Texas Super Foods

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 209 (N.L.R.B. 1991)

209
303 NLRB No. 30
TEXAS SUPER FOODS
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F. 2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
Member Devaney, in agreeing with the judge that the Respondent’s Decem-
ber 10 letter constituted an unlawful threat that strikers will lose their jobs,
notes particularly the context of the letter and of the Respondent’s overall
campaign which on a broadscale basis threatened employees with job loss if
they selected the Union in the election.
Texas Super Foods, Inc. and United Food and Com-
mercial Workers, Local Union No. 455, AFL–
CIO. Cases 16–CA–13843 and 23–RM–436
May 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 27, 1989, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
In agreement with the judge, we find that extraor-
dinary remedies are warranted. As the judge found, the
Respondent’s actions, especially those of its president
and owner, Jerry Savage, had completely destroyed the
conditions for holding a fair third election in December
1988, and the effect of Respondent’s conduct could not
be overcome without the imposition of extraordinary
remedial measures. Savage personally signed the un-
lawful letters distributed to the employees, and he
drafted the unlawful December speech and personally
gave it to at least two groups of employees. The ef-
fects of his unlawful conduct extended to every mem-
ber of the bargaining unit. In an attempt to erase the
effects of this conduct, and to provide the proper at-
mosphere for holding a fourth election, we adopt the
judge’s remedy requiring President Savage to read to
employees the notice attached to the judge’s decision
as prescribed by the judge, and the remedial measures
granting union access to the Respondent’s employees.
We also agree with the judge’s reimbursing the
Union for its expenses associated with the hearing in
this case, and also its organizational costs in connec-
tion with the third election. As more fully set forth by
the judge, following the June 3, 1988 second election,
the Union filed an objection with the Board relating to
a May 30, 1988 letter the Respondent had sent to the
unit employees, which impliedly threatened that the
employees would lose their jobs if they voted for the
Union. On July 22, 1988, a hearing officer sustained
the objection and set aside the second election, and the
Respondent excepted. Notwithstanding the hearing of-
ficer’s findings, while its exceptions were still pending
before the Board, on September 9, 1988, the Respond-
ent sent another letter, to the employees, with the May
30 letter attached. On November 14, 1988, the Board
adopted the hearing officer’s report. As the judge
found, by its November 18 and December 10, 1988
letters, and its December speeches, the Respondent
blatantly disregarded the Board’s November 14 deci-
sion, and continued on its course of conduct by threat-
ening employees with the inevitability of strikes and
loss of jobs if they voted for the Union.
Given the findings by the hearing officer and the
Board that the Respondent’s actions prior to the sec-
ond election were objectionable, we find that Respond-
ent’s present defense of the same course of conduct
before the third election is patently frivolous, and de-
signed solely as a stalling tactic. For this reason, we
adopt the judge’s award of expenses to the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Texas Super Foods, Inc.,
LaMarque and Texas City, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Robert G. Levy, II, Esq., for the General Counsel.
James J. Loeffler, Esq. and, with him on brief, Roxella T.
Cavazos, Esq. (Chamberlain, Hrdlicka, White, Johnson &
Williams), of Houston, Texas, for the Respondent.
Patrick M. Flynn, Esq. (Watson, Flynn & Bensik; of counsel,
Umphrey, Burrow, Reaud, Williams & Bailey), of Houston,
Texas, for the Charging Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. The prin-
cipal question here is whether Texas Super Foods engaged
in unlawful and objectionable conduct requiring that a third
election be set aside and a fourth election directed answering
that question yes, I also order certain special remedies re-
quested by the Government and the Union.
I heard this case in Houston, Texas, on April 10–11, 1989,
pursuant to the February 10, 1989 complaint issued by the
General Counsel of the National Labor Relations Board,
through the Regional Director for Region 16 of the Board,
and the February 13, 1989 order directing a consolidated
hearing in Cases 16–CA–13843 and 23–RM–436. The com-
plaint is based on a charge filed December 27, 1988, by
United Food and Commercial Workers, Local Union No.
455, AFL–CIO (Union, Local 455, or Charging Party)
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are for 1988 unless otherwise indicated.
2 Counsel for the General Counsel attached to the Government’s brief a pro-
posed order and proposed notice to employees. The Union supplemented its
brief with a proposed order and notice. By motion dated May 4, 1989, the
General Counsel has moved to correct the transcript of testimony in certain
respects. I grant the unopposed motion, except as to item (30). Errors in tran-
script have been noted and corrected.
3 References to the two-volume transcript of testimony are by volume and
page. Joseph E. Masson, the manager of Respondent’s LaMarque store, gave
a number of about 120 (1:169).
4 Exhibits are designated as G.C. Exh. for those of the General Counsel, R.
Exh. for Respondent TSF, and J. Exh. for joint exhibits of all the parties joint-
ly. The Union offered no exhibits.
5 In August 1979 the International Unions of the Meat Cutters and the Retail
Clerks merged to form the United Food and Commercial Workers Union,
AFL–CIO. C. Gifford, Directory of U.S. Labor Organizations 63, 64 (1988–
1989 ed., BNA).
6 The parties stipulated that no inference is to be drawn from the withdrawal
of the charge (2:277).
against Texas Super Foods, Inc. (Respondent, TSF, or Com-
pany).1
Case 23–RM–436 involves objections Local 455 filed to
the results of a third election conducted by the Board’s then
Region 23 on November 14, 1988. The Union’s objections
generally are coextensive with allegations of the complaint.
In the complaint the General Counsel alleges that Re-
spondent TSF violated Section 8(a)(1) of the Act by eco-
nomic threats to employees contained in letters dated Sep-
tember 9, November 18, and December 10. By its answer
Respondent admits certain factual matters but denies violat-
ing the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel,2 the Union, and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits that it is a Texas corporation with its
principal office in LaMarque, Texas, with stores in
LaMarque and Texas City, Texas, and that it sells, at retail,
groceries, meats, and related products at its two stores. Dur-
ing the past 12 months at its two stores, Respondent admits,
it had gross sales exceeding $500,000.
Complaint paragraph 3(b) alleges that during the past 12
months Respondent purchased products, goods, and materials
valued in excess of $50,000, and that such items were re-
ceived at Respondent’s LaMarque and Texas City stores di-
rectly from points located outside Texas. Respondent denies
this allegation in its answer to the complaint. Complaint
paragraph 3(b) tracks a paragraph in the commerce stipula-
tion in the stipulated election agreement approved by the Re-
gional Director of NLRB Region 23 on July 6, 1987 in Case
23–RM–436. Respondent’s bare denial does not nullify the
July 1987 commerce stipulation. Accordingly, I find, as Re-
spondent itself admits, that TSF is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits, and I find, that Local 455 is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Introduction
This case arises in the context of a campaign by Local 455
to organize the ‘‘front’’ (grocery) employees of TSF’s two
stores at LaMarque and Texas City, Texas. (LaMarque and
Texas City are situated between Houston and Galveston.)
Jerry Savage, TSF’s president and owner, testified the two
stores currently have 120 such employees (2:311).3 The tally
of ballots for the most recent election, held December 16, re-
flects an approximate number of 123 eligible voters (G.C.
Exh. 1s).4
Unlike the grocery employees, TSF’s meat cutters (the
‘‘back’’ of the store; 1:170) have been represented by Local
408 of the United Food and Commercial Workers Union5 in
a contractual relationship with TSF for over 30 years (1:171;
2:204, 281). However, TSF employs far fewer meat cutters
than grocery employees with a total of about 10 meat cutters
for its two stores (1:171).
As noted, Jerry Savage is TSF’s president and owner and
has been such for 22 years (2:281). Joseph E. Masson, who
has worked for TSF about a year, is the manager of Re-
spondent’s LaMarque store (1:123, 161) while Joe Aguilar is
the store manager at Texas City (1:159–160; 2:207).
After introducing the formal papers (G.C. Exh. l(a)–(cc))
stipulating as to the three joint exhibits, and making an open-
ing statement, the Government rested its case-in-chief (1:36).
Following its opening statement the Union likewise rested
(1:40). The parties then stipulated that misrepresentations, in
the traditional campaign sense, are not an issue in the case
(1:42–45). Respondent TSF then called as witnesses Union
Representative E. Roy Davila, Store Manager Masson, TSF
President Savage, and rested (2:363). When no rebuttal evi-
dence was presented, the parties closed.
Davila’s correct title is not clear. So far as is relevant to
this case, however, the Union’s campaign literature in evi-
dence reflects the title of organizing director (R. Exh. 10, 11,
12). Davila apparently succeeded a Richard Leitner in that
position about December 1987 (1:76).
