K-Mart Foods

National Labor Relations Board - Board Decisions

Mar 25, 1968

170 N.L.R.B. 716 (N.L.R.B. 1968)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. W. Inc., d/b/a K-Mart Foods and Retail Clerks
'Union , Local 37, Retail Clerks International As-
sociation , AFL-CIO. Case 25-CA-2538
March 25, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On April 7, 1967, Trial Examiner Eugene F. Frey
issued his Decision in the above-entitled case, find-
ing that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint and recommended that such al-
legations be dismissed. Thereafter, the General
Counsel and Respondent filed exceptions to the
Trial Examiner's Decision and supporting briefs,
the General Counsel filed a brief in support of part
of the Trial Examiner's Decision, and the Respon-
dent filed a brief answering the General Counsel's
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board 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
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
This case involves events arising out of the
Union's 1966 spring organizational campaign at
Respondent's South Bend, Indiana, grocery facili-
ty.'
The campaign began in late May when organizer
Mulkey, who was known to Respondent from the
previous union campaigns, visited the store to talk
with the employees. It ended several weeks later,
with Respondent's receipt on June 17 of the
Union's letter demanding recognition as the bar-
gaining, representative of a majority of employees in
a unit of "all ' employees," excluding all meat de-
partment employees, supervisors, managers, And
guards. Respondent immediately referred , the de-
mand to its attorney, who advised Respondent that
an election would be needed to resolve certain, is-
sues raised by the Union's implicit. inclusion of
delicatessen department employees in the unit
sought.' Accordingly, Respondent on June 21 filed
a petition for an election in a unit similar to that
sought by the Union except for the additional ex-
clusion of delicatessen department employees.
Respondent never ' communicated its doubts as to
the appropriateness of the requested unit directly to
the Union, nor did it ever question the Union's
claim to majority status.
The Regional Director issued the complaint
herein on August 15, and thereafter dismissed the
Employer's petition. The complaint alleged that
Respondent, "in order to undermine the Union and
destroy its majority status," interrogated its em-
ployees about the Union at various times from
April-July 1966 and promised and granted them
wage increases and other benefits in June 1966, in
violation of Section 8(a)(1). It further alleged that
"but for" such conduct and Respondent's unlawful
refusal to recognize and bargain with the Union on
and after June 17 (alleged to be an. 8(a)(1) viola-
tion), the Union would have been the recognized
collective-bargaining representative of Respon-
dent's employees in an appropriate unit. As part of
the requested relief for these various alleged
8(a)(1) violations, the complaint sought the is-
suance of a bargaining order.
Following a hearing at which the parties agreed
to exclude delicatessen employees from the ap-
propriate unit, the Trial Examiner issued his Deci-
sion herein, finding that while Respondent had in-
terrogated its employees on numerous occasions
and had promised and granted them wage in-
creases, the latter conduct had been prompted by
legitimate considerations of an economic nature,
and the former, except for five instances of inter-
rogation, had not been coercive or otherwise viola-
tive of Section 8(a)(1). He also found that Respon-
dent, in refusing the Union's request for recognition
as bargaining representative, had acted on the basis
of a good-faith doubt of the Union's majority status
and of the validity of the claimed unit. Accordingly,
he recommended the dismissal of all 8(a)(1) allega-
' This was the Union's third campaign at the store in as many years In
September 1964 the Union lost a consent election held pursuant to a peti-
tion filed by Respondent, in the winter of 1965 it obtained authorization
cards from about 12 of the approximately 45 employees in the unit, and it
did not request an election
170 NLRB No. 67
2 Delicatessen employees had been specifically excluded from the unit in
the 1964 election , moreover, they, along with meat department employees,
comprised the unit in which an election was pending pursuant to a petition
filed by Local 119, Amalgamated Meat Cutters Union on May 27, 1966
The Meat Cutters lost the July 14 consent election.
K-MART FOODS 717
tions except for the limited violations involving in-
terrogation noted above. The General Counsel has
urged -us to reverse the Trial Examiner's findings
recommending dismissal and also to issue a bar-
gaining order. With one minor exception, we find
merit in the General Counsel's position.
The South Bend, market, opened in 1964, is a
concession operated in a department store. The
Trial Examiner made a number of findings regard-
ing the progress of the business in the first few
years of its operation. He found that, beginning in
1965, and continuing thereafter, the lessor
criticized various aspects of the market-cleanli-
ness, smoking by employees, and pricing-and
threatened to cancel the lease. In early 1966,
Respondent became aware that, while sales volume
in the store was increasing, profits were down, and
in April 1966 a large loss was suffered. Respondent,
with these two causes for concern about the future
of the South Bend operation, directed Mullin, the
new general, manager (formerly South Bend store
manager), and Rush, the new store,manager, to im-
prove conditions in the store. According to the
Trial Examiner's findings, by April or May, the two
had concluded, on the basis of customer complaints
and their own observation of events, that the
problem was attributable in part to employee indif-
ference. They also learned, from discussions with
employees, that employee morale was low, with
employees dissatisfied principally about wages. Not
long after these events, toward the end of May,
Respondent became aware, from Union Organizer
Mulkey's visits, that a new union campaign was un-
derway.
During the next couple of weeks, Mullin, Rush,
and Ulrich, Rush's assistant, questioned eight em-
ployees, one of them twice, about the Union. While
three of these were also asked to set forth their
complaints concerning working conditions and
raises, the others were asked only such questions as
whether the Union had made contact with them,
and what they thought of the Union. Another em-
ployee was queried by Mullin about his problems
after he had complained to Rush; Mullin also asked
him what was wrong in the store, although he did
not mention the Union. Thereafter, on June 14 and
15, at a time when Respondent was aware that a
union meeting was to be held on June 15, the team
of Mullin and Rush interviewed between 35 and 40
employees, among them Jankowski, the leading
union adherent, whose interview lasted for an hour.
Employees were first encouraged to talk about their
complaints and to suggest improvements. Eight of
The promises of benefits made during three of the interrogations, and
also those made during other conversations with the night stockboys and
with employee Psarakis, are discussed infra
the nine employees who testified about the mid-
June talks stated that the Union eventually was
brought into the conversation; it is clear from the
record that in all but one instance Respondent ini-
tially raised the issue. On June 17, Respondent
received the Union's demand letter, dated June- 13
and mailed June 16. It thereafter conducted one
further interrogation, of Jankowski, in early July.3
The Trial Examiner examined each instance of
interrogation on its merits. He concluded that
Respondent exceeded the permissible bounds of
inquiry, and thus violated Section 8(a)(1), only
when it attempted to probe the specific union senti-
ments of employees, either by direct inquiry or by-
closely interrogating so reliable a "barometer"of
employee sympathies as Jankowski. By this stan-
dard, only five of the interrogations were found, to
be coercive and therefore unlawful. He dismissed
the complaint as to the other-instances of-interroga-
tion, and also found that the unlawful interroga-
tions did not establish a coercive pattern, for one or
more of the following reasons: there was no
evidence of prior or contemporaneous employer
hostility to the Union or unlawful employer con-
duct; Respondent's "legitimate, curiosity"4 as to the
Union's majority status permitted it to make
general or casual inquiries into employee sentiment
or the progress of the union campaign; Respon-
dent's inquiries into employee dissatisfaction were
motivated by its legitimate desire to identify one of
the causes of the store's economic difficulties; and
finally there was no indication that the interroga-
tions, which were conducted in an atmosphere of
friendship between management officials and em-
ployees, had intimidated or coerced the employees.
We -disagree with the Trial Examiner's assess-
ment of Respondent's conduct and his interpreta-
tion of the applicable law. We have previously held
that, even in the absence of accompanying overt
threats or coercive statements:
"[S]ystematic interrogation of employees
about union activities during the sensitive ini-
tial stages of an organizing campaign and for
no justifiable purpose ... is a type of activity
which serves to impress upon employees their
employer's hostility to union organization, and
thus tends to restrain them in the exercise of
the rights guaranteed by Section 7 of the Act."
Koch Engineering Company, Inc., 155 NLRB
1272.
Respondent's inquiries herein blanketed the en-
tire organizing period. Moreover, unlike the Trial
Examiner, we do not think that Respondent was
4 This was variously referred to as being "no more than legitimate cu-
riosity arising from a bona fide doubt of majority status " and a "mere
desire to obtain information about the Union's majority status."
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileged to conduct its interrogations because of
doubt as to the Union's majority status. Since
Respondent made its inquiries, with one exception,
before it received the Union's demand for recogni-
tion, it had no legitimate reason for seeking to
ascertain whether the Union had obtained majority
status . We note, parenthetically, that Respondent
failed to reassure the employees that they would
not suffer any reprisals however they replied or
even if they chose to remain silent. Furthermore,
the timing of Respondent's wholesale and intensive
survey into employee dissatisfaction on June 14 and
15, viewed in the context of Respondent's prior and
contemporaneous inquiries into union activity and
its unlawful promises of benefits,5 strongly suggests
that union, and not economic, considerations
prompted this series of interviews. Accordingly, we
find that Respondent , by interrogating its em-
ployees concerning their union activities and union
activity in general , violated Section 8(a)(1) of the
Act.
Respondent gave wage raises to 31 employees' in
the appropriate unit on two successive Saturdays in
June . The 13 graduating seniors' received increases
of varying amounts on June 11 for the week ending
June 5; 18 other employees received wage raises of
varying amounts on June 18 for the week ending
June 12. According to Mullin and Wilson, Respon-
dent's president, they decided in May to raise the
wage rates of graduating seniors at all stores in
order to induce these employees to remain in
Respondent's employ upon graduation. As we have
already seen , Respondent was also interested in
preventing further deterioration in the poor
economic climate of the South Bend store which
Respondent knew to be caused by employee indif-
ference and dissatisfaction, particularly with low
wages . Respondent did not make an advance an-
nouncement of the wage increases to graduating
seniors , but, sometime in the spring , according to
' The Trial Examiner found that Respondent 's promise and granting of
wage increases were not coercive or otherwise violative of Section 8 ( a)( I ).
We disagree with this finding , in part, for reasons to be discussed infra
" One employee received raises both weeks During the interim between
the first and second wage raises, this employee told management that, con-
trary to earlier plans , she intended to work full time and attend college part
time Consequently Respondent gave her an additional raise, to top rate, on
June 18
' Respondent gave Margie Cox a raise on June I i in the mistaken belief
that she was a graduating senior
" During another conversation with Mullin in early June , Psarakis again
asked about a wage increase and told Mullin he would vote for the Union if
the Company didn't give him one as it had promised Mullin told Psarakis
that he wouldn 't blame him if he voted for the Union in such a case and
then asked Psarakis what the union agent had said to him . Psarakis in-
dicated that a wage raise was among the union benefits discussed Mullin
then said that Respondent was "working on" the raise and if the employees
"hung on" Respondent would give it to them
"For Saturday paychecks to reflect such changes , the information must
be received in Fort Wayne , on specific forms, by the preceding Tuesday at
the latest Company policy calls for them to be submitted, under ordinary
circumstances , with the timecards on Monday morning.
employee Psarakis, Mullin had told him and a cou-
ple of 'other boys, when they complained about
wages, that they would get a raise upon graduation
in June." In addition, during a conversation about
poor work habits and excessive damage which Rush
held with the night stock crew (composed of
graduating seniors) late in May or early June, Rush
mentioned, in response to a query, that a pay raise
would be forth coming as soon as the boys were out
of school. -Mullin sent the list of graduating seniors
into the central office on Tuesday, June 7, so-that
their paychecks of June 11 would be able to reflect
the increase.9 Respondent admits that, as of that
time, it had made no plans to give any other em-
ployee wage increases, although it was aware that a
number of them had complaints on the subject.-Ac-
cording to Mullin and Rush, not until employee
Conn complained, on June 7, because the graduat-
ing seniors were getting wage increases and he was
not, did they realize that they risked disaffection
among the nongraduating employees if they failed
to grant them wage increases as ''ell." That same
evening, they told Conn he would receive a 22-cent
increase per hour to $1.57 and asked if he was
satisfied. Conn, who had requested an increase to
$1.50, said that he was, and wanted to know if the
could get the raise in that week's check. Mullin said
he would call it in the next day and added that if' he
didn't give the raise before the Union, requested an
election, for which it had obtained sufficient cards,
Respondent wouldn't be able to give raises until
after the election. Rush testified that as a result of
this incident with Conn, he and Mullin worked out
raises for most of the remaining employees in the
grocery department; included in the group -were
eight probationary employees who had just finished
or would soon complete 30 days of service. Each of
these received a 10-cent-an-hour increase, in ac-
cordance, claims Respondent, with established
practice." Almost all of the employees who did not
Sometime early in the week of June 6, employee Stickley also com-
plained to Mullin that she wanted a raise of $ 15 an hour to top'rate of
$1 80 for her job, since other people with less seniority were receiving such
pay Mullin agreed with her arguments and said she would get the raise.
" This was clearly not a hard and fast rule In fact, certain evidence sug-
gests it was newly adopted to meet the situation Employee Megara
testified that during his June 15 interrogation by Mullin and Rush, Rush
said he had just "worked it out" so that probationary employees would get
wage raises of 10 cents. Moreover, contrary to the finding of the Trial Ex-
aminer, employee Turk did not-testifly that it was on June 4 that Mullin
told him that a person had to work 30 days before getting a raise (see TXD,
fn 24) According to his testimony , the remark could,have been made at
any time during the first 2 weeks of June Testimony in the record by other
employees seems to indicate that they had not received such a raise upon
termination of their probationary period At -any rate, it is obvious from
Respondent 's own testimony that the 30-day raise rule, if it existed, was
only loosely observed until June 8, when suddenly it received what might
be considered overly zealous attention . This is clear from the fact that, of
the eight employees receiving the so-called "routine" raise , some had been
due the raise 2 weeks prior to the date upon which they received it, land
others were receiving it prior to the expiration of the first 30 days of their
employment
K-MART FOODS 719
receive a wage increase were already at top rate for
their jobs, or had been in Respondent's employ for
a week or less. Mullin purportedly telephoned the
central office on Wednesday, June 8, in an attempt
to have the additional increases included in Satur-
day's paychecks so that all employees would
receive increases at the same time. Since the effort
was unsuccessful , Mullin contended , the wage in-
creases for other than the graduating seniors were
included in the paychecks distributed on June 18.
The Trial Examiner found that Respondent's
various conversations, with the stockboys, with
Conn, with Psarakis , with Stickley, and with
Megara, during which raises were promised to the
employees , were not coercive, noting that Respon-
dent's comments had been made in reply to em-
ployee demands or complaints . As for the wage
raises, the Trial Examiner concluded that the
economic defense adduced by Respondent , coupled
with Respondent's history of lawful conduct,
adequately rebutted the General Counsel 's prima
facie case that the raises had been coercive. He
reached this conclusion notwithstanding his conces-
sion that the timing of the wage increases, taken
together with the five instances of coercive inter-
rogation he had previously found, and Mullin's re-
marks to Conn about the Union, raised the suspi-
cion that the increases had been given to interfere
with the union drive " and perhaps reverse it."
In our opinion , the evidence clearly establishes
what the Trial Examiner 's suspected-that Respon-
dent 's 'Motive , certainly in granting the second set
of raises , stemmed from a desire to undercut the
Union 's campaign . We do not reach the same con-
clusion as to the initial group of raises-those to
graduating seniors-because of the uncontradicted
testimony of Respondent's officials that this deci-
sion was made in May and implemented at all
stores , and the corroborative testimony of Psarakis
that, during the spring, Mullin assured him of a
wage increase upon graduation . There is no similar
mitigating evidence concerning the raises of June
18.
According to Respondent 's own testimony , its in-
tensive study of the South Bend store had led it to
conclude , by May, that a major source of the
operational problem was employee indifference and
dissatisfaction . During the same month, as we have
noted , Respondent also decided to grant raises to
employees still in high school upon their graduation
in June . That such an action would necessarily
create a different4al adverse to the other em-
ployees , and engender dissension among them
could hardly have escaped the attention of those of-
ficials of Respondent who, in May, were seriously
concerned with the problem of employee morale.
Yet Respondent insists that the obvious effect of
granting raises only to the graduating seniors was a
consequence which it had failed to appreciate until
the complaint by employee Conn on June 7. We
find it incredible that this problem would not have
been earlier foreseen by Respondent , when - viewed
in the light of its extreme concern in May about
employee dissatisfaction , a major cause of which
was, as Respondent had been frankly told by some
employees , the desire for increased wages. The
whole structure of Respondent 's defense as to the
raises is further weakened , in our opinion, by the
evidence militating against its proffered explanation
that the eight raises given to -the probationary em-
ployees were a matter of routine . We think, rather,
that Respondent 's sudden decision to grant raises to
18 of the remaining 32 employees in the unit could
only have been inspired by newly acquired
knowledge or suspicion that the Union was gaining
a substantial foothold in the store . That the im-
balance created by the increases granted to high
school graduates would very probably exacerbate
the existing personnel difficulties was a problem
which Respondent had apparently chosen to live
with until June 7 when , as Mullin mentioned to em-
ployee Conn , Respondent realized that the Union
already had enough signed authorization cards to
call for an election . Its tardy award of increases
after that date seems more calculated to fend off
the rising tide of unionism than to redress the dis-
crepancy caused by the first group of raises, a dis-
crepancy which we believe Respondent must have
foreseen and originally decided to ignore . We dis-
agree with the significance attached by the Trial
Examiner to the fact that a number of union ad-
herents were among those who received raises. He
would infer from this that the Respondent's opposi-
tion to unionism probably, did not influence the
granting of raises . It is clear , however , that wage in-
creases granted to union adherents can be just as
effective as a denial of benefits in impringing upon
the freedom of choice of employees. N.L.R.B. v.
