Piggly Wiggly El Dorado Co.

National Labor Relations Board - Board Decisions

Aug 13, 1965

154 N.L.R.B. 445 (N.L.R.B. 1965)

PIGGLY WIGGLY EL DORADO CO. 445
Glynn Campbell , d/b/a Piggly Wiggly El Dorado Co. and Retail
Clerks International Association, Local No. 1583 , AFL-CIO.
Case No. 06-CA-1969. August 13,1965
DECISION AND ORDER
On May 24,1965, Trial Examiner John F. Funke issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and Respondent filed
exceptions to the Trial Examiner's Decision and briefs in support
thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations as modified herein.,,
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial Examiner , and orders
that Respondent, Glynn Campbell, d/b/a Piggly Wiggly El Dorado
Co., his agents, successors, and assigns , shall take the action set forth
in the Trial Examiner's Recommended Order.
i We agree with the Trial Examiner that the circumstances herein show that Respond-
ent did not entertain any good-faith doubt of the Union's majority status, but we ex-
pressly repudiate his unwarranted extraneous comments on this aspect of the case. We
also agree with the Trial Examiner that Bob Campbell acted in violation of Section
8(a)(1) as an agent of Glynn Campbell , his father and Respondent herein. In addition
to the factors relied upon by the Trial Examiner , we note that Glynn Campbell was con-
currently engaging in similar violations of Section 8(a) (1).
The Trial Examiner excluded Lucille 'Brooks, the sole office clerical employee, from
the bargaining unit. As the Union had achieved majority status even with her inclusion,
we perceive no need to pass upon this point.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 5, 1964, and an amended charge filed January 11,
1965, by Retail Clerks International Association , Local No. 1583, herein called the
Retail Clerks or the Union, against Glynn Campbell, d/b/a Piggly Wiggly El Dorado
154 NLRB No. 32.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., herein called Campbell or the Respondent, the General Counsel issued a com-
plaint alleging the Respondent violated Section 8(a)(1) and ( 5) of the Act.
The answer of Respondent denied the commission of any unfair labor practices.
Both complaint and answer were amended at the hearing.
This proceeding, with all parties represented, was heard before Trial Examiner
John F. Funke at Little Rock, Arkansas, on March 9 and 10, 1965. At the
conclusion of the hearing the parties were given leave to file briefs and briefs
were received from the General Counsel and Respondent on April 22.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The answer, as amended at the hearing, admits and I find that the Respondent
is engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Retail Clerks is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Glynn Campbell is the owner of the retail grocery store at El Dorado involved
in this proceeding and it was either stipulated or admitted that George Reed,
manager, Bob Campbell , assistant manager, and A. Z. Weaver , produce manager,
were supervisors within the meaning of the Act at all times material herein until
November 7, 1964,1 when Reed resigned.
At all times material herein Ralph Green was president and business agent of
the Retail Clerks and F. J. Chambers was secretary-treasurer. In September
Green made his first visit to El Dorado and contacted an employee of Piggly
Wiggly. In October the Retail Clerks started a campaign to organize the
employees, a campaign which culminated in a demand for recognition on Novem-
ber 4. On November 5 the demand was refused.
B. The status of Bob Campbell
It is the contention of the General Counsel that Bob Campbell, at least after
November 7, was a supervisor within the meaning of the Act. I find it unneces-
sary to pass upon this question. As a person employed by his parent Bob Camp-
bell was not an employee within the meaning of the Act and would not be
included in any computation of employees within the unit. In view of the
family relationship and the size of the plant,2 I find that Bob Campbell acted as
an agent of Respondent with respect to labor-management relations.
C. The status of Jesse Barnett
Barnett was hired as a stocker by Respondent about September 1. He was
hired at $1.15 per hour but, according to his testimony, was changed from an
hourly rate to a salary of $75 per week some 3 weeks later.3 This change was
made when Glynn Campbell asked him out for coffee , told him he liked his work
and warned him that the overtime he was getting might not last, and told him
he would be better off on salary. His duties at the store did not change in any
way except that he thereafter helped Bob Campbell check the registers at night.
On November 3 he was called to Glynn Campbell's office and told that Manager
Reed was leaving and that he was the employee qualified to take over the
assistant manager's job. (Bob Campbell , assistant manager, was to take Reed's
place.) Barnett told Campbell he was interested and would give him an answer
in a day or two. The next day, November 4, Green and Chambers visited the
store and made their demand for recognition. After they left Barnett was called into
Campbell's office and the Union was discussed in a conversation reported infra.