2. Sequence of events
The initial sequence of events is described in a multipart
stipulation of the parties (2:276–280). Thus, the beginning
event is the Union’s recognitional demand letter delivered to
TSF on June 11, 1987. That was followed the next day, June
12, by Respondent’s filing the petition for election in Case
23–RM–436 (G.C. Exh. la). As additionally stipulated, 3
days later, on June 15, TSF held the grand opening of its
new store in LaMarque with picketing beginning by the
Union the same day. The following day, June 16, TSF filed
a charge with the Board in Case 23–CP–126 alleging unlaw-
ful recognitional picketing. The picketing continued (appar-
ently at both stores) for 3 weeks. On July 27, 1987, the Re-
gional Director of NLRB Region 23 approved a withdrawal
of the charge in Case 23–CP–126.6 In the meantime, on July
6, the parties signed, and the Regional Director approved, an
agreement (G.C. Exh. 1c) to hold an election on August 7,
1987, in the following unit:
211TEXAS SUPER FOODS
7 The Union’s sole objection was that a May 30, 1988 letter TSF sent to
unit employees impliedly threatened they would lose their jobs if they voted
for the Union.
8 In October 1987 the Board approved the General Counsel’s plan to reorga-
nize the Agency’s field offices. Region 23 was abolished, and the Houston and
San Antonio offices were converted to resident offices of Region 16 (Fort
Worth). 126 LRR 107 (Oct. 19, 1987). The conversion was implemented in
1988.
9 The only joint exhibits are the three letters plus the attached letter (J. Exh.
2b) of May 30, 1988. The joint exhibits skip the number one (1:27–29).
All employees of Texas Super Foods, Inc. at its Texas
City and LaMarque, Texas grocery stores, excluding all
meat department employees, office clerical employees,
salaried employees, and supervisors as defined in the
Act.
Of 119 valid votes counted in the August 7, 1987 election,
72 were against the Union and 47 were yes. There were 7
challenged ballots (G.C. Exh. 1d). Local 455 filed timely ob-
jections (G.C. Exh. 1e), and on February 11, 1988, the Act-
ing Regional Director of NLRB Region 23, pursuant to a
February 5, 1988 agreement by the parties for a second elec-
tion and the Union’s withdrawal of its objections, set aside
the August 7 election and directed a second election (G.C.
Exh. 1f).
The second election, conducted June 3, 1988, likewise re-
sulted in a loss by the Union. As reflected by the tally of
ballots (G.C. Exh. 1h), of 103 eligible voters 49 voted ‘‘No’’
and 41, ‘‘Yes.’’ Challenged ballots were five in number. The
Union filed objections (G.C. Exh. 1i),7 and by order dated
June 19, 1988, the Regional Director for NLRB Region 168
set a hearing for July 7 on the Union’s objections (G.C. Exh.
1j). Following the July 7 hearing before him, Hearing Officer
Wayne A. Rustin issued his report, dated July 22, 1988, rec-
ommending that the Union’s objection be sustained and the
second election set aside (G.C. Exh. ln). TSF filed excep-
tions. On November 14 the Board, adopting Hearing Officer
Rustin’s findings and recommendations, set aside the election
and directed a third election (G.C. Exh. 1r). (The Board’s de-
cision is not included in bound volumes.)
On December 16, 1988, the third election was held. The
official tally of ballots records the votes of the (approxi-
mately) 123 eligible voters as follows (G.C. Exh. 1s): For–
40; Against–70.
The challenged ballots were insufficient in number to af-
fect the results. The Union filed objections dated December
23 (G.C. Exh. lt) and on December 27, 1988, it filed the
charge in Case 16–CA–13843 (G.C. Exh. 1z). Earlier I de-
scribed the February 10, 1989 complaint, Respondent’s an-
swer, the February 13, 1989 order consolidating the cases for
hearing, and that I presided at the hearing of these consoli-
dated cases on April 10–11, 1989.
B. Allegations and Positions on Procedure
1. Allegations
As earlier noted, the complaint alleges that the Company
violated Section 8(a)(1) of the Act by economic threats con-
tained in three letters it sent to unit employees before the De-
cember 1988 election. The letters are dated September 9, No-
vember 18, and December 10.
It is undisputed that, as alleged, the September 9 letter (J.
Exh. 2a) was sent to employees with a copy of the May 30
letter (J. Exh. 2b) attached (1:6–7). Complaint paragraph 7
alleges the letters threatened employees with job loss if they
selected the Union as their bargaining agent. The Union’s
first objection alleges an ‘‘implied’’ threat of job loss plus
the additional allegation the September 9 letter ‘‘disparaged
the neutrality of the National Labor Relations Board.’’
Complaint paragraph 8 alleges that the November 18 letter
(J. Exh. 3) ‘‘threatened the employees with reprisals’’ if they
voted for the Union. The Union’s corresponding objection,
its Objection 2, is that TSF ‘‘disparaged the neutrality’’ of
the Board and ‘‘further repeated the implied threat’’ that em-
ployees would lose their jobs if they voted for the Union.
Complaint paragraph 9 alleges that the December 10 letter
(J. Exh. 4) ‘‘threatened employees’’ that if they selected the
Union ‘‘a strike would be inevitable and if they engaged in
a strike they would risk losing their jobs.’’ Objection 3 al-
leges the December 10 letter ‘‘predicted the futility’’ of se-
lecting the Union and ‘‘predicted the inevitability of a
strike.’’ Objection 4 adds that the December 10 letter mis-
represented strikers’ rights to recall. As I mentioned, the par-
ties stipulated that the traditional misrepresentation concept is
not involved in the case (1:42–45). Nevertheless, the Union
is pursuing Objection 4 with the argument that the misrepre-
sentation is in the nature of restraint and coercion (Br. at 6).
Objection 5 adds a ‘‘catch-all’’ objection by alleging that
by ‘‘other acts and conduct’’ TSF destroyed the laboratory
conditions necessary for a free and fair election. At the close
of the hearing, the Union moved that its Objection 5 specifi-
cally include a speech TSF gave to unit employees over the
2-day period of December 13 and 14. The matter of the
speech was fully litigated before me. Although initially ob-
jecting to the amendment, which I granted, the Company
withdrew its objection (2:363–366). The Government’s attor-
ney, in his capacity as counsel for the Regional Office, rep-
resented that the Region had been unaware of the speech
(2:366). The General Counsel does not specifically request
any unfair labor practice findings based on the December
speech.
Both the General Counsel and the Union request certain
special remedies for the violations and objections alleged.
2. Positions on procedure
As can be inferred from the fact they rested without call-
ing any witnesses after the formal papers, two stipulations,
and the joint exhibits9 were received in evidence, the General
Counsel and the Union vigorously argued, and continue to
argue in their briefs, that no evidence beyond those items
should be considered (other than the December 1988 speech
which was fully litigated). With equal fervor the Company
contends that I was correct in overruling the objections of the
Government and the Union and in permitting TSF to intro-
duce certain news articles, some of which it referred to in
the letters, and campaign materials. I received the evidence,
and Respondent’s exhibits, on the basis that I would resolve
the relevance objections in this decision. TSF argues that I
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erred in not permitting it to go further, for it desired
to elicit testimony on an even wider range of topics.
3. Preview of legal positions
The positions of the parties as to the scope of the admissi-
ble evidence reflects their view of the case law. Each side
(counting the Government and the Union as aligned on one
side opposing TSF) argues from its interpretation of the Su-
preme Court’s decision in NLRB v. Gissel Packing Co., 395
U.S. 575, 618–620 (1969), in which the relevant paragraphs
read:
Within this framework, we must reject the Compa-
ny’s challenge to the decision below and the findings
of the Board on which it was based. The standards used
below for evaluating the impact of an employer’s state-
ments is not seriously questioned by petitioner and we
see no need to tamper with it here. Thus, an employer
is free to communicate to his employees any of his gen-
eral views about unionism or any of his specific views
about a particular union, so long as the communications
do not contain a ‘‘threat of reprisal or force or promise
of benefit.’’ He may even make a prediction as to the
precise effects he believes unionization will have on his
company. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer’s belief as to demonstrably prob-
able consequences beyond his control or to convey a
management decision already arrived at to close the
plant in case of unionization. See Textile Workers v.
Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965).
If there is any implication that an employer may or may
not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation based
on misrepresentation and coercion, and as such without
the protection of the First Amendment. We therefore
agree with the court below that ‘‘conveyance of the em-
ployer’s belief, even though sincere, that unionization
will or may result in the closing of the plant is not a
statement of fact unless, which is most improbable, the
eventuality of closing is capable of proof.’’ 397 F.2d,
at 160, 68 DR 2720. As stated elsewhere, an employer
is free only to tell ‘‘what he reasonably believes will
be the likely economic consequences of unionization
that are outside his control,’’ and not ‘‘threats of eco-
nomic reprisal to be taken solely on his own volition.’’
