National Labor Relations Board, Petitioner, v. Purity Food Stores, Inc. (sav-more Food Stores), Respondent, 354 F.2d 926 (1st Cir. 1965)

In this petition to enforce an order of the National Labor Relations Board based upon alleged violations of sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1), respondent answered, praying that the order be set aside. The findings as to subsection (1), of improper interference with organization by surveillance and overly hostile talk, are clearly correct and need not be considered. The sole questions are whether the union had enrolled a majority of the unit, and whether the unit was in fact appropriate. Because for no good reason, indeed, for no given reason, the employer refused the offer of an independent card check, under familiar principles it cannot assert a good faith doubt as to the number claimed. N. L. R. B. v. George Groh & Sons, 10 Cir., 1964, 329 F.2d 265, 269. By its clearly established (8) (a) (1) violations it is barred from asserting a good faith, although erroneous, doubt as to the appropriateness of the unit. N. L. R. B. v. Primrose Super Market of Salem, Inc., 1 Cir., 1965, 353 F.2d 675.

The facts as to representation are these. On May 13 and 14, 1964, as a result of what the trial examiner termed a "quickie" organizational campaign, the union¹  obtained 66 cards from the 107 full and regular part-time employees of the respondent Purity Food Stores' Peabody, Massachusetts store. The Board reduced this number to 65.²  If this figure should be further reduced by the number of cards obtained by one Silva, the union would not have a majority.

Silva was found by the trial examiner to be a supervisor, making cards obtained by him void. N. L. R. B. v. Hamilton Plastic Molding Co., 6 Cir., 1963, 312 F.2d 723. The Board reversed this factual finding. It is admitted that Silva did not have power to hire and fire, and that he was, fundamentally, an "aisle boy." This does not mean that he could not have adequate supervisory powers over other employees. Respondent contends that Silva had power "responsibly to direct [other employees that was] * * * not of a merely routine or clerical nature, but require[d] the use of independent judgment." Section 2(11). The trial examiner in effect so found. In reversing this conclusion the Board said there was "no evidence that * * * Silva * * * `responsibly gave instructions to employees.' * * * Silva was merely a conduit for relaying * * * instructions. * *" We have reviewed the record and do not find the Board's characterization unsupportable.

We come, therefore, to the propriety of the Board's finding that the Peabody store was an appropriate unit. Respondent owns seven supermarkets, hereinafter stores, in an area north of Boston. Some years back an unsuccessful attempt had been made to organize all seven jointly. The present organizational campaign was directed only against Peabody. The Peabody store is the farthest away (30 miles) from Chelmsford, where another store and the principal offices are located. The trial examiner, having discarded Silva's share of the enrollment, had no occasion to pass on the appropriateness of a single store, and made no findings. Respondent says that the Board's finding "ignores substantial parts of the record, and misstates and misconstrues other parts. * * *" Because this statement is certainly correct, we must, regretably, review the record in detail.

The following quoted text, with one paragraph at the end, which we summarize, constitutes the Board's entire findings on the subject of the unit. The footnotes are our additions and comment. The only evidence we recite in the footnotes comes from General Counsel witnesses not stated to be disbelieved, or from employer testimony which was not rejected, directly or indirectly, or impeached, and which appears inherently credible. Chesapeake & Ohio Ry. Co. v. Martin, 1931, 283 U.S. 209, 216, 51 S. Ct. 453, 75 L. Ed. 983. The Board said,

"In the instant case the record reveals the following relevant³  facts:

"Respondent operates 7 stores in the State of Massachusetts, 4 under the name `Purity-Sav-More;' 2 under the name Sav-More, and 1 under the name `Converse-Sav-More.' The Peabody store is approximately 10 miles from the nearest of the other stores in the chain, and about 30 miles distant from Respondent's main offices. The Peabody store advertises in different area newspapers and circulars which do not list the name and location of all of the stores in the chain.⁴  Store hours vary among the 7 stores.⁵  The management of each store determines the number of employees required to staff the store.⁶  Persons employed in the Peabody store are hired at that store and must fill out an application for employment at the Peabody store.⁷  Almost all of the part-time employees, who comprise about 50 percent of the work force at the Peabody store, come from the Peabody area.⁸ 

