Quality Food Markets, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1960

126 N.L.R.B. 349 (N.L.R.B. 1960)

QUALITY FOOD MARKETS, INC 34€
ing these employees had been relieved of all duties with respect to labor
relations matters Moreover, neither the production manager nor the
personnel manager formulates or effectuates management policies in
the field of labor relations 5 Accordingly, we find that the secretary to
the personnel manager and the secretary to the production manager
are not confidential employees and we shall include them in the unit
The engwieer clerk The Employer would include this employee in
the office clerical unit The Petitioner would exclude him as a plant
clerical employee, or, in the alternative, would exclude his classifica-
tion on the ground that there are no employees presently employed
in this category The Employer testified at the hearing that the
position of engineer clerk had been in existence for approximately 5
months, and although it asserted that it intended to fill the position
before November, at the time of the hearing on October 21, 1959,
and at the time the Employer filed its brief on November 4, 1959,
the position was still vacant In these circumstances, we shall not pass
on the unit placement of the engineer clerk
We find that the following employees at the Employer's Atlanta,
Georgia, brewery, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act 6
All office clerical employees including the secretary to the regional
manager, the secretary to the regional advertising manager, the sec-
retary to the comptroller, the accounts payable clerk, the National
Cash Register operator, the biller, the payroll clerk, the statistical
clerk, the secretary to the personnel manager, the office services clerk,
the switchboard operator, and the secretary to the production man-
ager, but excluding the sales order and scheduling clerk, the assistant
sales order and scheduling clerk the materials control clerk, the store-
keeper, the general accountant, the receiving and disbursing ac-
countant, all other employees, guards, and supervisors as defined in
the Act
[Text of Direction of Election omitted from publication ]
See The F F Goodrich Company, 115 NLRB 722
In view of our findings herein, we find no merit in the other contentions advanced by
the Employer in support of an overall office clerical unit consisting of both office and
plant clerical employees Cf Armour and Company, 119 NLRB 122, 123, Copeland
Refrigeration Corporation, 118 NLRB 1364, 1365
Quality Food Markets, Inc. and Local No. 328, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America. Case No 18-CA-991 January 27, 1960
DECISION AND ORDER
On April 30, 1959, Trial Examiner Charles W Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
126 NLRB No 38
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, insofar as they are consistent with the
following Decision and Order :
1. The Board finds, in agreement with the Trial Examiner for the
reasons more particularly described in the Intermediate Report, that:
(a) Gerald Rostello, assistant manager of the Respondent's Calumet
store, was not a supervisor within the meaning of the Act, as he had
no authority to hire or fire or effectively recommend the same, and
such directional authority as he did have, while the store manager
was absent , was exercised only on a sporadic and infrequent basis; 1
(b) Rostello was actively engaged in union activities and that
Respondent had knowledge thereof; and (c) on October 25, 1958,
Respondent discriminatively transferred Rostello 2 from its Calumet
store to its Lake Linden store in violation of Section 8(a) (3) of the
Act.'
2. The Trial Examiner found that the Respondent violated Section
8 (a) (5) of the Act by refusing to bargain with the Union herein.
The Board reverses this finding. The Respondent owns and operates
five retail grocery stores on the upper peninsula of Michigan, located
in Calumet, Laurium, Lake Linden, L'Anse, and Ontonogon. The
Union sought recognition in a unit composed of the Calumet and
Laurium stores, which are located 1 mile apart. The next closest store
is Lake Linden which is 3 miles and the remaining two stores are 50 to
65 miles away from the two stores sought. A closely related corpora-
tion 4 runs another store in Hancock which is 10 miles from Calumet
and Laurium.
All general policy determinations are made at the Respondent's
central office. The minimum starting wage is the same for all store
employees and advertising is centrally handled for all stores.
1 See Fannie Fai mer Candy Shops, Inc, 112 NLRB 299, 301.
See Southeastern Pipeline Company, 103 NLRP. 341.
s Member Rodgers dissents from this finding He would reverse the Trial Examiner
and dismiss the Section 8(a) (3) allegation as to Rostello He would find that the evi-
dence establishes that Rostello was a supervisor, and therefore not within the protection
of the Act
4 Quality Food Markets, Incorporated , of Hancock , Michigan. The Respondents ' central
offices are located in a warehouse in Laurium owned by another related corporation,
Superior Wholesale, Incorporated . The three corporations have the same officers and the
stock of three corporations is owned by the same individuals.
QUALITY FOOD MARKETS, INC. 351
Respondent's policy with respect to vacations and Christmas bonuses
is based on the employee's years of service and income, without regard
to the particular store or place of employment. The evidence also
shows that a significant degree of interchange and transfer of per-
sonnel has taken place among all the Respondent's stores. There is
no collective-bargaining history.