Exchange Parts Company , 375 U.S. 405 . We con-
clude that the wage raises put into effect on June
18 were deliberately designed to impede union or-
ganization , and violated Section 8 ( a)(1). We
further conclude that the promises which related to
the granting of the wage raises on that date were in-
tended to affect the employees ' decision about the
Union , and similarly constituted violations of Sec-
tion 8(a)(1). -
We turn now to a consideration of the issue of
whether a bargaining order is warranted as a
remedy in this case . In determining that such
remedy was not appropriate , the Trial Examiner
considered various factors bearing upon Respon-
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent's motive in refusing on and after June 17,
1966, to honor the Union's request for recognition
as the exclusive bargaining representative of its em-
ployees. The Trial Examiner found, and we agree,
that the Union had attained majority status in an
appropriate unit by June 17.12 In his opinion, how-
ever, Respondent's 8(a)(1) conduct, which he
found to consist of only five instances of coercive
interrogation prior to the demand, was insufficient
evidence to justify an inference that Respondent
acted =in bad faith when- it failed to respond to the
Union's request for recognition, other than by filing
a petition for an election in a smaller unit excluding
delicatessen employees. Taking the view- that
Respondent was guided only by a good-faith doubt
of majority, as well as a good-faith doubt of the ap-
propriateness of the requested unit, the Trial Ex-
aminer concluded that Respondent had not demon-
strated bad faith in its failure to accede to the
Union's demand for recognition, and, on that basis,
he recommended that Respondent not be ordered
to'bargain with the Union.
We disagree with the Trial Examiner's recom-
mendation. Preliminarily, we note that the com-
plaint does not allege' that Respondent violated Sec-
tion 8(a)(5); it alleges, rather, that a bargaining
order is warranted because of the nature of
Respondent's 8(a)(1) violations. We are of the
view that the complaint has been supported and
therefore a bargaining order is essential in order to
effectuate the policies of the Act. We have previ-
ously found that Respondent committed, not
minimal but widespread unfair labor practices in
the period between late May when it first learned of
the Union's renewed organizing drive, and mid-
June when it received the Union's demand for
recognition. Thus, Respondent, in violation of Sec-
tion 8(a)(1), interrogated many employees about
their own and their fellow workers' union activities
in an effort to ascertain the progress of the Union's
"The appropriate unit consists of
-All full-time and part -time employees of Respondent employed at its
South Bend , Indiana , facility, excluding meat department employees,
delicatessen employees , store manager , guards, assistant store manager,
professional employees , and all supervisors as defined in the Act
The Trial Examiner found that the Union had obtained valid authoriza-
tion cards from 24 of the 45 employees in the above unit We agree with his
conclusion as to the validity of these cards but we do not adopt so much of
his rationale as rests upon the employees ' subjective understanding or in-
tention . In addition , we find merit in the General Counsel's exceptions to
the Trial Examiner 's refusal to find valid the cards of employees Nagy,
Peck, Wickizer, and Willis The Union's authorization cards were "un-
equivocal designations of the Union as bargaining representative" (San-
dy's Stores, Inc . 163 NLRB 728) The Trial Examiner rejected the cards of
Nagy and Wickizer because he found that they signed as a result of remarks
by union agents which impressed them as being flat promises of automatic
wage increases once the Union secured recognition; the cards of Peck and
Willis he rejected on the ground that the solicitors for the Union made what
appeared to the employees in question to be representations that the cards
would be- used only to secure an election The Trial Examiner did not find
campaign; conducted, an unlawful systematic
inquiry among most of the employees; promised
several of them raises; and finally granted wage in-
creases, designed to induce employee defection, to
18 of the employees in the appropriate unit. As we
view the situation, Respondent, concerned with the
possibility that the Union's organizing drive might
succeed because of the high level of employee
dissatisfaction, undertook the counteroffensive
described above for the purpose of weaning em-
ployees away from union adherence. Where,- as
here, a union has established its majority status and
a respondent, disclosing a disposition to evade its
obligation to bargain, has engaged in unfair labor
practices which were aimed at destroying that
majority and has deprived the union of a fair oppor-
tunity to prove its representative status in an elec-
tion, an order to bargain, upon request, effectuates
the policies of the Act and-is plainly appropriate.13
Accordingly, we shall order Respondent to bargain,
upon request, with the Union in the unit herein
found appropriate.
CONCLUSIONS OF LAW
We adopt only the Trial Examiner's Conclusion
of Law 1, and make the following additional Con-
clusions of Law:
"2. Respondent violated Section 8(a)(1) of the
Act by systematically interrogating employees con-
cerning their protected activities and those of other
employees in a manner constituting -interference,
restraint, and coercion and by promising and grant-
ing employees wage raises, as described above, for
the purpose of inducing them to reject or-to refrain
from activities in support of Retail Clerks Union,
Local 37, Retail Clerks International Association,
AFL-CIO, or any other labor,organization."
"3. At all material times, the Union has been the
that the employees testified that any such representations were made by
the agents, rather, he relied upon the employees ' testimony as to their in-
terpretation of the agents ' remarks in reaching his conclusions . In view of
this fact , and our longstanding rule that unambiguous cards are valid
designations where the evidence does not demonstrate that they were ob-
tained by representations that they would be used , only to get an election,
or that the 'employees would receive benefits automatically upon the
Union's advent , we shall count the cards of employees Nagy, Peck,
Wickizer, and Willis in determining the Union's majority status . See Shelby
Manufacturing Company, 155 NLRB 464, and cases cited at In 4 Chair-
man McCulloch would not count Willis'-card, or the card of Margie Cox,
which the Trial Examiner did find valid, in view, of the representations
which they testified were made to them about the relationship between
cards and an election.
11 See United Steelworkers, AFL-CIO v N L R B., 376 F 2d 770
(C A D C ), affg Northwest Engineering Company, 158 NLRB 624,
N L R B. v Delight Bakery, Inc, 353 F 2d 344 (C A 6); Summit Mining
Corporation 'v. N L.R B., 260 F 2d 894 (C A. 3), N L.R B v `Caldarera, 209
F.2d 265 (C A 8); Bannon Mills, Inc., 146 NLRB 611
K-MART FOODS
exclusive bargaining representative of the em-
ployees in the following unit:
All full-time and part-time employees of R. W.
Inc., d/b/a K-Mart Foods, employed at its
'Route '31, South Bend, Indiana, facility, ex-
cluding meat department employees, delicates-
sen employees, store manager, guards, assistant
store manager, professional employees, and all
supervisors as defined in the Act."
4. The aforesaid unfair labor practices are un-
fair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act."
"5. Respondent did not engage in unfair labor
practices as to the wage raises granted on June 11,
1966."
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, R. W. Inc., d/b/a K-Mart Foods, South Bend,
Indiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating its employees regarding their
or other employees' union activities, sympathies, or
membership in a manner constituting interference,
restraint, or coercion within the meaning of Section
8(a)(1) of the Act.
(b) Promising and granting employees raises for
the purpose of inducing them to reject or to refrain
from activities in support of Retail Clerks Union,
Local 37, Retail Clerks International Association,
AFL-CIO, or any other labor organization, pro-
vided, however, that nothing in this Order shall be
construed as requiring the Respondent to vary or
abandon any wage raises or wage schedule which it
has heretofore established.
(c) In any like or related manner interfering
with, restraining, or coercing employees in their
right to self-organization, to form labor organiza-
tions, to join or assist the aforenamed Union or any
other labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities,
except to the extent that such right may be affected
by an agreagreement requiring membership in a
labor organization as a condition of employment in
conformity with 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 with Retail Clerks
Union, Local 37, Retail Clerks International As-
721
sociation , AFL-CIO, as the exclusive bargaining
representative of all their employees in the
aforesaid appropriate unit , " with respect to rates of
pay, wages , hours of employment , and other terms
and conditions of employment , and, if an un-
derstanding -is reached , embody such understanding
in a signed agreement.
(b) Post at its store on Route 31 , in South Bend,
Indiana, copies of the attached notice marked "Ap-
pendix ."TS Copies of said notice , on forms provided
by the Regional Director for Region 25, after being
duly signed by Respondent 's authorized representa-
tive , shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous
places, including all places where notices to em-
ployees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced , or covered by any
other material.
(c) Notify the said Regional Director , in writing,
within 10 days from the date of this Decision, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
14 Described in paragraph 3 of the Conclusions of Law
1' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
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, as
amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees
concerning their or other employees' union ac-
tivities, sympathies, or membership in a
manner constituting interference, restraint, or
coercion within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT grant employees wage raises
for the purpose of inducing them to reject or
refrain from activities in support of Retail
Clerks Union, Local 37, Retail Clerks Interna-
tional Association, AFL-CIO, or any other
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to form labor organizations, to join
350-999 0 - 71 - 47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or assist the above-named Union or any other
labor organization, to bargain collectively
through representatives of their own choosing,
or to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any or all such activities, except to the extent
that such right may be affected by an agree-
ment requiring membership in a labor or-
ganization as a condition of employment, as
authorized by the Labor-Management Report-
ing and Disclosure Act of 1959.
WE WILL, upon request , bargain collectively
with the Retail Clerks Union, Local 37, Retail
Clerks International Association, AFL-CIO, as
the exclusive bargaining representative of all
employees in the appropriate unit, with respect
to the rates of pay, wages, hours of employ-
ment, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment . The appropriate unit is:
All full-time and part-time employees em-
ployed by us at our Route 31, South Bend,
Indiana, facility, excluding meat depart-
ment employees , delicatessen employees,
store manager , guards, assistant store
manager , professional employees, and all
supervisors as defined in the Act.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of
Retail Clerks Union, Local 37, Retail Clerks Inter-
national Association, AFL-CIO, or any other
union , except to the extent that this right may be
affected by the provisions of the National Labor
Relations Act.
Dated By
R. W. INC., D/B/A K-MART
FOODS
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board' s Regional
Office, 614 ISTA Center, 150 West Market Street,
Indianapolis, Indiana 46204, Telephone 633-8921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: The issues in
this case are whether Respondent, R. W. Inc., doing
business as K-Mart Foods, during an organizing
campaign by the above-named Union in 1966 at its
food market in South Bend, Indiana, (1) coerced
employees by interrogation and promises and
grants of benefits to them to induce them to refrain
from joining or remaining members of said Union,
and (2) by such conduct and its refusal to bargain
collectively with said Union, upon request, as the
majority representative of said employees in an ap-
propriate unit, endeavored to undermine the status
of said Union and destroy its ma ority status, all in
violation of Section 8(a)(1) of the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq. (herein called the Act). A subsidiary issue is
whether at the time of such request and refusal the
Union had attained majority status through signed
union authorization cards from a majority of said
employees. The issues arise on a complaint issued
August 15, 1966, by the General Counsel of the
National Labor Relations Board through the
Board's Regional Director for Region 25,1 and
answer duly filed by Respondent which, as
amended at the hearing, admitted jurisdiction but
denied the commission of any unfair labor prac-
tices. A hearing on the issues was held at South
Bend, Indiana, before me, with all parties par-
ticipating therein through counsel, on various dates
between October 25 and December 1, 1966. All
parties waived oral argument at the close of the
testimony, but written briefs filed by General Coun-
sel and Respondent have been carefully considered
in preparation of this Decision.
On the entire record in the case, and from my
observation of the witnesses and their demeanor on
the stand, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS, AND THE LABOR
ORGANIZATION INVOLVED
Respondent is an Indiana corporation which
operates six grocery markets in Indiana, with one
office and place of business in South Bend, Indiana,
where it sells and distributes groceries. Its South
Bend store is the only one involved in this case. In
the year prior to issuance of the complaint, Respon-
dent in course of its business sold and distributed
products valued in excess of $500,000, and in the
same period had a direct inflow of groceries and
other products to said facility valued in excess of
$50,000. I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
The above-named Union is a labor organization
within the meaning of Section 2(5) of the Act.
' The complaint issued after Board investigation of charges filed by said
Union on June 20 and July 5, 1966
K-MART FOODS 723
II. THE ALLEGED UNFAIR LABOR PRACTICES S. Kresge Company . Respondent 's grocery and
A. Background Events
The 1966 membership drive was the third such
effort by the Union at the South Bend store in 2
years. The first effort in the summer of 1964
resulted in Respondent's request for an election in
Case 13-RM-772 on September 28, 1964; the
Union lost a consent election therein. The second
campaign came late in 1965 and January 1966, but
was limited only to procurement of about a dozen
authorization cards, without request for an election.
The third effort came in late May and June 1966,
when Union Organizers John F. Mulkey, Jean L.
Bottorff, and Eugene A. Kurdys solicited employees
and procured signed authorization cards under cir-
cumstances and to the extent found hereafter. On
June 16, 1966, the Union sent Respondent a pur-
ported written demand for recognition dated June
13. Respondent received it June 17, 1966, and
forthwith turned it over to its attorney for attention.
He advised the same day that there should be an
election, because the Union was asking for recogni-
tion in a unit including workers in the delicatessen
department which had been excluded from the unit
in the 1964 election; and Respondent knew these
workers were included in a pending unit sought by
another union.2 On June 17, Respondent executea
a petition for an election which was filed with the
Board on June 21, 1966, in Case 25-RM-204, in
which it defined the appropriate unit as alleged in
the complaint herein, but excluding delicatessen
employees. On August 16, 1966, the Regional
Director advised Respondent that due to the is-
suance of the complaint herein the day before, he
was dismissing the petition without further action.
B. Alleged Intel ference, Restraint, and Coercion
Since the interrogation and promises and grants
of wage raises, which comprise the basis of the al-
legations of violation of Section 8(a)(1), occurred
during a period of financial and economic instabili-
ty in the South Bend store, and this condition is the
basis of Respondent's defense, it is obvious that the
conduct in question must be considered in the light
of all the economic, and other, circumstances in-
cluding the pendency of the Union' s organizing
campaign,' hence a review of the economic situa-
tion there during and before the campaign is proper
at the outset.
The South Bend store is a concession operated in
a large retail department store under lease from S.
I Local 1 19 of the Amalgamated Meat Cutters Union filed a petition with
the'Board on May 27, 1966, in Case 25-RC-3241, seeking certification as
bargaining representative of all meat and delicatessen department em-
ployees in the South Bend store, a consent election was held in that case on
July 14, 1966, which the Meat Cutters lost
1 Interrogation of employees about protected activities is not per se un-
lawful, the test is whether the interrogation , under all the circumstances,
reasonably tends to interfere with employees in the exercise of rights
guaranteed by the Act N,L R B v Mid-West Towel and Linen Service, 339
food department is only one of six similar opera-
tions in Indiana run by Robert E. Wilson through
Respondent corporation; he operates two other
similar stores under separate corporation. The eight
stores, during 1966, employed about 450 people.
The South Bend store was opened in the middle of
1964, as the fourth in the chain in point of time.
Beginning in the fall of 1965, and continuing into
May 1966, the South Bend store was criticized by
the lessor on several occasions because various
aspects of the operation did not conform to the
requirements of the Kresge lease as respects pric-
ing, stocking of shelves, general cleanliness and ap-
pearance of the store, and prohibition of smoking
by employees. Beginning early in 1966, Respondent
noted that while the sales volume of the store was
rising, its operating expenses were not decreasing
(as they normally should with rising volume), the
ratio of wage expenses to sales volume (called the
wage percentage factor) was higher than in
Respondent's other stores, gross profit was low, and
net profit was small in the early months of 1966,
but fell off to a large loss in April. This condition
did not improve in May and June 1966 despite ris-
ing volume, particularly when compared to the
profitable operation of the Clarksville, Indiana,
store, which was the only comparable store in size
and volume of business. As a result of this and the
criticisms from the lessor, which later indicated
possible serious implications for Respondent's busi-
ness generally,' Wilson paid particular attention to
the operation at South Bend, and directed Dixie
Mullin, when he was promoted from South Bend
store manager to general manager of all stores on
March 1, to find out the cause of its low productivi-
ty and take steps to improve it and correct other
substandard conditions there. Mullin and Robert
Rush, the new store manager, thereafter observed
the store operation, continually discussed its ap-
pearance and operation several times a week, and
concluded in April and May that its problems
arose, in part from the change of managers and in-
experience of Rush in handling a whole store and
its work force, and in part from the general indif-
ference of the employees to proper performance of
their work, particularly their failure to cope
properly with the increased volume of business,
which indicated the need for more training. The
worsening conditions were also brought home to
Mullin by the rising number of complaints from
customers about lack of products and the poor at-
titude of employees toward customers at the
checkout stands. These conditions caused Mullin
F 2d 958,961 (C A 7), Bourne v N LRB , 332 F 2d 47,48 (C A 2), Blue
Flash Express, 109 NLRB 591, 593.
' The lessor in one conference indicated that failure of Respondent to
improve the operation and appearance of South Bend might cause action
to cancel its lease, and in May or June the lessor advised that, because of
the continued substandard operation of that store , it had concluded not to
give Respondent the grocery concession at another Indiana operation of
Kresge on which Respondent had bid early in the year
724 DECISIONS OF NATIONAL
more than ordinary concern because , while his new
duties as general manager made him responsible for
supervising thel operations of all stores in order to
keep their ' operating expenses within certain limits,
he was also challenged by the failure of the South
Bend store to 'improve financially and otherwise,
after he had turned its management over to Rush,
whom he had first trained for a month or more in
his new duties.