1 Unless otherwise noted all dates refer to 1964.
2 There were only 20 regular full and part-time employees on November 4. (This Is
discussed , infra.)
"This testimony conflicts with Respondent 's records which show that Barnett received
a salary of $75 starting the week of November 2. Confronted with this contradiction
Barnett admitted the records could be correct.
PIGGLY WIGGLY EL DORADO CO. 447
On Monday, November 9,4 Barnett went to Campbell and told him he would not
take the job because he would have to find ways of firing people .5 Campbell told
him he had been whitewashed by the Union, which Barnett denied. Barnett
continued to work until January 2, 1965.
Campbell's testimony contradicts Barnett's on several points. Campbell testi-
fied that he appointed Barnett assistant manager on Tuesday, November 3, and
that Barnett seemed "elated." Barnett was paid $75 for that week and raised to
$82.50 the next week. Campbell stated that during the week of November 3
Reed was merely "working out his time" and was no longer a supervisor and that
Barnett assumed his duties on November 3. Campbell claimed that Barnett
ordered merchandise, directed the work in the back, and went ahead with "what-
ever assistant managers do in the way of getting stock on the floor." Campbell
admitted, however, that Barnett "refused to do anything" and that "Mr. Barnett
was not much of an employee after this time." Campbell also admitted that
Barnett came to him (Campbell fixes the date as November 5) and told him he
did not want the job of assistant manager.
Whatever may have been Barnett's status after November 9, it is my conclusion
that his status as employee did not change on November 3.6 I find that the offer
made on November 3 was a prospective one and that Barnett's duties as super-
visor were to start on the following Monday. This is consistent with the fact
that Reed was still working at the store and there would be no reason to demote
Reed and promote Barnett in the middle of the week. I find that Barnett did
not exercise any supervisory duties or change his duties except to help check
the register during this week. Campbell's statement regarding Barnett's new duties
is a general one, contradicted by his statement that Barnett refused to do anything.
D. Violations of Section 8(a) (1)
Jesse Barnett, in addition to the testimony given supra, testified that Campbell,
in the "coffee" conversation asked him what he thought about the Union.
In his conversation with Campbell in Campbell's office on November 3, Barnett
was asked if he knew anything about the Union and he denied any knowledge.
On the following day, November 4, following the visit of Green and Chambers
to the store, Barnett was again called to the office and asked by Campbell if he
had signed a card and was told that Campbell had a photostatic copy of every
card. (Barnett said his signature was forged.) Later Campbell called in four
other employees, reminded them of the benefits they had received and told Barnett
to take them out for coffee and talk them into not going union.? He promised
Barnett he would receive $82.50 as assistant manager and that if the four employees
agreed not to go union he would pay him $100 and that if the Union did not
come in he would pay him $110. He also told Barnett that he would find ways
of ridding the store of union employees and that he (Barnett) would have to
"find more things wrong." On Monday, November 9, when Barnett rejected
the position of assistant manager, Campbell asked him if he had talked to the
Union and if he had been "whitewashed." Campbell admitted the interrogation
of Barnett but did not testify as to the balance of the conversation. The credibil-
ity resolution is made infra.
Johnny Benson testified that in November Glynn Campbell took him to the
office and questioned him concerning his solicitation of another employee. Benson
finally admitted that he had obtained a signature from Ray Lester .8 Benson was
told that if the Union came in he would be working 1 hour a month. Campbell
admitted telling Benson that he was last in line in seniority and that he would
be on "the losing end on the game." Benson 's testimony is credited.
* Barnett was confused as to dates . Monday was November 9, not 10.
5 Barnett testified that in his conversation with Campbell on November 4, Campbell
told him he ( Campbell ) would find ways to fire union members.
"Campbell testified that the reason he notified Barnett on a Tuesday was that it was
on that day he received word that an alternate candidate was not interested.
7 This meeting on November 4 is not referred to in the testimony of Mildred Hall , Sohnny
Benson, Randall Burnside, and Lucille Brooks, the four employees whom Barnett alleges
were called in, although each testified to conversations with Campbell regarding the
Union, discussed infra. These conversations , however, took place on other dates and not
in the presence of Barnett although some of their testimony agrees with Barnett's as to
what Campbell told them.
