Canteen Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1973

202 N.L.R.B. 767 (N.L.R.B. 1973)

CANTEEN CORPORATION 767
Canteen Corporation and Local P-653, Meat, Food
and Allied Workers Union a/w Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO and Bartenders , Cooks, Cafeteria, Lun-
cheonette and Soda Fountain Workers , Local 131,
a/w Hotel, Restaurant and Bartenders Internation-
al, AFL-CIO. Cases 22-CA-4936 and 22-CA
-5020
March 28, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 16, 1972, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Local 131 i
filed a brief in support of the said Decision.
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, findings,
and conclusions of the Administrative Law Judge2
and to adopt his recommended Order only to the
extent consistent herewith.
While we agree with the Administrative Law Judge
that Respondent did not violate the Act through the
actions and statements of Victoria Busechio, we
disagree with his dismissal of the allegations in the
complaint based upon the conduct of Respondent's
district manager, Stanley Smith. In our view, Smith,
an admitted supervisor, violated the Act both on
March 1, 1972,3 during his address to 13 assembled
employees, and again on March 11, 1972, during his
conversation with employee Laura Cox.
1. Our disagreement with the Judge over the
propriety of Smith's March 1 address to the employ-
ees stems principally from our conclusion that the
Judge improperly discredited the testimony of
employee Lillie Rogers.
Rogers was hired by Respondent as a cashier in
February, shortly after its Gateway II cafeteria
opened for business. By the time of the hearing in
September, Rogers had been elevated to the position
of head cashier and testified pursuant to a subpena
issued by the General Counsel.
Rogers testified that District Manager Smith
arranged to meet with the employees during the
afternoon of March 1 in the dining area of the
cafeteria. The meeting was attended by approximate-
ly 13 employees; a number of topics were discussed,
including the presence of organizers for Local 131.
According to Rogers, Smith informed the employees
that "[t]he union men [were] downstairs and those
who signed the card would have more seniority than
those . . . that didn't sign the card. And those who
didn't sign the card, they would have to quit work."
In addition, Smith held up a card during the course
of his address which he represented as being a union
authorization card.
In expanding upon this testimony, Rogers stated
that she equated "seniority" with acquiring "a better
position," and understood Smith's comments to
mean that if the Union acquired majority support,
those employees who failed to execute authorization
cards would be forced to quit their jobs. Rogers
further testified that, although Smith did not specify
which union was then organizing on Respondent's
premises,4 and did not specifically order any of the
employees to sign union cards, his speech neverthe-
less did influence her to sign an authorization card
on behalf of Local 131 soon after the meeting ended.
In addition to Rogers, 11 other employees executed
Local 131 authorization cards on the day of Smith's
speech.5
The above testimony of Lillie Rogers was entirely
discredited by the Administrative Law Judge on the
ground that it "was so vague, contradictory, and
uncorroborated, as to make it unworthy of accept-
ance." Accordingly, the Judge found that Respon-
dent did not violate the Act by virtue of Smith's
speech since "Smith did not make the remarks
attributed to him by Rogers on March 1."
Insofar as the lack of corroboration is concerned,
the absence of such evidence in the record to
corroborate Rogers' testimony, is, in our Judgment,
explained by the rulings of the Administrative Law
Judge. On two separate occasions, efforts by the
General Counsel to introduce corroborating testimo-
ny were effectively foreclosed by the Judge. In the
first such instance, the General Counsel placed
employee Frances Mickens on the witness stand for
the expressed purpose of, inter alia, corroborating
Rogers' testimony regarding Smith's address to the
employees. Following nine introductory questions,
the Judge inquired as to whether Mickens' testimony
was going to be corroborative of testimony already
I Bartenders, Cooks, Cafeteria, Luncheonette and Soda Fountain 3 Unless otherwise noted, all dates herein refer to calendar year 1972
Workers, Local 131, Hotel, Restaurant and Bartenders International, • 4 The record indicates that Local 131 was the only union seeking to
AFL-CIO represent Respondent's employees at the time of Smith's speech
2 The Administrative Law Judge made certain inadvertent errors in his 5 Of the 23 cards which were signed for Local 131, 12 were signed on the
Decision which are hereby corrected day of Smith's address to the employees, and I I were signed subsequently
202 NLRB No. 104
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presented by Rogers. Upon receiving an affirmative
answer from the General Counsel, the Judge replied:
"I think it is a waste to time. There is nothing yet that
has put into issue the testimony . . . with regard to
Smith." At the Judge's suggestion, the General
Counsel thereupon rested his case in chief and
reserved all corroborating witnesses for rebuttal.
