Tom Thumb Stores, Inc.

TOM THUMB STORES, INC. 833 Tom Thumb ' Stores, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO. Case No. 16-CA-10./9. April 22, 1959 DECISION AND ORDER On August 7, 1958, Trial Examiner Lee J. Best 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 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and the Respondent also filed a supporting brief. 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 In- termediate Report, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions. The Trial Examiner found in substance that the appropriate unit in this case includes all employees in the meat sections of the retail food stores operated by the Respondent in Greater Dallas and Arlington, Texas, and vicinity, including meat clerks, packers, and wrappers, but excluding meat department heads or head meatcutters and certain other categories not material here. He also found in effect that on November 15, 1957, the Union represented a majority of these employees (including a majority of the meat clerks, packers, and wrappers), and since that date has been and now is their exclu- sive bargaining representative, and that, by failing and refusing to bargain collectively with the Union for these employees since the above date, the Respondent violated Section 8(a) (5) and (1) of the Act. We agree with the foregoing findings. The Respondent's sole asserted reason for its refusal to bargain was that the unit requested was inappropriate. The unit sought was the traditional one in retail stores and included all meat department employees. The Respondent entered into a contract covering such a unit in 1953. In 1955 a new contract was negotiated and from this contract the Respondent deleted the clause which provided for the wages of wrappers. The Respond- ent's president stated that his reason for excluding the wage provi- sion for the wrappers was that "them girls had always been a thorn in my side." The Union admittedly acquiesced to this deletion for the practical reason that the wrappers were not at that time members 123 NLRB No. 99. 508889-60-vol. 123 54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and it was not going to jeopardize the contract on the issue of wages for the wrappers.' In its proposed new contract submitted Sep- tember 6, 1957, the Union requested an inclusive meat department unit. This proposal was addressed not only to the Respondent but also to A & P, Safeway, and Wyatt Food Stores. The Respondent's immedi- ate response was not to question the unit but to ask for delay until the Union's negotiations with A & P and Safeway were completed. On November 14 agreement between the Union and A & P and Safeway was reached and the Respondent was notified of this on the 15th, which was also the date on which its contract with the Union expired. The Respondent rejected the proposed contract, again resting its objections on the inclusion of wrappers in the unit? On Tuesday, November 19, the employees struck and on the 21st the charge herein was filed. The impasse was focalized on the unit issue. Thus the Board is faced squarely with the issue as to whether or not an employer may refuse to bargain for a traditionally appropriate unit 3 upon the bare claim that such a unit is inappropriate. We think, for reasons hereafter stated, he may not. Section 8(a) (5) states that it shall be an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)." Section 9(a) provides that "Representatives designated or selected . . . by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purpose of collective bargaining ...." In the instant case the Union was the representative of a majority of the employees 4 and the unit is appropriate. The statutory requirements had been met by the Union and the obligation on the part of the Respondent to bargain had become fixed. We cannot agree that the Respondent could evade its obligation by rejection of the unit. We have imposed 3 The parties dispute the significance of the deletion . The Respondent contends that it excluded the wrappers from any representation under the contract . The Union claims it merely excluded the wage provisions and that the wrappers were covered by the other provisions . The coverage clause of the contract is ambiguous but the action of the Union appears to have been in derogation of its obligation as bargaining representative. See A. C. Smith Corporation, 119 NLRB 621 , where the Board revoked the certification of the bargaining agent because the parties agreed to exclude certain employees in the unit from the coverage of the contract . Cf. Wilford Auto Sales, Inc., 106 NLRB 1396. 2 At subsequent meetings the Respondent requested the Union to have the unit issue determined by the Board in representation proceedings , an action which would require the Union to withdraw its unfair labor practice charges. See Aiello Dairy Farms, 110 NLRB 1365, at 1368. The Respondent , however, made no effort to avail itself of this means of resolving the issue although it was aware of the problem on September 6. 3 The Board has consistently held that units of meat department employees , including clerks and wrappers, in retail food stores are appropriate . Weis Markets, Inc., 116 NLRB 1993 . See also decisions in The Great Atlantic and Pacific Tea Company cases, 117 NLRB 554; 118 NLRB 1018 and 1495; 119 NLRB 1257. The Respondent has cited no decision in which a unit confined to meatcutters was found appropriate. 