NLRB v. River Togs, Inc., 382 F.2d 198, 202 (C.A. 2d
Cir. 1967).
Equally valid was the finding by the court and the
Board that petitioner’s statements and communications
were not cast as a prediction of ‘‘demonstrable eco-
nomic consequences,’’ 397 F.2d, at 160, 68 DR 2720
but rather as a threat of retaliatory action. The Board
found that petitioner’s speeches, pamphlets, leaflets, and
letters conveyed the following message: that the com-
pany was in a precarious financial condition; that the
‘‘strike-happy’’ union would in all likelihood have to
obtain its potentially unreasonable demands by striking,
the probable result of which would be a plant shut-
down, as the past history of labor relations in the area
indicated; and that the employees in such case would
have great difficulty finding employment elsewhere. In
carrying out its duty to focus on the question ‘‘what did
the speaker intend and the listener understand,’’ Cox
Law and the National Labor Policy 44 (1960), the
Board could reasonably conclude that the intended and
understood import of that message was not to predict
that unionization would inevitably cause the plant to
close but to threaten to throw employees out of work
regardless of the economic realities. In this connection,
we need go no further than to point out (l) that peti-
tioner had no support for his basic assumption that the
union, which had not yet even presented any demands,
would have to strike to be heard, and that he admitted
at the hearing that he had no basis for attributing other
plant closings in the area to unionism; and (2) that the
Board has often found that employees, who are particu-
larly sensitive to rumors of plant closings, take such
hints as coercive threats rather than honest forecasts.
Petitioner argues that the line between so called per-
mitted predictions and proscribed threats is too vague to
stand up under traditional First Amendment analysis
and that the Board’s discretion to curtail free speech
rights is correspondingly too uncontrolled. It is true that
a reviewing court must recognize the Board’s com-
petence in the first instance to judge the impact of ut-
terances made in the context of the employer-employee
relationship, see NLRB v. Virginia Electric & Power
Co., 314 U.S. 469, 479 (1941). But an employer, who
has control over that relationship and therefore knows
it best, cannot be heard to complain that he is without
an adequate guide for his behavior. He can easily make
his views known without engaging in ‘‘brinkmanship’’
when it becomes all too easy to ‘‘overstep and tumble
into the brink,’’ Wassau Steel Corp. v. NLRB, 377 F.2d
369, 372 (C.A. 7th Cir. 1967). At the least he can avoid
coercive speech simply by avoiding conscious over-
statements he has reason to believe will mislead his
employees.
The position of the General Counsel and the Union is that
Respondent’s three letters (with the May 30 letter an attach-
ment) fail to pass the Gissel test because there is no causal
connection, or correlation, between the plant closings and job
losses mentioned throughout the letters. Thus, they agree, the
Company’s statements constitute unlawful threats because
they are not phrased on the basis of objective fact to convey
TSF’s belief as to demonstrably probable consequences be-
yond its control. Accordingly, whether TSF had a good-faith
belief in the truth or validity of its statements is irrelevant.
TSF’s counter argument is basically: (l) It need not prove
the truth of the newspaper descriptions because the news arti-
cles themselves constitute the objective fact specified in
Gissel (2:308), and (2) nowhere in TSF’s letters or speech
does it say or imply that if the employees selected the Union
TSF [unrelated to economic realities] would retaliate by clos-
ing its two stores and laying off the employees (Br. at 7).
213TEXAS SUPER FOODS
C. The Letters and the Speech
1. Letter of May 30, 1988
As an attachment to the September 9 letter, the May 30
letter, from an allegation standpoint, must be construed as
part of the September 9 letter. I list the May 30 letter first
and separately, simply because it came first chronologically.
Moreover, it is pertinent to note that the Board already has
ruled that the May 30 letter is objectionable. That November
14 decision by the Board is a final disposition based on the
facts there. Because the May 30 letter appears here in a
modified factual context, it will be necessary to reconsider
the letter’s legality in light of the new factual context.
Signed by Jerry Savage as president, the May 30 letter be-
gins by reminding the employees (the letter was addressed
individually) of the election hours on that Friday, stresses the
importance of the election, and asserts (J. Exh. 2b):
YOUR NO VOTE against the union may be critically
important as to whether or not YOU and I have a Job.
The second paragraph labels the Union’s picketing of the
grand opening of the LaMarque store as illegal and states
that, by so doing, the Union tried to force the employees into
union representation without a vote. In the third paragraph
Savage, referring to the Union’s ‘‘unlawful’’ demand for rec-
ognition without an election, states that the Union lied in
writing by falsely claiming it represented a majority of eligi-
ble employees, and that the ‘‘NLRB, an impartial federal
agency,’’ determined the Union’s claim was a lie and that
the picketing was unlawful. The next three paragraphs read:
Now, just a few months later, this very same union,
in letters, harassing telephone calls and home visits,
now falsely claims that it wears a white hat and that its
intentions are pure. AND THIS JUST A FEW MONTHS
AFTER THE UNION TRIED UNLAWFULLY TO DE-
STROY TEXAS SUPER FOODS AND YOUR JOB AND
MINE!!!
What the Union has been and Is Now Trying To Do
To You right here in LaMarque and Texas City is to
Put You Out Of Work just like the union has done to
thousands upon thousands of other employees in Texas
and elsewhere throughout the United States. THE
UNION CANNOT TRUTHFULLY DENY THAT IT
IS THE PRINCIPAL CAUSE OF WEINGARTEN,
KROGER, SAFEWAY AND OTHER GROCERY EM-
PLOYERS BEING FORCED TO CLOSE HUNDREDS
UPON HUNDREDS OF RETAIL GROCERY
STORES CAUSING THOUSANDS UPON THOU-
SANDS OF EMPLOYEES TO LOSE THEIR JOBS.
I don’t want to see this happen at Texas Super, and
I hope that you don’t either.
The final three one-sentence paragraphs invite the employ-
ees to vote NO and to keep the Union and its ‘‘henchmen’’
out. As I mentioned, the letter (as are all the letters involved
here) is signed by Jerry Savage, president.
2. Letter of September 9, 1988
The September 9 letter is a lengthy 2.5 pages. The first
three paragraphs assert that Union Representative Roy Davila
refuses to accept the vote of the employees in the August
1987 and June 3, 1988 elections saying No to ‘‘the very
same union which has caused so much unhappiness and loss
of jobs for so many employees at other grocery companies.’’
Davila and the Union, the third paragraph continues, will do
everything in their power to convince the NLRB that you
should play ‘‘Russian Roulette’’ with a loaded gun of forced
union dues and membership and (J. Exh. 2a):
the very real possibility that the union would put all of
us out of work just like it has done for thousands of
other employees in Texas and elsewhere.
The fourth paragraph asserts that Davila and the Union
have convinced a ‘‘friend’’ of theirs at the Labor Board that
the May 30 letter, ‘‘a copy of which is attached,’’ is objec-
tionable. Nevertheless, Savage continues, the May 30 letter
is truthful and nonthreatening despite what some ‘‘union
puppet’’ at the Labor Board may say. In the next paragraph,
the last one on the first page, Savage states that in the May
30 letter he merely reminded TSF employees of the Union’s
unlawful picketing, that its purpose was to force TSF to rec-
ognize it on to force TSF out of business, and:
to remind our employees, what they had already read
in the Houston Chronicle and other newspapers, that the
union’s demands had forced Weingarten, Kroger and
Safeway and many other employers to close many gro-
cery stores and to terminate thousands of employees. In
fact, in our June 1, 1988, preelection speech, we distrib-
uted copies of two of these newspaper articles to all
employees for review. The Houston Chronicle Article
dated September 6, 1987, said that the union had
caused Safeway to close 331 grocery stores and to ter-
minate thousands of employees in Dallas and elsewhere
throughout the United States.
In an effort to link the store closing and job loss state-
ments to the Union’s picketing of the grand opening of
TSF’s LaMarque store, Savage continues on the second page
as follows:
The union’s illegal blackmail picketing of our grand
opening caused Texas Super to lose business and to ter-
minate employees, BUT THIS IS EXACTLY WHAT
THE UNION INTENDED THE PICKETING TO DO!
The union wanted to either force us out of business or
to force us to unlawfully recognize the union without
an election, even though it did not represent a majority
of our employees.