In presenting its defense, Respondent offered no
evidence whatsoever regarding Smith's March 1
address. Although Smith had been subpened by the
General Counsel, and was available at the hearing,
he was not called upon to testify.6 When Respondent
rested its case, the General Counsel again informed
the Judge that other witnesses, including Frances
Mickens, were available to corroborate Rogers'
earlier testimony regarding Smith's March 1 speech.
The Judge's response indicates that he considered
further testimony to support an uncontradicted prima
facie case to be unnecessary. He stated: "Well, there
isn't any countervailing evidence. There is no
opposition evidence to whatever attack this company
made frontally on the drive or obliquely . . . . So
whatever Miss Mickens testified to would be cumula-
tive. The testimony of the preceding witnesses is
uncontroverted." In view of these comments, the
General Counsel refrained from introducing any
further corroborating testimony at the hearing. We
are, therefore, not persuaded by the Judge's argu-
ment that the testimony of Lillie Rogers should be
discredited on the ground that it is uncorroborated
when it is clear that the absence of such corroborat-
ing evidence must be attributed to restrictive eviden-
tiary rulings made at the hearing by the Judge
himself.
While Lillie Rogers' testimony may be uncorrobo-
rated because of the Judge's rulings, it is also
completely uncontradicted. In addition, we do not
agree with the Judge that Rogers' testimony was
vague and contradictory and therefore unworthy of
acceptance. Instead, we view Lillie Rogers' testimony
as being entirely reasonable and credible. First, the
Judge notes in his Decision that Rogers initially
testified that Smith "called" the March 1 meeting,
but subsequently stated in her testimony that she
could not recall who had "summoned" the employ-
ees. Rather than being contradictory, however, this
testimony merely indicates an awareness on the part
of Rogers, on the one hand, that the meeting had
been arranged or requested by Smith (the only
speaker), but a lack of awareness, on the other hand,
as to the particular individual who actually sum-
moned her to join the other employees then congre-
gating in the cafeteria.
Second, the Judge asserts that Rogers first testified
that the Union was the only topic of discussion at the
meeting and then subsequently modified this posi-
tion by stating that other topics (the substance of
which she could not recall) were also discussed. An
examination of the record does not reveal any
statement by Rogers that the Union was the only
subject of conversation during the meeting. Indeed,
Rogers acknowledged that she did not pay any
attention to Smith's speech "until he started talking
about the union."
Third, as noted above, Rogers testified that during
Smith's speech to the employees, he displayed a card
in his hand which he represented as being a union
authorization card. The Judge concluded that Rog-
ers' testimony in this regard was unreliable in view of
her admission that she was unable to actually see the
card from her vantage point in the cafeteria.
However, an admitted inability to physically see the
authorization card does not necessarily undermine
the statement that one was actually displayed in view
of Smith's verbal representation to the employees
that the item which he held in his hand "was one of
the cards you signed for the Union."
Fourth, according to the Judge, Rogers "admitted"
that "Smith did not tell the assemblage to sign the
card and that Smith did not threaten any employee
with discharge if she failed to execute a designation."
Our examination of the record discloses no assertion
by Rogers that Smith ever specifically told or
instructed the employees to sign cards. Moreover,
Rogers never claimed, nor did the General Counsel
ever allege, that Smith threatened the employees with
discharge for failure to execute Local 131 authoriza-
tion cards.
Fifth, the Judge observes that during her testimony
Rogers replied affirmatively to the following ques-
tion from Respondent's counsel: "Did Mr. Smith say
if you wanted you could sign cards?" According to
the Judge, this answer was modified by Rogers when
she "recanted and allowed as how no mention was
made by Smith about signing cards." We can find no
basis in the record for finding such a recantation.
Rogers' testimony, considered as a whole, clearly
indicates that the question of executing authorization
cards was very much a primary subject of discussion
during Smith's address.
Finally, the Judge pointed out that employees
Ambrose and Mickens, both of whom were called as
witnesses by the General Counsel and both of whom
Rogers cited as being in attendance at the March 1
meeting, either did not testify about, or could not
recall, any meeting with Smith. The record indicates
that Ambrose testified before Rogers and about an
entirely unrelated incident. Ambrose did state,
6 For reasons which remain undisclosed, Smith left Respondent's employ
prior to the hearing
CANTEEN CORPORATION 769
however, that she recalled a meeting of employees
being held, although she could not recall the precise
date on which it had occurred. With respect to
employee Mickens, the record clearly indicates, as
discussed above, that the corroborating testimony
which she was apparently prepared to offer was
foreclosed on two separate occasions by the Judge
himself.