9 Lester's card was dated November 16 so the conversation must have taken place after
that date.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill Roberts 9 testified that about 2 days after November 4 Produce Manager
Weaver asked him if he had signed a card and when he admitted he had, told
him it might be "pretty bad" and later asked him if he had changed his mind.
In January Weaver, who was a friend of Roberts, stopped by at Roberts' home
when Barnett was there and the next day told Roberts he should change his mind
about the Union. Weaver did not deny the substance of these conversations but
stated that he did not think Roberts was qualified to hold a job under the Union.
Randall Burnside testified that when he applied for reemployment with Respond-
ent in 1964 Glynn Campbell asked him if he had signed a union card while
employed at Safeway and told him he did not want a union at the store. The
conversation took place in Campbell's office. This testimony is not denied.
Mildred Hall testified that on November 19 she was called to Glynn Campbell's
office and reminded of benefits she had received when her husband had been
injured. Campbell told her that he could not believe she would sign a card and
that if the Union came in employees' hours would be cut and specifically
mentioned Johnny Benson as an employee who might be out of a job. The con-
versation was admitted by Campbell.
Roger Lee testified that Bob Campbell told him in November or December
that if the Union came in the employees might make higher wages but would
have their hours cut and some employees would be out of work Campbell did
not deny this testimony but only admitted to discussing the Union with Lee.
(He testified Lee told him he regretted signing a card and that others felt the
same way )
Lucille Brooks testified that Glynn Campbell, on November 13, criticized her
work and told her that if the Union came in everyone would be without a job.
The discussion of a union was initiated by Brooks, who told Campbell she
was not for the Union. This testimony is not denied.
Eddie Bradley testified that about Christmastime Bob Campbell asked him
if Jesse Barnett had mentioned the Union to him and named several employees
who were undependable and would "have to go" if the Union came in. Shortly
before January 1 Bob Campbell again came to him and asked him if he was
going to attend a union meeting that night and asked Bradley to go because
he (Campbell) wanted to know what was said and who was there. The next
day Campbell asked him if he had attended and when informed that Bradley
had not told him that Roger Lee had attended and reported what happened.
Bob Campbell denied threatening to get rid of undependable employees and
denied asking Bradley to attend the union meeting. I credit Bradley.
Dennis Bussey testified that about 2 weeks prior to November 19 he was
called to Glynn Campbell's office, asked how he felt about the Union by Campbell,
told that if the Union came in his hours would be reduced as would the other
stockboys, and that Roger Lee would be demoted. Campbell denied the interroga-
tion of Bussey and the threat concerning Lee but admitted telling Bussey the
Union would not be good for him since he could be replaced by a regular
employees working regular hours. I credit Bussey.
Conclusions
On the basis of credited testimony I find that Glynn Campbell interrogated
employees Mildred Hall, Randall Burnside, Johnny Benson, Jesse Barnett, and
Dennis Bussey concerning their union activity. Since such interrogation took
place in a background of union hostility or was accompanied by threats and
expressions of union animus; the information sought could have been for the
purpose of taking action against employees; the interrogation took place in the
owner's office and some of the replies were untruthful; I find the Respondent
violated Section 8 (a)(1) of the Act.1e I find it unnecessary to pass upon the
other instances of interrogation since further findings would be cumulative as
to any remedial order.
On the basis of testimony which is either credited or undenied, I find Respondent
violated Section 8(a)(1) of the Act by:
(a) Telling Benson it would cut him to 1 hour a month if the Union came
in and that he would be on the losing end of the game.
(b) Telling Roberts it might be "pretty bad" when he admitted signing a
union card.
9 Roberts was a poor witness whose recollection had to be refreshed continually from
his pretrial affidavit which be had great difficulty in reading.
10 Bonnie Bourne, d /b/a Bourne Co v. N.L.R B , 332 F. 2d 47 (C.A. 2) ; N.L. R.B. v.
Cameo, Inc., 340 F. 2d 803, '804 (C A 5) ; Cannon Electric Company, 151 NLRB 1465
PIGGLY WIGGLY EL DORADO CO. 449
(c) Telling Mildred Hall that if the Union came in the employees' hours
would be cut and naming Benson as an employee who might be out of work.
(d) Telling Lee that if the Union came in the employees' hours would be
cut and some would be out of work.
(e) Telling Brooks that if the Union came in everyone would be out of work.