These objective facts about the union are well-known
to those employees who were with us at that time, and
were the reason for my comments in the May 30 letter
that: ‘‘and YOUR NO VOTE against the union may be
critically important as to whether or not YOU and I
have a JOB,’’ ‘‘AND THIS JUST A FEW MONTHS
AFTER THE UNION TRIED UNLAWFULLY TO DE-
STROY TEXAS SUPER FOODS AND YOUR JOB AND
MINE!!!, and ‘‘what the UNION had been and IS NON
TRYING TO DO TO YOU right here in LaMarque and
Texas City is to PUT YOU OUT OF WORK just like
the union has done to thousands upon thousands of
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other employees in Texas and elsewhere throughout the
United States.’’
In addition, during its propaganda campaign before
the June 3 election, the union distributed a cleverly
worded but erroneous handbill which falsely accused
Texas Super of threatening employees with layoff or
store closure. When Texas Super found out about this,
we handed out to each employee voter a June 1 open
letter to the union denouncing the union’s handbill as
totally false and state as follows: ‘‘The Union is threat-
ening employees! Not Texas Super! . . . you and other
union organizers (the letter was addressed to Davila and
the union) have falsely accused Texas Super but the
Union and its agents are the only ones threatening and
lying.’’
In the final paragraph of the second page, Savage contends
the hearing officer’s recommendation is erroneous, that the
May 30 letter was not a veiled threat, and that the objective
facts are what the Union had done in its 3 weeks of ‘‘illegal
blackmail picketing’’ of TSF and what:
the union had admittedly done, as announced in the
Houston Chronicle and other newspapers, at various
other grocery chains which resulted in the termination
of thousands of employees.
On the letter’s third and last page Savage repeats his con-
tention that the May 30 letter is truthful and contains no
threats. He then continues his attempt to blur the distinction
between the Union’s picketing at the LaMarque store’s grand
opening and newspaper references to store closings. The final
three paragraphs read:
As I said in the fourth to last paragraph of the at-
tached May 30 letter, ‘‘I don’t want to see this happen
at Texas Super, and I hope that you don’t either!’’
THIS STILL HOLDS TRUE!
Based upon what the union has already done at
Texas Super by its three weeks of picketing during our
grand opening as well as what the union has admittedly
done in forcing the closing of hundreds of grocery
stores and the termination of thousands of grocery em-
ployees in Texas and throughout the United States, we
think the union would force Texas Super to close its
stores. We think the union would cause us all, you and
I, to lose our jobs permanently!
We don’t need or want the damn union here in our
little two store operation, and I hope that you continue
to feel as I do.
Sincerely,
/s/ Jerry Savage
Jerry Savage, President
3. Letter of November 18, 1988
The November 18 letter from Savage is short. Savage
opens by informing the employees that the NLRB had de-
cided there should be another election, and that the (third)
election probably would be held in December. The balance
of the letter reads (J. Exh. 3):
The NLRB thought that a letter I wrote which truth-
fully described the Union’s illegal blackmail picketing
[sic] at the Grand Opening of our La Marque Store, to
force Texas Super To Force You to join the Union, and
the truthful newspaper account of the Union causing
Weingarten, Kroger, Safeway and many other employ-
ers to close their doors and to fire thousands of employ-
ees in Texas and elsewhere, was objectionable because
it sounded like an implied threat that Texas Super
would close its stores.
There was no implied threat, either stated, intended
or implied. Since when is it a threat to merely tell
truthfully the bad things the Union has done to employ-
ees? I ended that letter by saying, ‘‘I don’t want to see
this happen at Texas Super, and I hope that you don’t
either.’’
The fact of the matter is that the Union is the one
that has been threatening employees and putting their
job at risk, NOT TEXAS SUPER!
The Union is Dangerous. Last time the Union tried
to bribe you with drinks and pizzas. What will they try
this time?
You beat the Union twice before and You can do it
again!
4. Letter of December 10, 1988
The December 10 letter (J. Exh. 4) is a long 3.5 pages,
single-spaced, and attached a photo of a letter to ‘‘The Hous-
ton Post’’ of March 21, 1975. The 13-year old published let-
ter is from the wife of a striker. Beginning ‘‘who really ben-
efits from a strike?’’, the wife, trying to support the family
on her pay as a nurse, complains of several matters, and con-
cludes by asserting it is unfair for the union representative,
whose salary continues during a strike, to tell the workers the
company is unfair.
The letter from Savage opens with a capitalized statement
that the Union is on strike. In the following paragraphs Sav-
age makes heavy references to strikes, and he describes the
Union as ‘‘STRIKE HAPPY!!!’’ Savage then mention a 3-
week strike in February 1987 by the Union’s Local 408 (the
meat cutters local). He asserts that when (the employees) re-
turned to work it was to the tune of a $2.05 pay cut and re-
duced benefits.
Beginning on the second page with a paragraph referring
to the Union’s June 1987 picketing of TSF, Savage begins
a list describing purported strikes by the Union (by locals
other than 455) around the country. These references include
a 12-month strike against Hormel in which hundreds of
union members ‘‘LOST THEIR JOBS’’ when Hormel law-
fully replaced them. On page 3 the listing ends with item (8)
reading:
(8) over the last few years, the union’s hard nose bar-
gaining position was the principle [sic] cause of
weingarten, kroger, safeway and many other grocery
employers being forced to close hundreds upon hun-
dreds of grocery stores causing thousands upon thou-
sands of union employees to lose their jobs.
‘‘The point of all this,’’ Savage continues in the next para-
graph, is that the itemized strikes by the national union are
just a few of the ‘‘many union strikes’’ in the past few years.
215TEXAS SUPER FOODS
The union employees did not know what they were getting
into, and their mistake cost them a great deal of money, a
great deal of hardship, ‘‘and many jobs!’’
‘‘Strikes are a lonely and tough business,’’ Savage con-
tends in the penultimate paragraph of page 3. Wages and
benefits stop for strikers, and there is no unemployment com-
pensation. And:
YOU risk losing your job, if Texas Super, as the law
permits it to do, hires someone else to replace YOU.
Strikes are no fun!!
In the Union wing and (contract) negotiations begin, Sav-
age continues at the bottom of page 3 to the top of page 4,
Roy Davila and other (organizing) representatives will be re-
placed by a stranger. While Davila and the other organizers
‘‘might drive by every once in awhile to visit you on the
picket line’’ to give encouragement and perhaps a CARE
package, they ‘‘will not lose their jobs.’’
The concluding paragraph, urging the employees to vote
NO on December 16, is immediately preceded by the state-
ment:
A VOTE FOR THE UNION MAY BE A VOTE TO
STRIKE.
5. Speech of December 13–14, 1988—and the
news articles
a. Delivery Procedure
There is no dispute that during the 2-day period of Decem-
ber 13–14 TSF representatives delivered a speech to unit em-
ployees. The text of the speech in evidence is 33 pages, tri-
ple-spaced (R. Exh. 28). LaMarque Store Manager Joseph F.
Masson testified (2:229), and Savage confirms (2:335), that
the speech was given to small groups of 6 to 10 employees
in the back of the stores (2:236). Although Savage personally
gave the speech about twice (2:335), store Managers Masson
and Aguilar delivered it to most of the groups (159–160;
2:227). Masson testified it took him about 50 to 55 minutes
to deliver the speech (2:235). This included reading the head-
lines of the several news articles, and reading from some of
the news articles, that Masson and the others, during the
speech, circulated for the employees to read. Masson would
pause for 2 to 3 minutes as the employees read each article
(sufficient copies were available for each attending employee
to hold one). At the conclusion of each speech TSF gathered
up the copies of the news articles for use with the next group
of employees (1:159; 2:228–231, 246–247).
b. Contents
After some opening remarks as to the purpose of the
speech (to give the truth about the national union and to
counter its lies and big promises), and remarking that the
‘‘union seems to have enough influence to get elections over-
turned’’ but not enough appeal to the employees to win an
election, the speech describes an election the national union
(United Food and Commercial Workers Union or UFCWU)
lost in North Carolina. It then asserts that apparently some
of TSF’s employees who are union supporters cannot get a
better job of more pay and benefits elsewhere, yet they
‘‘constantly bad mouth Texas Super. If the union ever did
win an election here at Texas Super, these are the kind of
people that the union would choose to be union stewards.’’
This is followed by a paragraph reading (R. Exh. 28 at 4):
This is one of the reasons why were [sic] are fighting
so hard to keep the union out of our small, two store
operation. With the economic depression that we are
going through, and with the strong competition that we
have to face, we just can’t afford to come to work each
day and have to spend a lot of time arguing with the
stupid union over something that is not even a problem.