In analyzing the above-described reasons relied on
by the Judge asjustification for refusing to credit the
testimony of Lillie Rogers, it should be emphasized
that each reason is based upon his analysis of the
content of her testimony. None of the reasons which
he advances is based upon her demeanor as a
witness. Our policy, as enunciated in Standard Dry
Wall Products, Inc., 91 NLRB 544, is to attach great
weight to a Judge's credibility findings insofar as
they are based on demeanor. However, to the extent
that credibility findings are based upon factors other
than demeanor, as in the instant case, the Board
itself may proceed with an independent evaluation.
Valley Steel Products Co., 111 NLRB 1338.
On the facts of this case, our evaluation leads us to
conclude that the Judge's credibility findings regard-
ing Lillie Rogers must be reversed. Although uncor-
roborated as a result of restrictive evidentiary rulings,
her testimony regarding the substance of Smith's
address to the employees stands uncontradicted and
unimpeached. Respondent could have, but failed, to
introduce witnesses, including Smith himself,7 to
rebut her testimony. In view of the fact that no
reason for Smith's failure to testify was offered, and
since Smith was better qualified than anyone else to
refute Rogers' testimony, if it were inaccurate, we
may, under the circumstances, infer that the testimo-
ny which he would have given would have been
unfavorable to Respondent's defense of the allega-
tions based upon his March 1 statements. Goodyear
Tire & Rubber Company Highway Transportation
Department, 190 NLRB No. 15; United Mineral &
Chemical Corporation, 155 NLRB 1390.
Accordingly, we find that District Manager Smith
did make the remarks on March 1 attributed to him
by Lillie Rogers, and that Respondent thereby
violated Section 8(a)(1) and (2) of the Act. In our
view, Smith's statements amount to an urging and
soliciting of employees to sign authorization cards
for and to join Local 131, and a promising of
economic and employment benefits to such employ-
ees for signing such cards and embracing Local 131
membership. Since we find that the 12 authorization
cards signed on March 1 were tainted by Smith's
speech, at no time has Local 131 represented an
uncoerced majority of Respondent's employees.
2. We also find, contrary to the findings of the
Administrative Law Judge, that the conversation
which District Manager Smith had with employee
Laura Cox on March 11 was violative of Section
8(a)(1) and (2) of the Act. According to the
uncontradicted testimony of head cashier Cox, she
approached Smith in his office on March 11 and
inquired as to her eligibility for a raise in pay. Smith
replied that pursuant to Respondent's then-existing
agreement with Western Electric, pay increases for
employees could not be implemented at that time.
Smith then informed Cox that: (1) the only way she
could get a raise was to join "the union," (2) by
joining "the union" she would also become entitled
to various fringe benefits including Blue Cross and
Blue Shield insurance coverage, and (3) once "the
union" became established and executed a contract,
the employees "[w]ould all get a raise . . . to what
[they] were supposed to be making ... ." Smith
then advised Cox that there were union organizers
downstairs distributing authorization cards to inter-
ested employees. Shortly thereafter Cox executed an
authorization card for Local 131.
The Judge, while crediting the above testimony,
nevertheless concluded that Smith's remarks did not
constitute an unlawful urging and soliciting of
membership in Local 131 and did not constitute a
promising of economic and employment benefits in
exchange for becoming a member of that organiza-
tion. We do not agree. Smith's remarks quite clearly
were intended to, and did, convey to Cox the
impression that the employees' only access to
justified pay increases and fringe benefits was
through "the union." Having laid this foundation,
Smith then informed Cox that union organizers were
currently in the building for the purpose of enlisting
new members. Since Local 131 was the only labor
organization seeking to represent Respondent's
employees on March 11, Smith's comments could
only have been made with reference to that union.
That Smith's comments had their intended impact
is clearly reflected in Cox's testimony to the effect
that she executed the card "for more money," that
she would not have signed the card had she not
talked with Smith, and that in executing the card she
explicitly relied on Smith's representation that the
Union "will" give the employees a pay raise plus
Blue Cross and Blue Shield. In view of this
undisputed testimony, we find that Smith's state-
ments to Laura Cox on March 11, as with his March
1 speech to employees, violated Section 8(a)(1) and
(2) of the Act and thereby tainted her authorization
card.8
3. As noted earlier, we find that Local 131 at no
r As noted earlier, Smith was present in the sequestration area during the
hearing but was not called by Respondent as a witness
R In view of our finding that Smith's March I address to the employees
and March 1 I conversation with Laura Cox tainted a total of 13 out of 23
(Continued)
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time represented an uncoerced majority of unit
employees. Accordingly, Respondent's execution of
a written recognition agreement with Local 131 on
March 23, 1972, and subsequent execution of a
collective-bargaining agreement with Local 131 on
May 22, 1972, constitute additional violations of
Section 8(a)(1) and (2) of the Act. Niagara Frontier
Services, Inc., 186 NLRB No. 107; cf. ILGW
(Bernhard-Altmann Texas Corp.) v. N.L.R.B., 366 U.S.
