Briggs IGA Foodliner, 443 (1964)

Docket Number:14-CA-03038
 
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DECISION AND ORDER

On October 29, 1963, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that the Respondent'had engaged in and was engaging in certain unfair labor practices and 'recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that they be dismissed. Thereafter, the Respondent, the Charging Party, and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown].

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby' affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith.

  1. The Trial Examiner found that the Respondent recognized the Union's majority status on April 4, 1963, and refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act, 'thereafter, and particularly by letters of April 8 and 12.' We find merit in the Respondent's exceptions to, these findings.

    On April 3, 1963, all 10 of the Respondent's employees attended a meeting at which Union Representatives Gunn and Sergeant 1 were present, and all 10 signed cards. On the following day, Gunn and Baker, another union representative,. went to the Respondent's grocery store and asked for 'Briggs,, the Respondent's principal partner. Briggs was not in the store but, as he was returning, they met him on the parking lot adjacent to the store. The union representatives testified in substance that when they claimed to represent a majority of the employee, Briggs 'didn't seem to be a .bit surprised,' declined the card check they suggested, and promptly agreed to rec' The Trial Examiner 's Decision incorrectly states that the union representatives present at this meeting were Gunn and Baker, and attributes Gunn's testimony concerning this meeting to Baker.

    146 NLRB No. 52.

    ognize the Union and negotiate a contract. As Gunn described it,

    Briggs-said, 'If you have a majority of the people I have no objection to setting down and negotiating a contract. . . . If you have got the people, I will go along with the thing.' Briggs, on the other hand, denied that he granted recognition to the Union, and testified that, when the union representative told him that a majority of employees had signed cards, he commented that 'that is awful hard for me to believe . . . I have known these people for a long time,' and said that he could make no promises relative to negotiating a contract until he checked the Union's claim of majority with the employees. Briggs also testified that, in the course of this conversation, Baker said, 'If you want an NLRB election to clarify this, we will arrange it.' Carter, one of the Respondent's customers, was in the parking lot at the time of this conversation, and testified that he overheard Briggs say, 'I won't do a thing and let you know nothing until I talk to my employees,' and that Briggs then turned around and walked toward the store.

    It is undisputed that, immediately after this parking lot conversations, Briggs entered the store and said to .the employees: 'These guys came out here and said they had a majority of you signed up . . .

    I want to verify some of it to see whether he has or not.' Briggs then proceeded to question most of the employees, noting their answers on a pad. The record shows that some of the employees questioned acknowledged the fact that they had signed cards the previous evening, but volunteered the information that their signatures were procured by threats made by Gunn and Sergeant that those who refused to sign could be discharged, and by their representation that the cards meant nothing until there was an election. It is also undisputed that at a meeting of the employees called by Briggs on the following day, April 5, Briggs said, as employee Harrison testified:

    'He didn't care which way we wanted to go. If we want a union O.K. If we didn't it was O.K. I [Briggs] want everyone, including myself to get a fair shake and everyone to make up their own mind and vote likewise.' On April 8, Briggs sent the Union n letter stating that he had a good-faith doubt that the Union represented an uncoerced majority of the employees in an appropriate unit, and suggesting that the Union seek a Board election. On April 12,' the Respondent sent the Union another letter, reiterating the assertion of a good-faith doubt as to the Union's majority status; stating that it had filed an employer petition for an election; s and notifying the Union that wage increases -would be put into effect after the move to a new store was completed in ac3 The Trial Examiner's Decision inadvertently refers to the date of this letter as April 8

    3 This petition (Case No 14-RM-351) was dismissed by the Regional Director on June 13, 1963, because of the pendency of the instant proceeding.

    cord with a commitment made to the employees months earlier; that the respondent would not at that time bargain about these increases;

    but that, in the event the Union became the employee representative, the increases might then become the subject of negotiations. The Union did not respond to either of these letters. When the Respondent moved into its new store a few weeks later, the wage increases were.put into effect.

    The Trial Examiner found that Briggs, as testified by the union representatives, did agree, in the parking lot conversation, to recognize the Union 4 However, he also found that, immediately thereafter, Briggs interrogated the employees about their designation of the Union, and that this interrogation 'was a spontaneous result of its [the Respondent's] surprise upon learning that a majority of them had joined.' In our view, the Trial Examiner's finding on the basis of disputed evidence, that Briggs, in an unscheduled chance meeting on a parking lot, promptly agreed to recognize the Union, accepting its claim of majority status, is patently inconsistent with the Trial Examiner's further finding on the basis of undisputed evidence, that Briggs immediately thereafter proceeded to interrogate his employees for the undisputed purpose of determining the accuracy of the very claim he had supposedly just conceded. We note, moreover, that Gunn testified that, during the parking lot conversation, Briggs said that he would recognize the Union 'If you have a majority.' [Emphasis supplied.] We note further that Carter's testimony that Briggs said he could tell the union representatives nothing until he talked with his employees is corroboration of Briggs' testimony by an apparently disinterested witness .5 Finally, we consider it significant that the Union failed to respond to the Respondent's letters advising the Union of its good-faith doubt as to the Union's representative status.'' Based upon the foregoing facts and the entire record, we are convinced, contrary to the finding of the Trial Examiner, that Briggs did not recognize the Union during the conversation on the parking lot.6 d The Trial Examiner discredited Briggs in part on the ground that Briggs denied that Gunn and Baker were seeking recognition . The record shows, however, that Briggs conceded in his testimony that they were seeking recognition, and denied only that the word 'recognition ' was used.

    5 We do not agree with the Trial Examiner that no reliance can be placed on this testimony because Carter...

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