The unit of the Calumet and Laurium stores which the Union
sought in its bargaining request does not comprise an administrative
division of the Respondent. Consequently, the unit has no support on
such basis.' Nor do we find that the appropriateness of the requested
two-store unit can be established on the basis of a distinct geographic
area.' The Calumet and Laurium stores are 1 mile apart, and are
geographically separated from the Lake Linden store merely by 3
miles, and from the Hancock store by 10 miles. The two stores,
although located in "twin cities," cannot be regarded as a single or
integrated operation, as they are separately managed and run within
the Respondent's uniform policies and control affecting all stores in
the chain. It is not necessary that we decide here whether all stores
and operations of the Respondent, which it appears are substantially
centralized, comprise the sole appropriate unit. On the entire record,
it is sufficient, and a majority of the Board finds, that the requested
unit of the Calumet and Laurium stores constitutes an arbitrary
grouping, based primarily on extent of organization, and is inappro-
priate for collective-bargaining purposes. Accordingly, as the Union
failed to request recognition and bargaining by Respondent in an
appropriate unit, it follows that the Respondent did not violate Sec-
tion 8(a) (5)' of the Act'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders the Respondent, Quality Food Mar-
kets, Inc., Laurium, Michigan, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 328, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or in any other labor organization, by discharging, laying
off, or transferring any employee, or otherwise discriminating in re-
gard to the hire or tenure of employment of employees or any term
6 See The Great Atlantic & Pacific Tea Co, 121 NLRB 1193.
9 See Pao,ton Wholesale Grocery Company , 123 NLRB 316 ; Connecticut Packing Co.,
120 NLRB 150
7 Page Aircraft Maintenance, Inc., 123 NLRB 159
8 For the reasons stated by the Trial Examiner, Members Bean and Jenkins would find
that the unit sought was appropriate, and that the Respondent Violated Section 8 ( a) (5),
as alleged.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or condition of employment, except as authorized by Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(b) Interrogating employees regarding their union activities, af-
filiations, or sympathies in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a) (1) of the Act.
(c) Threatening employees with reprisals or promising benefits
to discourage union membership and activity.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any 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 ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Gerald Rostello and
Donald Kauepila to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may have suffered
by reason of the discrimination against them, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this Order.
(c) Post at its Calumet and Laurium, Michigan, stores, copies of
the notice attached hereto marked "Appendix." 9 Copies of said no-
tice, to be furnished by the Regional Director for the Eighteenth
Region, shall, after being duly signed by the Respondent, be posted
by it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
QUALITY FOOD MARKETS, INC. 353
(d) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and hereby is, dis-
missed insofar as it alleges that the Respondent violated Section
8 (a) (5) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in and adherence to Local
No. 328, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor or-
ganization, by discharging, transferring, laying off, or in any
other manner discriminating against employees in regard to their
hire or tenure of employment or any term or condition thereof,
except as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Gerald Rostello and Donald Kauepila im-
mediate and full reinstatement to their former or substantially
equivalent positions, and make them whole for any loss of pay
they may have suffered as a result of our discrimination against
them.
WE WILL NOT threaten employees with reprisals or make them
promises of benefit in order to discourage membership in the
above-named or any other labor organization, or interrogate them
as to their union membership in a manner constituting interfer-
ence, restraint, and coercion in violation of Section 8 (a) (1) of
the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form, join, or assist the above-named or any other labor
organization, to bargain collectively through representatives of
their own choosing, and 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 agreement
requiring membership in a labor organization as authorized by
Section 8(a) (3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
554461-60-vol. 126-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, or remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization.
QUALITY FOOD MARKETS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served in the above-entitled proceeding, a
complaint and notice of hearing thereon having been issued and served by the
General Counsel of the National Labor Relations Board, and an answer having
been filed by the above -named Respondent Company, a hearing involving allega-
tions of unfair labor practices in violation of Section 8(a)(1), (3 ), and (5) of the
National Labor Relations Act, as amended, was held in Calumet, Michigan, on
February 9, 10, 11, 12, and 13, 1959, before the duly designated Trial Examiner.
At the hearing all parties were represented, were afforded full opportunity to be
heard , to examine and cross -examine witnesses , to introduce evidence pertinent to
the issues, to argue orally, and to file briefs and proposed findings of fact and con-
clusions of law. Argument was waived . Briefs have been received from General
Counsel and the Respondent.
Disposition of the Respondent's motion to dismiss, upon which ruling was
reserved at the conclusion of the hearing, is made by the following findings, con-
clusions, and recommendations.
