N.L.R.B. v. Gruber's Super Market, Inc., 73-1269

• Decision Date: 15 August 1974
• Docket Number: No. 73-1269,73-1269
• Parties: 87 L.R.R.M. (BNA) 2037, 74 Lab.Cas. P 10,269 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRUBER'S SUPER MARKET, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 697

501 F.2d 697

87 L.R.R.M. (BNA) 2037, 74 Lab.Cas. P 10,269

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRUBER'S SUPER MARKET, INC., Respondent.

No. 73-1269.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 15, 1974.

Decided Aug. 15, 1974.

Elliott Moore, Acting Asst. Gen. Counsel, William M. Bernstein, Atty., N.L.R.B., Washington, D.C., for petitioner.

Frank B. Gilmer, Chicago, Ill., for respondent.

Before HASTINGS, Senior Circuit Judge, and PELL and SPRECHER, Circuit judges.

PELL, Circuit Judge.

The National Labor Relations Board (Board) seeks enforcement of its order issued February 5, 1973, against Gruber's Super Market, Inc. (Gruber's) (201 NLRB No. 98).

The principal issue before the court is whether a Gissel ¹ order should be enforced when there has been a single act of unfair labor practice of arguable demonstrability and an absence of either any other indication of anti-union bias or interference with protected employee rights under the National Labor Relations Act.

I.

Gruber's had owned and operated a supermarket in South Bend, Indiana, for the better part of a decade. In June 1970 it purchased a second supermarket, located in Mishawaka, Indiana, about nine miles from the first store. Although separate political municipalities, South Bend and Mishawaka are in appearance one continuous municipality, and the two stores Catered to the same general buying public, were operated similarly, and, from time to time, employees were interchanged between the stores.

A Board election was held on August 16, 1971, at the Mishawaka store and as a result the Retail Clerk's Union Local 37, a/w Retail Clerk's International Association AFL-CIO (Union), was certified as the bargaining agent. The record does not reflect that any attempt was made to have the appropriate unit consist of the employees of both stores.

At about the time of the Mishawaka certification, the Union, having nine authorization cards from the South Bend employees, a majority of the thirteen eligible employees, requested recognition at the South Bend store at the same time it submitted a proposed contract for Mishawaka. Gruber's indicated it wanted an election, which in due course was scheduled for September 30, 1971.

After business hours on September 27, James Gruber, vice president of Gruber's and manager of the South Bend store, called a meeting at that store of the eligible employees there. The remarks made by James Gruber on that occasion, although occurring more than six months prior to the charged unfair labor practice and therefore themselves not a basis for such a charge, were considered by the Administrative Law Judge (ALJ) as shedding light on the true character of matters occurring within the limitation period.

The election was held as scheduled and resulted in a 5-5 vote. On October 8, 1971, the Union filed objections to the conduct of the election, ² alleging, inter alia, that management had interfered with the election by promising the employees wage increases if they voted against the Union. ³

On February 16, 1972, a hearing was held on the objections. On April 5, 1972, Gruber's granted the South Bend employees wage increases comparable to those that had been negotiated at the Mishawaka store and put into effect there in late December 1971. On April 10, 1972, the Hearing Officer issued his report on the Union's objections to the September 30th election; he recommended that two objections be sustained, the election be set aside, and a second election held. Gruber's filed no exceptions to the report, and, on June 8, 1972, the Board adopted the Hearing Officer's recommendations.

Subsequent to the wage increases but prior to the Board's decision on the election objections, the Union had filed unfair labor practice charges. Adopting the findings and recommendations of the ALJ, the Board found that Gruber's had violated section 8(a)(1) by granting its South Bend employees wage increases in order to discourage support of the Union and section 8(a)(5) by refusing to recognize the Union on the basis of the authorization cards signed by a majority of the employees in the appropriate unit. In the order which is the subject of the present petition, the Board required Gruber's to cease and desist from giving wage increases in order to discourage support of the Union, to bargain collectively with the Union, upon its request, and to post an appropriate notice.

II.