Citing Louis Gallet, Inc., 247 NLRB 63 fn. 1 (1980), the
Union argues (Br. at 7) that the ‘‘can’t afford . . . to spend
a lot ot time arguing with the stupid union’’ statement, in the
context of the full speech, is an implied threat of job loss
in that if the employees selected the Union TSF would have
to spend its time fighting the Union rather than doing the
tasks needed to remain competitive and to keep the stores
open. The quoted paragraph is immediately followed by one
asserting that unions destroy jobs:
In one of our notices that we distributed to you, we
stated that the vast majority of American working men
and women, some 100 million or more strong, are not
union members. These are true figures taken from U.S.
government publications. The reason why these 100
million or more working American working men and
women have not joined a union is that they realize that
unions do not create jobs, they destroy them. Unions do
not create good benefits and pleasant working condi-
tions, unions destroy them.
After a page or so of comments about right-to-work laws,
and the national union’s efforts to abolish them, TSF asserts
in the speech (R. Exh. 28 at 6):
The most important reason why Texas City, LaMarque,
Baytown, Pasadena, Galveston and, in fact, this whole
area down here has had such a tough time economically
in the last few years—you could even call it a serious
depression—is because the damn unions have a strangle
hold on various employers and wouldn’t let go, even if
it meant that those employers had to shut down their
businesses or drastically reduce the number of employ-
ees.
Further on in the speech TSF repeats some of the strike
information from the December 10 letter. The Company
turns to the news articles with these introductory remarks at
pages 18–20:
I have here before me various newspaper and other
articles that widely publicize the fact that the United
Food and Commercial Workers Union has been directly
responsible for the closing of hundreds of retail grocery
stores and the termination of thousands upon thousands
of employees in Texas and elsewhere throughout the
United States. And these are just the newspaper articles
that we have been able to gather. There may be many
more which reflect store closings and layoffs of union
employees throughout the country. I have these articles
right here and I am going to pass them around so that
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
you can see for yourselves. Although the United Food
and Commercial Workers Union has never denied the
truth contained in these newspaper articles, the union
some how or other convinced the NLRB that the mere
mentioning of these articles was somehow a threat by
Texas Super. The NLRB can’t read common English
and they don’t even understand their own case law. In
any event, let us assure you right now that we are not
threatening you in any way. We are merely showing
you these articles. You make your own decision about
the United Food and Commercial Workers Union. I will
describe each one of these articles as you are looking
at them.
Then begins a description of nine numbered news articles.
(The number reaches only eight because the number five is
used for two articles.) These are followed by reference to a
10th, but unnumbered, article in the Bureau of National Af-
fairs Daily Labor Report for March 11, 1988.
The first article is from the Houston Chronicle of July 19,
1984 (R. Exh. 16). Bearing the headline ‘‘Kroger to sell off
70 stores in Mich. after pact rejected,’’ the article quotes
Kroger as announcing it will close 70 Michigan stores and
sell them to smaller chains because workers of UFCWU
Local 376 failed to make $65 million in concessions. Ac-
cording to the article, some 4200 Kroger clerks and cashiers
would lose their jobs, and that in the previous month Kroger
closed 65 stores in Michigan because workers there refused
to grant concessions.
The second article (incomplete) is from the Houston
Chronicle of June 10, 1987 (R. Exh. 17). It bears the heading
‘‘7 Safeways to be shut here; 9 more possible.’’ According
to the article, ‘‘The company said the closings are part of its
ongoing program to eliminate stores that are not performing
well.’’ Nothing in the exhibit attributes any cause for the
closings to Local 455 or to any bargaining demand or posi-
tion of the Union.
The third article is from a June 15, 1987 issue of the Bu-
reau of National Affairs, Daily Labor Report (R. Exh. 18).
In reporting on job losses and severance pay when Safeway
closed 131 stores, the article asserts, in part:
Some 5,000 union-represented employees in Texas who
lost their jobs this past spring when the company closed
131 stores in its Dallas division will be the first bene-
ficiaries of the new severance agreement, the union
said.
As with the second article, this one contains no assertion that
the store closings or job losses stemmed from contract de-
mands by the UFCWU or refusals of members to grant con-
cessions in negotiations.
The fourth article, from a September 6, 1987 issue of the
Houston Chronicle, is headlined ‘‘Safeway management trim-
ming fat from budget to keep up with debt.’’ (R. Exh. 19.)
The article quotes Safeway’s chairman as saying the com-
pany, in the past year, had closed 331 stores and laid off
more than 8600 employees. The article attributes some of the
store closings to the failure of Safeway to win wage conces-
sions from union represented workers. In its speech TSF
states:
It is clear from this article that Safeway was selling or
closing these unprofitable stores because the United
Food and Commercial Workers Union would not grant
the needed substantial wage and benefit reductions.
(Here pause and let the employees read the article.)
The fifth article, from a May 1988 issue of The Wall
Street Journal, describes supermarket closings in Quebec,
Canada, by Steinberg, Inc. when the UFCWU rejected a pro-
posed wage-concession package (R. Exh. 20).
The sixth article, from the May 26, 1988 Houston Chron-
icle, is a followup on Safeway and is headlined ‘‘11 former
Safeways bought here.’’ (R. Exh. 21.) There are no ref-
erences to a union or to contract concessions. The speech
states that the article describes a purchase of about 300
former Safeway stores—including 11 in the Houston area—
by a Dallas company. It then paraphrased a statement in the
article that the stores had been taken out of operation in re-
cent years ‘‘because they were underperforming.R (R. Exh.
28 at 22) The article itself quotes a Safeway spokesman as
saying ‘‘mostly because they were underperforming.’’
The seventh article (R. Exh. 22), from the May 31, 1988
Wall Street Journal, is a followup to the fifth article. This
article begins with a report that Steinberg is expected to
renew its efforts to sell its core supermarket assets following
rejection by members of a UFCWU local, which represents
8000 Steinberg employees in the Montreal area, of the com-
pany’s proposed concession package. ‘‘Steinberg manage-
ment has complained for some time that low profits from its
supermarket units result from wages and benefits that are
more generous than those of competitors,’’ the article re-
ports. And, ‘‘The company said it would await the outcome
of votes by its unionized workers in Ontario before deciding
the fate of its supermarkets there.’’
The eighth article is from the Houston Chronicle of June
14, 1988, with the headline ‘‘Local firm to bur 99 Safeway
stores.’’ The article reports the purchase of 99 Safeway
stores in the Houston region, including about 50 stores in
metropolitan Houston. After giving a brief history of
Safeway’s problems and store sales which have marked its
efforts to pay off debts from a $4 billion leveraged buyout
in 1986, the articles states (R. Exh. 23):
Safeway has struggled to survive in the competitive
Houston marketplace in recent years, and the grocery
giant has obtained wage concessions from its unions to
make the Houston Safeways more profitable.
The speech did not mention that quotation. Instead, it recites
other points, including Safeway’s selling the 99 stores plus
140 stores a year earlier in the North Texas market.
‘‘Auction set for six shut Krogers here’’ headlines the
ninth article, a report in the Houston Chronicle of November
15, 1988 (R. Exh. 24). The brief article states that most of
the stores have been closed for several years. There is no ref-
erence to a cause for the stores having closed, and there is
no reference to a union or to proposed wage concessions.
As I described earlier, the 10th article, apparently not cir-
culated among the employee groups, and not offered in evi-
dence before me, is simply described in the speech. The ref-
erence there is to a BNA article dated March 11, 1988. The
report in the speech, after identifying the BNA source, tells
the employees that the article (R. Exh. 28 at 23):
217TEXAS SUPER FOODS
10 TSF President Savage apparently confirms that figure (2:321).
11 Savage was unwilling to produce TSF’s books at the hearing to substan-
tiate his testimony (2:325–326).
states that some 2,000 employees at 52 Big Star super-
markets in North Carolina, South Carolina and Virginia
would lose their jobs as a result of the Grand Union
Company’s sale of the stores to a nonunion chain based
in Charlotte, North Carolina. This article relates that the
United Food and Commercial Workers Union was in
the process of negotiating with Grand Union over the
effect of the closing. The sale agreement does not obli-
gate the nonunion chain to hire the union employees.
After reviewing these 10 articles, the TSF speech then
states (R. Exh. 28 at 23–24):
In one of its recent handouts, the union asked the
question: ‘‘When was the last time you got a raise?’’
Those thousands upon thousands of union employees,
who had paid union dues for years, and who have been
terminated when their stores closed in Texas and else-
where, have a much bigger problem. With those union
members, the question is not when they got their last
raise, but when they will get a new job. If being a
member of the United Food and Commercial Workers
Union meant steady and secure jobs with regular pay
increases, why were these thousands upon thousands of
United Food and Commercial Workers members termi-
nated. Those terminated, had no jobs and no benefits,
and no place to go.