After the close of the hearing the Trial Examiner received from said counsel a
stipulation "for the correction of errors in the transcript ." Said corrections are
hereby ordered made and the stipulation is made a part of the official record in this
proceeding.
Upon the entire record in the case , and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Quality Food Markets , Inc., is and has been at all times material herein a
Michigan corporation having its principal place of business at Laurium, Michigan,
from which it operates five retail grocery, meat , and produce stores in Calumet,
Laurium, Lake Linden, L'Anse, and Ontonagon, Michigan. During the 12-month
period ending September 30, 1958, the Respondent purchased merchandise valued
at $1,000,000 from Superior Wholesale, Inc., located in Laurium, Michigan, which
merchandise originated at points outside the State of Michigan . During the same
period the gross sales of the Respondent at its five stores enumerated above amounted
to $2,704,474.50.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No . 328, International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men & Helpers of America , is a labor organization admitting to membership em-
ployees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
All major events here in issue occurred shortly after the Charging Union began
organizing the Respondent's employees, in the latter part of October 1958, at its
stores in Calumet and Laurium, Michigan. Almost simultaneously with the first
QUALITY FOOD MARKETS, INC. 355
general organizational meeting a leader among the employees in such activities,
Gerald E. Rostello, was suddenly and without warning transferred to the Respond-
ent's Lake Linden store. A few days later the Respondent terminated the employ-
ment of employee Donald Kauepila , who had actively assisted in the Union's
organizational campaign . It is General Counsel 's contention that the transfer and
the termination were discriminatory , and were for the purpose of discouraging union
membership and activity.
Also coincident with the efforts at self-organization among the Respondent's
employees at the two stores, management representatives , as undisputed evidence
discloses , engaged in general interrogation and other conduct claimed by General
Counsel to have been interference , restraint , and coercion.
Further, the complaint alleges and the answer denies that at all times since
October 28, 1958, the Respondent has refused to bargain collectively with the Charg-
ing Union as the exclusive representative of all employees in an appropriate unit.
Since the nature of such conduct may well throw light upon the issues of illegal
discrimination and refusal to bargain , the alleged acts of interfering, restraint, and
coercion will first be considered.
B. Interference , restraint , and coercion
The complaint alleges and the answer denies that management representatives at
the Respondent 's Calumet and Laurium stores , specifically Edward Heinonen,
Waino Fraki , Homer Pylvainen , and Ray Carlson , illegally interrogated employees
concerning their union sympathies , and threatened economic reprisals in order to
discourage union activities and membership.
There appears to be no dispute that the four individuals named above hold
supervisory positions as managers, and possess and exercise supervisory authority
sufficient to establish them clearly as management representatives . It follows, and is
found, that the Respondent must be held accountable under Board policy , for conduct
involving employer-employee relations on the part of these four.
On the basis of the credible testimony , much of which is uncontradicted of the
several employees involved , and upon the admissions in the testimony of the super-
visors themselves , the Trial Examiner concludes and finds that the allegations of
the complaint as to restraint and coercion are sustained . The following findings
support this conclusion:
1. During the week ending on Saturday , October 25 , employees at the two stores
and the union representatives arranged for a general meeting to be held on Sunday,
October 26 . Early the morning of October 25, according to his own testimony,
Manager Heinonen of the Calumet store learned of the organizational efforts from
"one of the fellows ." Upon receiving this information , also according to his testi-
mony, he queried Rostello and Kauepila-the two employees allegedly thereafter
discriminated against. He asked the latter what "he knew" about the Union, and in
substance asked the former what he knew about the "union deal." While both
Rostello and Kauepila avoided comment as to their knowledge of the union progress,
both told the manager in effect that they were in favor of it. Heinonen then re-
ported "rumblings" of the organization to Jack Lepisto , treasurer of the Respondent,
and later the same day Rostello was ordered to report, as described more fully below,
to another store where employees were not organizing , and Kauepila was told that he
was to be laid off-an event which shortly occurred , as described in a separate section
below.
2. On Monday, October 27, the day after a general meeting of employees for
organizational purposes , store managers of both the Calumet and Laurium stores
began a campaign of interrogation which both Heinonen and Waino Fraki admitted
included all employees at each of the two stores. The interrogation generally took
the form of asking employees whether or not they had signed a union card, and in
the context of threats and discrimination plainly violated Section 8 (a) (1) of the Act.