In the months after Rush took over , Mullin found
out that employee morale was low , from talks with
employees who continued to air their gripes and
store problems to him whenever he came in, just as
freely as they had when he had been store manager,
and in this way he had learned by May that there
was some dissatisfaction with wages, failure to get
raises when promised, unequal distribution of
workload among employees of the same classifi-
cation and pay, land other conditions.'
1. Alleged coercive interrogation in May and early
June
In order to find out the exact nature and extent
of these complaints, and their effect on employee
performance, Mullin and Rush began in May to
question individual workers specifically about their
complaints, and had individual conferences on that
subject with most daytime workers on June 14 and
15.
The record shows, and I find, both Mullin and
Rush knew Union Organizer John Mulkey well
from his appearance and activities in the two prior
campaigns, and both officials saw him almost
weekly in the store during the 1966 drive, when he
came in to talk for short periods with various em-
ployees. Management made no effort to discourage
or stop his discussions with employees on work-
time , although it was quite apparent from his failure
to purchase any products on such visits (other than
cigarettes) that he was not there as a customer,
hence it was readily inferable that he was in the
store on union business. Hence, Respondent knew
from the outset that he was active again in the
union drive.
On one occasion late in May, Mullin asked night
stockboy Thomas Velleman, near the front cash re-
gisters in the store, if the union man had been
around to see him . Velleman said, no; Mullin com-
mented that he would probably be around to see
him; nothing else was said. During this short talk,
Velleman told the truth. and talked freely; he had
known Mullin as store manager since 1964, and
had talked freely to him ever since, even after he
became general manager. On June 3, the day after
Velleman signed a union card, he went to the store
office and told Mullin voluntarily that the union
The above facts are based on credited and mutually corroborative
testimony of Wilson, Mullin, Rush, and many employees called by General
Counsel, particularly Shirley Lee Flock, Michael Mize, Geraldine Stickley,
and Richard J Jankowski
LABOR RELATIONS BOARD
agent had visited him, recounted everything the
agent had said to him, and remarked that stockboys
Thomas Walsh and John J. Psarakis had been
present while Mulkey talked. Mullin made no com-
ment , asked no questions. -
On another occasion late in May, Rush called
cashier Margie Cox out to the parking lot behind
the store, remarked that someone from the Union
would probably come to talk to her about the
Union and bring authorization cards, and then
asked if anyone had been to her home. She replied
that a union agent had visited her at home several
months before. Cox talked freely to Rush this time,
as many times before, and told the truth.
Cashier Rose Vellucci signed a union card on
May 31. One day during that week, while she, was
waiting in the store office for her parents, Mullin
walked in, and asked her what gripes she had about
the store, why she wanted a union and signed a
card. She complained about her wages, but said her
biggest gripe was her failure to get full-time work
after having worked there more than a year,
although others hired after her were working full
time. Mullin explained that she .received shorter
hours than full-time workers because she was only a
part-time worker. He also showed her a chart com-
paring the store wages with those in a union store,
admitting union rates were higher in all job classifi-
cations, and explained that Wilson was "just
beginning his career," that in time the store wor-
kers would get higher wages, and- he felt that the
employees should not "jump the gun right away."'
Stockboy Rick Miller testified that: on an
unidentified date after May 31, while working on
stock in the backroom, Assistant Store Manager
Richard K. Ulrich was also working there and asked
him, in the presence of Rush, if anyone had been to
see him about signing a card. Miller said, yes. Ul-
rich commented that he had seen Mulkey in the
store a few times. Nothing further was said. On
another unidentified date in June "within the :next
30 days after he signed a card" (i.e., May 31), Rush
asked Miller in the- stockroom if he had signed a
card. On direct examination, Miller said he replied,
"yes," but on cross-examination, he says he replied
"no," although he admitted he had no reason to lie
to Rush. He also testified that "about the same
time" he accosted Mullin while on his break behind
the store, he told Mullin the stockboys were talking
about the Union, and had all signed up. Mullin
asked him if he had signed, and Miller again told
directly conflicting stories on direct and cross-ex-
amination as to his reply; he also admitted he could
not place the time or date of this talk at all because
"he thought nothing of it." Mullin's reply was that
he did not care whether the boys signed up or not,
'The findings of the Velleman, Cox, and Vellucci talks are based on
credited testimony of those employees
K-MART FOODS 725
that it was "up to them," and that he personally
hoped the Union did not get in.
Manager Rush asked cashier Shirley Flock twice,
once about mid-May and again around June 1, if
someone from the Union had come to see her. She
replied, no, and Rush said the Union had her name
and address. Apparently nothing else was said
between them, and Rush's single question came
when Flock came into the office each time for per-
sonal reasons.
Once in the week of June 6, Mullin asked head
cashier and bookkeeper Geraldine Stickley at the
store snackbar her views about various aspects of
the store operation and problems, and she gave him
details about employee complaints about the store,
and other problems. During the talk, Mullin asked
her if she thought the Union would get into the
store, and she replied she did not know, but did not
think so. She volunteered that she had signed a
union card; she had already told Assistant Manager
Ulrich the same thing shortly after she signed the
card on June 6. Mullin asked her the same question
as above once in the next week, and she gave the
same reply. Their talk about store problems was
only one of many she had with Mullin while he was
store manager and after he became general
manager, in which he had often asked her views
and advice on store operation.
On an unidentified date shortly after May 31, the
day she signed a union card, cashier Rebecca Wal-
ters was called to the office by Mullin and Rush,
who asked her views on the way the store was
managed. She expressed dissatisfaction with the
Sunday work requirement. Rush then asked her
what she thought of the Union, and she indicated
she did not .-favor it because a union in the store
might cut down on her hours of work. This was the
only time Walters had ever been called to the office
to talk to store officials since she started to work
there in September 1965; and she had had little talk
with Rush in the store during her employment.
The interrogations of Velleman, Cox, and Flock
were limited to the single inquiry about whether
they had been solicited up to the time of the-query,
with no followup by questions designed to elicit the
employees' own union activity or sentiment. Since
both Mullin and Rush had been through the earlier
campaigns and knew Mulkey was again active in
solicitations, the questions could hardly have been
triggered by surprise at the sudden approach of a
union campaign as a new thing, hence it cannot
readily be inferred that management was here
shocked or irritated into an anxious probing of em-
ployee sentiment with the purpose of taking
definite retaliatory action; and there is no proof
that Respondent took discriminatory action against
any employees at any time during the campaign, or
that it had engaged in any unfair labor practices
during the earlier campaigns.7 Respondent knew, of
course, that the Union had lost the 1964 election
by a substantial margin, and it had not demanded
recognition or petitioned for another election after
its second effort in late 1965, hence Respondent
had good reason to doubt whether the 1966 drive
would have any more success, and against this
background I see nothing sinister in Respondent's
general questions such as found above which obvi-
ously could do no more than ascertain generally
whether the Union was likely to achieve majority
status, and were not calculated to secure informa-
tion on which Respondent might base action
against individual employees." I am convinced by
the background facts that these limited and general
queries were no more than legitimate curiosity aris-
ing from a bona fide doubt of majority status,
without discriminatory motive, and I find no viola-
tion of the Act therein.
The talks with Vellucci and Walters were legiti-
mate attempts to discover their gripes for the
economic purposes found above. Mullin's added
questions to Vellucci about her signing a card and
desire for a union were more or less rhetorical, in-
dicating that he knew about her prounion activity
and wanted only to know what dissatisfaction had
caused such activity. This purpose also appears in
his efforts to answer her complaints and show why
Respondent was not in a position economically at
that time to satisfy all the employees' financial and
other desires. In view of Respondent's freedom
from past or present discriminatory activity, and
the context of a legitimate inquiry into grievances, I
must conclude that the two queries by Mullin of
Vellucci were not coercive, and I find that they did
not violate the Act. However, Rush's inquiry of
Walters about her personal sentiments toward the
Union appeared to go beyond an innocuous inquiry
about her views and gripes regarding store opera-
tion and, lacking any explanation from either offi-
cial or other testimony to indicate that a question
about her union sentiment would throw light on
store problems, it is inferable that he threw in that
question in order to find out where she personally
stood on the union issue; it is significant that he did
not try to get her views on union sentiment in the
store generally and the reasons for it, which would
have a more direct relation to employee dissatisfac-
tion and its effect on store operation. I conclude
that Rush's query on this subject was therefore
reasonably calculated to be coercive, and violated
the Act, even though she testified that she talked
freely to both men and told them the truth.
Nor do I find any coercion in Ulrich's single and
' The Union's charges herein which led to issuance of the complaint
claimed that employee Patricia Mellinger had been illegally discharged, but
that claim is not in the complaint, and up to the time the hearing closed,
there was no contention by General Counsel that the Board was still in-
vestigating her situation , or would issue a complaint about her later During
the 1964 campaign , the Union filed an unfair labor practice charge against
Respondent , and then withdrew it
" See cases first cited in in . 3 supra, and N L R.8, v Larry Faul 01smobile
Co, 316F 2d 595 (C.A 7)
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
casual similar inquiry of Miller, where coupled with
a noncoercive comment from a former union
member which indicated he expected Mulkey to
follow the same organizing procedures as in the
past. While the remark was made by the assistant
store manager, whom I find infra to be a supervisor,
in the presence of Manager Rush, I think it falls in
the same category as the similar limited inquiries of
Velleman, Flock, and Cox. I find no violation here.9
Nor do I credit Miller's testimony of the alleged
inquiries by Rush and Mullin about his signing of a
card, in view of his extreme vagueness about the
times of these talks, his equivocal testimony of his
answers, and denials by Rush and Mullin of such
personal inquiries of employees.
The record shows that Stickley was in a special
and rather commanding position, as head cashier
and bookkeeper working in the office, where she
was more likely to learn the union or nonunion sen-
timents of the cashiers whom she frequently
directed in the absence of the store officials, and of
other workers when they came into the office al-
most daily for business or personal reasons. Hence,
she was a sort of "listeningpost," so that any
management questions to her about union senti-
ments or activities of the workers would normally
tend to indicate that Respondent was probing more
than casually into such activities from possible ul-
terior motives. But, by the same token, she was ob-
viously a usually reliable source of information for
management about employee complaints and at-
titudes which would help it to pinpoint the reasons
for low morale and poor performance of the em-
ployees. It is clear from Mullin's talk to her that the
latter problem was the main thrust of his questions
to her; in this context a single request for her
general opinion on whether the Union would get
into the store, without specific probing for at-
titudes, sentiments, or activities of specific workers,
seems more consistent with the innocuous purpose
of his other general queries of like nature found
above. While the same inquiry of her twice in 2
weeks appears suspicious, I conclude that in all the
circumstances it does not-amount to coercive inter-
rogation for possible discriminatory purposes, and I
find it did not violate the Act.
2. The conferences of June 14-15
The record shows that Mullin- and Rush con-
ducted systematic individual conferences with most
daytime workers about their complaints on June 14
in the parking lot behind the store, and on June 15,
when the weather was inclement, in, the anteroom
to the ladies' restroom in the store. That anteroom
was the only spot inside the store where private
discussions could be held free from, store noise and
traffic, and the rear parking lot, where employees
usually took their coffee or smoke breaks, was
likewise relatively free from such noise - or
disturbance. Although it appears that many of the
employees had never before had a special call for
an interview by two management officials in the
restroom lounge, I cannot conclude that the choice
of that location on a day of bad weather, or the
terms or method of interview, in the context of the
existing store problems, tended to -clothe the inter-
views with any unnatural formality which would
tend to intimidate the employees. I find nothing sig-
nificant or sinister about management's choice of
either location for serious private talks, with em-
ployees about matters of mutual concern. Nor was
the joint interview by two supervisory managers
calculated to be coercive, where all the employees
had freely talked daily to either or both during
work hours in the past about store operation and
problems.
I find from testimony of Rush and Mullin, as cor-
roborated by admission of employees Larry Melton,
John Turk, Janice Truffarelli, Michael, Mize,
Patricia Muller, Tony Woodworth, Richard Jan-
kowski, Shirley Flock, James Magera, Rebecca
Walters, and Margie Lou Cox, that: At the outset,
Mullin told each worker that management was hav-
ing problems in the store, that employees' morale
was low and their attitude {toward their work was
not right, and he was trying to find out the source
of their dissatisfaction, and wanted the employees
to help him by stating their complaints and making
suggestions how the store operation could be im-
proved. The remainder of the discussion with each
was as follows:to
a. The record does not show the complaints of
cashier Margie Lou Cox, but her initial direct
testimony was that she brought up the subject of
the Union by volunterring to Rush that she had
signed a union card (she signed it June 6) and ask-
ing Rush if this obligated her to vote for the Union.
Rush said, no. She asked if she would lose her job
by signing, and he again said, no. After palpable
prompting by General Counsel to give an "accu-
' I make no finding of violation of the Act from testimony of Patricia
Mellinger about a short talk with Rush on June 9 Mellinger was fired on
June 13, 1966 , for lying to Respondent about the reason for a previous
absence, and the Regional -Director apparently saw fit not to issue any com-
plaint of discriminatory discharge, as requested by the Union. While she
testified that Rush asked her in the backroom only if she had signed a union
card, to which she replied, yes, this is not credible because her affidavit to
the Board agent in October 1966 did not positively state that she recalled
this question , and she could not recall any other circumstances of the talk,
or what else was said, except Rush's opinion that a union would do the wor-
kers more harm than good, which on its face is a protected expression of
opinion Her testimony on the subject was extremely vague, her answers to
questions were reluctant , and her demeanor was not impressive. I am
satisfied that she was a disgruntled former employee with a clear antiem-
ployer animus due to her discharge Hence, I credit Rush's specific denial
of the question and his comment about the Union, for he testified in clear,
forthright, and credible manner about the full circumstances of the short
talk while both were working, which indicated that the discussion dealt
only with,her failure to wear a smock in compliance with store rules
Mellinger did not deny his testimony, taking refuge in an unimpressive plea
of lack of recollection In his brief, General Counsel does not refer to or
rely on this talk in his claim of coercive interrogation.
10 The finding of the conversation in each instance is based on credible
testimony of the employee involved (except where otherwise specifically
noted and commented on), as corroborated in part by admissions of Mullin
and Rush
K-MART FOODS
rate " account of the discussion , she then testified
that Rush first asked if anyone had come to her
home to talk about the Union , and she replied, yes,
and then asked the above questions . Rush categori-
cally denied questioning her or any other workers
about signing cards. Cox also admitted that she had
often talked daily with Rush about many matters,
asking him questions , and that after she attended a
union meeting at Hertl 's restaurant on June 15, she
volunteered to him casually that she had attended.
Considering all of her testimony on this talk, in
light of Rush 's similar limited inquiry to her late in
May as found above , I find that he made the same
limited inquiry this time , and for the same noncoer-
cive purpose , even though it prompted her to state
truthfully that she had signed a card, for Rush's an-
swers to her ensuing questions about the con-
sequences to her job were ' clearly calculated to can-
cel out any fears she might have about retaliation
from Respondent for her union adherence , and thus
negate any inference of coercion . In all the circum-
stances , I conclude that Rush 's limited interroga-
tion of Cox was not violative of the Act.
b. Sackboys Woodworth and John Turk and
stockboy Magera were interviewed in succes-
sion on June 15. After Woodworth voiced his com-
plaint on June 15 about his low wages , Mullin said
Respondent had been working on raises for workers
with longer service (which included Woodworth),
and that if anything was wrong in the store, it was
Mullin 's fault, as former manager , and not chargea-
ble to Rush, but if all the workers "cooperated, he
could straighten it out." Mullin then asked Wood-
worth if he had heard any talk in the backroom
about the Union, one way or the other. Woodworth
replied he would not mention any names , but there
was a lot of talk for the Union, and commented that
his father was in the Teamsters Union, to which
Mullin replied that the benefits of the Retail Clerks
Union were less than those of the Teamsters.
Woodworth had signed a union card on June 8, and
while it is clear from this and his remarks above
that he was prounion, it is also clear that he talked
freely and did not hesitate to tell the truth in
response to the question, as he was an employee of
long service and felt that no harm would come to
him because of his answers. It is clear from the
whole talk that there were no threats of reprisal or
direct or implied promises of benefits in this talk.