4 Majority status was not questioned. Uncontradicted testimony was that all but about 5 employees in a unit of 67 or 6S (including the wrappers) were union members and all but 7 joined the strike. TOM THUMB STORES, INC. 835 considerable risk upon a union which seeks to enforce its rights under Section 8 (a) (5). It must establish that it has been designated by an uncoerced majority of the employees, that the unit is appropriate, and that there has been both a demand and a refusal. If there is failure of proof in any one of these conditions its resort to the Board will have been in vain. It seems both equitable and in conformity with the statute to impose the same risk upon the employer who denies his obligation. Under the circumstances we find that no real issue was posed by the Respondent and that it rejected the proffered con- tract solely because it objected to the inclusion of a class of employees, all of them female, which had in the past proved troublesome. In electing to rely solely on a contention we find to be without merit, it acted at its peril and in violation of the Act.' However, the Trial Examiner failed to find that the strike which began after this refusal, on November 19, 1957,6 was an unfair labor practice strike, and the General. Counsel excepted thereto. We find merit in this exception. As the Respondent's refusal to bargain was the basic cause of the strike, and as this refusal was an unfair labor practice, we find that the said strike was an unfair labor practice strike. THE REMEDY We also find merit in the General Counsel's exception to the Trial Examiner's failure to include in his report provisions for the reinstate- ment of the strikers, upon application, and for making them whole for losses of pay. Accordingly, as the record does not establish that the strikers have abandoned the strike or are available for reemploy- ment, we shall order that the Respondent, upon application, offer the strikers reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired after No- vember 19, 1957, the day the strike started, to replace the striking employees. We shall also order that the Respondent make whole those strikers who are entitled to reinstatement for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to re- instate them, upon request, by payment to each of them of a sum of 5 To the extent that they are inconsistent with the decision herein, we hold that the decisions of the Board in Safeway Stores, Incorporated, 110 NLRB 1718; Chalet, Inc., 107 NLRB 109 , and prior cases are overruled. The contention of the Respondent that the inclusion of the Arlington store in the Greater Dallas area unit rendered the unit inappropriate is equally specious . The con- tention relies on the fact that the other retail chain stores in this area included Arlington in their Tarrant County units. The Respondent , however, unlike the other retail chain stores, has no other stores in Tarrant County. This record is void of any evidence (and such evidence would be peculiarly within the knowledge of the Respondent ) that the Arlington store , located midway between Fort Worth and Dallas, is not subject to the same administrative direction as the Dallas stores. We therefore find the Arlington store properly included in the unit. The Great Atlantic & Pacific Tea Company, 119 NLRB 603. 6 At one point in his report, the Trial Examiner inadvertently stated that the strike went into effect on November 19, 1958. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD money equal to that which he normally would have earned as wages during the period beginning 5 days after the date on which he applies for reinstatement and terminating on the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. TV. Voolwor°th Co., 90 NLRB 289.7 ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Tom Thumb Stores, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamates Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, as the exclusive representative of all meat department employees in its stores in Greater Dallas and Arlington, Texas, includ- ing meat clerks, packers, and wrappers, but excluding all other em- ployees and all supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist Amalgamated Meat Cutters & Butcher Work- men of North America, Local Union No. 540, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, as the exclusive representative of all employees in the aforesaid appropriate unit and if an understanding is reached, embody such understanding in a signed agreement. (b) Upon application, offer to the Respondent's striking employees reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay, in the manner set forth in the section of this Decision entitled "The Remedy." ° See Morris Fishman d Sons, Inc., 122 NLRB 1436, and Herman Sausage Co., Inc., 122 NLRB 168. TOM THUMB STORES, INC. 837 (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due, if any, and the rights of employment under the terms of this Order. (d) Post in its several markets and retail food stores in Greater Dallas and Arlington, Texas, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by a duly authorized representative of Tom Thumb Stores, Inc., be posted by Respondent Company immediately upon receipt thereof, and maintained by it for 60 days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region in writ- ing, within 10 days from the date of this Order, as to the steps the .Respondent has taken to comply herewith. CHAIRMAN LEEDOM, dissenting : The essential facts herein are not in dispute. They are as follows : In 1953, the Respondent and the Union entered into a contract cover- ing employees in the meat sections of the Respondent's markets in Greater Dallas, Texas, including meat clerks, packers, and wrappers e In 1955, when this contract expired, the parties entered into a new contract covering employees in the meat sections of the above stores. However, as found by the Trial Examiner, the Union acquiesced in the exclusion of the meat clerks from the unit covered by this con- tract. This contract expired in 1957, and in the negotiations for a new contract, the Union insisted on the inclusion of the meat clerks in the unit, including the meat clerks at the Respondent's newly opened Arlington, Texas, store. The Respondent refused on the ground, in substance, that the relatively unskilled meat clerks did not belong in the same unit with the highly skilled butchers and meat- cutters, and negotiations broke down on this issue. The Respondent has adopted several, if not most, of the other principal bargaining terms urged by the Union. At least once or twice the Respondent re- quested the Union to secure a Board determination of the appropriate 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." ,Meat clerks, packers, and wrappers all have similar duties and will hereinafter be referred to only as meat clerks. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit,lp and the Respondent has also indicated its willingness to bar- .gain for such unit as may be found appropriate by the Board. I do not agree with the majority of the Board that the Respond- ent's refusal to bargain with the Union for the employees in this unit constituted a violation of Section 8(a) (5) and (1) of the Act. Bad faith on the part of the Respondent in refusing to bargain was neither 'alleged in the complaint nor found by the Trial Examiner or the majority of the Board. Moreover, upon the entire record, I am sat- isfied that the Respondent acted in good faith in questioning the propriety of the inclusion of the meat clerks in the unit. They were less skilled than the meatcutters and had been excluded under the most recent contract. Accordingly, I would not find any violation of Section 8 (a) (5) of the Act. This result is in accord with precedent. In Bethlehem Transpor- tation Corporation, 61 NLRB 1110, the union sought a larger unit than that for which the parties had formerly bargained. The re- spondent refused to bargain with the union for such larger unit un- less and until in a representation proceeding the Board found that unit appropriate and certified the union as the exclusive bargaining agent of the employees therein. The Trial Examiner found, in effect, that the respondent's refusal did not reflect bad faith. He reasoned that the respondent was not required to decide the unit issue at its. peril and that until the appropriateness of the unit requested by the union was resolved and established in a Board representation pro- ceeding, the Respondent's refusal to recognize or deal with the union as the exclusive bargaining representative of the employees in that unit did not constitute an unlawful refusal to bargain. The Board, after oral argument in Washington, adopted the Intermediate Re- port without comment. To the same effect is Chalet, Inc., 107 NLRB 109, where the Trial Examiner, finding that the unit requested by the union was appropriate for bargaining purposes but that respondent's refusal to recognize the union on the ground that the requested unit was inappropriate was "not patently unreasonable," concluded that the refusal did not violate Section 8(a) (5), and the Board adopted the report without comment.ll 10 The Respondent could not itself secure such determination because of the pendency of the charges in the instant proceeding. "Cf. N.L.R.B. v. Jackson Press, Inc., 201 F. 2d 541 (C.A. 7), where the court said, inter alia: "Respondent at all times claimed that a proper unit should include all of the employees in its pressroom . Although the trial examiner and the Board concluded that a unit composed of all journeymen and apprentice press men and all press assistants and apprentice press assistants was a proper and appropriate unit , a conclusion of which we approve, that does not prove that respondent . . . refused to bargain in order to gain time within which to dissipate the union 's majority , or to undermine the union." The court made this finding, despite the fact that it also found that the respondent had com- mitted independent violations of Section 8(a) (1) of the Act. There are no such violations in the instant case. TOM THUMB STORES, INC. 839 It is now well settled that when an employer' s refusal to bargain is prompted solely by a good-faith doubt as to a union's majority status, the Board will not find such refusal unlawful. 12 1 see no sound reason for distinguishing between a good-faith doubt as to majority status and a good-faith doubt as to the appropriateness of the requested unit, as in the instant case. In both cases, the em- .ployer's refusal to bargain is due to an honest and reasonable belief that one of the conditions which must be met by the union before it can require him to bargain has not been met. Applying to the instant case the principles set forth above, I find. that the Respondent's good-faith refusal to bargain with the Union for the employees in its requested unit on the ground that that unit was inappropriate did not constitute a violation of Section 8 (a) (5) and (1) of the Act. I would therefore dismiss the complaint." 13 Celanese Corporation of America, 95 NLRB 664; Page Boy Company, Inc., 107 NLRB 126. 13 The majority opinion finds that this unit-a unit of meat department employees, in- cluding clerks and wrappers-is "traditionally appropriate ," and in support of this finding, cites Weis Markets, Inc., 116 NLRB 1993, and The Great Atlantic and Pacific Tea Com- pany cases in 117 NLRB 554, 118 NLRB 1018 and 1495, and 119 NLRB 1257. Suffice it to say that in none of these cases was any issue raised as to the propriety of including meat clerks and wrappers in the unit of meat department employees found appropriate.. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL bargain collectively in good faith with Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below (which includes meat clerks, packers, and wrappers) with respect to rates of pay, hours of employment, and other conditions of employment, and if an agreement is reached, we will incorporate such agreement in a signed agreement in writing. The bargaining unit is : All employees (including meat clerks, packers, and wrappers) working in the meat sections of the markets and retail food stores operated by Respondent Company in Greater Dallas and Arlington, Texas, and vicinity, including regular part-time employees, and excluding grocery clerks, produce clerks, dairy clerks, head cashiers (bookkeepers),. office and clerical employees, caddy boys, janitors, parking lot attendants, warehouse employees, temporary employees, watchmen, guards, meat department heads, store managers,, 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assistant store managers, and all other supervisors as defined in the Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the .rAct. W`TE WILL offer to our striking employees, upon their applica- tion, reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired after November 19, 1957, to replace these employees, and we will make each employee whole for any loss of pay suffered by him as a result of our failure to reinstate him within 5 days after his application. All our employees are free to become or remain, or refrain from becoming or remaining members of the above-named Union or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act. Tom THUMB STORES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE These proceedings, authorized and conducted under Section 10 of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act, were heard before the duly designated Trial Examiner in Dallas, Texas, on May 5, 6, and 7, 1958. Upon a charge filed on November 21, 1957, by Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, the General Counsel of the National Labor Relations Board issued a complaint on April 1, 1958, against Tom Thumb Stores, Inc., herein called Respond- ent'Company, alleging that said Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act, affecting commerce within the meaning of Section 2(6) and (7) of the Act, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act and by refusing to bargain collectively with the Union as TOM THUMB STORES, INC. 841 exclusive representative of all meat department employees in an appropriate unit including journeymen meatcutters, backroom employees, apprentices, wrappers, and part-time workers employed at its retail food stores in Dallas and Arlington, Texas, excluding all store managers, caddy boys, office and clerical employees, janitors, parking lot attendants, food clerks, warehouse employees, temporary employees, watchmen, guards, professional employees, and supervisors as defined. in the Act. In due course Respondent Company filed an answer to the complaint denying all allegations of unfair labor practices, and in support of such denial alleges in para- graph VIII of its answer "that it has never refused to bargain with the Union with respect to its employees who were appropriately in the unit sought to be represented by the Union, and in particular all employees who were in said unit in accordance with the last contract which Respondent had with the Union and which expired on November 15, 1957." 1 In its answer to the complaint Respondent further asserts, in substance, that in the above-mentioned contract which expired on November 15, 1957, it recognized the Union as exclusive bargaining representative for head meatcutters, journeymen meat- cutters, extra journeymen meatcutters, and extra apprentices in its meat departments, but expressly excluded all meat clerks, packers, and wrappers; that the Union is now seeking to enlarge the bargaining unit last agreed upon by including in a new contract the female meat wrappers heretofore excluded; and that Respondent is not required by the Act to negotiate with the Union as exclusive bargaining representative of such an expanded unit until an appropriate unit is determined by the National Labor Relations Board under the provisions of Section 9(a), (b), and (c) of the Act. It is, therefore, admitted that Respondent Company on and after the expiration of the contract on November 15, 1957, has refused to bargain with the Union in respect to rates of pay, wages, hours of employment, and other conditions of employment of meat department employees at stores in Greater Dallas, Texas, who are engaged in wrapping and displaying meats, poultry, fish, etc., but do not engage in the more skilled employment of handling, cutting, and processing the carcass which is per- formed by head meatcutters, journeymen meatcutters, and apprentices. Respondent further asserts in its answer to the complaint that: It has never recognized the Union as exclusive bargaining representative for any employees at its store in Arlington, Texas; the Union has never represented the employees in that store; they were not included in the contract which expired on November 15, 1957, pertaining only to employees working in the meat section of stores located in Greater Dallas, Texas; and the Union is seeking to enlarge the unit it represents by adding thereto the employees of a store in another area where rates of pay and working conditions are different from those existing in the Greater Dallas area, and without a poper showing or determination by the National Labor Relations Board in a representation election that such employees desire representation 'by the Union, and that in the absence thereof, Respondent Company is not required to negotiate or bargain with the Union. Copies of the charge, complaint, notice of hearing, and other pertinent processes were duly served upon the Respondent Company and other parties in interest. Pur- suant to the notice of hearing, all parties appeared in person before the Trial Examiner, and were represented by counsel. Full opportunity was afforded all parties to be heard, to introduce testimony and other evidence pertinent to the issues involved, to examine and cross-examine witnesses, to present oral argument on the record (which was waived), and thereafter to file with the Trial Examiner written briefs and proposed findings of fact and conclusions of law. Written briefs filed by the General Counsel, the Charging Union, and the Respondent Company have been given due consideration. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Tom Thumb Stores, Inc., is a corporation organized and existing by virtue of the laws of Texas, having its principal office -and place of business -at 2533 Hawes Street in the city of Dallas, Texas, where it is engaged in selling food products, etc. At times pertinent to this case it operated a chain of retail food stores in the State of Texas, at Dallas in Dallas County (16), Arlington in Tarrant County (1), Athens (1), Cleburne in Johnson County (1), Gainesville (1), and Tyler (2). In the course 1 The contract which expired on November 15, 1957, was introduced in evidence in the record as General Counsel's Exhibit No. 9. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of business operations the Respondent on an annual basis purchased and continues to purchase food products valued in excess of $15,000,000 of which more than $2,000,000 per annum were and are shipped indirectly to Respondent 's stores from points located outside the State of Texas. I find, therefore , that Respondent Com- pany is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Historical background Recognition of the Union by the Respondent as bargaining representative for employees in its meat departments dates back to 1953. On or about December 19, 1953, Respondent Company and Local Union No. 528 (now Local Union No. 540) entered into a written agreement , which remained in effect to November 16, 1955, wherein "The Union is recognized as the sole agency for the purpose of collective bargaining for the employees coming under the jurisdiction of this agreement and working in the meat section of the markets located in Greater Dallas, Texas." With respect to the minimum weekly wage for employees , that contract provided in article, III thereof that meat clerks, packers , and wrappers would receive a starting rate of $42.50, and an increase of $2.50 each 6 months until they reached their top grade of $55. The contract contained also a "Supplement to Article 3," as follows: Concerning female clerks , wrappers, and packagers : the Union agrees there is nothing in this contract that prohibits the employer from transferring female clerks, wrappers, and packagers to any other department in the store ; or that prohibits the employer from transferring employees from other departments of the store into the market for part-time work on whatever basis the Company deems its best interest. The foregoing contract expired on November 16, 1955 , and the Union submitted to Respondent Company new proposals identical in form with the expiring contract except that article III provided for an increased schedule of minimum weekly wages for all classifications of meat department employees , including in detail an increase in wages at the end of each 6 months over a period of 30 months for meat clerks, packers, and wrappers . The recognition clause (article I) remained the same in effect that "The Union is recognized as the sole agency for the purpose of collective bargaining for the employees coming under the jurisdiction of this agreement and working in the meat section of the stores located in Greater Dallas, Texas ." Presi- dent Robert B. Cullum on behalf of the Respondent Company at that time objected to including the packers and wrappers in the new contract , stating that "they were just a thorn in his side," but the union representative (P. P. Douglass ) disclaimed any authority to change the terms of the contract and left it with him for considera- tion. Thereupon , President Robert B. Cullum deleted with pen and ink the schedule of wages pertaining to meat clerks, packers, and wrappers in article III, signed the document with his initials appearing alongside the deleted part of article 111, and mailed it back to the Union on December 12, 1955. Without further negotiations, P. P. Douglass , as secretary of Local Union No. 528, then signed the contract in duplicate (as deleted ) and mailed an executed copy thereof back to Respondent Company. By reason of the deletions appearing on the face of the final contract -document , Respondent contends that it no longer recognized the Union as bargaining representative for the meat clerks, packers , and wrappers , whereas the Union con- tends that deletion of the wage scale for this classification merely suspended any agreement as to their wages. It is admitted that the female packers and wrappers had not joined the Union at that time . That contract became effective on Novem- ber 15, 1955, and remained in full force and effect until expiration at midnight on November 15, 1957. In the meantime, Local Union No. 540 became the successor of former Local Union No. 528. By letters dated September 6, 1957, Local Union No. 528 notified Respondent Company and other employers in the food stores industry, including A & P Stores, Safeway Stores, and Wyatt Food Stores, that it desired to make substantial changes in the collective-bargaining agreements simultaneously expiring on November 15, 