3. Manager Fraki 's interrogation at the Laurium store exceeded permissible
inquiry motivated by mere curiosity . For example , on Monday he called employee
Rosalie Hoganson at her home, it being her day off , and when she hesitated in answer-
ing his question as to whether or not she had "signed a card to join the Union," he
added that "you can tell me, everybody did," and said that he had been asked to
"get the names into the office ." The following day, Tuesday , Fraki asked the same
employee if she was "sure" she knew what she "was doing ," and added that if she
would "drop out" she "wouldn't be laid off." On Wednesday Fraki told her that if
the Union came in, "ones with the least seniority would be laid off." i
1 The quotations are from Hoganson 's credible testimony. The Trial Examiner cannot
accept Fraki ' s denial that he made promises or threats to this employee . He admitted
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Manager Heinonen at the Calumet store also went beyond the reasonable limits
of uncoercive interrogation . For example , having questioned employee Harold
Woodward on Monday as to whether or not he had signed a union card , the next
day he called the employee aside, pointed out "what management had done" for the
employees , said that he, Woodward , might be transferred to another store, warned
that "somebody could be hurt" because of union activities , and cautioned that "if
the Union got in there might be a possibility of having to have a physical examina-
tion ." Later the same day Heinonen asked him if he had changed his mind regard-
ing the Union.2
5. After Woodward declined to tell Heinonen that he had signed a card, the
employee was called to the telephone by Wayne I. (Ben ) Fraki , secretary of the
Respondent corporation , who told him that he would "find out anyway," where-
upon,the employee admitted signing the card.
6. Homer (Joe) Pylvainen , manager of the meat department at the Laurium
store , told employees Melvin Kunxari and Julia Katka in effect that if the Union
came in physical examinations would be required and some employees would not
be able to work . Similar remarks about such examinations were made to employees
Florence Pirkola and Henry Thurner by Ray Carlson , who holds a similarly super-
visory position at the Calumet store.
7. Manager Carlson also told employee Pirkola , according to her uncontradicted
testimony , that "we had a managers ' meeting last night and I am supposed to tell
you a few things ." After telling her about the physical examinations , he warned
that "with this union business we may not get a Christmas bonus." 3
C. The transfer of Rostello
There is no dispute that Gerald E. Rostello , assistant manager at the Calumet
store, was summarily transferred by management to a similar position at the smaller
Lake Linden store on Saturday , October 25, within a few hours after Manager
Heinonen had reported to higher authority that he had heard "Union ramblings."
General Counsel contends that the transfer was discriminatory and designed to dis-
courage union activity . In its answer the Respondent bestrides two courses of
defense: it denies a discriminatory motive for the transfer , yet claims that Rostello
was a supervisor within the meaning of that Act and that the Respondent "was
required to take effective action to restrain said Gerald E. Rostello from engaging
or continuing to engage in any of the foregoing alleged activities ." And in its
brief the Respondent also claims that: (1 ) Management had no knowledge of
Rostello 's union activity before the transfer , and (2 ) "the Respondent should have
taken every precaution to make suce that Rostello did not encourage the organization
of a union in the company stores."
First as to the question of Rostello 's supervisory status, a point requiring determi-
nation in order to resolve the chief issue of alleged discrimination . On the basis
of the credible evidence in the record , and in accord with Board policy as enunciated
in Park Drug Company, 122 NLRB 878 , cited by General Counsel , the Trial Exami-
ner concludes and finds that Rostello was not a supervisor within the meaning of
the Act . The conclusion rests upon the following findings:
1. Rostello had no authority to hire or discharge employees.
2. His sole power of discipline appears to have been that while the manager was
on vacation , he filled in for him and then had authority to send employees home
if they did not follow his instructions.
3. His chief duties consisted of ordering stock for shelves , checking out customers
and carrying out packages for them , and supplying girls at the checkout stations
with change.
4. He had no authority to grant leaves of absence.
5. He was not consulted by management concerning wage raises or vacations
for employees , nor with respect to hiring or firing.
6. He was employed on an hourly wage basis, while the managers are on salary.
Next , as to the question of management 's knowledge , or suspicion , of Rostello's
activity on behalf of the Union before the transfer , which the Respondent denies.
having asked employee Gordon Huot to "back out " of the Union and having told em-
ployee Robert Cadeau that he thought he had "better sense" than to join the Union.
'The quotations are from the employee 's credible testimony , much of which is
uncontradicted.
s Although Carlson disclaimed having threatened loss of Christmas bonuses, he
admitted having brought up both the subject of such benefits and that of physical
examinations.
QUALITY FOOD MARKETS, INC. 357
From the preponderance of credible evidences and surrounding circumstances as
to which there is little dispute, the Trial Examiner concludes and finds that Jack
Lepisto, who ordered the transfer, received information from Manager Heinonen,
Rostello's superior, on the morning of October 25, which led him to believe that
Rostello was active on behalf of the Union. The conclusion follows from the
following facts:
1. Lepisto as a witness admitted that Heinonen telephoned him that morning and
reported that "he had heard some rumblings about Union activities" at the store.