731. Moreover, by entering into, enforcing, and
maintaining the union-security provision in the May
22 contract, Respondent thereby discriminatorily
encouraged membership in Local 131, and discour-
aged membership in Local P-653,9 in violation of
Section 8(a)(3) and (1) of the Act.10 Department Store
Food Corp. of Penna., 172 NLRB No. 129.
CONCLUSIONS OF LAW
1. By urging and soliciting employees at its
Gateway II facility in Newark , New Jersey , to sign
authorization cards for and to join Local 131, and by
promising economic and employment benefits to
such employees if they sign authorization cards and
join Local 131, Respondent , by its District Manager
Stanley Smith , has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (2) of the
Act.
2. By recognizing Local 131 as the employees'
exclusive bargaining representative on March 23,
1972, at a time when Local 131 was not the freely
designated bargaining representative of a majority of
the employees in the unit , by executing a collective-
bargaining agreement containing a union-security
provision with Local 131 on May 22, 1972, and by
thereafter enforcing and maintaining said agreement,
Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1), (2), and (3) of the Act.
3. The aforesaid unfair labor practices by Re-
spondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Except as found above, Respondent has not
engaged in any other unfair labor practices alleged in
the complaint.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices within the meaning of
authorization cards in a unit of 35 employees , the Union has at no time
represented an uncoerced majority and it is therefore unnecessary for us to
determine whether Smith ' s conduct also tainted the remaining 10 cards
executed on March 15
9 Local P-653, Meat, Food and Allied Workers Union , a/w Amalgamat-
ed Meat Cutters and Butcher Workmen of North America , AFL-CIO.
Charging Party herein
10 Having found that Respondent violated Sec 8(a)(I), (2), and (3) of the
Section 8(a)(1), (2), and (3) of the Act, we will order
that Respondent cease and desist therefrom and take
certain affirmative action which will effectuate the
policies of the Act.
Moreover, having found that Respondent violated
Section 8(a)(1) and (2) of the Act by granting
exclusive recognition to Local 131 on March 23,
1972, at a time when Local 131 did not represent a
free, unassisted, or uncoerced majority of the unit
employees, and further violated Section 8(a)(1), (2),
and (3) of the Act by executing a collective-bargain-
ing agreement containing a union-security provision
with Local 131 on May 22, 1972, and thereafter
maintaining and enforcing said agreement, including
the union-security provision, we will order that
Respondent withdraw and withhold recognition
from Local 131 as the representative of any of its
employees at the Gateway II facility, Newark, New
Jersey, and cease maintaining or giving any force or
effect to the collective-bargaining agreement execut-
ed on May 22, 1972, or to any modification,
extension, renewal, or supplement thereto, unless and
until Local 131 has been duly certified by the
National Labor Relations Board as the exclusive
representative of such employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Canteen Corporation, Newark, New Jersey, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving assistance and support to Bartenders,
Cooks, Cafeteria Luncheonette and Soda Fountain
Workers, Local 131 a/w/ Hotel, Restaurant and
Bartenders International, AFL-CIO, or to any other
labor organization, by urging and soliciting employ-
ees to sign authorization cards for and join such
organization, by promising economic and employ-
ment benefits to such employees if they sign
authorization cards for and join such organization or
by any other conduct proscribed by the Act, and
from granting exclusive recognition to and executing
a contract with any labor organization which does
not represent a free, unassisted , or uncoerced
majority in the appropriate unit.
(b) Recognizing the above-named labor organiza-
tion as its employees' exclusive representative for
Act by engaging in the aforesaid conduct at a' time when Local 131 did not
represent an uncoerced majority of Respondent 's employees , it is unneces-
sary for us to consider the General Counsel's alternative contention;that
said conduct of Respondent was also unlawful on the grounds that it
occurred at a time when Respondent had knowledge that a real question
concerning representation had been raised by the filing of a representation
petition by Local P-653 on May 12
CANTEEN CORPORATION
collective-bargaining purposes unless and until the
National Labor Relations Board shall certify it as
such representative.