Hence, I must conclude that Mullin 's single general
inquiry about the union sentiment among the
backroom workers was more consistent with the
legitimate and noncoercive motive I have found for
the similar interrogation of Velleman, Cox, Flock,
and Stickley,'than with any inference that the infor-
mation was sought as a basis for coercive action
against Woodworth of any other workers. I find no
coercive interrogation nor any coercive direct or
implied promise of a raise in this talk.
c. The record does not show what complaints
sackboy John Turk voiced in his short minute talk
727
with Mullin and Rush on the 15th, but his credible
testimony indicates that : At some point in the
discussion Mullin asked him what he thought about
the Union. Turk said he did not know. One official
asked him if a union agent had come to his home,
and he said, yes. He was asked if he had signed a
card , or intended to do so , and he replied that he
did not know (the fact was, he had already signed
one on June 6). He was asked what the union agent
had said to him at home, and he recounted the
agent 's explanation of union benefits and com-
parison of them with benefits received by Respon-
dent 's employees . Mullin commented , in reply, that
the union agent was "handing you a line," was
"bull-roaring you." Neither Mullin nor Rush specifi-
cally deny Turk's story, or give his own account of
this talk. Here , management went beyond the
general inquiry about union sentiment in the store,
probing specifically into the nature of the Union's
arguments to him , and his own union sentiments
and activities. The fact that he did not tell them the
truth about signing the card is some 'indication of
fear or restraint which might arise from the extent
of the questioning about his own acts . In this in-
stance, I conclude that the questioning went suffi-
ciently beyond that consistent with a mere desire to
obtain information about the Union's majority
status, and therefore was reasonably calculated to
be coercive. I find that Respondent thereby vio-
lated Section 8(a)(1) of the Act.
d. In his short minute talk with both officials on
the 15th, Magera's sole complaint was that he was
entitled to more money , and in answer Mullin ex-
plained Respondent 's procedure for raises for
probationary employees , and indicated Magera
would accordingly get a raise shortly. The Union
was not mentioned . I find no illegal interrogation in
Mullin's initial request for Magera 's complaints, in
view of the economic background of these con-
ferences . The effect of Mullin 's remarks about the
raise will be considered later.
e. After cashier Shirley Flock had expressed
dissatisfaction with her hours, and her desire for
night work , to which Mullin made some reply
which is not detailed in the record , Mullin asked
her "what's the hanky-panky going on around
here?" and she replied if he and Rush could not see
for themselves, she would not tell him. Mullin then
asked how she felt about a union in the store, and
she replied that the workers would not need it if
"things were straightened out," but if that was not
done , she thought the workers could use a union.
Mullin also asked her if she had signed a union
card, and she said, yes. Rush then asked why she
had lied to him before , and she said she did not lie,
because she had not signed when he had questioned
her twice before. Since Mullin's questions were
directed to her own sentiments about the Union,
and Rush's remarks about his previous questioning
indicated that he remembered her answers on both
occasions , because he was quick to try to catch her
'728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in an untruth about her union adherence, I must
conclude that both men were deliberately probing
into her own union sentiments and activity, which
went beyond a mere general inquiry into union sen-
timent in the store . Hence , although her testimony
indicated that she was talking freely and truthfully
to them , I am, constrained to find that their inter-
rogation was fairly calculated to coerce and restrain
her in her union activities , and violated Section
8(a)-(1).
f. After Mullin had solicited from cashier Janice
Truffarelli, on June 14 , her views about improve-
ment of store operations , he asked her how most of
the girls felt about the Union. She replied that earli-
er they,had favored it, but now they were against it.
Mullin asked her if she was going to the union
meeting at Herd 's restaurant (scheduled for the
15th). She said , no, as she had no transportation.
Mullin suggested some other worker might take
her, and
,
said it would be nice if she went , just. to
hear, what the Union had to say, what it offered.
Truffarelli attended that meeting , but management
never solicited any report on it from her, nor did
she volunteer any. ,I find nothing coercive in Mul-
lin's'bare suggestion that she attend the meeting to
hear the Union's arguments , and his broad inquiry
about the girls ' general attitude toward the Union,
without request for names of or union sentiments or
activities of particular - workers, etc., seems in-
nocuous and not indicative of coercion or possible
discrimination . I ,find no violation of the Act in this
discussion.
g. After produce 'clerk Michael Mize had in-
formed Mullin on June 14 that he had no gripes, he
volunteered that h e, had signed a union card. Mize
also testified , after his memory was refreshed by ex-
amination of his affidavit to the Board , that: Mullin
asked if he was going to the union meeting at
Hertl's. Mize said he would not . Mullin also asked if
he knew anyone else who was going , and he said he
did not. At this time it was common knowledge in
the store that the Union would hold a meeting for
workers at Hertl 's the next night . In this discussion,
Mize talked freely to Mullin, and the discussion was
not an unusual one, for Mize had often talked free-
ly to Mullin about the store and other matters in
the past . However , Mullin went beyond a general
inquiry about the progress of the union campaign
or the tide of sentiment about it, when he asked
details about Mize 's own intention and that of
others about attendance at the union meetings; it is
significant that he did not explain the purpose of his
inquiry by suggesting that Mize and others should
attend to hear the Union's arguments , as he did
with Truffarelli. Hence , I conclude that this inter-
rogation went beyond permissible bounds and had a
tendency to be coercive, and I find that it violated
the Act.
h. After hearing the complaints of cashier
Patricia Muller on June 14, including the fact that
she wanted more money, Mullin commented that
she had, improved in her work, so that Respondent
had "enough confidence " in her to want her to
remain as a satisfactory employee, and that she
should "have that much confidence in return for
me." Regarding her wages, Mullin asked, if she had
not noticed that she had just received a. raise. She
said she had not, and interrupted the discussion to
telephone her mother who told her a raise in pay
appeared on her check stub of the last week. She
told this to Mullin , who said that was what he
thought, her raise should have come through since
she was a senior just graduated from high school.
He then asked if she planned to go , to the union
meeting (of the- 15th), and she said she did not
know for sure. He suggested she ought to _go, if she
wanted to, and see what the Union had to offer.
She attended the meeting , but there is no proof that
she reported on it to management thereafter. For
the reasons stated regarding the similar inquiry and
suggestions to Truffarelli, I found no coercive in-
terrogation in this discussion. The, significance of
Mullin's questions and comments about her recent
raise in pay will be considered below.
i. Richard J. Jankowski, head, of the frozen food
department in the store , was the principal employee
organizer for the Union during the- 1966 drive, and
the record shows his activity in that respect was
well known to management . When Mullin and Rush
called him outside on June 14, Mullin asked him if
he knew "what this was about," Jankowski said,
"yes, about the Union," and Mullin said "that is
right." Mullin then asked about his gripes, and Jan-
kowski mentioned , he wanted higher wages, paid
holidays, paid vacations, better insurance, and
better working conditions. Mullin discussed these
subjects with Jankowski fully, one at a, time, in an
hour-long talk , during which Jankowski argued that
the Union would get them better working condi-
tions, a- better vacation plan, and -insurance fully
paid for by the Employer. Mullin replied, that Wil-
son had been trying to get some of these, improve-
ments, such as paid holidays and fully ' paid in-
surance , for the employees. Mullin asked Jan-
kowski in the discussion how he felt about the
Union's chances, and Jankowski said he felt it had a
good chance to get in . Mullin asked if he felt that
"right down inside ," and Jankowski said, yes, Mul-
lin, asked him what other workers felt about the
Union's chances, and Jankowski replied the wor-
kers thought they were "real good." Several weeks
later , shortly before the election in the Meatcutter's
representation case, Mullin asked Jankowski what
he thought of the chances of the "union" getting in.
Jankowski asked him if he meant the meat depart-
ment or the grocery department . Mullin said, the
meat department , and Jankowski replied that he
did not know. Mullin then asked him what he
thought of the chances of the Union winning in the
grocery department , and Jankowski replied it was
"about 50/50" since Mullin had talked to the wor-
kers, and some of them had received raises. Mul-
K-MART
tin's questions about Jankowski's feelings regarding
the Union's chances of getting into the store, and
his views of general employee sentiment on that
subject, seem to fall within the type of coercive in-
terrogation designed to bring out a specific em-
ployee's sentiments about the Union. Mullin al-
ready knew that Jankowski had been an active
union adherent and organizer, and the record also
shows that in an earlier discussion in April or May,
when Rush had discussed store conditions at length
with Jankowski, the latter volunteered the opinion
that if the Union were to have a vote at that time, it
would get into the store without any trouble, and
Rush said he did not doubt it, the way things were
going in the store. As Jankowski was one of the old-
est employees in the store with a responsible job
handling the frozen food department, and manage-
ment had for over a year been trying to persuade
him to accept a supervisory job in another store, it
was natural for management to seek his views as a
responsible and reliable employee on store
problems and conditions, just as it had solicited
Stickley's views on the same subject; in fact, Mullin
had often talked to Jankowski about store problems
while he was store manager and after promotion to
general manager. But when Mullin talked to him
about store problems in June, he also knew he was
speaking to a known union adherent and organizer,
so that in asking him general questions about his
union's prospects, he was getting the views of a key
prounion employee which for that reason would be
more reliable as a barometer of employee senti-
ment than if he had questioned Mulkey or another
paid union agent. Thus, although Mullin did not
question Jankowski for details of employee senti-
ment or activities as a check on his personal views,
and there is no proof of threats of reprisal or actual
discrimination against him or other workers at the
time or later (Jankowski was still working for
Respondent when he testified), Mullin's questions
appear to' be a more than a casual probe into the
progress of the union drive, and thus different from
the limited and more casual inquiries which I have
found noncoercive. In all the circumstances, I con-
clude that Mullin's interrogation of Jankowski was
reasonably calculated to be coercive, and violated
the Act.
j. I find no violation of the Act in Mullin's inter-
rogation of sacker Larry Melton on June 6 about
his gripes and what was wrong in the store, to
which Melton replied only that he did not like his
job as sacker. The Union was not mentioned in any
way during the discussion, which in this instance
was specifically triggered by the fact that Melton
had stated his complaints to Rush only a short while
before.
II I credit testimony of Mellinger, Cox, Velleman, Stickley, and Mize on
this point
" These facts are found on testimony of the employees noted in the
preceding footnote, plus that of Flock, Truffarelli, Jankowski, Woodworth,
Willis, Miller, Muller, Peck, Joseph Turk, Jr., and Magera
i' The lack of coercive impact of the general interrogation, and minimal
FOODS 729
Although I have found that in five instances (one
before June 1 and four on June 14 and -15) Respon-
dent engaged in interrogation broad enough under
the precedents to warrant the conclusion that it was
coercive , it is also significant that these five in-
stances , out of discussions with most employees in
the appropriate unit , were not accompanied or fol-
lowed by acts of reprisal or discrimination ; and, for
reasons discussed hereafter , statements by manage-
ment in these discussions about pending raises were
not coercive promises of benefits . Hence, these few
instances of coercive questioning do not in my view
indicate an ominous pattern of coercive and illegal
conduct in the questioning of all the employees
which would overcome the innocuous nature of the
other limited interrogation found above , which oc-
curred in a context of economic problems and
discussions of them , nor militate against the conclu-
sion that it was based on a genuine doubt of the
Union's majority status arising from background
facts as found above.
Furthermore, there is substantial indication that
open actions and discussions of the employees
themselves which came to Respondent's attention
during the campaign without inquiry or probing
were well calculated to increase its doubt about the
Union's chances of reaching majority status. The
record clearly shows that some employees who
signed cards volunteered this information -to
management,1' and all talked openly among them-
selves and with Mullin and Rush in the store about
the Union, pro and con, with some indicating they
favored it and others arguing against it, but all ask-
ing each other repeatedly how they would vote in
an election, and many indicating they were unde-
cided and inclined to make up their minds only in
the secrecy of an election.12 1 am satisfied that this
atmosphere of indecision was made known to-Mul-
lin by Stickley in their talk in the week of June 6,
and Respondent also learned -it in normal fashion
from the wide-spread talk among workers in a small
store, where all worked closely together day by
day.13 I also find that this indecision and cleavage
on the union issue continued and became most
marked at the single union meeting for employees
at Herd's on June 15,` for the record clearly shows
that in that meeting (coming after 28 employees
had signed cards) at least 3 card singers (Mark
Conn, Velleman, and Walsh) and several out-
spoken nonsigner employees (Harrison and Phil
Nelson) frankly questioned the advantages of the
Union and its ability to do anything for the workers,
and the union agents could not give satisfactory an-
swers, which caused spirited debate with the union
agents and turned the meeting from an organizing
impact of the few instances of improper interrogation, is also indicated by
the fact that all the questioning was conducted by two supervisors who
necessarily had close relationship day by day with the workers, and with
whom the workers repeatedly discussed the Union without apparent
restraint See Frito-Lay, Inc, 151 NLRB 28, 34, and Mitchell-Standard
Corp, 140 NLRB 496, 507
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
session14 into a series of sgroups debating among
themselves on the issue.] As the record shows
Respondent knew of this meeting beforehand and
openly advised some workers to go and hear the
Union's arguments for themselves, I am also sure,
and find, that Respondent learned afterwards in
legitimate ways about its progress and inconclusive
outcome.
3. Alleged promises and grants of wage raises
Respondent gave raises to 31 employees at South
Bend on two occasions: 13 received them on June
11 (for the week ending June 5), and 18 on June
18 (for the week ending June 12);16 the amounts
varied from 5 to 58 cents an hour. General Coun-
sel argues that raises to 31 employees in a unit of
45 during the last 2 weeks of the Union's campaign
is strong proof of deliberate grants of benefits to
destroy the Union's majority status, when coupled
with earlier and contemporaneous promises of such
benefits to certain employees. It is well settled that
raises given during a union campaign are not per se
unlawful, and all the circumstances of the action
must be examined to determine whether they were
coercive; however, the timing of raises during a
crucial part of the campaign is suspicious and
requires close scrutiny of the employer's explana-
tion therefor.
The record shows that from the date Rush
became store manager and Mullin rose to general
manager, both men learned of increasing employee
dissatisfaction with their wages; the female cashiers
griped continually, and more so in May or June,
about raises promised but not received;" most of
the night stockboys had griped to Mullin in the
early spring about lack of a raise when they saw
other stockboys hired at $2.33 an hour; some
sackboys also made similar complaints.18 The ex-
tent of these complaints convinced management
that wages was a main source of dissatisfaction af-
fecting employee morale and production, so it de-
cided that raises would have to be given, particu-
larly to about 12 high school seniors who were clas-
sified as part-time workers and thus paid lower
rates than full-time workers doing the same work.
In addition, in May Respondent was having trouble
getting good help in the South Bend and Fort
Wayne stores, due to a tight employment situation
in both cities, and since most of the night stock
crew at South Bend were high school seniors about
to graduate in June and had been griping about
their wages, Wilson and Mullin felt that the only
way to keep them from getting jobs elsewhere on
graduation was to give them raises.'9 As this condi-
tion existed in all stores, Wilson in May ordered
Mullin to put through raises for such seniors in all
stores, the actual raise to be given right after
graduation. South Bend had the greatest number of
seniors. Mullin worked out the specific raises in
discussions with store managers in May. Thereafter,
Mullin told some South Bend employees about the
-coming raise , when they complained about wages.
When the stockboys, particularly the night crew,
made wage complaints , Mullin explained that they
were paid less than full-time stockers because they
were students classified as part-time workers, but
that when they graduated from school in June, they
would be raised to the same rate as the stockboys
who were out of school and working full time.
Thus, during one discussion of Mullin and Rush
with the night stock crew at South Bend about their
poor work and excessive damage to case merchan-
dise, during the week of May 30-June 4, some of
the boys brought up the subject of the Union, sol-
iciting Rush 's opinion on it. He referred them to
stockboys Gary Hampton and Thomas Walsh, and
Assistant Sore Manager Ulrich, all of whom had
worked together as union members in another
grocery store. After hearing their views about the
disadvantages of a union, and some comments by
Rush about possible economic consequences of
unionization , some boys asked about a pay raise,
and Rush replied that the boys would get one "just
as soon as you are out of school. "20 In a private talk
with Mullin in the office about the same time,
stockboy Psarakis repeated one of his many
requests for a raise for himself, complaining that
management had not given it to him as previously
promised, and saying that if it did not come through
soon, he would vote for the Union. He asked Mul-
lin, "Do you blame me?" and "if you were in my
shoes, what would you do?", to which Mullin
replied that he would not blame Psarakis for voting
for the Union in that event. Mullin also asked if the
union agent had talked to him about the Union and
what he said, and Psarakis said he had explained
union benefits, including a pay raise. Mullin replied
that Respondent was "working on" the raise, and
"if we hung on they would give it to us." Psarakis
knew from experience with his last raise that raises
requested by store managers had to be processed
through Respondent's home office in Fort Wayne
before the employees actually got them in
paychecks, and that this procedure took a week or
more.21
I find from credible and uncontradicted
testimony of Mullin and Rush that: On the basis of
" Mulkey intended it as a meeting for employees to decide what terms
they wanted the Union to present to management in bargaining
15 I find the meeting facts on credited testimony of Conn, Flock, Magera,
and admissions of Mulkey
Janice Truffarelli received a raise both times for reasons noted below
" 1 credit testimony of Shirley Flock and Geraldine Stickley on this
" 1 find these facts from credited testimony of John Psarakis, Mullin, and
John Turk
" Since Respondent had been expanding its chain of retail stores in the
past 2 years, and hiring new employees continually in the process, Wilson
was vitally interested in attracting and keeping competent young people in
order to interest them in pursuing retail store operation in his chain as a
permanent career This also weighed heavily in the decision to raise
graduating seniors
21 This discussion is based on credited testimony of Mullin, Rush, Ulrich,
Hampton, Thomas Vclleman, and John J Psarakis, which is mutually cor-
roboratlve in most aspects
21 The findings as to the Psarakis talk are based on credited testimony of
Psarakis
K-MART FOODS
the prior complaints, particularly those of the
stockboys, Mullin and Rush worked out the raises
for graduating seniors and prepared a list of them
on a regular status change form on June 4. Mullin
took .it personally to Fort Wayne headquarters for
processing on Monday, June 6, to make sure that
the raises would be in the paychecks of June 11.
The seniors were graduating in the week of June 6.
On or about June 6, when Mullin and Rush asked
sackboy Mark Conn about his gripes, he com-
plained-about inequitable pay for some girls and ar-
gued he ought to get $1.50 an hour, that the
graduating seniors were getting a raise, but he and
others who had worked there a long time were not,
although they did the same work as the students. In
that week bookkeeper Stickley complained per-
sonally to Mullin that she should be getting $1.80
an hour, both because of her dual responsibilities
and since girls of less seniority were already getting
that rate. Mullin agreed and said she would get it.