Turning first to the 8(a)(1) violation, we will, as did the ALJ, look first at the meeting with the employees three days before the election to determine what light is shed on the granting of the wage increase more than six months later, during which period there is no indication of any anti-union activity on the part of the company.

For the present purpose, we note the statement of the Board in its brief to this court:

'He (James Gruber) asked each employee why he wanted a union. Most employees said they were concerned about their wages. Gruber said that the Company could not afford to give them wage increases at that time because of expenses incurred in opening the Mishawaka store and reminded the employees that the national 'wage freeze' had been on since August 15. He said that if the Union did not win the election, the South Bend employees would get a raise comparable to any negotiated for the Mishawaka store employees. He added that the employees should give the Company a chance and pointed out that the employees would have another opportunity to vote for the Union after a period of time if management failed to satisfy them.'

The light shed on the April wage increases is a caliginous one. We have difficulty in finding much illuminative significance in the request that the company have a chance and the statement that the employees could vote for the Union at a later election. While the remarks conveyed the impression that management would prefer a nonunionized South Bend store, we are unaware of any legal preclusion of management's right so to express itself. Further, these remarks must be examined in the context of Gruber's statements that the company policy because of the interrelated nature of the stores was to maintain basically the same pay scale at the two stores.

The ALJ, whose decision was adopted by the Board, did not discredit the testimony that the policy of uniformity had been established when the second store was purchased but rather apparently brushed it aside as being without great significance. Giving due deference to the expertise of the Board in such matters, we nevertheless have difficulty in consigning to the waste heap such an obviously true fact of economic life which is bound to occur in the operation of multiple, similar type stores in a single wage area. Whether employees of a nonunion plant of the employer will choose to ride dues free on the coat tails of employees in another plant of the company which has been unionized and which is located and operated in a place and a manner so as virtually to mandate the maintenance of uniform working conditions and wages is a choice not infrequently put. We further are not unmindful that when the choice is put, a majority of voting employees will frequently determine that they prefer to dispense with the free ride in favor of union representation. We know of no reasons that the employees at Gruber's were not entitled to be informed of the obvious truth as to the uniformity factor. The Board itself has on numerous occasions in representation proceedings recognized the uniform-treatment fact of economic life by authorizing areawide bargaining units in cases of multiple stores in a metropolitan area simply because uniformity of conditions promotes industrial peace, a primary objective of the National Labor Relations Act. See, e.g., The Interstate Company, 118 NLRB 746 (1957); The Great Atlantic & Pacific Tea Company, 119 NLRB 603 (1957); Food Fair Stores, Inc., 120 NLRB 497 (1958); Katz Drug Company, 123 NLRB 1615 (1959); Chicago North Side Newspapers, 124 NLRB 254 (1959); Interstate Co., Glass House Restaurants, etc., 125 NLRB 101 (1959).

The ALJ, however, found that James Gruber in September had promised comparable wages if the employees 'voted against the Union at the election.' The testimony in the record, without regard to James Gruber's testimony, is extremely equivocal. It is susceptible of interpretation as a promise on the one hand of an increase in wages contingent upon several factors including voting against the Union. But it is equally susceptible on the other hand of interpretation as a statement that, whether or not there was a union at the South Bend store, under the uniform policy for the two stores wages comparable to those negotiated at Mishawaka could be expected. ⁴

Despite the ambiguity of the remarks as reported in the testimony and the fact that on the basis of the remarks the employees might well have concluded that to assure the wage increases they should indeed vote for the Union rather than against it, we will proceed on the basis that some nebulous light was shed on the subsequent unilateral wage increases, to which we now turn.

III.

The employer's reasons for its actions determine whether the employer violates section 8(a)(1) by conferring benefits either during an election campaign or after an election, while objections are pending. For example, no violation occurs if the wage increases an employer grants are simply implementations of its well-settled practice of periodic raises; or, absent such a practice, compelling business reasons justify the employer's unilateral decision to furnish the new benefits. However, section 8(a)(1) 'prohibits . . . conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.' NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). See ...