(c) Maintaining or giving any force or effect to the
collective-bargaining agreement executed with the
above-named labor organization on May 22, 1972, or
to any modification, extension, renewal, or supple-
ment thereto, provided, however, that nothing herein
shall require Respondent to vary or abandon any
wage, hour, seniority, or other substantive feature of
its relations with its employees which has been
established in the performance of this agreement, or
to prejudice the assertion by employees of any rights
they may have thereunder.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities or other mutual aid or
protection, or to refrain from any or all such
activities, except to the extent that such right is
affected by the provisos in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Bartenders, Cooks, Cafeteria Luncheonette and Soda
Fountain Workers, Local 131 a/w Hotel, Restaurant
and Bartenders International, AFL-CIO, as the
collective-bargaining representative of any of its
employees at its Gateway II facility, Newark, New
Jersey, for the purpose of dealing with the Respon-
dent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other terms
and conditions of employment, unless and until the
Board shall certify said labor organization as such
representative.
(b) Post at its Gateway II facility, Newark, New
Jersey, copies of the attached notice marked "Appen-
dix." li Copies of said notice, on forms provided by
the Regional Director for Region 22, after being duly
signed by Respondent's authorized representative,
shall be posted by it 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 by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges that
771
Respondent has engaged in any unfair labor prac-
tices other than those found herein.
11 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to
Bartenders, Cooks, Cafeteria, Luncheonette and
Soda Fountain Workers Local 131, a/w Hotel,
Restaurant and Bartenders International,
AFL-CIO, or to any other labor organization.
WE WILL NOT recognize the above-named labor
organization as the exclusive representative of our
employees for the purposes of collective bargain-
ing unless and until it has been selected by our
employees in an election conducted by the
National Labor Relations Board.
WE WILL NOT give any force or effect to the
collective-bargaining agreement, executed May
22, 1972, with the above-named labor organiza-
tion, or to any modification, extension, renewal,
or supplement to said agreement, but WE WILL
NOT vary or abandon the wages, hours, seniority,
or other substantive provisions in such agreement.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of
either the above-named labor organization or of
Local P-653, Meat, Food and Allied Workers Union,
a/w Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, or of any other
Union.
CANTEEN CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, 16th Floor, 970
Broad Street, Newark, New Jersey 07102, Telephone
201-645-2100.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
MAx ROSENBERG , Administrative Law Judge - With all
parties represented , this proceeding was tried before me in
Newark , New Jersey , on September 21, 1972, on an
amended complaint filed by the General Counsel of the
National Labor Relations Board and an amended answer
filed thereto by Canteen Corporation , herein called the
Respondent , and by the Party to the Contract , Bartenders,
Cooks, Cafeteria , Luncheonette and Soda Fountain Work-
ers, Local 131 , a/w Hotel , Restaurant and Bartenders
International , AFL-CIO, herein called Local 131.1 The
issues raised by the pleadings relate to whether Respondent
violated Section 8(a)(1), (2), and (3) of the National Labor
Relations Act, as amended , by certain conduct to be
detailed hereinafter . Briefs have been received from the
General Counsel , Local 131 , and Respondent which have
been duly considered.2
Upon the entire record made in this proceeding,
including my observation of the witnesses who testified, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. BUSINESS OF THE EMPLOYER
Respondent maintains its principal office and place of
business at The Merchandise Mart, Chicago, Illinois, and
at various other facilities in the States of New Jersey and
New York, including the Western Electric Company
cafeteria at Gateway 2, Newark, New Jersey, and, at all
times material herein, has engaged at the Gateway 2
installation in providing and performing retail cafeteria
and restaurant services. Respondent's Newark facility is
the only place of business involved in this proceeding.
During the annual period material to this proceeding,
Respondent received gross revenues valued in excess of
$500,000. During the same period, Respondent shipped
and transported products valued in excess of $50,000 from
its place of business in interstate commerce directly to
States of the United States other than the State of New
Jersey. Accordingly, I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 131 and Local P-653, Meat , Food and Allied
Workers Union , a/w Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, the
Charging Party, herein called Local P-653, are labor
organizations within the meaning of Section 2(5) of the
Act.
I The complaint, which issued on August 16, 1972, is based upon charges
filed and served in Case 22-CA-4936 on May 22, 1972, and charges and
amended charges filed and served in Case 22-CA-5020 on July 18, 1972,
and July 21, 1972
2 In a posthearmg motion concurred in by all the parties, the General
III. THE ALLEGED UNFAIR LABOR PRACTICES
The amended complaint alleged that Respondent violat-
ed Section 8(a)(1) of the Act when, on March'1 and 11,
1972,3 Supervisor Stanley Smith promised its employees
economic and employment benefits if they executed
authorization cards on behalf of Local 131, and urged and
solicited them to do so, and, again on March 15, when
alleged Supervisor Victoria Busechio interrogated employ-
ees to ascertain whether they had signed designations in
favor of Local 131 and urged and solicited them to engage
in this activity. The complaint further alleged that
Respondent violated Section 8(a)(2) by entering into a
collective-bargaining agreement with Local 131 on May 22,
at a time when Local 131 did not represent an uncoerced
majority of Respondent's employees and while a question
concerning representation existed. Finally, the complaint
alleged that Respondent offended the provisions of Section
8(a)(3) by executing the contract on May 22 which
contained a union-security clause, thereby encouraging
membership in Local 131 and discouraging membership in
Local P-653. Respondent denied the commission of any
labor practices proscribed by the Act.4
Sometime prior to February, Respondent negotiated a
contract with Western Electric Company whereby the
former was accorded the right to maintain and operate the
food service facility at Gateway 2 in Newark, New Jersey.