"The actual operations of the Peabody store are under the direct control of the store manager and the `store supervisor,' the latter dividing his time about equally between the Peabody store and another store in the chain.⁹  The store supervisor and the manager have direct control over the hiring¹⁰  and discharge¹¹  of employees; the assignment of work to employees; the approval of work schedules for employees; the approval of time off; and, settlement of customer complaints. Vacation schedules are based upon departmental seniority within the store.¹²  The time records of employees of the Peabody store are kept and totaled at Peabody, and forwarded to the main office for payroll purposes.¹³  There are four office employees at the Peabody store who perform clerical work for the Peabody store only.¹⁴ 

"Other than fresh meat and dairy products¹⁵  almost all other merchandise is ordered by the individual stores, including the Peabody store, directly from independent warehouses and vendors,¹⁶  with the quantity of merchandise ordered left in large degree to the discretion of the individual store management."¹⁷ 

The above constitutes the Board's complete findings, except for a finding that in a two-year period there were a total of 118 employee transfers to or from the Peabody store, a matter which apparently particularly troubled counsel for the General Counsel, and troubles us.¹⁸ 

In addition to what we have stated in the footnotes, the Board omitted to mention the following. All merchandise is sold at uniform prices at all the stores. Special promotional sales are also so conducted. Employee security is handled by a single officer at the central office. All fire, liability and workmen's compensation insurance is contracted for the company as a whole. Finally, and most important, with respect to employees, job classifications, wages, and automatic wage rate steps within each classification, are uniform. So are vacations, holidays, sickness and accident and profit-sharing and retirement programs. There are still further matters, which we find unnecessary to refer to.

Whether because the Board relied upon an inadequate summary of the testimony, or for some other reason, respondent's characterization of its opinion, previously quoted, is unfortunately justified.¹⁹  As we have said, fn. 3, if its summary was thought to be, as it was said to be, a statement of "the relevant facts," it certainly was not. If it was a singling out of those particular facts which, in the Board's opinion, justified treating the Peabody store as a single unit, some of them were so expressed, or limited, as to give the wrong impression, see, e. g., fns. 6, 7, 11, 16; some of them were at least materially incomplete, see, e. g., fns. 4, 9, 10, 12, 18; and some seem almost totally insignificant, see late some facts and omit others, some of e. g., fns. 13, 17. Furthermore, to isothem at least comparable, and some of seemingly much greater importance than some mentioned, is, per se, a failure to view even the recited facts in context.

In argument before us counsel seeks to justify the Board's decision by stating that employees who wish to unionize should be permitted to do so. We do not question that. Consideration, however, should also be given to the consequences to employees similarly situated who apparently do not wish to unionize, but who would inevitably be affected, basically, by the union's activities. It is only if it is reasonable to regard the employees elsewhere in the chain differently in the light of the total circumstances that there is a true majority vote. We believe, also, that there should be some minimum consideration given to the employer's side of the picture, the feasibility, and the disruptive effects of piecemeal unionization. Congress' appreciation of these factors we believe is evidenced by its passage of section 9(c) (5) to the effect that the extent of organization is not the sole consideration. N. L. R. B. v. Metropolitan Life Ins. Co., 1965, 380 U.S. 438, 85 S. Ct. 1061, 13 L. Ed. 2d 951.

When the record is viewed as a whole, other than the obvious geographical separation, which is itself by no means complete, in our opinion it would be difficult to find a more integrated operation, or less difference among employees. We take it, however, N. L. R. B. v. Metropolitan Life Ins. Co., supra, that this is not the occasion for us to determine that the Board should not have found the unit appropriate even if we should feel so. We merely decline to enforce its order, and remand for further proceedings.