NLRB v. Quality Markets, Inc.

• Citation: 387 F.2d 20
• Decision Date: 18 December 1967
• Docket Number: No. 16579.,16579.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY MARKETS, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

387 F.2d 20 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY MARKETS, INC., Respondent.

No. 16579.

United States Court of Appeals Third Circuit.

Argued October 6, 1967.

Decided December 18, 1967.

Robert Giannasi, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., National Labor Relations Board, on the brief), for petitioner.

Raymond A. Anderson, Johnson, Peterson, Tener & Anderson, Jamestown, N. Y., for respondent.

Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

STALEY, Chief Judge.

This is a petition by the National Labor Relations Board for enforcement of its order requiring, inter alia, Quality Markets, Inc. (hereinafter "Quality"), to bargain with Amalgamated Meat Cutters and Butcher Workmen of North America, Amalgamated Food Employees Local Union 590, AFL-CIO (hereinafter "Union"). The issues before us are whether the Board had a substantial basis to conclude, contrary to the trial examiner, that the Union represented a majority of unit employees at the time it demanded recognition as bargaining agent, and whether we should enforce the Board's bargaining order.

Quality operates 38 retail food stores in New York and Pennsylvania. In June, 1963, the Union engaged in a campaign to organize the employees of Quality's four stores in Titusville, Pennsylvania. The Union succeeded in obtaining the signatures of thirteen employees to cards which constituted an application for membership and an authorization for the Union to bargain with Quality on the signer's behalf. On the morning of July 1, 1965, the Union presented the thirteen cards to the officers of the company and requested that Quality bargain with the Union as majority representative.

The company had been aware of the Union's campaign virtually from its outset, and had countered with a vigorous effort designed to explain the "company's side." When presented with the authorization cards, Quality's president stated "Well this appears that you have a majority" but he continued that they had had "experience with unions" and would like to go through a normal Board election. The vice president also leafed through the cards, calling off the names, and he noted that one of the signers was about to retire, or had done so already, and that another had been known to have requested that her card be returned to her. The meeting adjourned on this note, with the Union agreeing to call back one week later for Quality's decision. However, Quality later sent a telegram to the Union refusing to bargain before the Union's majority status was determined by a representation election.

Pursuant to the Union's charges, the Board's regional director issued a complaint that Quality violated § 8(a) (1) and § 8(a) (5) through coercive tactics and its refusal to bargain. After a full hearing, the trial examiner found that Quality had violated § 8(a) (1) but recommended the dismissal of the § 8(a) (5) charges.

The trial examiner found that Quality's four Titusville stores constituted an appropriate bargaining unit and that the unit consisted of 22 full and part-time employees. However, the trial examiner refused to count the cards signed by three employees: one signer had retired before July 1st, another signer was a supervisor, and the third, Miss Vera Vergith, had sought the return of her card on June 23rd "strictly on her own initiative." Since these findings left the Union with less than a majority of unit employees, the trial examiner concluded that Quality had no duty to bargain with the Union on July 1st, and could not be held to have violated § 8 (a) (5). Moreover, he concluded that since the company knew that one signer was retired and another had revoked her authorization to the Union, even if the Union represented a majority on July 1st, its refusal to bargain was in good faith. The examiner did find that Quality's conduct throughout the Union's campaign violated § 8(a) (1), citing numerous instances of interrogation, threats, promises of benefit and encouragement to withdraw from the Union.

On appeal, the Board reversed that part of the trial examiner's decision relating to Quality's refusal to bargain.¹ First, the Board disagreed with the examiner's conclusion that one of the part-time employees should be included in the unit. Second, the Board found that since Miss Vergith's revocation of authorization was the product of Quality's § 8(a) (1) violations, the revocation should not be considered valid and the card should be counted toward the Union majority. Thus the Board found that on July 1st, the Union represented 11 of 21 employees. Finally, the Board concluded that in view of Quality's extensive unfair labor practices, the failure to accord recognition to the Union was not in good faith, and the Board ordered Quality to bargain with the Union. We will affirm the Board.

The Board's finding that the part-time employee should not be included in the bargaining unit was clearly within the Board's discretion, and did not rest on any difference with the trial examiner as to the credibility of the witnesses. The trial examiner found this employee a member of the unit because he was regularly employed for two hours on Wednesday morning to unload a delivery truck. Relying on the same evidence as the trial examiner, the Board excluded the employee because it concluded that he did not have the "requisite community of interest" with the other unit employees. While other part-time employees were included in the unit, this employee, a high school student, worked entirely outside the store, and put in less than half the hours of the other parttimers. On these facts, the Board could reasonably conclude, contrary to the trial examiner, that the employee's likely interest in the working conditions and terms of employment of the other unit employees would be minimal. NLRB v. Greenfield Components Corp., 317 F.2d 85, 89 (C.A.1, 1963).

We also find that the Board could reasonably conclude that Miss Vergith's authorization card should be counted for the Union. The record credited by the trial examiner shows that on June 23, one day after Miss Vergith signed an authorization card, she called the Union organizer who had talked with her and requested the return of her card. The organizer stated he could not return the card because it had been forwarded to the Union's international representative. No attempt was made after this time to return the card to Miss Vergith, nor did she make subsequent requests for it. The trial examiner credited Miss Vergith's testimony that no management official had ever discussed the Union with her,² and he found that since she had sought to retrieve her card on her own initiative, the card could not be included among those used to determine the Union's majority status on July 1. Thus he concluded that her action constituted a valid revocation of her authorization of representation.

The Board noted that about the time Miss Vergith first signed and then sought to retrieve her card, Quality was engaging in various unfair labor practices by interrogating individual employees, threatening some workers and making promises of benefits to others. While there was no evidence that anyone from management engaged in such conduct in Miss Vergith's presence, she could not have been unaware of the company's conduct and attitude; she testified that the matter of signing cards and having the Union was discussed among the employees at the store in which she worked. The Board reasonably concluded that Miss Vergith's...