The facility was formally opened in February, and various
classifications of employees were interviewed and hired by
Joseph Heck and Stanley Smith, the district managers of
Respondent. Shortly thereafter, Local 131 embarked upon
an organizational drive to enlist the collective support of
Respondent's employees. It is undisputed and I find that,
between March 1 and March 15, Local 131 obtained 23
signed authorizations in a unit which concededly num-
bered no more than 35 individuals. On March 7, Local 131
dispatched a letter to Respondent claiming representation-
al rights. Local 131 submitted its cards to Respondent for
inspection on March 20. On March 23, following a check
by Respondent's officials of the signatures on the designa-
tions with the companion signatures on the applications for
employment, Respondent became convinced that the
signatures on the cards were genuine and thereupon
extended recognition to Local 131 as the exclusive
representative of the unit employees. Sometime between
April 15 and May 1, Local P-653 entered the picture and
mounted its own organizational campaign. This culminat-
ed on May 12 when Local P-653 filed a petition with the
Board in Case 22-RC-5325 requesting an election. In the
meantime, Local 131 and Respondent entered into
bargaining relations which, on May 22, produced a labor
agreement containing, inter aka, a valid union-security
clause. On the same date, Local P-653 lodged the initial
unfair labor practice charges which triggered this litigation.
The General Counsel does not dispute that, on May 22,
Local 131 possessed 23 cards in a unit of 35 individuals, a
figure which assuredly represented a majority. Rather, he
Counsel requested that an exhibit marked as GC 2a be received in
evidence The motion is hereby granted
J Unless otherwise indicated, all dates herein fall in 1972
4 Local 131 filed an answer taking a position paralleling that of
Respondent
CANTEEN CORPORATION 773
asserts that a number of the cards bore the taint of certain
misconduct indulged in by Supervisors Stanley Smith and
Victoria Busechio which voided the designations and
destroyed any claimed majority by Local 131. I first turn to
a consideration of Busechio's alleged supervisory status
and her conduct against which the General Counsel
complains.
Busechio was hired by Respondent on February 24 as a
head salad girl. On March 1, she executed an authorization
on behalf of Local 131. The only testimony elicited by the
General Counsel regarding Busechio's status came from
employees Carolyn Ambrose and Laura Cox. Ambrose
was employed in February and worked in the salad
department where she prepared salads and desserts,
washed vegetables, and cleaned the area. Ambrose testified
that, when she was hired, she was informed by District
Manager Stanley Smith, and, later, by Assistant Manager
Sy Rothman, that Busechio "would be my supervisor."
Ambrose signed Local 131's authorization card on March
1. She further testified that, on the same day, she asked
Busechio whether the latter "was going to sign and she said
she didn't know because she didn't know whether
supervisors are supposed to join up with the unions."
Despite this testimony, the record discloses that Busechio
executed a card on March 1. In her testimony, Laura Cox
simply stated "Well, [Busechio] is a salad lady. She is, I
guess you say, supervisor of salads." Despite these
generalized characterizations of Busechio's status, the
record is devoid of any evidence that she either possessed
or exercised any of the statutory indicia of supervisory
authority. Thus, it is uncontroverted that Busechio had no
authority to hire, discharge, or promote employees in her
department, and even Ambrose acknowledged that she had
never observed Busechio discipline any girl. Busechio
merely trained the salad girls in the performance of their
duties and engaged in the same manual work as the other
salad personnel. When Busechio was absent from work, the
salad girls would follow a standard "cycle menu" to
prepare for the meals. In addition, Busechio was carried on
an employee payroll, received no supervisory fringe
benefits, was paid at an hourly rate as were the other
women, and received a wage rate which was substantially
less than that afforded A. Lopez, an employee who signed
a designation card on March 15 and was admittedly in the
unit. Moreover, Busechio's classification of "head salad
girl" is encompassed within the bargaining units contained
in five contracts which Respondent had negotiated with
different local unions. On the basis of the foregoing, I find
and conclude that Busechio was not a supervisor within the
meaning of Section 2(l1) of the Act. I therefore conclude
that Respondent was not responsible for her activities and
utterances, and that Respondent did not offend the
provisions of Section 8(a)(1) or (2) by Busechio's conduct.