(f) Telling Bradley that if the Union came in several employees who were
undependable would have to go; asking Bradley to attend a union meeting and
report what took place and who was there.
In view of Barnett's testimony that his conversation with Bradley took place
in the presence of four other employees and that none of them corroborated
this, I shall make no findings of an 8 (a) (1) violation based on his testimony
concerning his conversation with Campbell on November 4. I have accepted his
testimony as to his employee status on November 4 because it is supported by that
of other employees and to a substantial extent by Campbell's own testimony.
I have considered the contention of counsel for the Respondent that some of
the statements set forth above were predictions rather than threats but, after
considering carefully the language which I have credited, I disagree. I find
nothing in Campbell's remarks to suggest that a reduction in hours would be
requested by the Union but only the indication that this would be his response
to unionization of the store. It is true that at the hearing Campbell testified
that it was his intent to explain to his employees the possible ill consequences
of organization but I must rely on his words and not on an explanation both
subjective and retroactive. At the time the threats were made Campbell had
had no negotiations with the Retail Clerks and could hardly have known what
their demands would be. Under these circumstances the conduct of Respondent
was clearly unlawful."
E The refusal to bargain
1. The appropriate unit
The General Counsel contends that the unit appropriate for collective bargaining is:
All grocery and produce employees of Respondent employed at its El Dorado,
Arkansas, retail store, including office clerical employees, but excluding all other
employees including meat department employees, watchmen, guards, and super-
visors as defined in the Act.
The Respondent contends that the only office clerical employee, Lucille Brooks,
should be excluded from the unit. Brooks testified that she was first employed
in 1963 as a bookkeeper and "helping in the post office." 12 As of November 4
(she worked in both the post office and the store office on that day) her duties
consisted of double entry bookkeeping, keeping a weekly report, pulling the
money in the registers , listing the grocery invoices, and making the bank deposits.
She did not, at this time, work as a checker.
Based on her own testimony, which is credited, I do not believe Lucille
Brooks enjoyed a sufficient community of interest with the other employees to
warrant her inclusion in the unit. She worked 21/2 days for the store, was paid a
salary, worked in the office (when working in the store) occupied by the owner
of the store , did not serve the public except to cash checks upon occasion, and
performed duties entirely different from those performed by other employees.
The two cases cited by the General Counsel to support her inclusion, Polk
Brothels, Inc., 128 NLRB 330, and G. C. Murphy Company, 128 NLRB 908,
refer to department store units . But apart from the fact that I find working
conditions in department stores easily distinguishable from those in supermarkets
I believe the Board's recent decisions in Allied Stores of New York, Inc, d/b/a
Stern's Paramus, 150 NLRB 799, Arnold Constable Corporation, 150 NLRB 788,
and Lord & Taylor a Division of Associated Dry Goods Corporation, 150 NLRB,
812, have shorn Polk of all authority. 13 In establishing new Board policy
11 N.L,R.B. V. Harold Miller, et a7, d/b/a Miller Charles & Co., 341 F 2d 870 (C A 2) ;
Garden Super Market , Inc., 148 NLRB 583; Big Town Super Mart, Inc ., 148 NLRB 595;
Herman Wilson Lumber Company, 149 NLRB 673 (predictions versus threats ) ; Modern
Plating Corporation, 150 NLRB 1150
12 Campbell operated post office substation No 2 from an office adjacent to his own
office. Although Brooks worked for the post office 21/2 days a week she was paid by
Campbell, not by the post office
1$1lfember Jenkins dissented in all three decisions on the ground that separate units
were sought by the Petitioner as a device of dividing the stores to insure winning an
election at least among some segment of employees.
2 0 6-4 46-6 6-v of 15 4-3 0
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respecting department stores the Board in Allied set up separate units of selling
employees , nonselling employees , and restaurant employees, excluding the office
clericals from all units. In Arnold Constable, where the Board found the non-
selling employees largely organized, the Board established separate units of
selling employees , all office clericals, and all cafeteria employees. In Lord &
Taylor, etc. a separate unit of nonselling employees, excluding among others
the office employees, was found appropriate. In accordance with the general
rule that office clericals will be excluded from a plantwide unit where either
party seeks to exclude them the unit found herein will exclude the single office
,clerical.14
A second contention between the parties is with respect to the so-called oncall
employees. These are employees whom Respondent will call when work is available
although some of them, according to Glynn Campbell, will appear at the store
from time to time to inquire if work is available and these will usually receive
a larger share of the work. The issue presented is whether these employees
qualify as regular part-time employees or whether their record of employment
was so sporadic and intermittent as to disqualify them.15 The parties stipulated
that if the Respondent's records were introduced into evidence they would indicate
the following hours worked by each from the time of his first employment to the
end of the payroll period immediately proceeding the demand, October 31.