The speech then asserts that TSF’s salaries ‘‘compare fa-
vorably with any union store,’’ and the TSF employees do
not have to suffer union harassment, dues, ‘‘the constant
threat of a union strike and the constant threat of store clos-
ings and terminations.’’
Over the next two pages the speech addresses certain argu-
ments advanced in the Union’s campaign material and then
asserts (R. Exh. 28 at 26–27):
You will notice that Davila does not talk about the hun-
dreds of union grocery stores that have been shut down
and the thousands upon thousands of union employees
who have been terminated in the State of Texas and
elsewhere. In many of those situations, the United Food
and Commercial Workers Union refused to agree to cut
the union’s unreasonable wage and benefits demands so
that those stores could remain open and the employees
could have their jobs.
Over the next few pages the speech asserts that TSF has
tried to remain competitive, does not have the money sug-
gested by a union cartoon-leaflet, and that ‘‘most of the time
we don’t make any money at all.’’ The speech continues by
asserting that once TSF had five stores, but TSF’s grocery
business, as the grocery business in general, has fallen on
hard times. TSF, the speech reports, has been fighting to sur-
vive, and it has not been easy even without a union. ‘‘Flem-
ing’’ (apparently a grocery wholesaler) ‘‘keeps us afloat, but
there is always the threat they and other suppliers will place
us on COD. That is, CASH ON DELIVERY. If we are
placed on COD, we would have to pay cash for anything that
we buy from Fleming or from our other suppliers. Fre-
quently, Texas Super does not have the money to do this.
Even now, when Fleming sends us groceries, Texas Super
has to pay Fleming the very next week.’’
Nevertheless, the speech continues, TSF’s average grocery
salaries are very competitive with union stores, and the group
insurance plan is far better than the union plan. Asserting
that because the costs of union insurance and pension plans
are ‘‘staggering,’’ it makes TSF believe that ‘‘somebody in
the union must be pocketing some of the money.’’ This im-
mediately leads into the last two pages of the speech which
are devoted to the message that although the general area
around LaMarque and Texas City is still in a depression,
with many businesses closed and employees looking for jobs,
and despite TSF’s economic problem, TSF has tried to do its
best for its employees. According to the speech, TSF em-
ployees enjoy far better job security than some union mem-
bers have. With Texas slowly getting on its feet, and if TSF
can keep its head above water, then it will survive and even-
tually there will be better times to be shared by TSF and its
employees. The speech concludes by asking the employees
to VOTE NO and by thanking them for their attention.
D. Testimony About Economics
Union Representative Roy Davila testified that contractual
wages paid by the Houston ‘‘majors’’ (Kroger, Safeway) av-
erage about $8.50 to $9 an hour, $8 to $8.50 at the ‘‘mi-
nors’’ (Gerlands and Rice), and about $7.50 at the smallest
independent, Lewis & Coker. However, both the major and
minor supermarkets, under contract with Local 455, have the
same pension and health and welfare benefit plans (1:80–81,
87–88, 121).
Joseph E. Masson, the LaMarque store manager, testified
that TSF pays its grocery employees an hourly average of
$5.50,10 and that TSF cannot afford to pay an average wage
rate of $8.50 nor can TSF afford the Union’s benefit plan
(1:169). Union Representative Davila’s understanding from
TSF’s employees is that the Company has no pension (1:78–
79).
Jerry Savage, TSF’s president, estimates the additional
cost to TSF of a $3 difference in wages ($5.50 to $8.50) at
about $600,000 a year (2:322). The pension would add ap-
proximately $70,000 a year, and the health and welfare
would increase Respondent’s cost by another $77,000
(2;316–319). Even without estimating any additional costs
for vacations, holidays, or daily overtime, the total additional
costs estimated by Savage reach the total of some $750,000
a year. According to Savage, TSF cannot afford a union
(2:324).11 Indeed, Savage testified TSF lost $500,000 in
1987 and $600,000 in 1988 (2:348). He testified that if TSF
were saddled with these additional costs from a union con-
tract that the Company would be out of business in 6 months
(2:324).
As Savage concedes, Local 455 has never presented TSF
with any specific bargaining demands (2:347). And as Union
Representative Roy Davila testified, the Union wants to keep
employers in business (1:119–120). Nevertheless, copies of
the Union’s campaign literature in evidence reflect that the
Union, although principally stressing the theme of ‘‘Get It In
Writing,’’ also suggested that TSF employees could improve
their pay and benefits (including a pension plan) through a
union contract (R. Exhs. 2–14, 25–27).
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 NLRB v. Gissel Packing Co., 395 U.S. 575, 71 NLRB 2481, 2497–2498
(1969).
E. Analysis and Conclusions
1. Factual analysis
The General Counsel argues that the clear message TSF
delivered, time and again, is ‘‘if you vote for the Union you
won’t have a job.’’ And, ‘‘the letters . . . clearly and un-
equivocally equate the Union with a promised loss of em-
ployment.’’ (Brief at 10.)
Observing that the news articles involve other companies,
and that the letters repeatedly state that the Union caused
hundreds of stores to close and thousands of employees to
lose their jobs, the Union argues: ‘‘The missing element is
the lack of explanation as to how this could happen. The let-
ters are filled with rhetoric stating, in effect, that a union at
Texas Super means that the stores will close and the employ-
ees will lose their jobs. The objective facts and the causal
connection are totally absent.’’ (Br. at 8–9.)
Much of Respondent’s factual argument depends on the
testimony of Savage and Masson concerning TSF’s inability
to pay the union wages and benefits prevailing in the area.
That reliance leaves TSF with something of a problem be-
cause I do not credit either witness. Masson seemed to
phrase or switch his answers to questions (particularly in re-
sponse to leading questions) in a manner suggesting that he
was more interested in responding as Respondent’s counsel
desired than in being forthright. Moreover, his demeanor was
poor. I do not believe him.
The demeanor of Jerry Savage was completely unfavor-
able. His demeanor was so unfavorable that I am convinced
he testified falsely. I do not believe him.
The thrust of TSF’s letters of May 30 and September 9,
1988, is to equate unionization with forced store closings and
loss of jobs. The text expressly accuses the Union (even con-
sidering it as the national union and its locals) of being the
‘‘principal’’ cause of Weingarten, Kroger, Safeway, and
other grocery employers having to close hundreds of stores
and thousands of employees to lose their jobs.
TSF’s reference in the September letter, to the Union’s
picketing does not neutralize its unsubstantiated charge that
the Union had ‘‘admittedly’’ forced the closing of hundreds
of stores ‘‘and the termination of thousands of grocery em-
ployees in Texas and throughout the United States.’’ This
unsubstantiated statement, with the picketing reference, does
not justify the expression of opinion which immediately fol-
lows, ‘‘. . . we think the union would force Texas Super to
close its stores. We think the union would cause us all, you
and I, to lose our jobs permanently!’’
The November 18 letter, issued after the Board decision
finding that TSF had made an objectionable threat by its
May 30 letter, simply repeats its unsubstantiated accusation
that the Union had caused Safeway and others to close.
This unsubstantiated theme is repeated in the December 10
letter in item (8). The December letter otherwise is prin-
cipally the vehicle of the message that a vote for the Union
is a vote for a strike (notwithstanding the ‘‘may be a vote
to strike’’ phrase also contained in the letter).
The speech repeats the store closings and job losses in
spades. The news articles are nothing more than hearsay
quotes from various sources and do not serve as evidence for
the truth of any statements in the articles. Thus, the articles
do not constitute factual substantiation of assertions in either
the speech or the letters.
2. Legal analysis
a. Job losses through store closings
Although the news articles do not constitute factual sub-
stantiation for the letters and the speech, do they qualify as
‘‘objective fact’’? As noted, Respondent contends the content
of the articles need not be proved because the articles
(facially) constitute objective fact (2:308; Br. at 6, 17, 20,
23).
Even if the articles do serve as ‘‘objective fact’’ on which
to base a prediction, Gissel12 requires that the prediction
must convey an employer’s ‘‘belief’’ as to ‘‘demonstrably
probable consequences beyond his control.’’ As the Union
argues, the ‘‘missing element’’ is the lack of explanation
how the loss of jobs elsewhere would equate to a loss of jobs
by TSF employees. The closest TSF comes to an explanation
is its statement that the articles show that the UFCWU re-
fused to grant concessions and therefore the stores were sold
or closed entailing the loss of thousands of jobs. The impli-
cation is that Local 455 likewise would refuse to grant con-
cessions with a similar result of the loss of jobs by TSF em-
ployees.
