative of the employees in the ap-
propriate unit and to deal with it as such representative.
In its answer to the complaint herein , Respondent admitted that the Union re-
quested it to bargain collectively and it refused to do so. The reasons for its re-
fusal, as set forth in said answer, are : (1) The Union does not represent Respond-
ent's employees ; (2) the Board 's Regional Director refuses to conduct an election
for the purpose of determining the bargaining representative of the employees in
the appropriate unit; (3) the Board, although requested to do so, refuses to enjoin
the picketing ; and (4 ) the Board , in order to deprive Respondent of its statutory
rights, entertained the charge filed herein by the Union, even though it knew that
the picketing was violative of the Act and that a proper determination of the bar-
gaining representative has not been made.
It goes without saying that an employer may in good faith insist on a Board
election as proof of the Union's majority but an employer unlawfully refuses to
bargain if its insistence on such an election is motivated , as here, not by any bona
fide doubt as to the Union's majority, but rather by a rejection of the collective-
bargaining principle.
The Trial Examiner finds no merit in Respondent's contentions that the Union
did not, at the time it demanded recognition and requested Respondent to bargain
collectively with it for the clerks, represent those employees and that the unit
composed solely of clerks is not appropriate . Not until about mid-December did
Respondent raise those issues. In addition , the dealings between the parties makes
it doubtful that Respondent could have had any doubt about the unit sought to be
represented by the Union or about the Union's majority status. Not only is this
finding supported by the results of Coffey's card check but by (1) Williams'
statement to Coffey on November 19 to the effect that a card check was useless
because he knew that a majority of the employees had agreed to join the Union;
( 2) Williams' statement to Sullivan and Jordon on November 23 or 24 that he knew
that the Union represented a majority of the clerks because he had questioned
them; and ( 3) Williams' statement to Sullivan and Jordon, prior to the card
check, that he knew that the meatcutters had their own union thereby conveying
the impression that he was in agreement with the Union's position that the meat-
cutters should be excluded from the appropriate unit.
Respondent 's contention that Coffey's card check should be disregarded because,
under the circumstances , the State labor commission had no authority to conduct
it is likewise without merit or substance . The question is not whether the com-
12 Respondent 's brief states , "The testimony does show that the employer , at the request
of the employees , conducted a secret ballot election with a vote showing 6 to 2 against the
union representation. .. .
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mission had the statutory authority to conduct the card check, for the General
Counsel is not relying on any certification by the commissioner to prove the Union's
majority status or to prove that the unit of clerks is the appropriate unit. The
evidence was introduced, so far as the record discloses, for the sole purpose to show
Respondent's knowledge of the Union's majority status in the appropriate unit.
As to the several other contentions of Respondent, raised in its answer, or at the
hearing, or in its brief, they have been disposed of by what has heretofore been said
or have been considered and found to be without merit.
Upon the record as a whole, the Trial Examiner finds that on or about November
23, and at all times thereafter, Respondent, in violation of Section 8(a)(5) of the
Act, failed and refused to bargain collectively with the Union as the duly designated
representative of the majority of the employees in the unit hereinabove found ap-
propriate, thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The Trial Examiner further finds that Respondent violated Section 8(a)(1) by
conducting the March 15, 1960, "election." While the issue was not raised by the
complaint it was nevertheless litigated by the parties. In fact, the issue was first
raised by Respondent and heavily relied upon by it in attempting to prove that the
employees do not want to be represented by the Union. Moreover, in his oral
argument, at the close of the hearing, in which Respondent's counsel also par-
ticipated, the General Counsel requested the Trial Examiner to find the conduct of
the aforesaid "election" to be violative of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) and (5) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent, on or about November 23, 1959, and at all times
thereafter, has refused to bargain collectively with the Union as the representative
of the employees in an appropriate unit, the Trial Examiner will recommend that
Respondent, upon request, bargain collectively with said Union as the exclusive
representative of all employees in the unit heretofore found appropriate, and, if an
agreement is reached, embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
3. Since November 19, 1959, the Union has been, and now is, the exclusive rep-
resentative of all Respondent's employees in the following unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act:
All Respondent's employees including grocery clerks, produce clerks, checkers,
and gasoline attendants, but excluding meatcutters, wrappers, manager, assistant
manager, office clerical employees, guards, and supervisors as defined by the Act.
4. By refusing since on and about November 23, 1959, to bargain collectively
with the Union, as the exclusive representative of the employees in the appropriate
unit, which had been selected and designated as such representative for the
purposes of collective bargaining, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5) of the Act
5. By conducting a secret ballot election on March 15, 1960, for the purpose of
ascertaining the employees' union sympathies and affiliation, Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
DURO FITTINGS COMPANY 653
6. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Duro Fittings Company and International Union , United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL-CIO. Case No. 21-CA-3853. February 23,
1961
DECISION AND ORDER
On August 4, 1960, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed a brief in support of and the Respondent filed exceptions to the
Intermediate Report, together with a supporting brief.'
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
1 The Respondent also filed motions which were opposed by the General Counsel to set
aside the Intermediate Report and Recommended Order, and remand the case to the
Regional Office for further hearing because ( 1) Respondent 's case was allegedly prejudiced
because Kenneth M Schwartz , counsel for the Charging Party, had represented the General
Counsel in an earlier proceeding against Respondent , and was still in the employ of the
General Counsel during the investigation of the instant proceeding ; and (2 ) the Trial
Examiner refused to receive in evidence tape recordings of numerous bargaining con-
ferences held by the parties between January 7 and August 6, 1959. We find no merit in
either of these contentions . As to ( 1), we find no basis for disqualifying the attorney
for the Charging Party, nor do we believe that Respondent 's case was prejudiced by his
participation . It appears that when the charge upon which the instant complaint is based
was filed, Mr Schwartz was not in the employ of the General Counsel . Moreover, no
objection to his participation in the case was raised at the hearing . As to ( 2), the record
shows that the tapes of at least two of the bargaining sessions were admittedly garbled.
In all the circumstances and as the Board has heretofore held that it is ordinarily re-
luctant to accept dictaphone tapes and /or transcriptions thereof as being accurate because
of the mechanical possibility that they might be altered , Walton Mfg. Co., 124 NLRB
1331, 1333 , the Chairman and Member Fanning find that the Trial Examiner did not abuse
his discretion in denying their admission into evidence . Member Kimball would find that
tape recordings of bargaining conferences held by the parties would be admissible if proper
foundation therefor had been laid , and further that their accuracy or inaccuracy goes to
the weight to be accorded such recordings and not to the question of their admissibility.
See Cape v . U.S., 283 F. 2d 430, 435 (CA. 9).
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Leedom and Members Fanning and Kimball].
130 NLRB No. 71.