Included is a summary of the number of payroll periods in which each employee
worked during the 10-week period immediately preceding the demand:
(1) Coy Barksdale--------- October 31: 6)f hours, September 5. 193 hours -------_____ 2 of 10 payroll
periods
.(2) Tommy Leach_________ November 7. 5% hours, October 10 4). hours, October 3 3 of 10 payroll
6 hours, July 18 15% hours. periods
(3) Joe Rambo ____-_---___ October 24 7% hours, September 5 3% hours_____________ 2 of 10 payroll
periods
(4) Ronnie Goodwin ______ Does not appear on any payrolls between May 2 and
November 7, 1964
(5) Gerald Weaver________ October 31 4% hours_____________________________________ 1 of 10 payroll
periods
(6) Nina Post_____________ October 10: 7% hours, October 3 16 hours, September 5: 3 of 10 payroll
17% hours, August 15: 24% hours, August 8 24% hours, periods.
August, 1 24% hours, July 25. 25 hours, July 18 26
hours, July 11. 24% hours
(7) Carlton Plunk --___-___ November 7 15% hours, September 26. 8% hours, Sep- Do.
tember 5 3% hours
(8) Henry Lewis__________ October 31. 1% hours, September 26: 7% hours, Septem- Do.
ber 19 2% hours
(9) Don Graves___________ October 3 2 hours________________________________________ 1 of 6 payroll
periods.
<10) Ronnie Goodson______ September 26 4% hours, September 19. 28 hours, Septem- 4 of 10 payroll
ber 12: 39% hours, September 5. 10% hours. periods.
(11) Gerald Henderson- __ _ September 12 30% hours, September 5 50 hours, August 2 of 10 payroll
29 50 hours, and an average of approximately 48 hours periods.
for each of the preceding 17 payroll periods
(12) Herbert Bussey_______ September 5. 9 hours______________________________________ 1 of 10 payroll
periods.
.(13) George Goss__________ September 5 10% hours, August 29: 13 hours, and 5-17 Do.
hours for each of the preceding 17 payrolls.
,(14) Steve Leverette*______ August 22 6% hours, August 15. 8% hours, August 8 None of 10 pay-
31% hours, July 25: 4 hours, July 11. 8% hours, July 3• roll periods.
39 hours, June 27. 24 % hours, June 20. 11% hours, June
13: 19% hours, June 6 7 % hours, May 2 20% hours.
*Apparently Steve Leventer on p 2 of General Counsel's Exhibit No 2.
14 See Select Foods Inc., 130 NLRB 1286 , 1287, where the invoice clerk in wholesale
grocery who performed duties similar to those of Brooks was excluded from the unit.
See also Labatt Wholesale Grocery Company , 130 NLRB 228.
15 There is no dispute concerning the eligibility of the regular part-time employees re-
ferred to on the record as "co-op."
PIGGLY WIGGLY EL DORADO CO. 451
I believe these records conclusively establish that the employment of the
oncall employees was sporadic and casual and established no pattern of regular, con-
tinuing employment. It might be noted that none of the oncall employees worked
in as many as 5 of the 10 weeks preceding the demand for recognition. During
the month of October only seven of these employees worked at all, five of them
working 1 day during that month and two of them working 2 days. On the
strength of the record the oncall employees will be excluded from the unit.
On the basis of these determinations the appropriate unit is found to be:
All grocery and produce employees of Respondent employed at his El
Dorado, Arkansas, retail store, including regular part-time employees, but exclud-
ing the office clerical employee, oncall employees, meat department employees,
guards, and supervisors as defined by the Act.
2. The demand and refusal
Ralph Green and F. J. Chambers testified that they visited the El Dorado
store twice on November 4. The first visit occuired at about 10 a.m. when they
met with Glynn Campbell and gave him a letter (Respondent's Exhibit No. 1)
requesting recognition.