TSF fails to mention (although most of the articles state)
that the members of the local unions voted to reject the pro-
posed concession packages. It was not the national union act-
ing on its own behind the backs of the locals’ members. The
articles also contain references to instances where conces-
sions were granted, and even then some of the stores had to
close. The upshot is that the articles do not serve as ‘‘de-
monstrably probable consequences beyond’’ TSF’s control.
Does that mean TSF’s letters and speech fail to pass the
Gissel test? Citing cases such as White Plains Lincoln Mer-
cury, 288 NLRB 1133 (1988), the General Counsel and the
Union say the answer is yes. TSF argues to the contrary, re-
lying on cases such as NLRB v. Shenanigans, 723 F.2d 1360
(7th Cir. 1983).
Although none of the letters or the speech contain an ex-
press threat that TSF would retaliate by closing, Gissel
deems store closings and job loss predictions to be threats if
the predictions are not carefully phrased on the basis of ob-
jective fact conveying the employer’s belief as to demon-
strably probable consequences beyond its control.
The letters contain no objective facts. At most they rely
on general references to newspaper articles (the December 10
letter in item (8) does not even do that), and only the Sep-
tember 9 letter refers to a specific news article, that of the
September 6, 1978 Houston Chronicle. From the date of the
paper and the reference to Safeway’s closing of 331 stores,
it is apparent that the reference is to Respondent’s Exhibit
19. The thrust of that article is that Safeway went heavily
into debt in a leveraged buyout to fight off a takeover at-
tempt by the Haft family. ‘‘Like the scores of other corpora-
tions that have undergone similar leveraged buyouts,
Safeway’s bottom line remains in the red because of the in-
terest payments the company incurred from the buyout. With
interest expenses of $295 million for the first half of the
year—nearly four times as high as last year—Safeway lost
$78.7 million in the first half of this year.’’ (R. Exh. 19, col.
2.)
219TEXAS SUPER FOODS
13 By the statement, ‘‘YOU risk losing your job, if Texas Super as the law
permits it to do, hires someone to replace YOU.’’
Although the Houston Chronicle article goes on to report
that Safeway has closed unprofitable stores, including stores
where union members would not agree to concessions, it also
reports that Safeway obtained concessions in some areas. In
any event, it is clear from the article that Safeway’s money
crunch comes from the burden of servicing its enormous
debt—and not from any demands of the UFCWU or refusal
by union workers to grant concessions. None of this is in the
September 9 letter which, as I quoted earlier, seeks to fright-
en TSF’s employees by stating it was ‘‘the union’’ that had
‘‘caused Safeway to close 331 grocery stores and to termi-
nate thousands of employees in Dallas and elsewhere
throughout the United States.’’ (J. Exh. 2a at 2.) The plain
fact is that such statement by Savage is a false report of what
is written in the September 6, 1987 article. I find that the
letters do not meet Gissel’s standard for lawfulness.
TSF’s December speech likewise fails to pass muster. The
articles do not constitute objective fact, but even if they did
they are not a ‘‘demonstrably probable’’ showing of con-
sequences beyond TSF’s control. All that would happen from
a union election victory would be an obligation by TSF to
bargain in good faith—not an obligation to agree to whatever
demands Local 455 presented. And of course, Local 455 has
presented no contract demands. I find that the speech con-
veys the threat of job loss by equating the selection of the
Union as a vote for store closings with consequent job
losses. In the process of conveying that threat, TSF manages
to insult the Board as illiterate (‘‘can’t read common
English’’) and stupid (‘‘don’t even understand their own case
law’’) (R. Exh. 28 at 19).
The Gissel test refers to the employer’s belief. As de-
scribed earlier, I declined (2:305, 308) to accept the proposed
stipulation of the parties that TSF (that is, Jerry Savage) be-
lieved in good faith that it was the Union’s (UFCWU) high
wage demands and refusals to grant concessions that forced
all the grocery stores out of business (2:299–301). Also as
I have summarized, Savage testified to his good-faith belief
that TSF cannot afford a union and that everything TSF told
its employees is true (2:324, 362).
Having found Savage unworthy of belief as a witness, I
find that he intentionally get about to terrorize his employees
by his letters and in TSF’s speech. The technique he used
for this was to equate unionization with store closings and
the loss of jobs. I find that Savage did not believe a union
victory at TSF would result in the closing of TSF’s two
stores and the loss of jobs. Savage, I find, acted for the bad-
faith purpose of striking fear into the minds of his employees
so they would vote no—with a no vote eliminating the time
and trouble of the Union’s presence that a yes vote would
bring. For this additional reason, I find that the letters and
the speech of TSF fail the Gissel test.
b. Job losses through strikes
Arguing that the December 10 letter is not an unlawful
threat that strikers will lose their jobs, Respondent cites John
W. Galbreath & Co., 288 NLRB (1988), and Eagle
Comtronics, 263 NLRB 515 (1982). Neither case supports
Respondent’s position. In Eagle Comtronics the Board held
that an employer may give a truthful, although incomplete,
statement respecting the permanent replacement of striking
employees. However, the Board distinguished cases in which
the employer went beyond the risk of replacement and told
employees they would lose their jobs. 263 NLRB 516 fn. 8.
At issue in Galbreath (a representation case) was an em-
ployer’s statement that strikers, through replacement, can
lose their jobs. The employer added, however, ‘‘they are not
discharged, technically speaking.’’ It was this addition which
saved the employer’s statement from being held objection-
able.
Here TSF’s remarks have no savings clause. Thus, em-
ployees are told, on page one, that ‘‘the only thing the union
can usually promise is trouble, strife, strikes and loss of
jobs.’’
Following item (8) and the false history of the Union’s
bargaining position being the principal cause of several gro-
cery employers closing thereby causing thousands upon thou-
sands of union employees to lose their jobs, Savage states
that union employees mistakenly did not know what they
were getting into with the many union strikes and it cost
them ‘‘many jobs.’’ This is followed by a separate paragraph
about strikes being a lonely and tough business and ending
with, ‘‘YOU risk losing your job, if Texas Super, as the law
permits it to do, hires someone else to replace YOU. Strikes
are no fun!!!’’ (J. Exh. 4 at 3.)
After referring to union representatives visiting strikers on
the picket line, the letter from Savage states, in capitalized
and underscored words, that a vote for the Union may be a
vote to strike. Respondent contends the ‘‘may’’ insulates the
statement (Br. at 27). I find that it does not.
I find that the thrust of TSF’s letter is to tell employees
that if they strike they will lose their jobs. Such a statement
is an unlawful threat. Eagle Comtronics. Moreover, the con-
text of a job-loss-by-store closing threat is itself sufficient to
impart an unlawful character to the job-loss-by-strikes mes-
sage. Great Dane Trailers, 293 NLRB 384 (1989).
3. Conclusion
For these reasons I find merit to complaint paragraphs 7,
8, and 9 and to the Union’s objections 1, 2, 3, 4, and 5. Ob-
jection 4 is phrased in terms of misrepresenting the recall
rights of strikers,13 but, in effect, alleges objectionable re-
straint and coercion, as argued by the Union (Br. at 6). I find
merit to Objections 3 (the December 10 letter predicts the in-
evitability of a strike) and 4 in combination. So combined,
they allege essentially as complaint paragraph 9.
The Union amended its Objection 5 to include TSF’s De-
cember 13–14, 1988 speech. I find merit to this objection on
the basis that the speech threatens employees with logs of
their jobs through store closings if they select Local 455 as
their bargaining representative.
Although the General Counsel did not move to amend the
complaint to allege that TSF violated Section 8(a)(1) of the
Act by the job loss threat in its December 13–14, 1988
speech, the matter was fully litigated. Accordingly, I find
that TSF did so violate the Act.
CONCLUSIONS OF LAW
1. Respondent TSF is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
2. The Union, UFCWU Local 455, is a labor organization
within the meaning of Section 2(5) of the Act.
3. TSF violated Section 8(a)(1) of the Act by the follow-
ing conduct:
(a) By its letters of September 9, 1988 (with May 30, 1988
attachment) and November 18, 1988, and its December 13–
14, 1988 speech to unit employees, threatening unit employ-
ees with loss of their jobs if they selected Local 455 as their
bargaining representative.
(b) By its December 10, 1988 letter threatening unit em-
ployees with loss of their jobs by telling them that if they
selected Local 455 to represent them a strike would be inevi-
table and strikers would risk losing their jobs.
4. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
5. By the unfair labor practices and other conduct found,
as described in part III,E,3 of this decision, Respondent TSF
engaged in objectionable conduct requiring that the results of
the third election be set aside and a fourth election directed.