2. Heinonen, as a witness, admitted having called Lepisto to make this report,
and said he could not recall any other reason for making the call.
3. Before making this telephone call Heinonen approached Rostello and asked
him if he had "heard anything about this Union deal." When Rostello replied that
if he had he would not be "fool enough to tell him," Heinonen asked him what
he thought of it. Rostello replied that he thought it was a good idea, and that the
Union "did a lot for the A & P store."
4. Also before making the call to Lepisto, Heinonen likewise questioned Kauepila
(whose layoff is described in the next section), and so far as the credible evidence
shows these are the only two employees interrogated by the manager that day. Later
the same day summary action was taken against them only.
5. Counsel for the Respondent himself established, through cross-examination
of Rostello, that preliminary organizational efforts were begun by Rostello and
others earlier during the week ending October 25, and that arrangements were made
"during that week" to meet the union representative, because of employees' concern
about rumors that the Company planned "moving the employees out of the ware-
house operation and back into the retail stores." And the testimony of employee
Mervin Paulson is unrefuted that Rostello solicited him to attend a meeting for
organizational purposes on the Wednesday preceding Saturday, October 25. Other
credible evidence establishes that this Wednesday meeting was thereafter postponed
until Sunday, October 26 .4
Finally, as to the discriminatory nature of the transfer and its alleged illegal
purpose. On the basis of credible evidence, and the antiunion activity on the part
of management heretofore established, the Trial Examiner concludes and finds
that the allegations of the complaint as to Rostello are sustained and the Respond-
ent's contentions are without merit. The conclusion follows from the following
facts, in addition to those set forth immediately above.
1. There can be little doubt but that management itself considered the transfer
to be in a nature of a demotion to a less desirable position, although the wages
remained the same and the duties were similar. According to Lepisto's testimony,
he permitted employee Louis Menneguzzo , then in training at the Calumet store
for the Lake Linden position, to exercise his preference and seniority and, in effect,
"bump" Rostello from his Calumet job,
2. When Menneguzzo first reported at Calumet for training in the latter part of
Sepember, Rostello asked Manager Heinonen about the rumored closing of the
warehouse where Menneguzzo had been working, and the manager assured him that
his job would not be affected, and that Menneguzzo was being employed at Calumet
only temporarily and for the purpose of training him to go to the Lake Linden store.
3. The Calumet store did about three times the volume of business that was
done at Lake Linden.
4. To reach the Lake Linden store Rostello was required to travel about four
times as far as to the Calumet store from his home.
5. Not until late Saturday, October 25, after Heinonen had queried him regarding
the Union, was Rostello told that he was to be transferred immediately .5
6. Even if Lepisto's testimony about yielding to Menneguzzo's request is accepted
at face value, there is no credible evidence in the record to explain the sudden
urgency in removing Rostello from the Calumet store-except the facts that here
union activity was known, or suspected, by management, and that Rostello had
expressed himself to Heinonen , that morning, as in favor of such organizing.
4 Another factor supporting the conclusion that management knew of Rostello' s union
activity appears in both the answer and the brief-the Respondent's alternate claim that
it was "required to take effective action to restrain " him "from engaging in or continuing
to engage in" union activities.
5 Of significant bearing upon the point is the following reply of Rostello to a question
by counsel for the Respondent:
. . . if I was considered management it seems to me that. . . . I would know
something about being shipped to Lake Linden store just before the Saturday I was
going to leave.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. That the Respondent 's treatment of Rostello was contrary to its own estab-
lished policy is tacitly admitted in Lepisto 's testimony that it was the "usual prac-
tice," before transferring assistant managers, to discuss the matter with them.
8. Finally, and of no small weight among other factors , in the opinion of the
Trial Examiner, is the fact admitted by the Respondent's witness, Menneguzzo, that
he was not informed of his promotion and assignment to the Calumet store until
"that Saturday evening at about quarter after five," and after Rostello had been told
by Heinonen that he was being sent to Lake Linden. The sequence of events leads
to the reasonable conclusion that the Respondent 's chief concern was to rid the
Calumet store of an active union leader, and that only after arriving at this resolu-
tion was it moved to promote Menneguzzo to fill his position at that store instead of
at Lake Linden.
D. The termination of Kauepila 's employment
The complaint alleges that this employee was discharged on or about November 1,
1958, because of his activities on behalf of the Union and to discourage union mem-
bership. The answer contains only a general denial of this allegation. The Re-
spondent's brief claims: "Because of the excess help at Calumet, it was decided to
lay off the last senior man at the Calumet store, namely, Kauepila."