After Campbell had read the letter Chambers said he was ready to prove
the majority status of the Retail Clerks and produced photostatic copies of 13
authorization cards signed by the employees. Campbell made a list of their
names. Chambers told him the Retail Clerks made no claim to represent the
meat department employees but that they did claim to represent the office
clerical. There was mention of Weaver and the union agents agreed that if
he possessed the authority asserted by Campbell he should be excluded. Camp-
bell, according to Green, stated that he could not afford "one penny raise" and
that if he knew he did not have to give any raises he might recognize the Union.
Campbell asked them to return later and then when they did he asked for an
extension of time until the following morning at 8 o'clock.
On the following morning at 8 o'clock Green was advised that Campbell had
called and wanted the union representatives to meet with B. S. Clark, his
attorney. After some discussion Green and Chambers went to the coffee bar
while Clark called Campbell, after which he informed them Campbell would
not recognize the Retail Clerks.16
On the basis of the foregoing testimony, not contradicted in substance, I find
that the Union made a demand for recognition in a unit appropriate for the
purposes of collective bargaining 17 on November 4 and that the demand was
rejected on November 5.
3. The Union's majority status
The parties agreed that, exclusive of the oncall employees but including the
office clerical, there were 20 employees employed at the El Dorado store on
November 4. Of the 19 found to constitute the appropriate unit 12 signed
cards with the Retail Clerks. (The excluded office clerical, Brooks, had signed
a card.) In view of this finding it is unnecessary to decide whether or not the
card of Ray Lester should be computed in determining the Union's majority since
the Union had obtained the cards of 11 of 19 employees without Lester.18
4. Respondent's defense of good-faith doubt
Respondent contends that, although he was shown photostatic copies of 13
signed authorization cards 19 on November 4, he had reason to doubt that the
16 That same day, November 5, Clark filed a petition for an election with the Board
and the Retail Clerks filed the original charge herein.
17Although the Retail Clerks would include the office clerical in the appropriate unit and
I have excluded her, I do not find such a minor variation in the unit description renders
the unit requested inappropriate . This is particularly true where, as here, the inclusion
does not violate either Board or statutory policy and the Union, as hereafter found,
possessed a majority in either unit . Barlow-Maney Laboratories, Inc., 65 NLRB 928,
944. Cf. Joslin Dry Good8 Company 118 NLRB 555.
IsLester 's card was dated November 16, almost 2 weeks after the demand was made,
and the General Counsel contended that it should be computed under the theory that the
demand was a continuing one, citing American Compressed Steel Corporation, 146 NLRB
1463.
19 The union representatives offered to have a disinterested third party check the signa-
tures for authenticity . The offer was not accepted.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union represented a majority of its employees in an appropriate unit. The
doubt was based largely on Campbell's feeling that the unit was inappropriate
because it included Brooks and Barnett, both of whom Campbell would exclude,
and did not include the oncall employees, whom Campbell would include.
Ruling on these categories has been made and it had been established that the
Union did represent a majority in the unit found appropriate. That fact, how-
ever, does not vitiate the defense of good-faith doubt. Celanese Corporation of
America, 95 NLRB 664, 671. But the defense of good-faith doubt may not be
raised in a context of other unfair labor practices designed to gain time to
dissipate the Union's majority status and prevent the holding of a free election.20
Here the Respondent engaged in coercive interrogation and threats of reduced
working hours and possible firings shortly after he became aware of the Union's
claim to recognition. Under these circumstances it cannot be found that
Respondent's bad faith is mitigated by his prompt filing of a petition for an
election.2i
Respondent's counsel states in his brief.
. . . it would appear that whenever the Board finds actual majority status
coupled with violations of Section 8(a)(1) then, automatically, the presump-
tion is made that the employer did not have good faith doubt in the first
place. The fact that the Board has decided in recent months numerous
cases on the Joy Silk Mills Rule, the great majority of which favor the
Unions, could very easily lead Counsel to assume that the foregoing is true
and that "a reasonable doubt" is mere fiction when a Section 8(a)(1)
violation is found.
Counsel urges that this either is not or should not be the law, citing Carneo Lingerie,
Inc., 148 NLRB 535. In that case the Board made the finding that respondent
had it factual basis for his asserted doubt since many of his employees who had
signed cards had advised him that they did not wish to be represented by the
Union and that they had been coerced into signing cards It found no violation
of Section 8(a)(5) despite a finding of an 8(a)(1) based on threats made by a
supervisor, once before and once after the demand for recognition, that the
plant would shut down if the union came in. The threats were made to "a
handful of employees in a unit of more than 250 employees" and the Board
held that such threats could not, standing alone, evidence a deliberate purpose
on Respondent 's part to gain time to dissipate the union 's majority. In support
of counsel 's position in the instant case are these words of the Board.