However, even assuming that Busechio occupied the role
of a supervisor, I am nevertheless not convinced that she
"urged and solicited" Respondent's employees to join
Local 131 in a manner proscribed by Section 8(a)(2). The
testimony on this aspect of the complaint reveals that, on
March 1, solicitors for Local 131, including an individual
named Meacham, stationed themselves at the entrance of
the building in which Respondent's cafeteria was located.
Sometime during the day, the subject of Local 131's
presence became the topic of discussion between Busechio
and employee Carolyn Ambrose. Mecham's name was
mentioned by Busechio and Ambrose inquired, "Who is
he?" Busechio replied, "He works with the union, you
know, he's a good guy." At this juncture, Busechio asked
whether Ambrose had signed a card for Local 131, and the
latter responded in the affirmative although she had not
yet executed a designation. Following her work shift that
day, and on her own time, Ambrose joined that labor
organization. In Ambrose's words, she signed the card
because "I liked [Busechio] a lot and we used to talk a lot.
So when I talked to her and she told me he was a good guy
and she knew him and she also talked to him, when I .went
downstairs I signed." When questioned as to why she
signed the card, Ambrose stated "No. 1, it is because she
told me that she knew the guy and that he was pretty good,
and No. 2 is because I wanted a union." Ambrose
testimonially added that she executed the authorization
"voluntarily" and that "No one forced me and no one
made me . . . . I signed it because I wanted a union."
In light of Ambrose's testimony, I am hard-pressed to
understand how Busechio's conversation with Ambrose
can be characterized as having "urged and solicited"
Ambrose into joining Local 131. Ambrose clearly indicated
on the stand that she signed with Local 131 because she
desired representation by that organization, I therefore
conclude that, even if Busechio was a statutory supervisor
during the times material herein, her statements to
Ambrose did not constitute the rendition of unlawful
assistance and support to Local 131 within the purview of
Section 8(a)(2), nor do I conclude that such statements
affected the validity of Ambrose's signed designation.
As heretofore chronicled, Stanley Smith is the district
manager of Respondent's Gateway 2 facility and is
concededly a supervisor within the meaning of the Act.
Laura Cox was employed by Respondent as a "head
cashier" in March, and is admittedly an employee covered
by the statute. In the course of her duties, she made
frequent daily trips to Smith's office, with whom she had
been on friendly terms, to convey the cash boxes
containing the daily receipts. Cox testified that, on March
11, she entered Snuth's office and noticed his presence.
Cox asked Smith whether he had time to speak with her
and, after Smith inquired, "What was it," Cox related that
"I don't make no money ... but I am running around
here like a chicken with my head cut off but I don't make
no money." Smith remarked that "In order for you to
make some money we can't give no money right now
because Western Electric told us not to. He said that the
only way I could get a raise was to join the union and get
Blue Cross and Blue Shield and join the union to get a
raise. And he told me the people were downstairs to sign
the card. So I went and signed a card." Cox reported that
she had observed a folded Local 131 designation card on
Smith's desk, but Smith made no reference to this card
during their colloquy. Cox also related that Smith did not
order or otherwise coerce her into signing the authoriza-
tion. When asked whether Smith promised that she would
receive Blue Cross and Blue Shield benefits if she joined
Local 131, Cox answered that Smith told her these benefits
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a raise would be forthcoming, "but he did not say how
much other or what other." However, Cox acknowledged
that she had been a member of other unions , that union
contracts generally provide for these benefits , and that
their award depended solely upon the outcome of
negotiations between her employer and the labor organiza-
tions Cox also revealed that "I'm glad to be a union
member . I keep my card with me." Rounding out her
testimony, Cox stated that after her conversation with
Smith she disclosed its contents to the other girls at the
facility, although she was not directed by Smith to do so.
However, not a single witness summoned in this proceed-
ing supported Cox in this regard.
On the basis of the foregoing evidence , I am not
persuaded that Smith illegally supported and assisted
Local 131 in violation of Section 8(a)(2) by "urging and
soliciting" Cox to join that union , nor am I persuaded that
Smith unlawfully promised Respondent's employees eco-
nomic and employment benefits in violation of Section
8(a)(1) if they embraced Local 131. At the outset, it should
be noted that Local 131 was the only labor organization on
the campaign trails and, so far as appears on this record,
there was no romantic link between it and the Respondent.
