Morse's Foodmart of New Bedford, Inc., 1092 (1977)

Docket Number:01-CA-11338


Morse's Foodmart of New Bedford, Inc. and District Union Local 2, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO.

Cases I-CA-11338 and 1-RC-14155



On November 18, 1976, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs and Respondent filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order.

We agree with the Administrative Law Judge that a bargaining order is warranted to remedy Respondent's unfair labor practices, and that, accordingly,

Respondent violated Section 8(a)(5) by refusing to recognize Local 2. Unlike the Administrative Law Judge who relied solely on Respondent's unlawful conduct during Local 2's organizational campaign, however, we base that order and concomitant 8(a)(5) finding on all of Respondent's 8(a)(1) conduct during the campaigns of both Local 2 and Local 4, whose campaign immediately preceded that of Local 2. The circumstances clearly establish that the campaigns of Locals 4 and 2 were so related and connected to each other, that the latter was a continuation of the former and that together the two campaigns amounted to a combined organizational effort among the employees of Respondent. Thus, both locals belong to the same international union, and Local 2 commenced its part of the combined effort only after the International determined that Respondent's facility came within the jurisdiction of Local 2 rather than of Local 4. The employees were so informed through the in-store employee organizing committee which had acted for Local 4 before carrying on similar activities under the banner of Local 2. Furthermore, the unfair labor practices occurring in connection with Local 4's organizational activities were not so removed in time from those committed later with respect to Local 2's as to make remote the impact of such earlier unlawful events on employees. To the contrary, 230 NLRB No. 151 because in both parts of the combined campaign Respondent's unlawful conduct was directed at many of the same individual employees, the earlier unfair labor practices only could have increased the impact of the subsequent ones, thereby imparting greater significance to the message conveyed by the latter. Finally, contrary to the Administrative Law Judge, we date the bargaining obligation as of November 25, 1975, the time of Local 2's demand, in view of the fact that Respondent embarked on its unlawful course of conduct in July 1975 in response to its employees' union activities, and inasmuch as Local 2 enjoyed majority status among the unit employees at least as of November 24, 1975. Trading Port,Inc., 219 NLRB 298 (1975).2 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Morse's Foodmart of New Bedford, Inc., New Bedford, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

IT IS FURTHER ORDERED that the allegations in the complaint of violations of Section 8(a)(1) shall be dismissed except insofar as specific findings of such violations have been made herein.

IT IS FURTHER ORDERED that the election in Case IRC-14155 be set aside and that the petition in said representation matter be, and it hereby is, dismissed.

I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr) Wall Products,

Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings.

2 Member Jenkins agrees with the Administrative Law Judge that Respondent's unlawful conduct following Local 2's demand for recognition was sufficiently extensive and pervasive to prevent the holding of a fair election, and that the employee sentiment expressed through the authorization cards obtained by Local 2 warrants a bargaining order.

In addition, he agrees that Respondent's unlawful conduct during the organizational campaign of Local 4, which immediately preceded the efforts of Local 2, was directed at many of the same employees, and could only have increased the impact of the postdemand conduct. Such conduct further diminishes the possibility of holding a fair election.




HERBERT SILBERMAN, Administrative Law Judge: These consolidated proceedings were heard in Boston, Massachusetts, on June 15, 16, 17, and 18, 1976. Following the close of the hearing, briefs were filed with the Administrative Law Judge on behalf of General Counsel and Respondent.


MORSE'S FOODMART OF NEW BEDFORD Upon the entire record in these cases, and from my observation of the witnesses and their demeanor, I make the following:


  1. THE PLEADINGS Upon a charge filed in Case I-CA-11338 by District Union Local 2, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, herein called the Union or Local 2, on January 8, 1976, a complaint was issued on March 11, 1976, alleging that Morse's Foodmart of New Bedford, Inc., herein called the Company or the Respondent, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX)(1) and (5) of the National Labor Relations Act, as amended. In substance, the complaint, as amended at the hearing, avers that during the period between July 30 and December 29, 1975, Respondent engaged in conduct which interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) unlawfully interrogating employees about their union activities, (b) creating the impression that its employees' union activities were under the Company's surveillance, (c) threatening employees with reprisals if the Union should be selected as their representative, and (d) granting employees wage increases and other benefits for the purpose of discouraging their union organizational efforts.

    The complaint further alleges that since November 25, 1975, the Union has been the designated representative of a described appropriate collective-bargaining unit of the Company's employees; that the Company has refused to recognize the Union as such representative, although the Union had made a request for recognition; and that because of the unlawful course of conduct set forth in the complaint, which was designed to undermine and to destroy the Union's majority, a fair election cannot be held, thus warranting a remedial order requiring the Company to recognize and to bargain with the Union. The Company, in its answer to the complaint and its amendments, denied that it has engaged in the alleged unfair labor practices.

    With respect to the representation proceeding, Case IRC-14155: pursuant to a petition for certification of representative, filed by the Union on November 26, 1975, and a Stipulation for Certification Upon Consent Election, executed on December 8, and approved on December 24, 1975, an election was conducted on January 2, 1976. The tally of ballots shows that of approximately 71 eligible voters 21 votes were cast for the Union, 47 votes were cast against the Union, and I ballot was declared void. On January 7, 1976, the Union filed timely objections to the election. On February 26, 1976, the Regional Director issued his Report on Objections in which he approved the withdrawal of two of the seven objections and directed that a hearing should be conducted to resolve the issues raised by the other objections and that such hearing should be consolidated with the hearing in Case I-CA-11338, as the surviving objections involve the identical conduct set forth I General Counsel in her brief contends that Costa has authority to reprimand cashiers. but I find that the evidence does not support such assertion.

    as unfair labor practices in the complaint in Case 1-CA11338. Accordingly, the Regional Director on March II, 1976, issued an order consolidating the two cases.

    1. THE BUSINESS OF THE RESPONDENT The Company, a Massachusetts corporation, is engaged in the retail sale of food, housewares, and related products at various locations in Rhode Island and within the Commonwealth of Massachusetts, including a location in New Bedford, the only facility involved in these cases. The Company's annual gross sales exceed $500,000 and in the conduct of its business it annually receives goods valued in excess of $50,000 which are shipped through channels of interstate commerce to its stores within the Commonwealth of Massachusetts from locations outside the State. Respondent admits and I find, that it is an employer within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

    1I1. THE LABOR ORGANIZATION INVOLVED Local 2 is a labor organization within the meaning of Section 2(5) of the Act.

  2. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The installation involved in this proceeding is a conventional supermarket which is one of five stores that...

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