Turning first to the contention in the Respondent's brief, to support which it cites
the testimony of both Jack Lepisto and Manager Heinonen . Upon full consideration
of the cited testimony in the light of other testimony by the same witnesses, as well
as documentary evidence submitted by the Respondent, the Trial Examiner must
,find no merit in the contention for the following reasons:
1. Lepisto's testimony establishes that at the time of his termination Kauepila
was not the least senior man at the Calumet store. Lepisto admitted that when lay-
offs were necessary , it was company policy for full-time employees to be retained
in preference to part-time employees , especially if the full -time employee had more
seniority than a part -time employee . Yet Kauepila , a full-time employee, was
dismissed while Carl Niska , a part-time employee with less seniority , as counsel
for the Respondent conceded , was retained.
2. Less than 2 weeks after Kauepila's dismissal became effective, a new full-time
employee was hired at the Respondent 's Ontonagon store. Lepisto admitted that
Kauepila was not offered this job, which would have been normal procedure, and
further admitted that although there had been openings at other stores which he
claims operate as a unit, none of them had been offered to Kauepila
3. Lepisto also testified that although there was "excess help" at "other stores"
on October 25, the only reduction in force on that date was at Calumet-and nothing
was done as to the other stores until "a -few weeks" later.
As to General Counsel's claim, the Trial Examiner believes that the perponderance
of credible evidence warrants the reasonable inference that the real reason for the
Respondent's summary action against Kauepila was its design to discourage union
membership and activity. It is so concluded and found, for the following reasons:
1. According to Manager Heinonen's testimony the decision to terminate Kaue-
pila's employment was not made or discussed with him by Lepisto until midafter-
noon on Saturday , October 25, at the same time Rostello's transfer was ordered.
2 As noted heretofore, Heinonen that morning had questioned Kauepila as well
as Rostello regarding their union activity and sympathies , and according to his own
testimony had promptly informed Lepisto of the union "rumblings."
3. More specifically , the manager asked Kauepila that morning "what do you
know about a union?" The employee at first said, "I don't know," but when the
manager pursued the subject and asked him what he thought about it Kauepila replied
that in his opinion it "would be good , that it would protect us in our jobs."
4. Despite their denials, the Trial Examiner is convinced and finds that Heinonen
informed Lepisto of his interrogation and their comments shortly after he had
questioned Rostello and Kauepila . It is reasonable to infer that even if Heinonen
had not offered the information, Lepisto would have asked for more details than
mere "rumblings." It is undisputed that promptly at the beginning of the next
working day , and upon orders from the "office ," managers at both stores began a
thorough polling of all employees as to their union sympathies.
5. After Lepisto, on Saturday afternoon, told Heinonen to lay Kauepila off, the
manager called the employee to the store basement and told him , according to the
latter's credible testimony, that although "this has nothing to do with the union," he
QUALITY FOOD MARKETS, INC. 359
was to be laid off the following Saturday, November 1. Heinonen further said that
he "didn't like the idea," but took his orders from Lepisto.6
6. It is uncontradicted that on Monday, the day after the union meeting, Heinonen
approached Kauepila, asked him what had happened at the meeting, and said,
"They want to know at the office how many signed up for the Union."
7. It is also undisputed that later the same week, and before his actual termination,
Kauepila was again approached by Heinonen and was asked if he "thought it was fair
to bring a union into the store." During the same conversation the manager also
told him that his "participation in the Union would lessen" his "chance of unemploy-
ment benefits." 7
E. The refusal to bargain
Among the factors relevant to this issue there is no dispute that the Charging
Union did request the Respondent to recognize and bargain with it as the exclusive
representative of employees at the Calumet and Laurium stores. Nor is there dispute
as to the fact that the Respondent did refuse to recognize the Union as such repre-
sentative. Although in its answer the Respondent denies that the Union represented
a majority of the employees at the two stores, it appears to have abandoned this
position during the hearing and in its brief.
It is clear from its brief that the Respondent now relies chiefly, as its defense in
refusing to recognize the Union, upon its claim that because it operates five retail
stores, as noted in section I, above, the unit of two stores requested by the Union is
inappropriate for the purpose of collective bargaining.
Consideration properly should be first accorded to the issue of an appropriate
unit. And on this point the Trial Examiner believes there to be merit in the follow-
ing quotation from General Counsel's brief:
. we point out that the Act requires only that the majority representative
be one for an appropriate unit, and, as the Board has frequently recognized, in
certain situations there may be more than one appropriate unit. For the pur-
pose of the issue here involved, it is not essential that the two-store unit be the
only appropriate unit, or even the most appropriate unit. It is sufficient for this
case that it is an appropriate unit .8
Having carefully reviewed and considered all evidence in the record concerning
the respective positions of the parties, and having appraised their contentions, the
Trial Examiner is convinced and finds that the preponderance of credible evidence
and Board policy warrants the conclusion, here made, that a unit consisting of
all employees in the Respondent's Calumet and Laurium stores, including regular
part-time employees but excluding store managers, meat managers, and supervisors
as defined in- the Act, would insure to the employees the full benefit of their right
to self-organization and would otherwise effectuate the policies of the Act, and is a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(a) and (b) of the Act. The conclusion follows from the following facts:
1. There is no history of collective bargaining in any unit of the Respondent's
stores.