6. The following unit is a unit appropriate for collective
bargaining within the meaning of Section 9(c) of the Act.
All employees of Texas Super Foods, Inc. at its Texas
City and LaMarque, Texas grocery stores, excluding all
meat department employees, office clerical employees,
salaried employees, and supervisors as defined in the
Act.
REMEDY
The General Counsel (Br. at 12–13) and the Union (Br. at
9–11) request special remedies because of Respondent TSF’s
repeated conduct requiring new elections. Both seek an order
compelling access and equal time, and the Union also re-
quests reimbursement for litigation expenses and organiza-
tional costs ‘‘at least in connection with the third election.’’
In considering the appropriate remedial order, I note that
the letters in issue are signed by TSF’s president and owner,
Jerry Savage, that Savage personally gave the December
speech to two of the employee groups (2:335), and that he
participated in drafting the speech (2:347–348). The obvious
impact of the Company’s president and owner so forcefully,
and personally, making TSF’s unlawful statements cannot be
overemphasized.
Because Savage personally signed the unlawful letters, and
personally gave or authorized the unlawful speech; because
Savage’s unlawful conduct extended to every member of the
bargaining unit; and because Savage’s conduct destroyed the
conditions for holding a fair third election in December, the
taint effect of owner Savage’s conduct cannot be overcome
by anything short of extraordinary measures. I therefore shall
order that Jerry Savage personally sign and read the attached
notice to employees to small groups of employees, assembled
for that purpose only, and in the presence of an agent of the
Board and of the Union if the Regional Director and Local
455 so desire; that TSF, on request, grant the Union access
to the Company’s bulletin boards during the period between
the Board’s adoption of this order and the time of the fourth
election; that TSF, upon request, grant the Union and two of
its representatives (per store) access to TSF’s employees dur-
ing the employees’ nonworking time in nonwork areas of Re-
spondent’s LaMarque and Texas City stores during the time
frame before the fourth election, and that it grant the Union,
and two representatives it designates, on request, reasonable
notice of and access to attend group meetings, small or oth-
erwise, held before the fourth election, at which TSF ad-
dresses employees on union representation, with the Union to
have the opportunity and facilities for an equal time response
to TSF’s address by a representative or representatives the
Union designates.
So that the Union will have the opportunity to dispel the
effects of Respondent’s unlawful messages even if TSF does
not address its employees before any new election, TSF must
grant the Union, on request, access to its two stores (one or
two representatives per store, at the Union’s option) to de-
liver a 30-minute speech, on issues pertaining to the fourth
election, to small groups of employees (during their normal
working time) in a time frame of not more than 10 working
days before, but not less than 48 hours before, the fourth
election. TSF took a calculated risk when it disregarded
Hearing Officer Rustin’s July 22 report and republished its
May 30 letter as an attachment to its September 9 letter. TSF
lost that gamble when the Board, on November 14, adopted
Rustin’s report. By its letters of November 18 and December
10, and particularly by its speech of December 13–14, 1988,
Respondent TSF again republished the earlier letters of May
and September and blatantly disregarded the Board’s Novem-
ber 14 decision. In effect, Respondent TSF publicly insults
the Board (as illiterate and stupid) and publicly disregards
the Board’s November 14 decision. Aside from any dis-
respect such misconduct may engender among employees for
the law and our government’s institutions, TSF’s unlawful
conduct has been a financial cost to the taxpayers and to the
Union.
Although the General Counsel does not request reimburse-
ment for its expenses of the hearing in this case, the Union
does seek reimbursement for its expenses associated with the
hearing and also its organizational costs in connection with
the third election. The Union does not request reimbursement
for the organizational expenses it will sustain respecting the
fourth election. The record justifies imposition of the Union’s
requested remedy, and I shall include that provision in the
order.
Because TSF has shown a proclivity to engage in the con-
duct I have found unlawful, I shall issue a broad cease and
desist order.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Texas Super Foods, Inc., LaMarque and
Texas City, Texas, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees that if UFCWU Local 455 wins
the election the employees will lose their jobs.
(b) Threatening employees that if UFCWU Local 455 wins
the election a strike would be inevitable and strikers will lose
their jobs.
221TEXAS SUPER FOODS
15 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(c) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Require its president and owner, Jerry Savage, to read
to TSF’s unit employees, assembled (in small groups) for
that purpose only, the notice to employees, attached to this
decision, which Jerry Savage has signed as Respondent’s
representative.
(b) Afford the Board, through the Regional Director, and
Local 455 reasonable notice and opportunity to have two
representatives each present when President Savage reads the
notice to employees.
(c) Immediately on request of Local 455, and during the
time frame between the Board’s adoption of this order and
the hours of the fourth election, grant the Union and its rep-
resentatives reasonable access to TSF’s bulletin boards and
to all places where notices to employees are customarily
posted.
(d) Immediately on request of Local 455, and during the
time frame specified in (c), grant to two Local 455 represent-
atives per store access to nonwork areas so that the Union
may present, orally and in writing, its view on unionization
to the employees in such nonwork areas during nonwork
time of such employees.
(e) In the event TSF, before the fourth election, addresses
assembled groups of employees on the subject of the fourth
election and union representation, grant the Union reasonable
notice and the opportunity to have two representatives
present at such speech and, on request, give one or both of
the representatives, as designated by the Union, equal time
and facilities to respond.
(f) Without regard to whether TSF addresses its employees
for the fourth election, and in addition to any equal-time re-
sponse described in 2(e), grant the Union, on request, reason-
able access to its two stores (one or two representatives per
store, at the Union’s option) to deliver a 30-minute speech,
on issues pertaining to the fourth election, to small groups
of employees (during their normal working time and at
TSF’s expense) in a time frame of not more than 10 working
days before, but not less than 48 consecutive hours before,
the fourth election.
(g) Pay to the Union the reasonable cost and expenses, in-
cluding attorney’s fees, incurred by the Union in investigat-
ing, preparing, and litigating this case, including as to any
appeals from the decision of the administrative law judge,
and the same incurred in connection with the third election
conducted on December 16, 1988.
(h) Post at its LaMarque and Texas City grocery stores,
copies of the attached notice marked ‘‘Appendix.’’15 Copies
of the notice, on forms provided by the Regional Director for
Region 16 after being signed by Respondent’s president and
owner, Jerry Savage, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the third election, held De-
cember 16, 1988, in Case 23–RM–436, is set aside and the
case is remanded to the Regional Director for Region 16 for
the purpose of conducting a fourth election whenever the Re-
gional Director deems appropriate.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten you that if UFCWU Local 455
wins the election you will lose your jobs.
WE WILL NOT threaten you that if UFCWU Local 455
wins the election a strike would be inevitable and that strik-
ers will lose their jobs.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL require our president and owner, Jerry Savage,
to assemble you and read this notice to you, and WE WILL
afford the National Labor Relations Board, through its Re-
gional Director for Region 16, and WE WILL also afford
Local 455, reasonable notice to have two representatives
each present when President Jerry Savage reads this notice
to bargaining unit employees.
WE WILL, immediately on request of Local 455, and dur-
ing the time frame between the Board’s order and the hours
of the fourth election directed by the National Labor Rela-
tions Board, grant the Union and its representatives reason-
able access to our bulletin boards, and to all places where
notices to employees are customarily posted, to post notices
bearing on the fourth election.
WE WILL, immediately on request of Local 455, and in the
time frame before the fourth election, grant to two represent-
atives of the Union per store access to nonwork areas so that
the Union may present, orally and in writing, its view on
unionization to the employees in such nonwork areas during
nonwork time of such employees.
WE WILL, in the event we address you in assembled
groups on the subject of the fourth election and union rep-
resentation before the fourth election, grant the Union rea-
sonable notice and the opportunity to have two representa-
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tives present at such speech and, on request, and WE WILL
give one or both of the representatives, as designated by the
Union, equal time and facilities to respond.
WE WILL, without regard to whether we address you re-
specting the fourth election, grant the Union, on request, rea-
sonable access to our two stores (one or two representatives
per store, at the Union’s option) to deliver a 30-minute
speech, on issues pertaining to the fourth election, to small
groups of employees (during your normal working time and
at our expense) in a time frame of not more than 10 working
days before, but not less than 48 consecutive hours before,
the fourth election.
WE WILL pay to the Union its reasonable costs and ex-
penses, including attorney’s fees, incurred by the Union in
investigating, preparing, and litigating this case, and respect-
ing any appeals from the decision of the Administrative Law
Judge, and the same incurred in connection with the third
election conducted on December 16, 1988.
TEXAS SUPER FOODS, INC.