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National Labor Relations Board v. Dee's of New Jersey Inc.

decided: May 20, 1968.


Kalodner, Ganey and Van Dusen, Circuit Judges.

Author: Ganey


In this enforcement proceeding the National Labor Relations Board seeks to require the respondent, Dee's of New Jersey, Inc. ("Dee's"), (1) to offer reinstatement to James J. Vence, Jr., to his former position at Dee's Bridgeton, New Jersey, store with backpay, and (2) to bargain collectively with Local 1360, Retail Clerks International Association, AFL-CIO, upon request by the latter.

The Board agreed with its Trial Examiner, John F. Funke, regarding his findings of facts with one major exception, to wit: that there was a lack of evidentiary basis for ordering Dee's to bargain with Local 1360. In our opinion, the trial examiner was correct in recommending to the Board that the voting results of a representation election unfavorable to Local 1360 be certified.

Dee's has three appliance stores in three different cities in New Jersey. One in Audubon, one in Bridgeton, and the other in Pennsauken. The Bridgeton store is 35 miles from Audubon and 45 miles from Pennsauken. The stores had no history of having bargained collectively with a labor organization.

On August 30, 1964, Dee's received a letter from Local 1360 demanding recognition as the exclusive bargaining agent for the employees of Dee's three stores in New Jersey. On September 7, Vence, an employee at Dee's Bridgeton store since July of 1964 and the prime union organizer among the employees at that store, was laid off presumably for lack of work. The true reason, as found by the Board, was Vence's organizational activities.

On September 10, 1965, Local 1360 made a telephonic demand on Dee's for recognition as the exclusive bargaining representative for the employees of Dee's Bridgeton store.*fn1 The demand was refused. At that time Local 1360 represented eleven out of fourteen employees at that store eligible to vote in a representation election.*fn2 It did not have a majority status Dee's other stores. Six days later the demand of September 10 was repeated in a letter which stated in part: "We request that you advise an appropriate time and place for us to demonstrate this majority status and commence collective bargaining immediately thereafter." Dee's made no response to this letter.

On September 17, Local 1360 filed a petition for an election (Case No. 4-RC-6528) to determine if a majority of the employees at Dee's Bridgeton store wished to be represented by it for purposes of collective bargaining. Two days later, September 19, Dee's offered to re-employ Vence if he would agree to disavow Local 1360. On November 12, after it held hearings on October 8 and 25, the regional director rendered his decision and directed that an election be held among the appropriate employees of Dee's Bridgeton store, the unit found appropriate by him. Dee's requested review by general counsel mainly on the ground that its three stores instead of the one at Bridgeton was the appropriate bargaining unit. Review was denied.

In the meantime, on October 8, unfair labor practices charges (Case No. 4-CA-3790) were filed by Local 1360. The regional director issued a complaint on December 3, 1965. On December 9, the election was held. Twelve ballots were cast, three were challenged, and, of the nine counted, only one was for Local 1360. Three employees, though eligible, did not vote. On December 13, Local 1360 filed timely objections to the election. One of the grounds was that Dee's action between September 17, the date of the petition for election, and the day the ballots were cast, had improperly influenced the outcome of the election. On the following day the complaint in the unfair labor practice case (Case No. 4-CA-3760) was amended to include the allegation of election influence in violation of ยง 8(a)(5) of the Act as an additional unfair labor practice charge. The two cases were consolidated and a hearing on the objections to the election and the unfair labor practices charges regarding Vence's discharge, Dee's pre-election conduct and its September 10th refusal to recognize and bargain with Local 1360 was held before the trial examiner on March 29 and 30, 1966.

With respect to the unit found appropriate by the Board for bargaining purposes, Dee's claims the Board should have included its other two stores located in the same State in the bargaining unit. As we said in NLRB v. David Friedland Painting Co., Inc., 377 F.2d 983 (C.A. 3, 1967): "The Board has wide discretion in determining an appropriate bargaining unit, and its determination in this regard will not be set aside on review unless there has been a showing that such determination was arbitrary 7*fn3 May Department Stores Co. v. NLRB, 326 U.S. 376, 380, 90 L. Ed. 145, 66 S. Ct. 203 (1945); NLRB v. Merner Lumber & Hardware Co., 345 F.2d 770 (C.A. 9, 1965)." Also see NLRB v. Sun Drug Co., C.A. 3, 1966, 359 F.2d 408 -- one drug store in a chain of 53 held appropriate; Banco Credito y Ahorro Ponceno v. NLRB, 390 F.2d 110, C.A. 1, 1968 -- one out of 29 branch banks found suitable. There has been no showing that the Bridgeton store is clearly not an appropriate unit.

Regarding the alleged unfair labor practice charges, the Board said: (161 NLRB - (1966).)

"The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by interrogating employees for the purpose of ascertaining why they wanted a union in the plant, by offering employees a reduction in hours to discourage union membership; and by threatening an employee with demotion because of his union activity. We also agree with the Trial Examiner's finding that Respondent violated Section 8(a)(1) and (3) by discharging employee James Vence because of his union activity, and by offering him reinstatement conditioned upon his signing a statement repudiating the Union."

There is substantial evidence on the record considered as a whole to support such finding. They are therefore conclusive upon us. Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951). The fact that there was also testimony which if it had been believed by the Board would have supported Dee's claim that Vence was fired for ...

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