1957. With this letter the Union submitted to each employer written proposals for a common industry contract for Greater Dallas and vicinity , to include the surround- ing towns of Fort Worth, McKinney, Garland, Terrell, Ennis, Waxahachie, Cleburne, TOM THUMB STORES, INC. 843 Denton, Grand Prairie, Arlington, etc. This proposed contract contained a recogni- tion clause, as follows: Article I. Recognition The Employer recognizes the Union as the sole bargaining representative for all head meat cutters, journeyman meat cutters, backroom employees, ap- prentices, wrappers, including part time workers, employed by the employer in his meat markets. The unit shall exclude all store managers , caddy boys, office and clerical employees, janitors, parking lot attendants , food clerks , warehouse employees, temporary employees, watchmen, guards and professional employees. All head meat cutters being supervisors under the terms of the Taft Hartley Act shall not perform any of the work of the employees included within the bargaining unit. Thereupon, President Robert B . Cullum reached an agreement with the business .agent of Local Union No. 540 ( P. P. Douglass ) to suspend negotiations on the contract with Respondent Company until negotiations were concluded with the A & P Stores and Safeway Stores. Business Agent Douglass agreed to keep Re- spondent informed as to the progress made by the Union in negotiating the pro- posed new contract with the aforesaid larger chain store organizations , and there- after to consider the ultimate contract with them as the basis of negotiations with Tom Thumb Stores, Inc. On Friday, November 15, 1957, Business Agent Douglass called President Cullum by telephone and reported that the Union had reached an agreement with A & P Stores and Safeway Stores with respect to the terms of the new contract. Thereupon , President Cullum inquired about the status of negotiations with the local chain of Wyatt Food Stores , which had not been concluded at that time. President Cullum and Business Agent Douglass agreed to resume negotiations on the following Tuesday, November 19, 1958, when the former returned from a business trip to Memphis, Tennessee. In the absence of Robert B. Cullum, Business Agent Douglass notified Charles Cullum ( brother ) on Saturday that the union membership had disapproved his postponement of negotiations with Respondent Company and would take a strike vote unless a new contract was signed or agreed upon prior to noon on Monday , November 18 , 1957. President Cullum returned to Dallas on Sunday and received notice of the established deadline about 9 a.m. on Monday, November 18, 1957. At noon that day practically all employees work- ing in the meat sections of Tom Thumb markets in the Greater Dallas area walked out with their tools and held a meeting at the union labor temple . The walkout included female meat clerks, packers, and wrappers in all stores except approximately seven employees at the Irving Store . At approximately 2 p.m. Business Agent Doug- lass called President Cullum by telephone and extended an opportunity to address his employees in meeting at the labor temple. Cullum accepted the invitation. B. The refusal to bargain Pursuant to the foregoing invitation President Robert B. Cullum immediately proceeded to the union labor temple and addressed his employees concerning the nature of their jobs with Respondent Company. In the presence of union officials he contended that the duties of female meat clerks , packers, and wrappers in the Tom Thumb markets consisted of unskilled labor, and that they did not belong in a labor organization with highly skilled butchers and meatcutters . Consequently, he took the position that Respondent Company was unwilling to include them in a collective-bargaining agreement with the Union as part of the bargaining unit. He urged these employees to return to their jobs and save perishable meat products valued in excess of $50,000 contained in the several abandoned markets. Following Cullum's remarks , the assembled employees voted to call a strike on Tuesday unless Respondent and the Union reached an agreement to include meat clerks , packers, and wrappers in the contract , and appointed a committee to negotiate with Re- spondent that afternoon. At the request of Respondent , the union representative prepared and submitted a letter (General Counsel's Exhibit No. 11) outlining changes demanded by the Union in the new contract to supplement provisions already con- tained in the contract which expired on November 15, 1957, as follows: MR. BOB CULLUM, President, NOVEMBER 18, 1957. Tom Thumb Food Stores, 2533 Hawes Street, Dallas, Texas. DEAR SrR : Subject to your request , we are listing the changes that are to be incorporated into the Industry Contract covering the meat employees in the 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dallas area . Any clauses not specifically mentioned as changed in this letter will remain the same as our previous contract. A. Company has agreed to company 's checking off union dues and initiations. B. All work to be done within five days. C. A Seniority Clause affecting lay-off and rehiring only. D. Agreed to change vacations as follows: one week after one year, two weeks after two years , and three weeks after fifteen years. E. Agreed to reduce the journeyman apprenticeship from four years to three years. F. Agreed to incorporate two guaranteed fifteen minute breaks. G. Agreed to reduce work week three hours with no reduction in pay. H. Agreed to pay part-timers immediately upon completion of work, or at least resolve a way so that they will not have to come back after their check, for example mailing, etc. 1. Agreed on the following wage scale: First year Second year Head Meatcutters ________________________ $97.00 $102.00 Journeymen ---------------------------- 91.00 95.00 Apprentices: 1st 6 months_____ ___________________ 58. 