NLRB v. Crean

• Citation: 326 F.2d 391
• Decision Date: 03 January 1964
• Docket Number: No. 14181.,14181.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Daniel CREAN and Joseph Messore d/b/a The Grand Food Market, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

326 F.2d 391 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Daniel CREAN and Joseph Messore d/b/a The Grand Food Market, Respondents.

No. 14181.

United States Court of Appeals Seventh Circuit.

January 3, 1964.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Alfred Brummel, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., for petitioner.

Walter S. Davis, Milwaukee, Wis., Robertson, Hoebreckx & Davis, John G. Vergeront, Milwaukee, Wis., for respondents.

Before DUFFY, SCHNACKENBERG, and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

The National Labor Relations Board has petitioned this Court pursuant to § 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 et seq., for enforcement of its order issued October 15, 1962, reported at 139 NLRB No. 16, p. 73.

The Board found that Daniel Crean and Joseph Messore, doing business as The Grand Food Market, respondents (hereinafter sometimes called "Grand Food") had violated §§ 8(a) (1), 8(a) (3) and (1) of the Act by coercing and discriminating against employees during a union organizational campaign; and had further violated § 8(a) (5) and (1) of the Act by refusing to bargain with Retail Store Employees Union Local 444, Retail Clerks International Association, AFL-CIO (hereinafter sometimes called the "Union").

The Board found that the Union's campaign to organize Grand Food's employees began in August, 1961, and that the Union held authorization cards from 15 of Grand Food's employees by September 20, 1961.

On September 20, 1961, the Union wrote Grand Food stating that it represented a majority of all regular full and part time employees who handled, displayed or sold merchandise, excluding meat department employees, supervisors, watchmen and all those who had a proprietary interest. The Board subsequently added to the unit the four meat department employees who had not signed any authorizations. The addition of these four brought the total number of employees in the unit to 29.

In its letter of September 20, 1961, the Union offered to permit a neutral person to check its authorization cards to verify its claim of majority status.

Grand Food's attorney answered the Union's letter under date of September 22, 1961, stating that Grand Food had no basis for believing that the Union represented a majority of the collective bargaining unit for which recognition was demanded, and suggesting that the Union seek certification, adding:

"No purpose will be served in the meeting that you suggest until such time as you have been certified as the collective bargaining representative."

Nothing was said about checking cards.

The Board relies on testimony from numerous employees respecting interrogation by management as to whether they attended or proposed to attend Union meetings, whether they signed authorizations (many said that they had), or whether other employees attended meetings. Some employees testified that threats were made in the course of these conversations. Typical instances include the following.

Thomas D'Amato testified to a conversation with Daniel Crean, one of the partners, who was in charge of the grocery and meat departments of Grand Food, during which Daniel Crean said he knew that Glenn Wiese, who worked in the grocery department, had signed a card, and that Glenn Wiese was one of those who would be on their way out if Mr. Crean could find a way.

Kathi Tate said that when she asked Mr. Crean for a work schedule consistent with her school attendance, he told her there was a dependent connection between her work schedule and her vote respecting the Union.

Several employees testified that both Mr. Crean and his partner, Joseph Messore, voiced opposition to the Union, not only on the score of its likely interference with their managerial prerogatives and the efficiency of employee assignments and remuneration, but also on the ground that they considered the Union to be composed of pirates and racketeers. Mr. Crean was still of that opinion when he testified before the Trial Examiner in this case. While the Trial Examiner considered these statements to be legitimate expressions of opinion protected by the Act, he was justified in finding that Crean was openly adverse to Union organization.

Patricia Watzka testified that Mr. Crean, after complaining of her use of company time for discussion of the Union, asked her why she wanted a union, to which she replied that she was receiving less pay than other employees. The following day, she testified, he gave her a raise to $1.25, with promises of more "when this all blows over." Mr. Crean denied any such promises, stating that top wage rate for female help was $1.25.

Mary Kathryne Jacobs, who told Mr. Messore that she had not signed a union card, testified that she was offered a raise to $1.35 to stay, and that Mr. Messore said he wanted her there when the Union vote came up because he knew she would be on his side. She also testified that Mr. Messore said he was displeased with the way some of the employees were acting and that Barbara Bahringer would be the next to go.

Barbara Bahringer testified that in the course of a conversation about Union meetings, Mr. Messore gave her a raise in pay and told her to "be a good girl and don't attend the meetings." She did attend meetings, however, and subsequently was laid off immediately after the Union advised Grand Food that it commanded a majority of the employees. Grand Food witnesses testified that the juxtaposition of these events was mere coincidence, and that the lay-off was dictated by a seasonal slump.

Susan Moser testified that when she answered a newspaper advertisement for checkers, prior to the organizational activity of the Union here involved, Mr. Crean asked whether she belonged to a union. She testified that Mr. Crean told her that he could not afford union scale wages and that she would have to leave that union before he could discuss employing her. She said she agreed, terminated her union membership, returned to the Grand Food store and was hired. Mr. Crean testified that Miss Moser complained she was not getting enough hours of work at her former place of employment, admitted that the union there had done nothing to help her, and stated that she intended to leave it. He said that he then told her to go ahead and attend to her personal affairs, come back, and he would talk to her again; that he made no promises of hiring her if she left the union.

On either version, the Board was warranted in drawing the inference that Grand Food had made Susan Moser's withdrawal from a labor organization a condition of employment, thus discouraging membership in a labor organization in violation of § 8(a) (3) of the Act.

The credibility of these witnesses presents an issue for determination by the Board. N. L. R. B. v. Sawyer Downtown Motors, 7 Cir., 1954, 213 F.2d 514, 515; N. L. R. B. v. Aurora City Lines Inc., 7 Cir., 1962, 299 F.2d 229, 232.

Grand Food's subsequent offer to reinstate Barbara Bahringer does not bar the Board's finding that she was wrongfully laid off within the meaning of the Act. N. L. R. B. v. Bachelder, 7 Cir., 1942, 125 F.2d 387, 388.

There is substantial evidence in the record as a whole to support the Board's findings that Grand Food coerced and discriminated against employees in violation of the Act. N. L. R. B. v. Thompson Ramo Wooldridge, Inc., 7 Cir., 1962, 305 F.2d 807, 808-809 and cases there cited.

The Board did not believe that Grand Food had a good faith doubt of the Union's majority status. The Board found Grand Food's unfair labor practices and its disregard of the Union's offer to prove a majority status to be inconsistent with a good faith doubt.

Grand...