These complaints, particularly that of Conn, caused
Rush and Mullin to check the whole payroll the af-
ternoon of June 6. They saw that the raise to
graduating seniors would cause a large gap between
their new pay and the rates of other workers, and
since they did not want to lose other nonstudent
workers, they at once adjusted the pay of other
workers (with some exceptions) to narrow the gap.
Mullin telephoned these changes to Fort Wayne on
June 8, without sending in the usual written status
change form, hoping they could be processed in
time to go through on June 11 with the raises to
seniors. However, they got to headquarters too
late,23 so they were put through in the paychecks
given out June 18. On the evening of the 6th Rush
and Mullin called Conn aside and told him he
would get a raise to $1.50 an hour, and asked if
that was okay. Conn said, yes, and asked if it would
be in his next paycheck. Mullin said it would, that
he would call in the raise the next day, explaining
that the Union had enough cards signed to ask the
Board to hold a vote, and that while the store could
not give the workers a raise until after the election,
it could do so before a vote was requested. Conn
received a 22-cent raise to $1.57 an hour on June
18. In Magera's June 15 talk about gripes with Mul-
lin and Rush, found above, Rush answered his
request for more money with the explanation that
he had just "worked it out," that an employee
would get a 10-cent raise after working in the store
a month, and such raise would be in Magera's next
paycheck. Magera got the raise on June 18.
As the graduating seniors had been agitiating for
a raise for some time, and had been told before
June 4 that they would get raises upon graduation,
their raises of June 11 were not unexpected, which
militates against any inference of a surprise coer-
cive move to wean them away from union ad-
rr The Conn and Stickley talks are based on credited testimony of each
employee
21 Due to the time lag in the clerical and computer procedure on person-
731
herence, and, for these reasons, I find no coercion
in Mullin's statements about raises to the stockboys
as a group, or to Psarakis or Conn, as found above,
particularly where his mention of raises was in-
direct answer to their gripes about low wages or
direct questions about, or direct requests for, raises.
In this context and specifically Psarakis' repeated
past requests for a raise, I do not consider Mullin's
questions to him about the union agents' talks
about benefits including wages, as coercive, espe-
cially where Mullin sympathized with Psarakis'
inclination to vote for the Union if he did not get a
raise after many requests. As no election had been
sought or was scheduled up to that time, and there
is no clear proof that Respondent had previously
learned directly or otherwise of Psarakis' union sen-
timent, I view Mullin's statement that Respondent
was "working on" a raise, and that if the workers
"hung on, they would give it to us" as no more than
a repetition of what he had already told griping
workers as found above, and a possible apology for
the long delay in giving a raise, with a request that
they be patient, rather than a definite or implied
promise of a raise in return for abandonment of the
Union. For the same reasons, I do not consider
Mullin's statement to Stickley that she would get a
raise as a coercive promise of benefit. Nor is there
anything clearly or impliedly coercive in Mullin's
reminder to Patricia Muller, in reply to her gripe
about more money, that she already had received a
raise that Saturday before. Since her mother al-
ready knew about it, Muller should have known of
it; the fact that she had to call her mother to find
out shows that she had so little interest in her own
paycheck as to warrant the inference that actual
receipt of the raise could not have been coercive,
particularly since she must have known beforehand,
like other graduating seniors in the store, that it
would be forthcoming. Another indication that the
raises to seniors were motivated by their prior com-
plaints and a desire to keep them at work lies in the
fact that the June 11 raise was not a fixed, across-
the-board increase, but varied in amount depending
on service, merit, or other economic factors, in-
volving each employee, and without regard to
union or nonunion sentiment. Thus, stockboys R.
A. Kuchowicz, Tim Shide, Psarakis, R. K. Harrison,
and Velleman got varying amounts, which brought
Shide and Harrison (both nonunion) and Psarakis
and Velleman (both union) to top rate as night
stockboys; however, Larry Melton (union) and B.
Elliott and J. L. McKelvey (both nonunion) got
raises which brought them up to less than top rate,
due to less service and experience in the store. All
these stockboys also went on full-time night work
after graduation, except Psarakis and Harrison who
were already working full-time, but as students had
previously been considered and paid as part-time
nel status changes at Fort Wayne, requests for such changes had to be in
Fort Wayne by Tuesday night, to be effective in the paychecks handed out
by Saturday of that week
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers; in addition, Velleman had also been made
a head stocker before graduation. The seniors going
on full-time work also changed classifications at the
same time to full-time workers, thus becoming eligi-
ble for other company benefits accorded such wor-
kers, but Respondent made no effort to advise them
of this. There is no clear proof that Respondent on
or before June 4 had direct or implied knowledge
of the union sentiments of any specific graduating
senior (except Vellucci). Thus, I am constrained to
conclude that all the substantial evidence on the
issue indicates that the bare fact of graduation, and
the desire to keep present personnel, plus certain
economic factors affecting the amount caused the
raises.
The same economic considerations affecting the
amount, as against union or nonunion sentiments,
governed the same pay raises for other graduating
employees. Cashiers Cox, Vellucci, Truffarelli, and
Muller, though all union adherents, received vary-
ing amounts: Vellucci went up 25 cents to $1.60 an
hour, top rate for her job, based on her seniority
and expectation that she would work full-time
thereafter, while the other two went up only 15
cents to $1.50 an hour, on the assumption that both
would continue as part-time workers and go on to
college in the fall; however, the raise to Cox was an
error, for in fact she was not a graduating senior;
and Muller got a 25-cent raise to the same rate as
Cox; neither got the top rate due to lack of ex-
perience and service, and Muller also had had trou-
ble controlling her cash at the checkout booth.
The record shows that the same economic con-
siderations governed the extent and amounts of the
June 18 raises. Among the sackboys Conn, who had
complained repeatedly about his wages up to June
6, was raised 22 cents to $1.57 an hour, which was
based largely on his service and the fact that,
although he was a part-time worker as a student
then, he would become a full-time worker by going
to night school in the fall; Woodworth, Thomas
Peck, and Larry Brogdon each went up 10 cents to
$1.45, top rate for sackboys, based on service and
experience, while D. L. Willis, Daniel Wickizer,
Michael Schoettlin, Jim Magera, Robert Belledin,
David Dudeck, and John Turk went up 10 cents to
$1.35 an hour, as they had completed (or in some
instances almost completed) their 30-day proba-
tionary period; Sharon J. Lister received the same
ra For this reason, I find nothing coercive in Mullin's statement to
Magera on June 15 that he would get a 10-cent raise because he had been
there over a month, which indicated that he was getting only the normal
raise given to probationers at the end of their 30-day probation period Nor
do I find any coercive promise of benefit in Mullin's remark to John Turk
on Saturday, June 4, in reply to Turk's question, that a person had to work
30 days in the store before getting a raise Turk had been hired May 23,
and he actually got a 10-cent raise, like other probationers, on June 18,
which was short of 30 days, however, the records show that Respondent
was clearly giving a standard 10-cent raise on the 18th to six probationers
as a group, and it is inferable that this was done because at least four of
them (Magera, Belledin, Dudeck, and John Truk) had specifically griped
about wages, though several were not technically beyond the 30-day
period
wise for the same reason . 24 Among the clerks and
cashier-checkers , C. L. Miller, Shirley Flock, Truf-
farelli , and L . A. Neelund were raised 15 cents to
$1.65, top rate for that job , all based on service and
merit '21 while Rebecca Walters, a part -time worker,
was raised the same amount to $1.50 an hour. Head
Cashier Stickley , who had asked for a raise on June
6 as found above, was raised 15 cents to $1.80 an
hour , top rate for head cashier and bookkeeper.
Among the above classifications , all had signed
union cards except Lister and Neelund , but there is
no substantial proof that Respondent knew this.
Further , it is significant that , among 15 workers
who did not receive raises, 4 union adherents
(Walsh , Jankowski , Hampton , and J . W. Tatay)
were omitted because they were already at top rate
for their jobs, union adherent Louis F. Nagy was
omitted because his work was deficient , and union
adherent Joseph Turk , Jr., had recently received a
raise to the last step below top rate, and had not yet
acquired enough experience to warrant top rate;
and at least 3 of the 15 (not shown as union ad-
herents ) were still in probationary period . There is
no clear proof that Respondent knew of their union
sentiments on June 18 . These facts militate strongly
against a finding that union adherence or lack of it
played any part in this raise.
Considering all the pertinent facts and circum-
stances, I conclude that, although the scattered in-
stances of coercive interrogation found above and
Mullin's remarks to Conn found above, as well as
the timing , raise some suspicion that both raises
may have been given to arrest the progress of the
Union 's membership drive and perhaps reverse it,26
Respondent has adduced substantial proof of
economic reasons for the raises which , in light of
the absence of current discriminatory action or
threat thereof, or similar coercive aggression
against the Union or the workers in the past, is
adequate to rebut the prima facie case of coercive
raises as adduced by General Counsel , and I am
constrained to conclude that General Counsel has
not sustained the ultimate burden of showing by
substantial proof from the entire record that
Respondent gave the raises to coerce the em-
ployees and destroy the Union 's effort toward
majority status . I therefore recommend that the
paragraphs of the complaint based on such raises,
and promises thereof, be dismissed.
z5 Truffarelli got the second raise because, according to Rush's credible
testimony, she changed her mind about continuing at college after gradua-
lion and told Rush she would not go back to school but wanted full-time
work
ze I have also considered record facts showing that the South Bend store
had suffered the largest net loss in April of any month of 1966 to date of
hearing, despite rising gross sales volume, and that on top of this the cost of
the widespread raises of June might have increased that loss ( the loss
figures for May do not appear in the record) However, General Counsel
makes no specific argument on this basis , and it is inferable that Respon-
dent was taking a calculated risk, from a business point of view, in giving
the raises for the purpose of improving employee performance to the point
where it would lessen the next loss and perhaps reverse it to a net profit
showing on rising volume
K-MART FOODS
C. The Majority Status of the Union, and the Effect
of Respondent's Conduct on It
1. The appropriate unit
I find that all full-time and part-time employees
of Respondent employed at its South Bend, Indi-
ana, facility, excluding meat department em-
ployees, delicatessen employees, store manager,
guards, assistant store manager, professional em-
ployees, and all supervisors as defined in the Act
constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.27
2. The authorization cards
The parties agree and the record shows that, on
June 17, 1966, when Respondent received the
Union's purported demand for recognition noted
above, there were 45 hourly paid employees in the
unit aforesaid (excluding Ulrich). To prove the
Union's majority status, General Counsel relies on
28 union authorization cards signed by employees
in said unit between the dates of May 27 and June
13, 1966, inclusive . The card signed by each states
the name of the Union at the top, with "Authoriza-
tion for Representation" right under it, in bold let-
tering , followed by blanks for the signer to fill in his
name , employer name, store identification, job
therein, and home address, and then wording in
very small type whereby the signer authorized the
Union to represent the signer for "the purposes of
collective bargaining, respecting rates of pay,
wages, hours of employment, or other terms and
conditions of employment, in accordance with ap-
plicable law. 11211
Testimony of the three union agents who so-
licited employees is to the effect that: Each solicited
the employees individually or in small groups, by
giving them a rather stereotyped talk about the ad-
vantages and benefits of a union in the store, in-
cluding higher wages, better insurance , shorter
hours, more overtime work and pay, paid holidays,
better insurance (with the employer paying all of its
costs), and other benefits similar to those prevailing
in other local retail food stores organized by the
Union; the agents usually referred to and in some
cases showed the employee union wages and other
benefits set forth in a contract between the Union
and another local store. It is also clear from admis-
sions of Mulkey, and employees who were solicited
"The parties agreed on the above unit at the hearing, except for the
status of Richard K Ulrich , assistant store manager from March 1, 1966,
onward. I find, from voluminous testimony adduced on this subject, that,
while Ulrich's main duties were to assist Manager Rush in all phases of the
store operations, from the outset he had full responsibility for operation of
the store whenever Rush was absent, which was about 20 percent of the
work hours each week, in these periods he had responsible direction of em-
ployees (except department heads ) in all phases of their work , including
the authority to transfer them from job to job as needed, discipline them by
layoff for violation of store rules or his orders, and to discharge them
733
as noted hereafter, that Mulkey also indicated in
various ways that an election would follow the sig-
ning of the cards, in which the signer could vote for
or -against the Union, and that the employee was
not obligated by the card to vote for it. In addition,
admissions of Mulkey and testimony of various em-
ployees make it clear that he usually tailored his ar-
guments to fit the particular complaints of the em-
ployee about his wages, hours, or working condi-
tions, by assuring him that specific union benefits
would satisfy these complaints; thus, most em-
ployees indicated dissatisfaction with their wages,
so Mulkey told all of them that the "Union has yet
to negotiate a contract without the employees
getting a wage raise," and he used somewhat
similar assurances where employees indicated
desires for better benefits or conditions of other
types, and also if an employee indicated doubt
about the Union's ability to get more wages for
him. The effect of his remarks along this line is im-
portant, but might vary with the listener: one adult
might well consider it as boasting or a mere indica-
tion of what the Union would seek for the em-
ployees, while another might accept it as an as-
surance on which he could rely in signing the card;
and such remarks to teenagers (who comprised
most of those who signed cards here) might well
impress him or her as a guarantee, depending upon
progress of the teenager toward maturity and the
impact upon him of business operations and
dealings, life in general, and the actions and views
of his contemporaries. Further, since Mulkey and
the other union solicitors were adults experienced
in soliciting members for the Union, and their rec-
ollections of their remarks to specific employees
were obviously self-serving statements from union
agents, and it appears that Mulkey, the main solici-
tor, often could not recall what he said to particular
employees, hence testifying by reference only to a
formal, stereotyped sales talk in such instances, I
have relied mainly on the recollection of the em-
ployee in finding what he or she understood as the
purpose of the card, and accept Mulkey's story on
this only to the extent that it is consistent with the
signer 's credible testimony.
I also find from uncontradicted testimony of vari-
ous employees who signed cards, and admissions of
Mulkey and his main employee solicitor, Jan-
kowski, that: Mulkey told them that if enough wor-
kers signed cards there would be an election in
which they could vote for or against the Union.
Although Jankowski says Mulkey told him, when he
outright for serious misconduct I therefore find that in these respects Ul-
rich was a supervisor within the meaning of Section 2(11) of the Act, for it
is settled that only one aspect of supervisory authority.of those enumerated
in the Act is sufficient to make a person a supervisor Oregon Stevedoring
Company, Inc., 162 NLRB 1272.
" It is clear that these cards on their face were unambiguous authoriza-
tions of the Union to act as the signers ' bargaining agent, there was no men-
tion of an election Hence , cases cited by Respondent involving "dual-pur-
pose" cards are inapposite here, except to the extent noted hereafter
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed, that the purpose of the card was to "have
an election and the Union could represent us," in
his own solicitations of three workers (Nagy, Peck,
and Wickizer) he mentioned only the election pur-
pose, not the "representation" purpose.29 Respon-
dent argues strongly from these facts that the Union
thus falsely represented to the workers that "the"
purpose of the card, in the sense of "the only" pur-
pose, was to have an election. However, I also
recognized from hearing and observing these young
people, most of them teenagers, that while they
often had clear recollections of the main statements
and thrust of the arguments of the union agents,
they obviously could not and did not recall the
precise wording used by those agents in compara-
tively short talks months before they testified.
Hence, I think it proper, and far more reliable, to
discover their understanding of the cards and their
purpose, as gleaned by the signers from all sources,
including their reading and understanding of the
card, what they gathered from representations of
the union agents, and also from what other workers
said to each other on this subject during the cam-
paign, as well as any intelligence they had gathered
about the cards and unions from other reliable
sources.30
At the outset, I find from credible testimony that
each of the 28 cards was personally signed by the
employee whose signature appears on it, and that
all signers (with a few exceptions noted hereafter)
read the card, filled out the blanks on it , and then
signed it, all after hearing the sales talk of the union
agent making the solicitation. Hence, since the
wording of the card is clear , the prima facie pre-
sumption is that each signer understood the word-
ing on the card as a selection of the Union as his
agent for. the purposes stated in it. However, that
presumption can be overcome by other facts which
might show a clear and impressive misrepresenta-
tion by the solicitor, or facts from other sources
which might be so strong and impressive as to rebut
the impression from the wording of the card and
give the signer a different understanding of its pur-
pose.3t With these principles as a guide, I consider
the cards seriatim.