When Cox requested a pay increase on March 11, Smith
informed her that Respondent was under contract with
Western Electric Company to provide food services at the
facility. Smith explained that Western Electric was op-
posed to any increase in wages at the time and commented
that these benefits , as well as others , could become
available, under the circumstances , if Respondent was
contractually obligated to a union to provide them. While
Smith mentioned that a union was currently organizing the
employees and the solicitors were stationed downstairs,
Smith neither urged, solicited, nor ordered Cox to join
Local 131. Rather, I find that Cox voluntarily enlisted the
collective representation of that Local because she desired
increased wages and because she "was glad to be a union
member ," a reference to the fact that she had embraced
other unions in order to benefit financially. Moreover, I
am not persuaded that Smith promised Cox certain
benefits if she joined Local 131. As indicated heretofore,
Cox was no stranger to the implications of collective
representation . She knew that benefits were accorded as a
result of the give-and - take of bargaining between employ-
ers and unions, and not by the blandishments of manage-
ment alone Furthermore , I am unable to find that Smith's
statements to Cox tainted her card, or the cards of other
employees in such a manner sufficient to void them as
support for a majority showing. For, it is undisputed and I
find that none of the employees who were called to the
stand by the General Counsel reported that they had any
conversations with Cox concerning her discussion with
Smith. Accordingly, I conclude that Respondent did not
violate Section 8(a)(2) or (1) of the Act by Smith 's conduct
on March 11.
Finally, the General Counsel contends that, on March 1,
District Manager Smith called a meeting of employees at
which he urged them tojoin Local 131 on pain of discharge
and/or not obtaining better positions with Respondent.
The General Counsel argues that this incident , in addition
to offering unlawful support and assistance to Local 131,
also caused the signed authorization cards of the employ-
ees in attendance to be colored by coercion and therefore
made them unreliable in determining the majonty status of
Local 131. In support of this thesis, the General Counsel
drew upon the testimony of employee Lillie Rogers.
Rogers' testimony in this regard was so vague , contradicto-
ry, and uncorroborated, as to make it unworthy of
acceptance . Rogers testified that she was employed by
Respondent in late February. On March 1 , according to
her initial testimony , District Manager Smith called a
meeting of approximately 13 employees , including Frances
Mickens and Carolyn Ambrose . In later testimony , Rogers
could not recall who had summoned the employees . At this
assemblage , Smith held an authorization card in his hand
and said "that the union men were downstairs and those
who signed the card would have more seniority than those
.. . that didn 't sign the card . And those who didn't sign
the card, they would have to quit work ." At first, Rogers
averred that this was the only topic of discussion during
the meeting , but later acknowledged that other topics were
broached by Smith although she could not recall their
content . Moreover , later in her testimony Rogers admitted
that she did not see the card in Smith 's hand , that Smith
did not tell the assemblage to sign the card , and that Smith
did not threaten any employee with discharge if she failed
to execute a designation . Furthermore , at one point,
Rogers insisted that Smith told the employees that "if you
wanted to you could sign cards," but then she recanted and
allowed as how no mention was made by Smith about
signing cards . Finally, Rogers was positive that employees
Ambrose and Mickens were present during Smith's
address. However, Ambrose and Mickens , both of whom
were called as witnesses by the General Counsel , did not
testify about or could not recall any such meeting. In sum,
I do not credit Rogers ' testimony and I therefore find that
Smith did not make the remarks attributed to him by
Rogers on March 1. Accordingly, I conclude that Respon-
dent did not violate Section 8(a)(2) and (1) of the Act by
any conduct of Smith on March 1 . It follows, and I further
conclude, that none of the authorization cards of any
employee of Respondent could have been tainted by any
misconduct of Smith on that date.
I have heretofore found that Respondent did not assist
and support Local 131 in obtaining its majority status in
violation of Section 8(a)(2), and did not otherwise
independently violate the provisions of Section 8(a)(2). I
therefore find and conclude that , on March 20 , when Local
131 submitted its card showing to Respondent, and, again
on March 23, when Respondent extended recognition to
Local 131, the latter possessed 23 valid authorizations in a
unit comprised of 35 employees , a figure which is assuredly
a majority designation . I further find and conclude that, on
May 22, when the Respondent and Local 131 entered into
their collective-bargaining contract containing a valid
union-security clause, the latter remained the majority
representative of the unit employees Consequently, I find
and conclude that, by contracting with Local 131 during
5 Local P-653 did not become active organizationally until at least April
15, approximately a month after the discussion between Smith and Cox
CANTEEN CORPORATION
the pendency of Local P-653's representation petition,
Respondent did not violate Section 8(a)(2), and by
incorporating the valid union-security provision into the
agreement, Respondent did not encourage membership in
Local 131 or discourage membership in Local P-653 in
violation of Section 8(a)(3) of the Act.
6 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
775
Accordingly, I shall recommend that the complaint
herein be dismissed in its entirety.
ORDER6
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes