Homes Stores, Inc.

In the Matter Of HOMES STORES, INCORPORATED and AMALGAMATED MEAT CUTTERS cC BUTCHERS WORKMEN OF NORTH AMERICA, LOCAL 600, AFL Case No. 10-CA-580.-Decided December -5, 1949 DECISION AND ORDER . On July 14, 1949, Trial Examiner Thomas Wilson issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (5) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report, a copy of which is attached hereto. Thereafter, the Respondent filed excep- tions to the Intermediate Report and a supporting 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 powers in connection with this proceeding to a three- member, panel [Members Houston, Reynolds, and Murdock]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief filed by the Respondent, and the entire record in the case, and hereby adopts the findings and con- clusions of the Trial Examiner to the limited extent consistent with our findings, conclusions, and order herein. The Trial Examiner found that the Respondent had unlawfully refused to bargain with the Union, as alleged in the complaint, and that the appropriate unit consisted of "all employees of the Respond- ent's meat markets in its retail grocery stores located in and around Chattanooga, Tennessee, including market managers, journeymen and apprentice meat cutters, and excluding all other employees and super- visors as defined in the Act." At the hearing and in its brief the Respondent moved to dismiss the complaint principally on the ground that the Union does not 87 NLRB No. 52. 335 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, particularly, on December 20, 1948, the date of the first alleged refusal to bargain, did not represent a majority of its meat market employees in an appropriate unit. Therefore, the Respondent argues, the Union is not a proper bargaining agent for these employees. The Respondent contends that the appropriate unit should be an over-all unit of meat market personnel in its 61 retail grocery stores, located within a 70-mile radius of Chattanooga, Tennessee. It asserts further that, in any event, market managers are supervisors and should be excluded from any appropriate unit, whether this unit embraces all of its meat market employees, or, as found by the Trial Examiner, is limited to such employees who are employed in the Chattanooga area. Either unit contention would defeat the Union's claim to majority representation on December 20, 1948.1 In rejecting the Respondent's argument that the market managers are supervisors, the Trial Examiner found that "the market manager has no authority to hire and fire and his authority to recommend [has] almost no effectiveness in the final decision which is made at the head office." We do not agree with the Trial Examiner's conclusion. The Employer's full-time neat markets employ a market manager and from 1 to 5 journeymen or apprentice meat cutters. General su- pervision over all meat market employees, of whom there were approx- imately 84 for the week ending December 24, 1948, is exercised by Tal- madge D. Vaughan, chief supervisor for meat market personnel. The market managers are in sole charge of their respective meat markets. They work under the direct supervision of Vaughan. Their duties in- clude buying, selling, displaying, and cutting the various grades of meat. Necessarily, they exert considerable control over their imme- diate subordinates. Both Vaughan and Harry Adams, general man- ager of the Employer, testified creditably that the Employer must and does rely upon the recommendations of the market managers with regard to the. discharge or transfer of employees working in their departments.2 Although one of the market managers was called as a 1 We find it unnecessary, in view of our subsequent findings and conclusion, to rule on the Respondent's first contention regarding the geographic scope of the unit. The record reveals that on December 20, 1948, the Chattanooga unit, where the Union claims to be the majority representative, contained about 34 meat cutters, including mar- ket managers. Of this number 20 were dues paying members of the Union. Among the cities paying members there were 12 market managers. 2 Vaughan testified as follows : Q. And if a market manager makes a recommendation to fire an individual do you take that recommendation? A. I do. Q. Rather than fire the man who is recommended to be fired, do you sometimes transfer him to another store? A. On a few occasions when there is some doubt in my mind I transfer them to another store to convince myself. Q. If a market manager in any of your food stores which employ a market manager HOMES STORES, INCORPORATED 337 witness by the General Counsel, he was not questioned concerning his authority to recommend the discharge or change in status of his assist- ant in the meat market. Thus, the testimony of Vaughan and Adams is uncontradicted on the record. Under the circumstances, our dis- senting colleague's pronouncement that our finding that market man- agers are supervisors is "not supported by the facts," is patently er- roneous. Where 2 of Respondent's officials testify that market man- agers have authority to effectively recommend hiring and firing and the General Counsel fails to produce an iota of evidence to contradict or rebut such testimony, 3 a contrary conclusion could only be based upon conjecture that the true facts are not those shown by the record. The Respondent's evidence cannot be treated as having no probative value simply by characterizing it as "self-serving." It is the position of the General Counsel as well as our dissenting colleague, that the market managers' authority is no more than that of a master craftsman over his helper.' We are persuaded, however, that the authority of the market managers in this case goes beyond the simple relationship of craftsman-helper. In several cases, involving questions of representation, we have excluded market managers from units of meat department employees where the market manager had the authority to hire and discharge employees,' or where, as in the instant case, his authority was limited to effective recommendations Accordingly, we find, contrary to the Trial Examiner, that the market managers are supervisors within the meaning of Section 2 (11) of the amended Act and must be excluded from any appropriate unit of the Employer's meat market employees. Inasmuch as the Union was not the majority bargaining representative for these. employees in the should request that a man be transferred or fired what would be your reaction to that request or recommendation? A. I would work with him with his recommendation. Q. Would you take his recommendation about the firing or transferring of a man? A. I would, because he is there with him all the time working with him and I pre- sume that his judgment is pretty apt to be correct. 8 Clearly the omission of the only market manager who testified about his duties to say anything about his authority to recommend cannot be treated as a denial of the testimony .of Respondent's officials on that subject. 4 We have customarily held that such authority does not fall within the Board's usual definition of supervisory control. Rodgers-Wade Manufacturing Company, 69, NLRB 264 : Atlanta Coca-Cola Bottling Co., 83 NLRB 187; General Beverages Company, 85 NLRB 696. However, the fact that an alleged supervisor exercises control over a single employee is not sufficient to establish a nonsupervisory craftsman-helper relationship. Bond Stores Co., 84 NLRB 667: The Ohio Associated Telephone Co., 82 NLRB 972 ; Sheffield Bronze Paint Corp., 80 NLRB 341. 5 The Great Atlantic d Pacific Tea Company, 77 NLRB 389. G American Stores Company, 82 NLRB 882. Cf. Providence Public Market, 79 NLRB 14S2, where a majority of the Board held that department heads, including the head of the meat department, were not supervisors because their recommendations were not effective. In that case actual supervision over the department heads was exercised by the store manager, who was present on the premises. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged or other appropriate unit on December 20, 1948, we find that the Employer has not violated Section 8 (a) (5) of the Act, as amended.' The Respondent's motion to dismiss the Complaint is hereby granted. ORDER IT IS HEREBY ORDERED that the complaint herein against Homes Stores, Inc., Chattanooga, Tennessee, be, and it hereby is, dismissed. MEMBER HOUSTON, dissenting : The decision of my colleagues that the market managers. are super- visors and therefore cannot be included in the computation of the Union's majority is not supported by the facts. The evidence shows that the market managers do not "respon- sibly . . . direct" the work of their subordinates, and it is undis- puted that they have no authority to hire or discharge such employees. My colleagues apparently rely exclusively on a finding that the mar- ket managers "effectively recommend" the hire or discharge of meat department helpers. But the only support for this finding is the self-serving testimony 8 of two of the Respondent's officials, alleging in general terms that the market managers possess authority effec- tively to recommend the hiring or discharge of their helpers. The record contains not a single reference to an instance in which such authority was ever exercised. On the other hand, although this tes- timony is not specifically controverted, the one market manager. who testified listed his duties and responsibilities in some detail.5 This list of responsibilities made no reference to any supervisory authority with respect to his helpers. If anything the duties performed by the market managers strongly suggests that their relationship to their helpers more closely resembles that of a craftsman-helper relation- ship than a supervisor relationship.1° P See American District Telegraph Company, 84 NLRB 1. 62, and cases cited therein. 8 I deem it of some significance in evaluating the testimony of the Respondent on this issue that after having included the market managers in previous contracts , and after protracted negotiations on the terms of a new contract , the Respondent first raised the issue of the Union ' s majority-an issue which turns on the supervisory status of the mar- ket managers-after the Union filed unfair labor practice charges. ° Quinn , a market manager , testified as follows : - Q. What were your duties, Air. Quinn , at Store No. 3S? A. Selling, displaying, buying. Q. You bought , cut, displayed and sold meat? A. Yes. Q. What part of your time did you spend doing that? A. Practically all of it. Q. Did you have any other duties in the store besides those four things? A. No, sir. 10 See United States Gypsum Company, 85 NLRB 162 ; American Finishing Company, 86 NLRB No. 65. HOMES STORES, INCORPORATED 339 .I believe that these market managers are not supervisory employees. They should be included in the unit, thereby establishing the majority status of the Union, and the Respondent's unlawful refusal to bar- gain for a new contract. INTERMEDIATE REPORT Mr. Jolin C. Carey, Jr., for the General Counsel. Mr. C. F. Lawrence, of Chattanooga, Tenn., for the Union. Messrs. Alvin 0. Moore, and W. D. Spears, of Spears, Reynolds, Moore and Reb- rnan, of Chattanooga, Tenn., for the Respondent. STATEMENT OF THE CASE Upon a charge' duly filed by Amalgamated Meat Cutters & Butcher Workmen of North America, Local 600, herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated April 20, 1949, against Rome Stores, Incorporated, Chattanooga, Tennessee, herein called the Respond- ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce withini the meaning of Section 8 (a) (1), and 8 (a) (5) and Section 2 (6) and (7) of the National Labor Management Rela- tions Act, 19472 Copies of the complaint and the charge together with the Re- gional Director's notice of hearing-were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance, that: (a) on or about December 20, 1948, and at all times thereafter, the Respond- ent refused to recognize and to bargain with the Union as the exclusive repre- sentative of all the employees of the Respondent in an appropriate unit con- sisting of all employees of the Respondent's meat markets in its retail grocery stores located in and around Chattanooga, Tennessee, including market mana- gers, journeymen, and apprentice meat cutters, and excluding all other employees and supervisors as defined in the Act; (b) on and after December 20, 1948, Re- spondent interfered with, restrained, and coerced its employees by various enumerated acts; and (c) that the above alleged unfair labor practices caused and prolonged a strike of said employees which began on March 18, 1.949. In its answer, the Respondent admits the corporate existence of the Respondent and the jurisdictional allegations but denies each and every other allegation con- tained in the complaint. Pursuant to notice, a hearing was held from May 24 through May 27, 1949, before the undersigned Trial Examiner, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented at the hearing and participated therein. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, was afforded all parties. At the close of the hearing the General Counsel and the Respondent argued orally on the record and briefs have been received from the General Counsel, Upon the entire record of the case, and from my observation of the witnesses, I make the following: 1 At the hearing, the General Counsel moved to dismiss the charges of 8 (a) (3) con- tained in the last amehded charge without prejudice. This motion was allowed. % The General Counsel and his representatives are herein referred to as the General Counsel. The National Labor Relations Board is herein called the Board. S77359-50-vol. 8 7-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT a 1. THE BUSINESS OF THE RESPONDENT Home Stores, Incorporated, a Tennessee corporation maintaining its principal office and place of business in the city of Chattanooga, Tennessee, is engaged in the business of operating a chain of retail grocery stores located in the States of Tennessee and Georgia. In the course of its business operations during the year 1.945, Respondent purchased food commodities and other groceries for sale at its retail grocery stores valued in excess of $1,000,000, approximately 66 per- cent of which was shipped in interstate commerce to its Tennessee warehouses from points outside the State of Tennessee. During this same period, the Re- spondent sold food commodities and other groceries valued in excess of $1,000,000, approximately 25 percent of which value was sold and shipped in interstate com- merce to customers outside of the State of Tennessee. The Respondent concedes, and the undersigned finds, that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, Local 600, AFL,. is a labor organization admitting to membership employees of the Respondent. HI. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit Respondent operates a chain of 61 retail grocery stores in Tennessee and Georgia. Thirty-five of these stores are located in or within a mile or two of the city limits of Chattanooga. The balance of the stores are situated in various towns within a radius of 70 miles of Chattanooga. Primarily these are grocery stores but they also all carry varying amounts of meats for sale. The type of meats stocked in each varies in accordance with the volume of sales. Respondent classifies the varying type of meat market in the stores as (1) full meat markets (2) one-man meat markets or (3) half or part-time markets.' According to Respondent's classifications, a full market is one carrying a full line of,meats with a walk-in cooler for storing and keeping quantities of meats together with a "full fledged set of expensive equipment" for handling a full line of meats and requiring the employment of from 1 to 5 full time experienced meat cutters, one of whom is designated as the market manager. There are 14 such full markets in and around Chattanooga and 7 in the stores outside Chat- tanooga. A one-man market is a smaller market carrying a less extensive line of meats with the necessary refrigeration to keep and store meats and requiring the em- ployment of one full time experienced meat cutter for cutting, displaying, and selling meats. Respondent has three such one-man markets in its Chattanooga stores and seven in the stores outside the city. A part-time or half-way market is one carrying a much smaller line of meats, usually of the type which requires no cutting and only requiring the employment of a part-time clerk in selling such meats as the market has. No qualified meat 'There was little , if any , controversy as to the essential facts herein. Consequently, unless otherwise indicated , all findings herein are based on admissions in the pleadings, stipulations of the parties , or uncontroverted and credited testimony. 4 These latter are sometimes subclassified into "quarter-markets." HOMES STORES, INCORPORATED 341 cutter is required and the clerk may on occasion have to "hack up" a piece of meat. Respondent details its most likely looking clerk to tend the market when re- quired. Otherwise he works as a grocery clerk. This type of market graces the stores not having either full or one-man markets. The market man in such places is paid as a reule less wages than a meat cutter. Of course, the meat market personnel in the various stores is set apart from the remainder of the store personnel by their craft skill in handling meats. Craft considerations set such employees into a unit of their own. Similarly,, employees at part-time markets should be excluded. The evidence in the instant case shows that the wages, hours, and working. conditions in Respondent's stores outside of Chattanooga differ from those in stores in the city. There is no interchange of employees between these two classes of Respondent's stores. It is Respondent's policy to employ local per- sonnel for each store wherever possible. In the past year only two market em- ployees in Chattanooga stores were transferred to stores outside and one of those was promptly returned. The records show also that there is considerable switching of employees among Chattanooga markets. There seems little com- munity of interest or problems which would require the market employees out- side Chattanooga to be a part of the same unit as the Chattanooga market per- sonnel. The evidence is also clear that the Union has never attempted to organize the market employees outside the city nor to attempt to bargain for them. There is no showing of any interest in the out-of-town employees in the Union. The history of bargaining between Respondent and the Union from 1.941 clearly proves the intent of the parties to bargain only for the Chattanooga market per- sonnel. In fact two early contracts between the parties specify "4 markets- Chattanooga" and "5 markets-Chattanooga, Tennessee." As the number of Respondent's markets expanded in Chattanooga during the years so did the unit. The 1947-48 contract contained a new recognition clause reading as follows : "The employer recognizes the Union as the sole collective bargaining agency for meat market personnel." This clause was added apparently because of the Tennessee "Right to Work" statute making illegal the closed-shop clauses contained in former contracts. The new clause was added without discussion of or intent to enlarge the previous unit. In fact the parties continued to regard the unit as the same, namely, the markets in and around Chattanooga. Respondent's general manager confirmed this during his testimony. While Respondent argues that under the phraseology of the 1947-48 contracts the unit should consist of all market personnel in all stores of Respondent, the obvious intent of the parties, the history of bargaining, the community of interest,. and the extent of organization are convincing that the smaller unit for the Chattanooga area is appropriate. Respondent also argues that the Taft-Hartley law requires that the appro- priate unit should include the personnel of the out-of-town stores. Section 9 (c), (5) of the Act, is convincing that this argument is not sound. Further Respondent argues, contrary to the position taken by the General Counsel and the Union, that the market managers should be excluded from an, appropriate unit as supervisory employees. The evidence does not justify this. exclusion showing, as it does, that the market manager has no authority to hire- and fire and his authority to recommend having almost no effectiveness in the' final decision which is made at the head office. In fact except that the, market manager has the duty of ordering the supplies and receives a slightly higher wage,. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his duties are the same as the other employees. Market managers have been included under all previous agreements. Under the facts of the present case, the undersigned finds that all employees of the Respondent's meat markets in its retail grocery stores located in and around Chattanooga, Tennessee, including market managers, journeymen, and apprentice meat cutters, and excluding all other employees and supervisors as defined in the Act, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. The majority The negotiations on the 1945-49 contract began in October 1948 and continued until December 21, 1948. The complaint alleges that the Respondent refused to bargain on December 20, 1948. It is therefore material to determine whether the Union represented a majority of the employees within the appropriate unit as of that date. The record shows that, on December 20, 1948, the Respondent employed 31 persons in the 14 full markets and 3 persons in the 3 one-man markets in and around Chattanooga. The appropriate unit therefore consisted of 34 employees. As of the same date, 20 of these 34 employees were dues-paying inembers of the Union in good standing. The undersigned, therefore, finds that at all times since December 20, 1947, the Union has been the representative for the purpose of collective bargaining of a majority of the employees in the aforesaid unit and, by virtue of section 9 (a) of the Act, has been and is now the exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain The Union and the Respondent had worked continuously since 1941 under writ- ten contracts. The 1947 contract between Local 600 and the Respondent expired on November 1, 1948. On August 25, 1948, the Union mailed letters and proposed 1948 contracts to all companies, including the Respondent, with which it had contracts expiring, notifying them of the Union's desire to negotiate new con- tracts for the year. 1948. Although the Respondent received a copy of the letter, it failed to reply thereto. Because of the Respondent's failure, the Union spoke to the Respondent's general manager, Adams, about the matter and stated that it was willing to bargain with the Retail Food Dealers Association of which it understood the Respondent was a member. On October 4 and 11, 1948, the Union held two fruitless negotiating meetings with the negotiating committee of the Association of which the meat market supervisor and secretary of Respondent, Vaughan, was the chairman.' At the conclusion of the second meeting, the Union stated that it intended thereafter to negotiate with the individual members rather than with the Association e On October 20, 1948, the Union met with Vaughan for the Respondent alone and presented him with its second proposed contract. The original union pro- posal contained provisions for the check-off and a 10 percent increase in wages 5 Vaughan acknowledged that he was the "honorary chairman" of this negotiating com- mittee. There is no showing that the Union was ever informed that Vaughan's chairman- ship was "honorary" only. Subsequently, however, the Union continued negotiations with the committee and suc- ceeded in negotiating a mutually acceptable contract which was executed by the individual members of the Association. Vaughan was not in attendance at the subsequent meeti ags. HOMES SORES, INCORPORATED 343 among other changes. The second proposal eliminated the check-off and returned to the former sliding scale of wages with increases provided in each category listed. Both proposals provided for the hiring of new employees only with the approval of the newly established apprenticeship council. Most of the discussion at this meeting centered around the question of wages. Vaughan stated that, as the Respondent had not made money under the terns of the 1947 contract and had operated the markets in the red, there was no possibility for increased wages in 1948. General Manager Adams, who sat in on the last part of the discus- sion, stated that the losses of the Respondent in the iueat markets were due to the fact that the Union had forced wages too high and that the employees were not worth the wages being paid to them. He also rejected the idea of any wage increase. On October 27, after the Union had agreed upon a contract with the A & P Tea Company in the city of Chattanooga which provided for a wage increase over the previous year, the parties met again. The Union proposed that the Respondent accept the wage scale from that agreement as that would have affected only a very few employees of the Respondent. The Respondent again answered that any wage increase would force the Company out of the meat business and that the Respondent would close its meat markets before it increased wages. On November 2, the Uhion by vote authorized the calling of a strike at the discretion of its Executive Board, but also voted to continue work after the expiration of the contract on November 1, 1948, awaiting a strike call from the Executive Board. The Respondent was so notified. On November 4, the Union arranged for a meeting with the Respondent over the telephone. The Retail Food Dealers Association had proposed a contract with some wage increases on a sliding scale depending on the volume of sales which the Union suggested that the Respondent accept, together with a clause respecting the self-service markets which the Respondent was then adopting and an arbitration clause. Adams, for the Respondent, refused to accept the pro- posal and said that the Respondent could do no more than it had done in the 1947 contract and would not sign any contract differing from the contract of the previous year. On November 8, the Union arranged another meeting with the Respondent over the telephone. At this meeting, the Union proposed that the Respondent accept the contract previously offered by the Association but eliminating the suggested clauses relating to the self-service markets and arbitration. The Respondent refused the offer. Again, Adams stated that the Respondent could do.nobetter than it had done in the previous year's contract. On November 9, the Conciliation Service called the parties together. At this meeting, the Union's proposal was discussed, article by article. The Union agreed to return to the phraseology of the previous year's contract respecting recogni- tion and eliminated all references to hiring through the apprenticeship council which had been contained in their proposal. With the exception of the wage scale the agreement as so modified was practically identical with the 1947 con- tract and was satisfactory to both sides. At this meeting, the Company offered to sign a contract containing the same terms as the 1947 contract. The Union refused.' No final agreement was reached at this meeting either. 7 The Union contended that the 1947 contract was orally extended for a period of 30 days at this time while the Respondent contended that there was no such extension. The Trial Examiner does not believe that there was a 30-day extension but believes that the matter is immaterial to a decision in this case. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 17, the parties met again at the Union's suggestion. The Union at this meeting offered to accept the same sliding scale which it had negotiated with the Association so as to have a uniform scale throughout the city. The Respondent refused. The Union thereupon suggested a sliding wage scale plus a 30-day wage reopening clause. Adams continued to refuse to accept such a wage scale or arbitration and stated that lie would not sign anything but last year's contract. On December 13, another similar meeting was held at which the parties again discussed the same sliding wage scale with a slight revision downward. Again, Adams refused stating that the Company would only sign the same agreement that it had signed in 1947. The Conciliation Service called another meeting for December 17. At this meeting, International Vice President Scheurich of the Union was present and suggested that the wages of the employees on this proposed sliding scale be determined in accordance with the volume of business done in 1947 rather than upon the 1948 volume of business. Adams greeted this suggestion warmly but stated that if it cost the Company "a dime," he would not accept it. The Union argued that only one market would secure any increase under the proposed scale. Adams agreed to study the suggestion and to let the Union know whether he would accept or not the following day. On December 20, Adams told Lawrence, business agdnt of the Union, over the telephone that the Company had decided it would not go along on any contract with the Union. After Lawrence informed Scheurich of Adams' decision, Scheu- rich telephoned to Adams who reiterated his statement. Scheurich then inquired if Adanis would execute the 1947 contract with the Union for the ensuing year. Adams replied that he would not sign "any" contract with the Union. . On December 21, the Conciliation Service arranged another meeting between the parties at the request of the Union. In addition to the usual union repre- sentatives, Stanton Smith, secretary of the Central Labor Council of Tennessee, attended this meeting at the invitation of the Union. After a review of the previous negotiations the Union discussed with Adams and Vaughan, the com- pany representatives present, the statement made by Adams to Scheurich and to Lawrence over the telephone on or about December 20 that the Company had decided not to sign any type of a contract with the Union and was going to get along without the Union for a period of a year. Adams was asked if he would sign any part of the contract agreed upon. He refused, saying that he was afraid that the country was heading into a depression and therefore it was not good business for the Company to sign any binding contract with the Union. After some discussion of the impending depression, the Union offered to execute for the year 1948-49 a contract containing the same terms as the 1947 contract. In answer to that offer Adams said that a week or so before the Company might have signed such an agreement but now had decided to get along for a year with- out the Union. He refused to sign any contract. He then stated that the Com- pany would gladly meet and negotiate with the Union for the entire year on the terms of a contract but thought that this would be a waste of time as the Com- pany would not be willing to sign an agreement with the Union for that year. The meeting broke up on this note. The union representatives went from the meeting with the Company to the office of Stanton Smith where a charge alleging a refusal to bargain was prepared and executed by Lawrence. This charge was filed with the Board the following day. HOMES STORES, INCORPORATED 345 At some later unspecified date when the Board Field Examiner was investi- gating the charge with Alvin Moore, of counsel for the Respondent, the question of the appropriate unit and the majority were raised. Up to that time, the Respondent had not raised either of these issues. About the middle of March 1949, the Union made a further attempt to secure a meeting with Adams in order to discuss the possibilities of negotiating a con- tract. Adams referred the union representative to Alvin Moore, company counsel. The union representatives saw Moore who stated that, if the Union would drop its charges against the Respondent, he thought that a meeting could be arranged but that in view of the pending charges the Company felt as though the Union were holding a club over its head. The Union refused to drop the charges and no meeting was ever arranged. At that same meeting, Moore sug- gested that a consent election should be held covering all the employees in all the markets in all the Respondent's stores. This the Union refused to consider. Since that time, the parties have not met. On March 17, 1949, after and because of the complete breakdown in the nego- tiations, the union employees of the meat markets went out on strike. Between December 4, 1948, and March 19, 1949, the Respondent granted wage increases varying in amounts from $2.50 to $20 per week to 10 individual em- ployees. These increases resulted from unilateral action by the Respondent without consultation with the Union. Six of these increases appear to have been due to the fact that the employee receiving the increase was promoted to a higher position left vacant by the fact that another employee left Respondent's employ. The explanation of the other four cases is not so simple. On December 31, 1948, Respondent increased employee Kroeger from $70 to $75 per week and em- ployee Cook from $72.50 to $75; on February 5, 1949, employee Foster was in- erased from $70 to $75 per week and on March 19, 1949, employee Brown received a raise from $40 to $42.50 per week. In view of Respondent's stand during the negotiations that it could not raise wages "one dime," these increases cast considerable doubt on the good faith of the Respondent in its negotiations with the Union. Conclusions The present Act defines the collective bargaining required of both parties as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages . . . In the instant case, there can be no question but that both parties "met" and "conferred." The only question then remaining is whether the Respondent conferred "in good faith" on the occasions on which they met. The course of the negotiations is quite clear and simple. The Union began by proposing a contract containing a flat 10 percent wage increase, certain addi- tional paid vacations, a clause that all new employees should be hired through the apprenticeship council, and certain other clauses differing from those con- tained in the 1947 