Larry M. Brogdon, age 17 at the time , was told by
Agent Kurdys, after the latter had explained union
benefits in other stores, that if the Union got into
the store, the workers would "eventually" get raises
and other benefits, after the Union "talked to
management." When Brogdon signed a similar card
in the November 1965 solicitation, the agent told
him that the Union would try to get for him the
same wage rate as paid in Kroger's, a nearby union
" I give no credence to Mulkey's testimony that he told each one he sol-
icited about the "possibility " of an election , and explained the Union
would try " to gain recognition on the basis of the cards," and if that did not
work the Union would "probably" have an election , and that he explained
the "card check" procedure through an independent observer in detail
Mulkey admitted he could not recall the names of those he told this, saying
vaguely it was "maybe 10 or 12" including Jankowski , however, neither
Jankowski nor any of the other workers he solicited supported him on this
explanation
store, but did not promise any specific rate -if the
Union got into the Respondent's store. Both times,
the agents also represented that the signing of the
card would not automatically get the Union into the
store, but would lead to an election. From all this,
Brogdon understood that signing the card did not
make him a union member, but that, if most of the
workers signed it, there would be an election, and
the Union would then negotiate a contract with
management for the workers after the election, and
he signed the card because he "wanted the union
in." On all the facts, I find that Brogdon understood
the agency purpose of the card as stated in its
wording, although he also was given to understand
that the agency would not operate until after a
possible election. Though this would appear to
make it a present but conditional agency designa-
tion, I think the card is reliable evidence toward
majority status, and must be counted. I hereby
admit his card in evidence as G.C. Exh. 5-b.32
Robert N. Belledin and David Dudeck, ages 15
and 16, respectively, at signing , executed their
cards at the same time at Belledin 's home on June
9, at the solicitation of Mulkey. Both asked him
about raises and fringe benefits in a union store,
and he gave his usual sales talk about wages and
other benefits enjoyed in unionized stores, saying
they should be getting the union rate, and compar-
ing their present benefits with those listed in a union
contract he had with him. He said these benefits
would "possibly" go into effect, there "might be a
chance," if they signed the cards and the Union got
into the store, but he did not explain how the Union
would achieve this, except to state that if a majority
of the workers signed cards, there would be a meet-
ing of all the workers to find out how many wanted
the Union, and how the Union would operate "if
we got it in," but there would be an election to de-
cide if a majority wanted a union in the, store, and if
the Union had enough votes they were "going to
carry it through"; the cards would show how many
workers wanted it. Belledin did not read his whole
card when he filled it in and signed it after the
discussion, and did not understand the legal word-
ing on the card after even a partial reading: at the
time he was even vague about Mulkey's exact
status, getting the impression that he was somehow
connected with the AFL-CIO or the Board. There
is no proof that Mulkey explained the card wording
to either boy. After hearing Mulkey's sales talk,
Belledin signed on the representation that by sign-
ing the workers would get pay raises and other
benefits they did not now have. During the discus-
sion , Shirley Flock, an adult sister of Belledin who
"See Trend Mills, Inc , 154 NLRB 143
'i Trend Mills, Inc., supra, N.L R.B v Harold W Koehler , 328 F 2d 770,
772, 773 (C A. 7), Furr's Inc v N L R B , 381 F 2d 562 (C A 10, 1967)
12 Respondent cites no authority , and I have found none , which clearly
vitiates a union card which the signer intended as a present designation of
bargaining agent, with the agency to be operative upon a condition sub-
sequent, which might or might not occur.
K-MART FOODS 735
had signed a card on June 1 as found below, was
present, but did not say anything, particularly to ex-
plain the Union's role or procedure in securing
higher wages and more benefits in the store,
although I find that she knew the purpose of her
card, as stated on its face, from past experiences.
Dudeck did not understand the card wording when
he signed it, but he heard the same arguments as
Belledin, and it also appears that the two boys had
discussed the Union and its benefits privately
together some time before they signed the cards.
While their testimony indicates that neither had
prior knowledge of unions or their operations, and
did not get advice from Flock or their parents be-
fore they signed, and the proof of their understand-
ing of the wording and purpose of the card is not as
strong as in other instances considered herein, I am
still constrained to conclude from all- their
testimony that Mulkey did not make a flat promise
or guarantee of more wages and benefits to induce
them to sign, but indicated enough in his talk to
lead them to believe that the Union, if it got in,
would somehow take action to get these benefits
for them; they would not come "automatically." I
think there is enough in the record to show that
they were led to believe that this was one purpose
of the card, and this makes their cards reliable
proof of majority, even though at the same time
Mulkey indicated that the card signing would lead
to a "meeting," with an "election" among all the
workers to decide if the Union would get in 33 I
therefore admit the Belledin card in evidence as
G.C. Exh. 5-a, and the Dudeck card in evidence as
G.C. Exh. 5-e, and both will be counted toward
majority status.
Mark Conn,, age 17 at the time, signed his card
June 8, after the usual sales talk by Mulkey about
union benefits; Conn asked his what wages work-
ers would get with a union in the store, and Mul-
key showed him the wages in a unionized store set
forth in the sample contract, but explained that the
exact wages and other benefits listed in it were not
what Respondent's employees would get, but what
the Union would bargain for. In asking Conn to sign
the card, Mulkey explained that it gave the Union
the right to prepare a contract "and bargain for it"
with the store management, and this would occur if
enough cards were signed and enough workers
wanted the Union, and that within 30 days after
enough workers signed there would be an election
to see'if the Union was in or out of the store. Mul-
key also indicated that he must have a certain
number of workers signed up before the union offi-
cials would prepare a contract based on what the
workers wanted, and take it to the store and bar-
gain on it'to see what J espondent would give. These
remarks of Mulkey's are found from Conn's entire
testimony; while he at times appeared confused
about whether the election was on the issue,
whether the Union should come into the store, or
on the contract terms which the Union would
present to management, he apparently had a clear
understanding from the card terms and Mulkey's
explanation that if enough workers signed up, there
would be "collective bargaining" in the sense that
the Union would at some point -prepare contract
demands according to the employees' desires and
present them to management and bar-gain to get
them.34 I find that the card is a reliable designation
of bargaining agent and should be counted as such,
and I admit it in evidence as G.C. Exh. 5-c.
Margie Cox, age 17 at signing , executed her card
on June 6 after hearing the usual sales talk from
Mulkey in which he compared union benefits in
other stores with what Respondent's employees
were getting, and told her that she would get those
benefits if the workers signed the cards and the
Union got into the store. In asking her to sign the
card, Mulkey explained that -after the employees
signed cards, there would be an election in which
the signers could vote, but signing of the card did
not obligate her to vote for the Union. In an earlier
solicitation in December 1965, Mulkey made the
same talk about union benefits and told her the
purpose of the Union was "to have better working
conditions, less hours of work and more pay." Cox
understood at that time of signing the 1966 card
that the Union's purpose was to make working con-
ditions better for the workers, but she indicated
that Mulkey never explained to her how the Union
would achieve better working conditions, etc.
While it is clear that she was led to believe that one
purpose of the card was to secure an election, there
is no 'proof that she did not understand the card
wording which made the Union her bargaining
agent . Since she clearly knew the purpose of the
Union stated above, which was implicit with agen-
cy, I must find that when she signed she understood
the card would make the Union her agent as stated
on it, even though she may not have understood the
exact mechanics or time of operation of that agen-
cy. I admit her card in evidence as G.C. Exh. 5-d,
and will count it as reliable evidence of choice of
bargaining agent.
Shirley Flock, an adult, signed her card on June 1
after Agent Bottorff had recited to her benefits
received by workers in other local stores under
contract with the Union, and told her it was possi-
ble that she could get the same benefits if the
Union got into the store. In the discussion, she
complained about a cut in hours after part-time stu-
dent workers got out of school and went on full-
time work, and he replied that if the Union got in it
would try to prevent that situation, that she should
Conren , Inc, 156 NLRB 592, 600, enfd 368 F 2d 173 (C A 7)
I have also considered Conn's testimony that He signed a similar card
in January 1965, after asking Mulkey what wages the Union would " really
bargain for " He at first rejected Mulkey 's request to sign that card, and
then signed it later because Mulkey "sounded like he had something worth
giving (him) a chance to bargain for or talk about " These facts indicate
strongly that Conn knew from that past experience that the card would
make the Union his bargaining agent
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not have to suffer a cut in hours if she was a full-
time worker. He also told her signing of the card
would permit a vote to determine how many wor-
kers wanted the Union. When she asked how this
would be done, he repeated that there would be a
union meeting of the workers and an election
thereafter. They also talked about Flock's member-
ship in the Union, while working with Bottorff in a
store in another city during 1958 and 1959, where
there had been a Board-conducted election among
-the workers. Flock testified that she signed the card
because she felt that various improper working con-
ditions in the store could be adjusted if the Union
was in it. I am satisfied that, from Bottorff's re-
marks (which were far less than flat promises of
benefits) and, her past experience as a member of
the same Union, Flock understood when she signed
that if the Union got in the store it would act to
better wages and working conditions for her and
other workers, which is consistent with the wording
she read on the card, and this makes the card relia-
ble proof that she thereby designated the Union as
her bargaining agent, even though she also realized
that the Union would get into the store only
through an election, such as she experienced in her
prior employment. I admit her card in evidence as
G.C. Exh. 5-f, and will count it toward majority
status.
Gary W. Hampton, age 19 at signing, executed his
card on May 27 after hearing Mulkey's usual sales
talk. Hampton had been a dues-paying member of
the Union in another supermarket, and held a
withdrawal card -from the Union, so Mulkey asked
him if he was interested in getting the Union in
Respondent's store, as it had been in the other
store. Hampton said he was. He had also signed a
similar card for Mulkey in January 1966 after a
similar talk. Although Mulkey told him he was try-
=ing to get a majority of the workers signed up so
that there could be an election, he also said that if a
majority voted the. Union in, it would try to get
union wages in an agreement from Wilson. I am
satisfied and find that Hampton knew the agency
purpose, both from past experience as well as what
he read and was told at signing of the card, con-
sistent. with its wording; the fact that he also -was
told the Union would negotiate for a contract after
an election does not vitiate its reliability as proof of
majority status. I admit the card in evidence as G.C.
Exh. 5-g, and will count it toward majority status.
Richard J. Jankowski, an adult and head of the
frozen food department, signed a card on May 27
after Mulkey, in his usual union benefit talk, told
him its purpose was to get an election and to have
the Union represent the workers, and the Union
would try in negotiations with the Employer to have
his and other workers' wages raised, and secure
other benefits set forth in other union contracts.
Since it is clear from Jankowski's testimony that the
agency purpose stated on the card itself was
represented by Mulkey as one, but not the only,
purpose for signing, I must hold it as good evidence
on majority status. I will admit it as G.C. Exh. 5-h.
James K. Magera and Tony E. Woodworth were
ages 18 and 17, respectively, when they signed their
cards together on June 8, after the usual -sales talk
by Mulkey about union benefits. He told them the
purpose of the Union was "to negotiate with the
employer for the workers if they had any gripes"
and that if the Union got into the store they would
"probably" be making more money. He also said
that if a majority of the workers signed up, they
would "probably have an election," but that an
election was not necessary. Both employees
testified that, when they signed the card, they al-
ready knew the Union's-purpose was to represent
employees in bargaining with their Employer on
wages and other matters, and Woodworth testified
that he understood the legal terms an the card, and
knew that if the Union got in, it would negotiate on
pay with Respondent. Although both boys also in-
dicated that, from prevalent talk among the em-
ployees and Mulkey's remarks, they understood
there would probably be an election, as in the past,
if enough workers signed cards, I find that they also
understood that the card presently designated the
Union as their agent for the purposes expressed on
it. Thus, both cards are good evidence ' toward
majority status, and I admit the Magera, card in
evidence as G.C. Exh. 5-j. While, their testimony
and Mulkey's admissions also show that he in-
dicated they would get raises, etc.,-if the Union got
into the store, and that the Union "had yet to
negotiate a contract where the employees did not
get a raise," which seems tantamount to a promise
or assurance designed to influence their action, and
it also appears that Magera was at least in doubt
about union adherence when he signed the card
and was relying on a possible election in which to
make his decision, I am satisfied from all their
testimony that, while both may have been a relying
on the advent of an election, they also knew the
card presently designated the Union as their bar-
gaining agent , for the purposes expressed in it, and
I cannot conclude that Mulkey's remarks to them
arose to the status of a misrepresentation about fu-
ture benefits or an election which motivated their
execution of the cards.35
Larry D. Melton, age 18 at, time of signing, ex-
ecuted his card on June 8 after the usual sales talk
from Mulkey, who recited union benefits obtained
in other stores as the benefits the' Union "had to
offer as the bargaining agent between the em-
ployees and the employer." In stating that wages
would be higher if the Union got in, Mulkey ex-
plained that the Union and Respondent would get
together and "debate the subject and come up with
a suitable wage for the employees"; Melton un-
' I admitted Woodworth's card in evidence at the hearing.
K-MART FOODS 737
derstood any raise would not be automatic. From
this Melton understood that if he signed the card,
"the union could possibly do something for us" by
"helping the employees as bargaining agent"; part
of this understanding came from similar remarks to
him by union agents when he signed similar cards in
1965 and 1964. I find that he understood the agen-
cy purpose of the card, consistent with its wording,
when he signed, and I consider it reliable proof
toward majority status, even though he had also
been told by the Union agent in 1964, when he
voted in that election, that if enough cards were
signed there would be an election, and the Union
would get into the store only if a majority voted for
it. There is no substantial proof that he was led by
Mulkey to believe that the possibility, or probabili-
ty, of an election in 1966 was the only purpose of
the 1966 card.36 I admit his card in evidence as
G.C. Exh. 5-1.
Charles (Ricky) Miller, age 19 at signing, ex-
ecuted his card June 8 after Union Agent Bottorff
gave him the usual sales talk about union benefits.
Miller asked no questions, but his mother, who
worked in the meat department in Respondent's
store, asked what benefits she would get under a
Meat Cutter's contract; Bottoriff said he could not
answer that, he could only say what benefits wor-
kers got under Retail Clerk's union contracts.
There was no discussion about a possible election.
Miller's testimony indicates he had signed at least
three cards for the Union in late 1965, one after a
talk with Mulkey who not only told him of the
union benefits if the Union organized the store, in-
dicating they would come through negotiations of a
contract, that "they would have to set it up," but
also that if a majority of workers signed the cards
the Union could have an election, from which he
got the understanding that he was signing the 1966
card to have a vote, but it did not make him a
member of the Union; it did not mean much to him,
as he could vote yes or no; he also said he signed it
because "if I did not sign he was going to keep
coming back until I did." Miller also heard em-
ployees in the store continually talking about
whether or not they would vote for the Union, but
he heard no talk about union benefits. While his
testimony indicates that he understood from all
sources that the card would lead to an election in
which he could make his final decision about the
Union, there is some indication that he may also
have signed it to prevent the union agents from
continuing to pester him about it,37 I think there is
enough in the record to warrant the finding that he
also knew, from signing three cards, the sales talks
of the two agents, and talks with his mother, that at
some point the 1966 card would enable the Union
to bargain for higher wages and more benefits for
the workers, as indicated by its wording. Hence,
while the issue here is a close one, I consider Mil-
ler's card reliable evidence toward majority status,
and will admit it in evidence as G.C. Exh. 5-m.
Michael I. Mize, age 17 at signing, executed his
card on June I 1 at the store snackbar, after sol-
icitation by Jankowski who recited various union
benefits if the Union got into the store, explaining
that if the Union would have to be "negotiated."
Jankowski also indicated clearly that the card was
necessary to enable the Union to get an election,
before it could negotiate for the greater benefits.
Mize told Jankowski he wanted the Union in the
store because he already knew what the Union
"could do for us." Mize signed similar cards during
the 1964 campaign, also voting in that election, and
late in 1965, after the usual sales talk by Mulkey.
Before he signed the 1965 and 1966 cards, he had
talked about the Union to his father, a member of
another union, and concluded the Union was a
good thing to get more pay. Mize also indicated
that he clearly understood the card to mean that he
chose the Union as his agent for purposes of getting
greater benefits. I find that, though he was well
aware from all sources (particularly Jankowski)
that the card would probably be used at first to get
an election, he also understood it would presently
authorize the Union to act as his bargaining agent.
Hence, I find Mize's card reliable evidence count-
ing toward majority status, and will admit it in
evidence as G.C. Exh. 5-n.
Patricia Muller, age 17 at signing, executed her
card on June 3 after a half-hour talk with Mulkey,
in which she asked what the Union would do for
the workers, and he recited the greater benefits
which workers "should" get in a unionized store,
stating that if the Union got into the store, manage-
ment would "have to" pay higher wages; he did not
explain how this would come about. During the
discussion, Muller's mother asked questions about
possible cuts in work hours if the Union came in,
but Mulkey's answer does not appear. Mulkey also
explained that if the workers "wanted the Union, it
would get in," but did not explain how this would
occur, and there is no credible proof that he
discussed the election procedure specifically. How-
ever, Muller knew from reading the card that it did
not make her a union member or make the store a
union store, but it did give the Union authority to
"hold a meeting to discuss union benefits," and she
gathered that the workers could go to that meeting
to express their views on what wages and other
benefits they wanted. Muller attended the June 15
meeting at Herd's to find out more about the Union
and what it had to offer. When she signed the card,
she had not made up her mind about voting for or
against the Union. Although her testimony would
indicate that she signed the card only to have a
chance to find out more about the Union and its
I'See fn 33, above
,'Considering Miller's rather reluctant testimony and his sullen, if not
rather hostile, demeanor on the stand , I think he was trying to set forth in
various ways all reasons he could presently think of to indicate that he con-
sidered the card a worthless piece of paper when he signed it, and this
detracts from his credibility on the subject
350-999 0 - 71 - 48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose, she also admits that the card wording was
an authorization to the Union to take at least the
step of holding a meeting of workers to decide what
the workers wanted. This understanding alone im-
plies that she expected the Union would act in
some way for the workers, after learning their
desires, so I must conclude that she probably un-
derstood from the wording on the card that the
Union would thereby act as her bargaining agent
after a meeting of the workers. This understanding
is also apparent from her first question to Mulkey
in their talk. I find on all the circumstances that
Muller's card is reliable evidence toward majority
status , and will admit it in evidence as G.C. Exh.
5-0.