2. At the material time there appears to have been no claim by any other labor
organization for any unit.
3. The small towns of Calumet and Laurium are locally considered to be "twin
towns," situated but a mile apart. The Respondent's other three stores are from
4 to 65 miles distant from the main corporate office, which is in Laurium.
4. There is no substantial interchange of employees between the Calumet-Laurium
area stores and other stores operated by the Respondent. (As noted in the case of
Kauepila, Lepisto admitted that although there had been openings at other such
stores, none had been offered to him.)
5. Supervision at each store over employees is assigned to the manager and/or
meat manager, and each manager and meat manager is responsible directly to an
officer of the corporation.
U The Trial Examiner cannot credit Heinonen's denial that he mentioned the Union on
this occasion or said that he took his orders from Lepisto. It is plain that he did take
the order to lay Kauepila off from Lepisto, and he admitted that he told the employee he
felt sorry for him. Furthermore, he later admitted that he could not recall mentioning
the Union to Kauepila during that conversation.
° Heinonen's denial that he made the last-quoted statement is not credited.
S In support of his position, General Counsel appropriately cites : A. S. Beck Shoe
Corporation, 92 NLRB 1457 at 1459; and Morand Brothers Beverage Co., at at., 91
NLRB 409.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. It is Lepisto's testimony that 50 percent of each store's purchases of meats,
produce, dairy products, bakery products, and beverages are made by that store.
7. The record lacks credible or substantial evidence that among rank-and-file
employees the Respondent observes any companywide seniority practice. (Contrary
evidence was established in the case of Kauepila, described above.)
8. It appears that at the material period employees at only the two stores-Calumet
and Laurium-had exhibited efforts and a desire to engage in self-organization and
to be represented by the Charging Union.
9. As found above, in section III, B, meat managers are supervisors within the
meaning of the Act.
Turning to the question of majority representation. In its brief the Respondent
makes no claim that the Union, at material times, did not represent a majority
of the employees in the unit claimed as appropriate by General Counsel. Further-
more, documentary evidence establishes and the Trial Examiner concludes and
finds that on October 27, 1958, the date when the Union first made its claim of
majority representation, the Respondent had on its payroll at the Calumet and
Laurium stores 25 employees, exclusive of its store managers and meat department
managers, and that by this date 18 of such employees had duly authorized the Union
to be their bargaining agent. Thus, a clear majority as of that date existed.
Having found that the Charging Union represented a majority of the employees
in an appropriate unit, on and after October 27, 1958, the Trial Examiner concludes
and finds that by virtue of Section 9(a) of the Act, the said Union was on that date
and has been since that date the exclusive bargaining representative of all employees
in the above-described appropriate unit for the purpose of collective bargaining
in respect to rates of pay, wages, hours of employment, and other conditions of
employment.
As to the ultimate question of refusal to recognize and bargain with the Union,
the Trial Examiner concludes and finds that on October 28, 1958, and at all times
thereafter, the Respondent has refused and continues to refuse to bargain collectively
with the Charging Union. The conclusion rests upon the following facts, in addition
to those set forth above:
1. The Union made appropriate demand for recognition and negotiations as well
as its claim of majority representation by a wire to Lepisto on October 27 and a
certified mail letter of the same date.9
2. On October 28 Lepisto replied to the Union's demand by letter as follows:
In answer to you[r] telegram received shortly after noon yesterday, I must
advise you that our information is that your union does not represent a majority
of the employees. However, if we are furnished at any time with satisfactory
evidence that your union does represent a majority of employees in a proper
bargaining unit, we certainly shall fulfill our legal obligation to negotiate
a working agreement. Until that time, we shall deem the matter closed.
3. By the time Lepisto sent the foregoing letter, undisputed evidence discloses
that he well knew, from the complete poll of all employees at both stores, that the
Union represented a majority of the employees.
The Union pursued its request for a meeting with management, and two such
meetings were thereafter arranged and held on November 4 and 7. It appears need-
less to review in detail the matters and points discussed at each of these two meetings.
In substance the Respondent assumed and maintained its position that another unit
than that of the two stores-without making any specific alternate claim-was
appropriate. Lepisto, as a witness, admitted that the union representative offered
to permit him to check the union application cards against his payroll if, a majority
established, the Respondent would recognize the Union.i° The Respondent ada-
mantly declined to recognize the Union, however, unless the question of the appro-
priate unit was submitted to the Board. And the Union declined to join with the
provision on the ground that the Respondent had engaged in unfair labor practices
in an effort to undermine the Union.
P The Trial Examiner finds no merit in the Respondent's claim that the complaint must
fall because in its demand the Union failed to exclude meat managers from an appro-
priate unit. Even if meat managers were to be counted in the unit, the Union neverthe-
less represented a substantial majority.
10 Attorney McLean, spokesman for the Respondent at the November
4 meeting, ad-
mitted as a witness that the union representative offered to show him the cards to
establish majority and that he told him he would take his word for it.
QUALITY FOOD MARKETS, INC. 361
2. The Union 's refusal to agree to delay , which would normally be occasioned by
submitting to a hearing and an election , in the opinion of the Trial Examiner, was
warranted and made in good faith. As found above , promptly upon learning of
union activity the Respondent began engaging in a campaign of discrimination,
coercive interrogation , and intimidation.
3. Furthermore , the Respondent 's insistence upon resting its refusal to recognize
the Union upon its own wish to have some third party determine the appropriate
unit cannot, under the circumstances of this case , be held to have been made in
good faith . In the first place, at no time has the Respondent advanced any specific
claim as to an appropriate unit. "It is our position ," stated counsel for the Re-
spondent at the hearing , "that more than two stores , as a minimum , would be an
appropriate unit." In the second place, the plain effort of the Respondent to dis-
courage union membership and activity manifested its major purpose to be-not to
bargain in good faith-but to evade its responsibilities under the Act."
F. Conclusions in general
In summary , the Trial Examiner concludes and finds that the Respondent inter-
fered with, restrained , and coerced employees in the exercise of rights guaranteed
by the Act by: ( 1) Discriminatorily transferring Rostello and terminating the
employment of Kauepila to discourage union membership and activity ; (2) coer-
cively interrogating all employees at the two stores, and making threats of reprisal
and promises of benefit ; and (3 ) refusing on and after October 28, 1958 , to recognize
and bargain with the Charging Union asthe exclusive representative of all employees
in an appropriate unit as set forth herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent, upon request, bargain collectively
with the above-named labor organization as the exclusive representative of the
employees in the appropriate unit described herein and, in the event an understanding
is reached, embody such understanding in a signed agreement.
It will also be recommended that the Respondent offer Rostello and Kauepila
immediate and full reinstatement to their former or substantially equivalent positions,
without loss of seniority or other rights and privileges, and make them whole for any
loss of pay they may have suffered by payment to each of them of a sum of money
equal to that which he would normally have earned as wages, absent the discrimina-
tion against him, from the date of discrimination to the date of the Respondent's
offer of full reinstatement, less their net earnings during said period, and in a many
ner consistent with Board policy set out in F. W. Woolworth Company, 90
NLRB 289, and Crossett Lumber Company, 8 NLRB 440.
It will be further recommended that the Respondent, upon request, make available
to the Board and its agents all payroll and other records pertinent to the analysis of
the amounts of backpay due.
Since the violations of the Act which the Respondent has committed are related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonably to be anticipated from its past conduct, the
preventive purpose of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
be recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
u See Safeway Stores, Incorporated, 110 NLRB 1718 at 1720; and Joy Silk Mills, Inc. v.
N.L R B., 185 F. 2d 732, 741 (C.A., D.C), cert. denied 341 U.S. 914.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Local No. 328, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire, tenure, and condition of employment
of Gerald Rostello and Donald Kauepila, thereby discouraging membership in and
activity on behalf of the above-named labor organization, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. All employees in the Respondent 's Calumet and Laurium , Michigan , stores,
including regular part-time employees but excluding store managers , meat managers,
and supervisors as defined in the National Labor Relations Act, as amended, con-
stitute a unit of the Respondent 's employees appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act.
4. The above-named labor organization was on October 27, 1958, and at all
times since then has been, the exclusive representative of all employees in the afore-
said unit for the purposes of collective bargaining , within the meaning of the Act.
5. By refusing , on or about October 28, 1958, and thereafter, to recognize and
bargain with the above-named labor organization , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (5)
of the Act.
6. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Murray Plopper, Director of Organization ; Richard Russo,
Business Agent ; Local #98, Retail Clerks International Asso-
ciation , AFL-CIO and Piggly-Wiggly Midwest Co., Inc. Case
No. 13-CB-801. January 29, 1960
DECISION AND ORDER
On October 12, 1959, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report, together with a support-
ing brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Leedom and
Members Rodgers and Bean].
,126 NLRB No. 48.