But the question whether an employer who commits violations of Section
8(a) (1) also intends to undermine the union's majority or otherwise to
defeat the employees unionization may not be answered mechanically, it
must turn upon a consideration of all relevant circumstances.
The case is easily distinguishable on its facts from the case herein, where
the Respondent made no effort to work out a means of checking the cards, stated
he might recognize the Union if it did not ask for wage increases, and engaged
in flagrant conduct in violation of the Act in a store employing only 20 regular
employees. Apart from this fact I believe that counsel has stated the present
state of the law more realistically in the quoted portion of his brief than in his
citation of Cameo Lingerie. In Johnnie's Poultry, supra, the Board 22 rejected
the defense of good-faith doubt based on the results of an election held on
October 27, 1961, which the union lost 47 to 21 after it had succeeded in
obtaining 55 authorization cards, 6 more than it obtained at the time of its
demand for recognition on December 6, 1962. The only violations of Section
8(a)(1) found by the Board were a threat made by the owner of the plant
to one employee some weeks before organization began and unlawful interroga-
tion of employees by respondent 's attorney when investigating the validity of
the cards The court, reversing the Board in full , commented on the fact that
Board Chairman McCulloch had quoted statistics establishing the unreliability
PO Joy Silk Hills v. N.L.R.B., 185 F. 2d 732 (C.A.D.C.).
41Johnnie's Poultry Co ., 146 NLRB 770, reversed 344 F. 2d 617 (C.A. 8).
22 Member Leedom dissented on the finding of a violation of Section S(a) (5)
PIGGLY WIGGLY EL DORADO CO. 453
of cards as proof of majority status in an address before the Labor Relations
Section of the American Bar Association in 1962. The Court of Appeals for
the Eighth Circuit quotes from this address as follows:
In 58 elections, the unions presented authorization cards from 30 to 50%0
of the employees and they won 11 or 19% of them. In 87 elections, the
unions presented authorization cards from 50 to 70% of the employees
and they won 42 or 52% of them. In 57 elections the unions presented
authorization cards from over 70% of the employees and they won 52 or
74% of them.
Despite the foregoing statistics disparaging the credit of authorization cards the
Board has continued to accept them even in the face of misleading representa-
tions as to the purpose of the cards 23 and misleading statements on the cards
themselves 24 The floodtide of Board decisions on the issue of good faith runs
against Cameo Lingerie to the extent that further citation of cases would be
supererogatory. Unless the employer is in possession of factual evidence which will
overcome the union's claim and he is likewise free from violations of Section
8(a)(1) which neither are isolated not minimal in impact, it does not appear
that he can successfully assert this defense. A reasonable doubt is not the
equivalent to a good-faith doubt.25
Respondent has refused to bargain in good faith with the Retail Clerks in
violation of Section 8(a)(5) of the Act.
IV. THE REMEDY
Having found the Respondent has engaged in and is engaging in certain
unfair labor practices, I shall recommend that he cease and desist therefrom
and take certain affirmative action necessary to affectuate the policies of the Act.
Having found that Respondent refused to bargain in good faith with the
Retail Clerks in' the unit found appropriate herein, he will be ordered, upon
request, to do so.
Upon the basis of the foregoing finding of facts and upon the entire record
in this case, I make the following-
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of the Act.
2. Retail Clerks International Association, Local No. 1583, AFL-CIO, is a
labor organization within the meaning of the Act.
3. By interrogating his employees respecting their union activity, by threaten-
. ing them with a reduction in working hours and loss of employment, and by
asking an employee to engage in surveillance of a union meeting, Respondent
violated Section 8(a) (1) of the Act.
4. On November 4, 1964, the Retail Clerks represented a majority of the
employees of the Respondent in a unit appropriate for the purposes of collective
bargaining. By refusing to bargain in good faith with the Retail Clerks upon
demand the Respondent violated Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
23 Cumberland Shoe Corporation, 144 NLRB 1268 Cf. Englewood Lumber Company,
130 NLRB 394. (The Board found in Cumberland that the holding of an election was
not the only inducement offered the employees to obtain their signatures.)
24 S.N.C. Manufacturing Co., Inc., 147 NLRB 809. (The cards stated in bold print
at the top "I WANT AN ELECTION NOW." In smaller print and below was the state-
ment authorizing the union to bargain for the employees )
22 In Laystrom Manufacturing Co., 151 NLRB 1482, the Board found the employer
had refused to bargain in good faith, although he engaged in no Independent unfair labor
practices and had shown no hostility toward the union, when he refused to bargain at
the end of the contract term on the ground that he doubted the union's majority and
petitioned for an election. His doubt was grounded on the results of the last election
which the union had won 17 to 13, and on the further fact that 16 of the employees to
vote in that election had quit and 8 replacements had been hired (In addition, the
employer had offered to negotiate a new contract conditioned upon the outcome of the
election.)
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, it is ordered that Respondent, Glynn
Campbell, d/b/a Piggly Wiggly El Dorado Co., his agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating his employees concerning their union member-
ship and activities, threatening them with a reduction in hours if they chose union
representation, threatening them with loss of jobs and a closing of the plant if
they chose union representation , and asking employees to attend a union meeting
and report what took place.
(b) Refusing to recognize and bargain collectively with Retail Clerks Inter-
national Association, Local No. 1583, AFL-CIO, as the exclusive bargaining
representative of all its employees in the unit found appropriate herein with
respect to rates of pay, wages, hours of employment, and other terms and con-
ditions of employment.
(c) In any like or related manner interfering with, restraining, or coercing
his employees in the exercise of the rights guaranteed by Section 7.
2. Take the following affirmative action necessary to effectuate the policies of
the Act
(a) Upon request, bargain collectively with International Association of Retail
Clerks, Local No. 1583, AFL-CIO, as the exclusive bargaining representative
of employees at his El Dorado store in the unit found appropriate herein and
embody any understanding reached in a signed contract.
(b) Post at his store at El Dorado, Arkansas, copies of the attached notice
marked "Appendix." 26 Copies of said notice, to be furnished by the Regional
Director of Region 26, shall, after being duly signed by Respondent, be posted
by Respondent immediately upon receipt thereof, and be maintained by him for
60 consecutive days, in conspicuous places, including all places where notices to
employees are customarily posted.
(c) Notify the Regional Director, in writing, within 20 days from the date
of this Decision and Recommended Order, what steps Respondent has taken to
comply herewith.27
It is further recommended that all allegations of the complaint not specifically
found to be violations of the Act shall be dismissed.
211f this Recommended Order is adopted by the Board , the words " a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board 's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree-
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision,
and Order".
n If this Recommended Order is adopted by the Board , this provision shall be modified'
to read: "Notify the Regional Director for Region 26, in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union membership
or activity.
WE WILL NOT threaten our employees with a reduction in hours or loss of
jobs if they choose the Retail Clerks International Association, Local No. 1583,
AFL-CIO, as their bargaining agent.
WE WILL NOT ask our employees to attend a union meeting and report what
took place.
WE WILL recognize and bargain collectively upon request with Retail Clerks
International Association, Local 1583, AFL-CIO, as the exclusive bargaining
representative of all our employees in the appropriate unit described below with
respect to rates of pay, wages, hours of employment, and other terms and
conditions of employment and, if agreement is reached, embody such agree-
ment in a signed contract.
AIR CATERERS, INC . 455
The appropriate unit is:
All grocery and produce employees of Respondent employed at his El
Dorado, Arkansas, retail store including regular part-time employees, but
excluding the office clerical employee, oncall employees, meat depart-
ment employees, guards, and supervisors as defined by the Act.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of the rights guaranteed by Section 7 of the Act.
All our employees are free to become, or remain, or to refrain from becoming
or remaining members of any labor organization.
GLYNN CAMPBELL, D/B/A PIGGLY WIGGLY EL DORADO CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161.
Air Caterers, Inc. and International Association of Machinists,
AFL-CIO. Case No. 29-CA-75 (formerly 2-CA-10257) . Au-
gust 13,1965
DECISION AND ORDER
On May 25, 1965, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Decision together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the initial and reopened hearings 1 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
brief, and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
1 After the close of the initial hearing , the Trial Examiner reopened the proceeding on
Respondent 's motion to permit it to introduce newly discovered evidence relating to the
credibility of Claude Ravetier , a witness for the General Counsel.
154 NLRB No. 34.