Louis Nagy, a 30-year old man of foreign birth
who speaks very poor English, refused to sign a
card when first solicited on June 11 by Jankowski
at the store . In this talk, Nagy asked Jankowski
what-the Union would "give the workers," and Jan-
kowski replied, better wages, paid holidays, -paid
vacations, and insurance . Nagy could not read En-
glish , so asked Jankowski to explain the small print
at the bottom of the card, and Jankowski told him
it meant that "he- was allowing the union to
represent us so that we can have an election, to de-
cide if we could get a union or not." Nagy refused
to sign , but invited Jankowski to bring Mulkey to
his home to explain the card to his parents. When
they came on June 13, the parents, through Louis,
asked the agents if Louis would get more pay and
benefits if the Union got into the store, and Mulkey
said, yes, adding his usual remark that "the Union
had yet to negotiate a contract where the em-
ployees did not 'get a raise." At the time, Nagy was
dissatisfied with his wages and had previously asked
Mullin for more pay, because he felt he was work-
ing full, time; Mullin had told him he was working
on it 3s So, when his parents advised him not to sign
the card, he argued to them that "if I do not, other
people do not, and we just stay down, and we get
nothing from the company," "nobody maybe fight
for us," and that if the Union got in, there would be
more money and paid vacations for him. His
testimony clearly indicates that, on the basis of the,
flat assurance of more money and other benefits by
Mulkey and Jankowski (as he understood their re-
marks), the persuaded his parents that he should
sign . They agreed reluctantly, and he signed the
card after Mulkey had filled in all the blanks for
him. His, testimony indicates that he did not try to
read the card, the wording was not read to him, and
he relied solely on what,Mulkey and Jankowski had
said to him, and understood from their remarks that
if the Union came in, he would get an "automatic"
W Nagy did not get a raise on June 18 with other nonstudent workers,
because management felt his performance did not warrant it
`" This would also be apparent to him from Mulkey's broad and con-
fident statement that "the Union had yet to negotiate a contract where the
employees did not receive a wage raise," but from Nagy's demeanor,
manner of speech, and poor command of the English language, I am
raise in pay;39 Mulkey did not explain how the
Union would arrange this. On all the facts, I-find no
credible proof that the union agents got across -to
Nagy the idea, stated on the card,, that the Union
would thereby become his collective-bargaining
agent, but find on the other hand the only state-
ments which impressed him and his parents, and
motivated him were the flat promise of a raise and
other benefits if he signed. Since - this_ was a
deliberate misrepresentation on which he relied, I
find that his signature was procured by
misrepresentation of an essential fact which vitiates
the card. I do not count it toward majority status,
and will reject the card itself.40
Thomas W. Peck, age 18 at signing, executed a
card on June 13 at the store snackbar, at the sol-
icitation of Jankowski, who asked him if he wanted
to sign it and "vote for the Union." Peck said he
was thinking about it. Jankowski then said that if
enough workers signed cards, the Union "will be
able to get another vote," and "the more signed it,
the better chance the Union had to get in." Peck
then signed it. Peck had signed a card in the 1964
campaign after hearing Mulkey's talk stating what
the Union "would do for us" in the way of benefits.
Before the solicitation by Jankowski, Mulkey had
solicited him several times with the same sales talk,
and,Peck had indicated he favored a union in the
shop, but always refused,to sign because his father
had advised he,would get in trouble if he signed,
and-was better off without signing; however, he says
he finally decided to sign on his own, understanding
that the only way he could get more money was to
vote for the Union. Peck had read the- card and
knew that it did not make him a union member, but
understood from Mulkey's remarks that its only
purpose was to show that he was "for the Union," it)
had his vote, and that if enough workers signed
cards, there would be another election, like the, last
one. Although Peck had some impression that a
vote for the Union meant more money, he was led
to believe that the card only showed he would vote
for the Union in an election. He had also gathered,
from talks with other sackboys in the store, that he
should "vote for the Union" along with them,
because "the more people vote, the better chance
the Union has of getting in"; a few boys also said
that they would get more money if the Union got
in, but there is no proof they told, him how this
would occur, and he received no clear information
on this subject from Jankowski or Mulkey, Peck
testified credibly that Jankowski had said nothing
to him about union benefits, and Jankowski himself
admitted that, although he knew from Mulkey the
agency purpose of the card as well as the intent of
satisfied that this remark in these tortuous terms would be unlikely to make
any impression on him, other than that the advent of the Union assured a
wage raise For the same reason, I am sure that Nagy would not have un-
derstood that rather legalized statement "we would try to gain recognition
on the basis of the cards," even if l were to find that Mulkey said it to Nagy
i" G C Exh 5-p for identification
K-MART FOODS 739
the Union to use it for an election, he only told
those he solicited that it would be used to get an
election. Hence, I am convinced that, when Peck
appeared undecided after several solicitations, Jan-
kowski won him over by stressing the fact that the
card would be used to het an election, and he was
not bound by it otherwise. On all the facts, I con-
clude that the election purpose was impressed on
him both from his 1964 experience , prevalent talk
in the store, and the agent's remarks, in such
fashion as to indicate it was the only purpose of the
card, and to an extent that would be well calculated
to override in his mind any understanding of the
agency purpose stated on the 1966 card or the
1964 card, and I therefore find that the election
purpose motivated his signing. I will not count
Peck's card (G.C. Exh. 5-q for identification)
toward majority status, and will reject it as proba-
tive proof for that purpose.
John J. Psarakis, age 18 at signing , executed his
card on June 1 after Mulkey presented his usual
sales talk about union benefits in answer to
questions by Psarakis about the advantages of a
union. In discussing Psarakis' present wage, which
was quite high, Mulkey said the Union would
"probably negotiate upwardfrom" his present wage.
Mulkey told him that the card gave the Union the
right to negotiate a contract with Wilson. Psarakis
had signed similar cards before the 1964 election,
in which he voted, and late in 1965, and he knew
from the procedure in 1964 that signing of the card
would give the Union authority to represent the
workers in negotiations with management and also
to seek an election and that if the Union did not
Make ,a good contract with management, the work-
ers "could vote it out." While Psarakis at some
points indicates that he was confused on the result
if the workers turned down a contract negotiated
by the Union with management, as he felt it might
then be a "non-union," this does not vitiate his
basic understanding of the collective-bargaining
agency purposes of the card gleaned from the
above' sources, which is consistent with its wording.
Hence, I find his card reliable evidence toward
majority status, and will admit it in evidence as
G.C. Exh. 5-r.
Michael L. Schoettlin, age 16 at the time, ex-
ecuted a card on June 1 , after the usual sales talk
from ' Mulkey. When Schoettlin indicated
dissatisfaction with his present wages, Mulkey told
him the workers would get higher wages if the
Union got in, and that if he signed and the Union
got into the store, it would represent Schoettlin
"with your bosses" on wages and other benefits.
From this, Schoettlin understood the purpose of the
card was to have the Union represent him in the
store to try to get more wages and other benefits. I
find this' card reliable proof toward majority status.
Geraldine Stickley, age 18 at signing , executed a
card on,June 6 at her home, after an hour long talk
with Agents Mulkey and Kurdys, in which Mulkey
explained at the outset that he was from the Union
and wanted to have her sign a card which meant
"they would act as representative-and would draw
up a contract and if we did not like it we could
back out, and if we did (like it) we could vote for
it" and the Union would then take the agreement to
Mr. Wilson, to "hash it around" and "try to get
higher pay, etc," and there would be some changes,
and then it would have to come back to the wor-
kers to vote on. Stickley asked questions about pay
rates and other benefits, and Mulkey explained
union benefits secured in other union contracts to
which he referred, explaining that if the workers
voted for the Union, the above negotiation
procedure would ensue, and she would "probably"
get the union rates set out in the contract. Mulkey
also mentioned the holding of an election' under
NLRB supervision, if enough workers signed cards,
but Stickley's testimony indicates she was not sure
from what he said that this election would be to de-
cide whether the Union was desired by the workers
in the store. Her understanding of the card was,
basically, that whether or not she signed it, she
could still vote for or against any proposed con-
tract. Mulkey also said the purpose of the card was
to prevent her from being fired if Respondent heard
she had signed with the Union, as that would be in-
terference, and the Union would help her get her
job back or get her another job. Stickley also point-
edly asked Mulkey if she could "back out" if she
changed her mind after signing the card, whether
signing had "any ties to it," and he assured her she
could "back out," while he did not explain how she
could do this, yet she gathered from his other re-
marks that this meant she could vote against any
contract if she did not like it. While Stickley was
somewhat confused about whether the card signing
would be followed by an NLRB election, I must
find that she was clear in her mind about the bar-
gaining agency purpose of the card; and that in ex-
ercising that agency for the workers the Union
would be controlled finally by the workers' vote on
what contract they wanted and would accept from
management , all of which showed she had good
comprehension of the basic procedure in normal
collective bargaining through a union. Hence, con-
trary to Respondent 's arguments from certain por-
tions of her testimony, I must conclude and find
that she fully understood the stated agency purpose
of the card, both from its terms and Mulkey's ex-
planation, and signed it on that understanding. I
will count it as reliable proof toward majority
status, and admit it in evidence as G.C. Exh. 5-t.
Janice Truffarelli and Rose Mary Vellucci, each
age 19 at signing , executed cards together at Vel-
lucci's home on May 31, after Mulkey gave -them
the usual sales talk, telling them that if the Union
got into the store, they "would" get raises, paid
holidays, more overtime, and other increased
benefits; as in other unionized stores. He also told
them that if enough workers signed the card, there
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be an election in which they could vote
either way , the card did not bind them to vote for
the Union . TruffarelIi had signed a similar card for
Thomas Velleman , then an employee solicitor, in
October 1965 after the same type of sales talk, and
at that time she clearly understood from the word-
ing on the card that the Union would be bargaining
for the employees and that , by signing , the em-
ployees were banding together " as a group" and
"to organize labor"; she also testified that Mulkey
told her essentially the same thing on May 31. Vel-
lucci had signed a similar card in December 1965,
after the same sales talk from Mulkey and similar
statements about an election . Both girls also un-
derstood .from what Mulkey told them May 31" that
they were free to sign or not, as they chose, and
they could get their cards back if they wanted to.
Vellucci also indicated in testimony that she clearly
understood the purpose of the card from its word-
ing. On all these facts, I find that both girls had a
clear understanding of the purpose of the - card, as
stated on it. Although they also knew the cards
would probably be used for an election , I conclude
that their cards should be counted toward majority
status, and will admit them in evidence as G.C.
Exh. 5-v for Truffarelli , and 5-z for Vellucci.
John Turk , - age 15 at signing , executed his card
on June 6 , after hearing the usual talk from Mulkey
and Kurdys in an hour-long session . Both Turk and
his parents , who were present , asked questions
about the Union and its benefits, and Turk gathered
from Mulkey 's answers and the wording on the card
that the purpose of the Union was to get better
wages,' hours, and working conditions for em-
ployees, although signing of the card did not make
him a- union member . He also got the impression
from Mulkey that if a majority of workers signed
cards , there would ' b'e an election . He knew from
study of labor unions in a school course that such
vote was to find out if the workers wanted the
Union to negotiate a contract with the employer,
and if they did the store had to "stay with that con-
tract." At several points in his testimony; he ap-
peared confused about whether the election would
be on having a union in the store , or on terms of a
contract with the Employer , but I find from all his
testimony that he understood the basic purpose of
the Union- was to intervene for the employees and
work out a contract with management which was to
their liking . Although he also understood from his
parents and study in school that the card would
probably lead to an election first to decide whether
the Union would -get into the store, I cannot find
that this was the sole, or main , reason for his sig-
ning , but do find that the agency purpose stated in
the card led him to sign , as well . I find his card reli-
able proof toward majority status, and will admit it
as G.C . Exh. 5-w, even though it would appear that
Mulkey 's remarks about union benefits were in
terms close to o - a flat promise which , if it were the
only thing said to Turk , might amount to a flat
misrepresentation -, however , those remarks do not
stand alone.
Joseph Turk , Jr., brother of John , a- teenager at
signing , was solicited by Mulkey with the usual talk
sometime before June 7, but refused to sign
because he wanted to think it over . He finally
signed the card ' at home on June 7 and gave it to
Agent Kurdys , after Turk had asked him questions
about particular ' benefits in unionized stores .- In the
prior talk , after questions from Turk , Mulkey had
told him what higher benefits the workers would
get if the Union got into the store . Turk had signed
a similar card for Mulkey in December 1965, after
hearing the same sales talk . In the June talk, Mul-
key also told him there would be an election if a
majority of workers signed the cards. While Turk in
testimony indicated one reason for signing was to
"get the Union off my back" and to prevent Mul-
key from pestering him repeatedly , ` and that he did
not intend to vote for the Union when - he signed up,
it is also clear that he had signed the prior card for
Mulkey, that he knew from his father , a union
member , that the purpose of 'a union was to get
better benefits for workers and to help them in any
difficulties with their employer , and that Mulkey's
solicitation was to get employees to choose the
Union to represent them . I find that ' he knew the
purpose of the card and of the Union , as indicated
on the card , when he signed it, and conclude it is
reliable proof toward majority status. I admit the
card as G.C. Exh. 5-x.
Thomas Velleman and Thomas Walsh, both ex-
ecuted cards on June 2 in Velleman 's garage, in the
presence of Psarakis, after hearing , Mulkey's sales
talk. Both boys asked Mulkey many questions
about what the Union could do for them, and he
explained the union benefits in a contract covering
another store, saying' the Union would try to
negotiate the same benefits with Respondent, and
that their benefits "would'be close to' what" work-
ers in union stores received. He also told them sign-
ing of the card would give them the right to vote
for or against the Union in an election, which
would be held if a majority of workers signed, and
that they could get their cards back from the Union
if they wanted . Velleman had signed two similar
cards in 1964 and 1965 for Mulkey after similar
sales talks, and had voted in the 1964 election, and
in the 1966 campaign he solicited at least two other
workers (Miller and Truffarelli) to sign cards.
These facts are found from mutually corroborative
testimony of Velleman and Mulkey and as to Vel-
leman 's card they show that he understood at sig-
ning that the card would make the Union his agent
to try to get better wages and other benefits. Even
though he also was told that the card might result in
an election , it is clear that this was not represented
as the sole purpose of the card , hence I must find
that he knew one purpose was the agency designa-
tion shown in its wording. I will count Velleman's
card toward majority status , and admit it in
K-MART FOODS 741
evidence as G.C. Exh. 5-y. The only testimony on
execution of Walsh's card comes from Velleman
and Mulkey, because Walsh was not called by
General Counsel as a witness, in reversal of his
representation made to the Trial Examiner and
Respondent's counsel at the outset that all card
signers would be called to testify. While other
testimony noted below shows that Walsh was one of
the most outspoken employees in his arguments
against the Union, particularly at the Herd's meet-
ing on June 1-5 after the Union had received all the
cards on which it relies, from which it is inferable
that some doubt or fear about his testimony on the
circumstances of signing of his card or other facts
may have caused General Counsel to refrain from
calling him as part of the Government's case,41 I
must recognize that the mutually corroborative
testimony of Velleman and Mulkey, while coming
from obviously prounion witnesses and thus subject
to suspicion on that ground if controverted by other
credible proof, is enough to establish a prima facie
case as to reliability of Walsh's card,42 even though
it is obvious, as I stated early in the hearing, that
the best and usually most reliable evidence about
whether a card signer was influenced by false or im-
proper representations would come from the signer
himself. However, once a prima facie case as to the
reliability of Walsh's card was made, it was then the
duty of Respondent only to go forward with proof
which would tend to meet and rebut that case,
whether by testimony from Walsh or other wit-
nesses. As Respondent did not call Walsh for this
purpose only, I must conclude that the prima facie
case of General Counsel has not been rebutted, and
am constrained to count Walsh's card toward
majority status, and will admit it in evidence as
G.C. Exh. 5-aa.43
Rebecca Walters, age 16 at signing, executed a
card on, May 31 at the solicitation of Agent Bottorff
who, in answer to her questions, explained the
benefits received by workers in unionized stores in
the area, by referring to a sample union contract.
Regarding the card, she asked him "if it had
anything to do with me, the voting and for the
Union," and he replied, "no, it was just the majori-
ty would have to vote on it after everybody signed
the card," and "if the majority signed the card that
the Union would,, he did not say the Union would
get in b'ut I guess they would have to go through-
you would have to vote for or against it." After
reading the card and hearing Bottorff's remarks
about benefits, she signed it on the understanding
that it "would better my salary and vacations." She
also had in mind the "job situation," that "a lot of
them got cheated out of jobs they should have."
She testified that she signed because she wanted the
Union to represent her. It is apparent from her
testimony that Walters had two understandings
about the card: it would allow the Union to
represent her to get better wages and other benefits
in the store, and it would also lead to an election if
the majority of workers signed cards. As the two
purposes are not mutually exclusive, and it does not
appear that the election purpose was the sole
motivation, I must find the- card reliable proof
toward majority status, and will admit it in evidence
as G.C. Exh. 5-bb.