contract. The Respondent immediately took the position which it adamantly maintained through the early sessions of the negotiations that it could not agree to do more than it had in the 1947 contract for the reason that it had not made money in the meat markets during that year. Subsequently at the December 13 meeting, Respondent apparently even went so far as to offer to sign an agreement with the Union containing the same terms as had the 1947 contract. From the very beginning, the Union consistently and progressively 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receded from each of the new demands it had made in its 1948 proposal until the parties were in disagreement only on the wage scale. When the difference between the parties on that wage scale had been reduced to an estimated $5 to $7.50 per week in total and it became apparent that an impasse on wages might not develop, the Respondent suddenly and without warning changed its position refusing to sign any binding agreement with the Union, stating that the Re- spondent was going to get along without the Union for a year. The Respondent attributed this change in position to its fear of an alleged depression, into which the Respondent believed the country was headed. Consequently, when the Union offered to accept the terms of the 1947 agreement, the Respondent withdrew its offer and refused to sign that or any agreement. Subsequently, and in an at- tempt apparently to justify its reversal of position, the Respondent has ques- tioned both the appropriateness of the unit and the Union's majority status there- in but these points were raised only after the Respondent's flat refusal to sign any agreement with the Union. The Respondent expresses a willingness to sit and confer with the Union at any time the Union desires but indicates its knowl- edge that this would be a waste of time in view of its own determination not to execute any contract with the Union. The precipitate retreat by the Respondent when it appeared that the impasse on wages might be broken by the acceptance by the Union of the terms of the 1947 agreement originally offered by the Respond- ent, the Respondent's flat statement that it would not sign any agreement with the Union, its unilaterally granted wage increases to individual employees, its belated questioning of the appropriateness of the unit and the Union's majority clearly indicate a lack of good faith on the Respondent's part during these negotiations. Counsel for the Respondent, however, argues that the Union's offer to accept the terms of the 1947 contract was not actually made in good faith because of the fact that the Union had previously negotiated a contract containing the higher wage scale with the Association and could not, therefore, afford to accept less- from the Respondent. This argument is based upon pure supposition due to the fact that the Respondent never put the offer to the test. The undersigned, therefore, finds that the Respondent, on or about December 20, 1948, and at all times thereafter, has failed and refused and continues to fail and refuse, to bargain collectively with the Union as the exclusive representative of its employees in the aforesaid unit, and that it has further, by such refusal, withdrawn recognition from the Union as the exclusive representative of its employees in said unit and that by granting wage increases to individual em- ployees unilaterally under the circumstances, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned further finds that the strike of the Respondent's employees in the unit described above, which occurred on or about March 18, 1949, was caused and has been prolonged and is being iprolonged by the refusal of the Respondent to bargain in good faith with the Union is therefore an unfair labor practice strike. D. The interference, restraint, and, coercion In its complaint, the General Counsel charges, as interference, restraint, and coercion, that the Respondent without consulting the Union, (a) instituted wage increases; (b) instituted changes in hours of employment; and (c) instituted changes in other conditions of the employment. HOMES STORES, INCORPORATED 347 As the undersigned has already detailed in the preceding section the evidence relating to the wage increase issue and drawn conclusions therefrom, it will not be repeated again. As there is no evidence on issues (b) and (c) above, they will be dismissed. The undersigned, therefore, finds that by granting the above increase in wages to individual employees without bargaining with the Union in regard thereto, the Respondent interfered with, restrained, and coerced its employees in the exer- cise of their rights guaranteed by Section 7 of the Act and that, by the same acts, the Respondent refused to bargain with the Union as the exclusive representative of its employees in the afore-found appropriate unit. As there is no evidence in the record regarding the charges listed above as (b) and (c), the undersigned will dismiss those charges. IV. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The undersigned has found that the Union represented a majority of the em- ployees in an appropriate unit and that the Respondent refused to bargain collectively with it. Accordingly, the undersigned will recommend that the Respondent, upon request, bargain collectively with the Union as the exclusive representative of the employees in the above-found appropriate unit. The under- signed has further found that, by granting unilateral increases to individual em- ployees without consulting the Union in regard thereto, the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Accordingly, the undersigned will recommend that the Respondent cease and desist from granting any increase in wages to any employees employed within the appropriate unit found above without con- sulting with the Union prior to granting such increases. Having found that the strike of March 18 was caused and prolonged by the un- fair labor practices of the Respondent, the undersigned will recommend that the Respondent offer to the striking employees, upon application, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority on other rights and privileges, dismissing, if neces- sary, any employees hired to replace them since March 18, 1949. Upon the above findings of fact, and upon the entire record in the case, the un- dersigned makes the following: CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 600, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All employees of the Respondent's meat markets in its retail grocery stores located in and, around Chattanooga, Tennessee, including market managers, 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD journeymen and apprentice meat cutters, and excluding all other employees and supervisors as defined in the Act, at all time material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 600, AFL, was on December 20, 1948, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on December 20, 1948, and at all times thereafter, to bargain collectively with Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 600, AFL, as the exclusive representative of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The afore-mentioned unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings, the undersigned recommends that the Respondent, Home Stores, Incorporated, its officers, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 600, AFL, as the exclusive representative of all employees of the Respondent's meat markets in its retail grocery stores located in and around Chattanooga, Tennessee, including market managers, journeymen and apprentice meat cutters, and excluding all other employees and supervisors as defined in the Act, in respect to rates of pay, wages, hours of employment, and other conditions of employment; - (b) Granting employees employed in the above-found appropriate unit wage increases without previous consultation with the Union or engaging in any acts in any manner interfering with the efforts of Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 600, AFL, to negotiate or represent, as their exclusive bargaining agent, the employees in the aforesaid bargaining unit. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 600, AFL, as the exclusive bar- gaining representative of all employees in the bargaining unit described above with respectto rates of pay, wages, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement ; (b) Offer to the striking employees, upon application, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace them since March 1iS, 1941); (c) Post in conspicuous places throughout its stores in and around Chatta- nooga, Tennessee, in which it maintains full meat markets or one-man meat markets, -copies of the notice attached hereto marked Appendix A. Copies of HOMES STORES, INCORPORATED 349 said notice , to be furnished by the Regional Director for the Tenth Region , shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in. conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material; (d) Notify the Regional Director for the Tenth Region in writing within twenty (20 ) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply herewith. It is further recommended that , unless the Respondent shall within twenty (20) days from the receipt of this Intermediate Report notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board any party may, within twenty ( 20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203,45 of said Rules and Regulations , file with . the Board , Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other parf Of the record or proceedings (in-` eluding rulings upon all motions or objections ) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Inter- mediate Report. Immediately upon the filing of such statement of exceptions and/or brief;;, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise cita- tion the portions of the record relied upon and shall be legibly printed or mimeo- graphed , and if mimeographed shall be double spaced . Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board , request therefor must be made in writing to the Board within ten (10 ) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations , the findings , conclusions , recommendations , and recom- mended order herein contained shall, as provided in Section 203.45 of said Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order , and all objections thereto shall be deemed waived for all purposes. Dated at Washington , D. C., this 14th day of July 1949. THOMAS WILSON, Trial Examiner. NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of it Trial Examiner of the National Labor Relations board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization , to form labor organizations , to join or assist AMALGAMATED MEAT CUTTER S & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL No. 600, AFL, or any other labor organi- 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All employees of the Company's meat markets in its retail grocery stores located in and around Chattanooga, Tennessee, including market managers, journeymen , and apprentice meat cutters, and excluding all other employees and supervisors as defined by the Act. HOME STORES , INCORPORATED, Employer. By -------------------------------- (Representative ) (Title) Dated ------------------------- This notice must remain posted for 60 days from the date hereof, and must. not be altered, defaced, or covered by any other material. 0