50 61.50 2nd 6 months_______________________ 63.50 66.50 3rd 6 months___ _____________________ 68. 50 71. 50 4th 6 months_______________________ 73. 50 76.50 5th 6 months _______________________ 78.50 81.50 Thereafter__________________________ 91.00 95.00 Meat Wrappers: 1st 6 months________________________ 51. 00 54. 00 2nd 6 months_______ ________________ 53. 50 56. 50 3rd 6 months________________________ 56.00 59.00 4th 6 months-- --------------------- 58.50 61.50 5th 6 months_______________________ 61.00 64.00 Thereafter__________________________ 63. 50 66. 50 J. A change in all Recognition Clauses to include all meat department employees. K. Agreed to keep in force, according to company policy, any Health and Welfare benefits, etc., that may be in effect as of now, for the period of the contract. This is the agreement that has been reached with A & P and Safeway with the wording to be worked out this week . We sincerely feel that this is sufficient information to allow you to bind yourself without any undue hardship to you as to the understanding of the content of the contract. Hoping that you find this satisfactory, I am Sincerely yours, DICK TWEDELL. The union negotiating committee , consisting of Richard A. Twedell , P. P. Doug- lass, Dean Young, E. N. Sutton, George Mixon , and George Connors, held a meeting with President Robert B. Cullum in his office at 4 p.m. on Monday , November 18, 1957, and insisted that the meat clerks, packers, and wrappers within the area of Greater Dallas , including the newly opened store at Arlington , Texas, be included in a contract identical in terms with agreements reached with A & P Stores and Safeway Stores. Respondent insisted on inspection of the final draft of the contract agreed upon with A & P Stores and Safeway Stores, but the final document to be signed by them was not available. The Union insisted that the Respondent agree as to terms and principles to be included in the final document based upon provisions contained in the expired contract with changes outlined in the above letter submitted by the Union, the threshold issue involved being whether to include the meat clerks, packers, and wrappers in the contract including also such employees at the Arlington Store not previously represented by the Union. President Cullum announced that Respondent would accept the new scale of wages and hours of work proposed by the Union for head meatcutters , journeymen, and apprentices , and did in fact make such increased wages effective from that date in all stores in Greater Dallas. He later also adopted the vacation plan proposed by the Union. The Union refused, however, to negotiate further with respect to terms of a contract until Respondent would agree to include the meat clerks , packers, and wrappers in the bargaining unit and contract. Consequently, a deadlock was reached , and other terms of a con- tract were never fully discussed. TOM THUMB STORES, INC. 845 The strike went into effect on Tuesday, November 19, 1958, and picketing at all Tom Thumb Stores in the Greater Dallas area, including Arlington, has continued to the present time. Numerous meetings of the negotiating parties have been held since November 18, 1957, but no material progress has been made in reaching an agreement, because the controlling issue remains in a deadlock as to whether the appropriate unit for the purpose of collective bargaining shall include meat clerks, packers, and wrappers employed in its meat departments by the Respondent Com- pany. C. The appropriate unit The fact that the Union at expiration of its latest collective-bargaining agreement with Respondent Company on November 15, 1957, represented a substantial majority of all employees working in the meat section of Tom Thumb stores located in Greater Dallas, Texas, and vicinity, including the store at Arlington, Texas, is not substantially denied by the Respondent Company. Authorization cards and the un- disputed testimony of witnesses introduced by the General Counsel establish the union majority status beyond any reasonable doubt. The paramount issue in this case is whether women employed by Respondent Company as meat clerks, packers, and wrappers in the meat department of its retail food stores should be included with all other meat section employees in any appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, as provided in Section 9(a) of the Act. In the absence of agreement between the parties, and subject to certain provisos, Section 9(b) of the Act authorizes the Board to decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the em- ployer unit, craft unit, plant unit, or subdivision thereof. The history of labor relations herein reveals that Respondent Company since 1953 has recognized the Union gas exclusive bargaining representative for employees working in the .meat section of its markets located in Greater Dallas, Texas, and by contract effective from November 16, 1953, to November 16, 1955, established wage rates, etc., for meat clerks, packers, and wrappers in the same bargaining unit with head meatcutters, journeyman meatcutters, and apprentices. In a subsequent con- tract effective from November 15, 1955, to November 15, 1957, Respondent Com- pany continued to recognize the Union as the sole agency for the purpose of collec- tive bargaining for employees working in the meat section of its stores located in Greater Dallas, Texas, but deleted from the schedule of wages in the final contract all words and figures pertaining to meat clerks, packers, and wrappers, and the Union acquiesced therein because these women employees had not maintained their membership in the Union. Upon the expiration of the latter contract, the Union again demanded recognition as bargaining representative for this classification of employees because a substantial majority of them had joined the Union and con- tinued to maintain their membership therein. Without doubt the Union was and is the exclusive representative of this classification for the purpose of collective bar- gaining at all times pertinent to this case. No other labor organization is presently claiming any interest in such representation. These female meat clerks, packers, and wrappers work regularly in the meat sec- tion of Respondent's markets. Their duties consist of wrapping, tagging, and dis- playing meats for selection by customers. They prepare for sale the meat products fabricated by more skilled meatcutters by taking the consumer size cuts at point of fabrication, wrapping them in cellophane, attaching a price label to each package, and then placing the packages on a refrigerated self-service counter or table for the convenience of purchasers. They also slice cheese and cut poultry into pieces before wrapping and displaying such products. In its smaller stores prior to installation of self-service equipment, Respondent Company sometimes temporarily shifted meat wrappers to the food section to substitute for an absent checker or food clerk, but such a practice has not been followed in the larger stores. In any event, their regular duties in the meat section are of primary importance and separate from the food department. Under the circumstances of this case, I am, therefore, constrained to find that the appropriate unit should include all male and female meat clerks, packers, and wrappers working in the meat section of the respective retail food stores of Respondent Company located in Greater Dallas, Texas, and vicinity, including the newly established store at Arlington, Texas. It is admitted by Respondent Company that the appropriate unit should also include journeyman meatcutters, hackroom em- ployees, and apprentices. In order, therefore, to insure to employees of Respondent Company the full bene- fit of their right to self-organization, to engage in collective bargaining through repre- sentatives of their own choosing, and otherwise to effectuate the policies of the Act, 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the appropriate unit in this case consists of all employees engaged in: handling, cutting, selling, displaying, processing , or wrapping meat, poultry, or fish, working in the meat departments of retail food stores operated by Respondent Com- pany at Greater Dallas, Texas, Arlington, Texas, and vicinity, including regular part-time employees, excluding grocery clerks, produce clerks, dairy clerks, head cashiers ( bookkeepers ), watchmen, guards, meat department heads, store managers, assistant store managers , and all other supervisors as defined in the Act.2 Concluding Findings From a preponderance of the evidence and the entire record in the case, I find that Tom Thumb Stores , Inc., has at all times since November 15, 1957, refused in violation of Section 8(a) (5) of the Act to bargain with Amalgamated Meat Cutters & Butcher Workmen of North America , Local Union No. 540, AFL-CIO, as ex- clusive bargaining representative of meat clerks , packers, and wrappers included in the appropriate unit of meat department employees at retail food stores of Respondent Company at Greater Dallas and Arlington, Texas; thereby also inter- fering with, restraining, and coercing employees in their exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company, set forth in section III, above, oc- curring in connection with the operations 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Company has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recom- mended that Respondent Company, upon request, bargain collectively with Amalga- mated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, as the exclusive bargaining representative of all employees working in the meat section of the markets or retail food stores operated in Greater Dallas and Arlington, Texas, by Tom Thumb Stores, Inc., wherein said Union has been so designated by a majority of employees within the unit found herein to be ap- propriate for the purposes of collective bargaining. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All employees engaged in handling , cutting, selling, displaying, processing, or wrapping meat, poultry , or fish, and working in the meat section of markets and retail food stores operated by Tom Thumb Stores, Inc., in Greater Dallas and Arlington, Texas, and vicinity, including regular part-time employees, and excluding grocery clerks , produce clerks , dairy clerks, head cashiers (bookkeepers ), office and clerical employees , caddy boys , janitors, parking lot attendants , warehouse em- ployees, temporary employees , watchmen, guards, meat department heads, store managers, assistant store managers , and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (c) of the Act. 3. At all times since November 15, 1957, the Union has been and now is the duly appointed and exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 4. By failing and refusing at all times since November 15, 1957, to bargain col- lectively with Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union No. 540, AFL-CIO, as the exclusive bargaining representative of the employees in the aforesaid appropriate unit, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5 ) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 2 See The Great Atlantic and Pacific Tea Company, 117 NLRB 554-556.