Daniel J. Wickizer, age 16 at signing, executed a
card on June 10 for Mulkey in the presence of Jan-
kowski, after the usual sales talk by Mulkey. In the
talk, Wickizer asked Mulkey if he would get a pay
raise and other specified benefits if he signed the
card, and Mulkey replied that he would; explaining
that if enough workers signed cards, "they would
have to bring it in," but he apparently did not ex-
plain how this would be done. Jankowski also as-
sured Wickizer that "we would be getting higher
wages and other benefits." While Jankowski
testified that he told all workers he solicited (in-
cluding Wickizer) that the higher wages and
benefits would be secured by "sitting down and
negotiating a contract"- after they had an election
and the Union won it, Wickizer does not recall or
testify to anything along this line, nor' does Mulkey
corroborate Jankowski on the specific -course of
this talk, hence I do not credit Jankowski's partisan
testimony on this. Wickizer testified that Mulkey
explained to him some of the wording on the card,
and he said he understood the words and phrases
on it when he signed, but he also testified clearly
that he signed because Mulkey had told him he
would get a raise, and "for my own good." He also
testified that the meeting with Mulkey and Jan-
kowski was-arranged by another friend in the store
who asked him if he wanted to get in the Union,
and he said, yes, as he knew that "just about'all at
the store had signed." Wickizer had never been in a
union before, never signed any cards for this Union
earlier, and did not understand the operation of
unions. He had heard some talk in the store when
workers griped about lower pay, and asked each
other if they had signed cards. I find from
Wickizer's testimony that he signed on the clear
representation of both solicitors that by signing he
would -get a raise and, considering his 'rather
meagre education and his hesitation and unimpres-
sive answers on the stand, I conclude that, while
Mulkey made some explanation of the wording on
the card to him, it made little impression on him,44
and he signed only because of remarks that ap-
41 At the time of the hearings , Walsh was in military service in Texas,
but was still available to testify personally under subpena or through
taking of his deposition in Texas General Counsel' s failure to call him
was due to some unexplained decision made in the Regional Office late
in General Counsel' s case-in-chief.
12 1 must also consider uncontradicted proof that Walsh had been a dues-
paying member of the Union from October 1965 to March 17, 1966
" Cf Don The Beachcomber, 163 NLRB 275, fn 2, which would indicate
that there is no denial of due process or curtailment of Respondent's rights
when the General Counsel elects to prove the signing of a card and the cir-
cumstances thereof through witnesses other than the card signer himself
Ja At the hearing, he could give no credible explanation in his own words
of the meaning of the legal phrases in the fine print in,the card, in contrast
with many other signers as found above
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peared to him as a promise of more pay. General
Counsel admits in effect that he signed with the un;
derstanding that signing the card would bring better
wages in the store, and I think he was clearly per-
suaded to sign by these promises coming from two
well-spoken and persuasive adults. I also find that
he signed, in part, because he wanted to "go along
with the crowd," so to speak, after being told
nearly all workers had already signed up 45 On all
the facts and circumstances, I conclude that his
card is not reliable proof of true majority status,
and I reject it.
Donald Willis, age 17 at signing , executed a card
on June 9 at the solicitation of Mulkey and Kurdys,
after he had asked questions about seniority and
pay raises, and Mulkey explained union benefits in
other stores including the fact that pay raises came
periodically in union stores, and stated that if the
Union got into, the store it would "try to" get pay
raises according to seniority. Mulkey told him the
card did not make him a member of the Union or
commit him to vote for or against the Union in an
election,-and that the card was "just to show that I
was interested and had listened to" Mulkey, and to
get an election. From Mulkey's remarks, he un-
derstood that if enough workers signed the cards,
the Union would go to the Government to show
enough people were interested in the Union, and,
then `we would have a vote." Although Willis read
the card before, signing and presumably understood
its words, and Mulkey did not make a flat promise
of a^ wage raise if he signed and the Union got in, it
is clear that the impressive part of Mulkey's re-
marks related only to the nonbinding nature of the
card, and its limited-purpose as a "show of interest"
on which the Union could ask the Board for an
election46 As Willis had never signed any earlier
cards, and had not been in a union before, I am
constrained to conclude that the main and impres-
sive, thrust of Mulkey's remarks to him indicated
that the card was only for an election, in which he
was free to vote as he pleased, and that he signed
on this representation. I thus do not consider the
card reliable, proof toward majority status, and will
reject it.
In summary, it appears that cards signed by 24
employees in the unit aforesaid are reliable proof of
majority status , and since the unit contains 45 em-
ployees, it follows that the Union on June 17 had
been chosen by a majority of the employees in the
unit as their bargaining agent . I find that on said
date the Union was thus the majority representative
u By June 10, 24 employees had signed, aside from Wickizer
46
That the,election purpose and procedure outlined by Mulkey were all
that impressed Willis is shown by the fact that he is the only card signer
who testified on his own volition substantially to the "show of interest"
requirement and procedure followed by the Regional Office after a certifi-
cation petition is filed by a union under Board Rules 102 63 et seq. and
Statement of Procedures , Sec 101 18, et seq
41 General Counsel relies , by analogy , upon Western Aluminum of
Oregon, Inc, 144 NLRB 1191, 1192, and similar cases, where the Board
held that serious unfair labor practices aimed at destruction of a union's
majority status and indicating a disposition to evade the statutory obliga-
and, by virtue of Section 9(a) of the Act, the exclu-
sive bargaining representative of all employee& in
said unit.
3. The issue of bad-faith rejection of the bargaining
demand
General Counsel argues that Respondent's unfair
labor practices before and after receipt -of the
Union's demand, were such as to indicate that it
never had a good-faith doubt of the Union's majori-
ty status, but acted to destroy that status, and that
on that basis Respondent must be ordered to recog-
nize and bargain with the Union as the, statutory
bargaining agent, even though it may not have
achieved majority or maintained it after the de-
mand.' The Union's demand was received by
Respondent on June 17. I have found above that
the June 18 raise was legitimate and not coercive,
and there is no conduct by Respondent after June
18 which can be considered coercive;_ hence I reject
the contention that Respondent by specific actions
took any steps to destroy the Union's majority
status, after_ it was achieved on June 11.48 Thus,
General Counsel has the basic burden-of proof that
Respondent's conduct before June 17 shows that it
did not act in good faith when it rejected the
Union's bargaining demand,49 but was motivated by
a rejection of the collective-bargaining principle or
a desire to gain time within which to undermine the
Union and dissipate its majority.50,
At the outset, while the, complaint alleges- that
"but for" the alleged unlawful actions- of Respon-
dent, the Union "would have been the recognized
exclusive bargaining agent" of employees in the
unit aforesaid, I am satisfied and find that the
Union never lost the technical majority status it at-
tained by signed -cards before June 17, for the
record clearly shows that none of the 24 employees
whose signed cards have been counted (nor-any of
the 4 rejected) ever asked for the return of their
cards or took other steps to repudiate the Union,
although at least 3 of them (Walsh, Velleman, and
Conn) were doubtful of the value of the Union to
them as late as the Hertl's June 15 meeting, at least
2 more (Joseph Turk; Jr., and Magera) had the
same doubts when they signed cards, and 6.others
(Miller, Muller , Stickley, Truffarelli, Peck, and Wil-
lis) were undecided about permanent union affilia-
tion when they signed cards. Further, Mulkey
testified that he considered the--Union in majority
status as late as August 1966, and the Union s
don to bargain will warrant a bargaining order, whether or not the Union
lost its majority status through a later turnover or otherwise
" On June 11, thetUmon had 24 reliable cards, excluding those of Nagy,
Peck, Wickizer , and Willis
' I find that the demand of June 16 was a sufficient demand for recogni-
tion in its formal terms and that Respondent's failure to answer the union
demand and its filing of the RM petition thereafter amounted to a refusal of
recognition
50 Galbreath Bakery, Inc ., 163 NLRB 408 , citing Joy Silk Mills, Inc, 85
NLRB 1263, enfd as modified on other grounds, 185 F 2d 732 (C.A D.C
cert. denied 341 U S 914
K-MART FOODS 743
amended charge of July 5 still claimed that status,
while alleging a campaign by Respondent to dis-
sipate it. Hence, this narrows the issue to the
question of whether or not Respondent was
motivated by a good-faith doubt of the majority
status, in its actions before June 17 and its refusal
to recognize ,the Union thereafter.
As I have found that the raises of June 11 and 18
were legitimate economic moves and not coercive,
and that Respondent 's widespread interrogation of
employees about their complaints on and before
June 15 had a legitimate economic motivation, and
was noncoercive insofar as Respondent limited it-
self to general questions about the union sentiment
of employees and progress of the union drive, the
issue of lack of good faith must be resolved on the
five instances of interrogation which I have found
coercive under existing precedents because they
probed into the sentiment and union activities of
specific employees.
The Board has recognized that not every act of
misconduct necessarily vitiates an employer's good
faith, that there may be cases where violations of
the Act are not truly inconsistent with a good-faith
doubt of a claim of majority status, and that com-
paratively infrequent instances of interrogation,
while unlawful, may not be so flagrant that they
must necessarily have the object of destroying a
union's majority status.51 Here, the record shows 5
instances of unlawful interrogation out of nearly 50
instances of questioning ( some employees had been
questioned more than once about their gripes and
store problems), and when they are considered
against the background of past and contemporane-
ous events, I must conclude that their coercive ef-
fect, whether singly or together, was essentially
minimal" and does not comprise conduct of such
extent, variety, or probable substantial impact on
the employees as to compel the conclusion that
Respondent was so motivated by a total rejection of
the collective-bargaining concept or a desire to un-
dermine the Union's efforts and prevent it from
achieving majority status, as to indicate that it
could not have been acting from a good-faith doubt
of that status.
One potent factor supporting this conclusion
consists of the Union's past total lack of success in
attaining majority status after 2 years of effort,
which was clearly no fault of Respondent, for there
is no proof of any antiunion animus or unfair labor
practices by Respondent in the prior campaigns. As
I noted above in appraising Respondent's interroga-
tion of workers, the Union's past failure to win over
the employees (which was particularly noticeable in
its loss of the 1964 election by a 30 to 3 vote) was
more likely than not to raise a bona fide doubt in
Respondent's mind about its 1966 efforts. Again,
Respondent's conduct in the recent drive shows a
singular lack of that type of anxiety or even resent-
ful concern over the Union's efforts which, if it had
existed, might have colored even the innocuous in-
terrogation of employees enough to support an -in-
ference of deliberate probing animated by a desire
or intent to take definite discriminatory action in
retaliation. Thus, the record shows that Respondent
made no effort to stop Mulkey's frequent organiz-
ing talks to employees in the store during working
time and took no particular notice of it, except to
acknowledge its existence in casual noncoercive re-
marks to some employees ; and there is a complete
absence of proof of warning, threats, or any dis-
criminatory action against any employee to whom
he talked. Further, there is substantial proof that
throughout the drive the employees freely and
voluntarily sought the views of Mullin and Ulrich
about the pros and cons of a union, and the effects
of signing a union card, which those officials an-
swered with noncoercive expressions of their views,
but with assurances to those who asked, that card
signing would not affect their jobs. They also told
some that signing of cards must be their own deci-
sion , and suggested to others that they engage in
the concerted activity of attending the union-meet-
ing to hear the Union 's arguments , which ' later ap-
pears like the direct opposite of attempts to restrain
employees ' concerted activities .53 All of this con-
duct is far more consistent with a good-faith doubt
of the Union's majority status, or chance of achiev-
ing it, than with a lack of such doubt. In addition, in
view of Respondent 's- proper resort to the election
procedure in 1964 , in contrast to the Union's
failure to do so in the usual manner , I consider that
Respondent 's resort to the same statutory and
democratic way of ascertaining the employees'
desires in 1966 is far more indicative of a good-
faith doubt than a lack of it, especially where the
record shows that throughout the campaign, even
when signing cards and after , many workers talked
openly about, and relied in part on, the prospect of
an election to enable them to resolve their minds
about the Union, particularly the older workers
who had been through the 1964 election.54- As this
was open talk in the store , I am sure that Respon-
dent learned of it in natural ways and had good
reason to believe therefrom not only that many em-
ployees were doubtful whether they would vote for
the Union but that most of them were waiting for
an election in which to make their final choice.
It is also significant that Respondent had stipu-
lated on June 4 with the Meat Cutters Union for an
election in a unit of meat department employees
which included those in the delicatessen depart-
Hammond & Irving , Inc., 154 NLRB 1071, 1073, which involved inter-
rogation of 6 employees in a unit of 110, Hercules Packing Corporation, 163
NLRB 264.
See the factor noted in cases in fn. 51 above.
These facts appear from credited testimony of Mullin, Rush, and Ul-
rich, as corroborated by admissions of Conn and Mellinger.
51 I find these on credited testimony of Jankowski , Conn, Velleman,
Magera, Miller, Flock, Woodworth, and all other card signers whose
testimony noted above shows that they were told about a probable elec-
tion when they signed cards
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, so when it received the Union's demand on
June 17 for recognition in a grocery department
unit which also included delicatessen workers, its
attorneys at once noticed the obvious conflict over
representation of the latter group which would arise
if Respondent gave the Union recognition for them,
and this clearly was good ground to doubt the
legality and size of the requested unit, as well as the
majority status. The conflict could only be resolved
properly by a hearing in a separate representation
proceeding, which Respondent sought. Even
though Respondent was denied such hearing by the
dismissal of the RM petition by the Regional Office
of the Board, the General Counsel has admitted
herein that the proper unit excludes the delicates-
sen workers, which indicates Respondent was
justified in its refusal of the Union's request for
recognition of a unit including them, and further
supports a finding of a good-faith doubt, rather
than the opposite.
Finally, there is substantial evidence to indicate
that the Union itself had- serious doubts about its
own ability to hold the loyalty of the employees in
an election. Mulkey admits that in soliciting some
employees, they indicated they were undecided
about affiliation when they asked, at time of sig-
ning, if they could still "back out," or vote as they
pleased in ' an election, and it appears that at the
June 15 "organizational" meeting Mulkey was-una-
ble to satisfy at least 4 boys, 3 of them card signers,
about the-advantages or benefits of the Union, as a
result of which he was never able to get the 20-25
workers present (all but 2 of them card signers)
into a discussion of contract terms which the Union
should present to management, for the meeting
broke up_ into small group discussions, with incon-
clusive results. Mulkey also admitted that the
Union prepared the demand for recognition on
June 13, but delayed sending it until the 16th, to
find out if the Union would get more signed cards
at the meeting of the 15th, which is some indication
that Mulkey was not satisfied that he had a genuine
and reliable majority status before that date,
although he had secured 24 signed cards by June
10, and 28 by the 14th . It is also noteworthy that
after the debacle of June 15, the Union did not file
its own petition for an election, but elected to try
for a bargaining order via the unfair labor practice
route.56 Since Respondent knew about the Hertl's
meeting beforehand, it is a fair inference that it
learned afterwards, in legitimate ways, of the em-
ployees' continued debates and doubts about union
affiliation, and I am sure this' knowledge
strengthened any existing doubt about the Union's
status.57
After careful consideration of all the above fac-
tors and circumstances, I am constrained to con-
clude that General Counsel has failed to sustain the
burden of proving that Respondent's refusal of
recognition to the Union was motivated by a rejec-
tion of the basic principle of collective bargaining
or a desire to gain time within which to undermine
the Union and dissipate its incipient or actual
majority status, hence the strong medicine of an
order to bargain without an election is not war-
ranted in this case.58
III. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the
Respondent's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY'
Having found that Respondent has engaged in
certain limited unfair labor practices in- violation of
Section 8(a)(1) of the Act, I will recommend that it
be ordered to cease and desist therefrom, and from
any like or related conduct, and that it take certain
afrmative action designed to effectuate the poli-
cies of the Act. As I have found that General Coun-
sel has not sustained the burden of proof that
Respondent's unfair labor practices amounted to a
rejection of the- basic principle of collective bar-
gaining or were motivated by a desire to gain time
to undermine the Union and attempt to destroy its
actual majority status, I shall not recommend any
order that Respondent recognize or bargain with
the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2 (2), (6), and
(7) of the Act, and the Union is a labor organiza-
These facts render inapposite the Board 's rulings that a good-faith
doubt as to the appropriateness of a unit , though erroneous in law, is not a
good defense to an alleged refusal to bargain. See H & W Construction
Company, Inc, 161 NLRB 852, and authorities cited in fns 5 and 6
thereof
See Northwest Engineering Company, 158 NLRB 624, and cases cited
in fns 9 and 10 thereof
'' There is nothing to show that any employee attended the Herd's meet-
ing as a secret company sympathizer , or for purposes of surveillance, or
that Respondent engaged in any illegal conduct with respect to that meet-
ing
5' See cases cited in fn 51 above, also Harvard Coated Productions, 156
NLRB 162, Ben Duthler , Inc., 157 NLRB 69; Strydel, Inc., 156 NLRB
1185; John Serpa, Inc., 155 NLRB 99, and Pizza Products, Corp v.
N L R B, 369 F.2d 431, 436, 438 (C.A 6) Due to striking differences in
the facts as to the amount , type, and impact of unfair labor practices in-
volved, I consider , cases cited by General Counsel , such as Western Alu-
minum of Oregon, Inc , supra , Irving Air Chute Company, Inc., 149 NLRB
627, Flomatic Corp, 147 NLRB 1304, Bannon Mills, Inc.; 146 NLRB 611,
Northwest Engineering Co, 158 NLRB 624, and Piasecki Aircraft Corp. v
N L R.B , 280 F 2d 575, inapposite on the facts , and not controlling. Cf.,
also, Galbreath Bakery, Inc ., supra.
K-MART FOODS 745
tion within the meaning of Section 2(5) of the Act.
2. By interrogating employees regarding their
specific union sentiments and activities to the ex-
tent found above, Respondent has interfered with,
restrained , and coerced employees in exercise of
their rights guaranteed by Section 7 of the Act, and
has thereby engaged in unfair labor practices af-
fecting _ commerce within the meaning of Section
8(a)(l) of the Act.
3. Except as above set forth, Respondent has not
engaged in any other unfair labor practices alleged
in the complaint.
[Recommended Order omitted from publica-
tion. ]