National Food Stores, Inc.

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request , furnish to the above -named labor organization relevant data concerning computations or operations under our group incen- tive plan and discuss and negotiate concerning any grievances arising thereunder. SQUARE D COMPANY, 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. National Food Stores, Inc. and Office Employees International Union, Local No. 9, AFL-CIO. Case No. 13-CA-5099. April 29, 1963 DECISION AND ORDER On February 14, 1963, Trial Examiner Thomas A. Ricci issued his Intermediate 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief; the General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.2 1 Member Leedom adopts the Trial Examiner 's ultimate disposition of the Section 8(a) (5) aspects of the case on the basis of the position taken by him in Town & Country Manu- facturing Company, Inc., etc., 136 NLRB 1022. In our view of the case , we need not, and do not, pass upon the Trial Examiner's com- ments as to the authority of the Union to bargain with Respondent about the reassignment of the inventory clerks, whose jobs were unlawfully contracted away, to other store positions. 2 Member Leedom , for the reasons set forth in his dissenting opinion in Isis Plumbing t Heating Co., 138 NLRB 716, would not direct the payment of interest on the backpay awards. The Appendix attached to the Intermediate Report is hereby amended , by adding the following immediately below the signature line at the bottom of the notice: NOTE -We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. 142 NLRB No. 38. NATIONAL FOOD STORES, INC. 341 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A hearing before Trial Examiner Thomas A. Ricci was held in the above-entitled proceeding at Milwaukee, Wisconsin, on December 5 and 6, 1962, on complaint of the General Counsel against National Food Stores, Inc., herein called the Company or the Respondent. The issue litigated was whether the Respondent had violated Section 8(a)(3) and (5) of the Act. Briefs were filed after the close of the hearing by all three of the parties. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT National Food Stores, Inc., is a corporation existing by virtue of the laws of the State of Michigan, and is engaged in the operation of retail food stores in a number of States, including the State of Wisconsin. During the calender year 1961, in the course of its operations of said retail stores, the Company sold and distributed products valued in excess of $500,000. During the same period it received goods valued in excess of $50,000 transported directly to its various places of business located in Wisconsin from States other than the State of Wisconsin. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Office Employees International Union , Local No. 9, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue of the case The core question in this case is whether, as alleged in the complaint, the Respond- ent refused to bargain with the statutory majority representative of a particular group of its employees. In its Milwaukee division, embracing 57 retail stores, the Company has long employed a group of workmen called inventory clerks. These clerks, a total of five, voted in a consent election conducted by the National Labor Relations Board on May 11, 1962; the result of the balloting was five votes in favor of the Union and none against ; on May 22, 1962, the Regional Director issued a certificate of exclusive representative status to the Union as bargaining agent for the five men. Representatives of the Company and of the Union met twice, on July 17 and again on August 17, to discuss a collective-bargaining contract; no agreement was reached. During July and August the Company took steps to have the work of the inventory clerks performed by an independent contractor instead, and on September 13, 1962, separated all five of them from the Company's employ. One theory of the complaint is that the Respondent contracted away the work, and discharged the inventory clerks, in order to avoid its statutory obligation to bargain with the Union concerning their conditions of employment, and thereby discriminated against them in violation of Section 8 (a) (3) of the Act. A second theory of the complaint is that, even assuming the decision to contract was based on economic con- siderations, the Respondent failed in its statutory duty to bargain with the clerks' representative on the very question of whether their jobs ought to be abolished at all, and thereby refused to bargain with their Union in violation of Section 8(a)(5). The Respondent denies the commission of any unfair labor practices. B. Appropriate unit and majority status The answer denies the precise complaint allegation that a unit limited to the inventory clerks is appropriate for collective-bargaining purposes. The May elec- tion was held pursuant to a stipulation for certification upon consent election, in which the Respondent agreed, in writing, to the appropriateness under the statute of the unit exactly as set out in the complaint. The record shows that inventory clerks check all stock and merchandise in each of the 57 stores of the Milwaukee division on regular and continuing schedules . They are the only employees who do this work, and, separately from all other store or office employees of the Company, are supervised by two captains, who work with them. They are under ultimate 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervision of the office manager, but, unlike all other employees, their work keeps them out of the office except for brief periods and the nature of their duties is unique within the Company. Moreover, the record as a whole contains no indica- tion that a unit of inventory clerks in this situation is not in complete harmony with all the statutory provisions relating to the appropriate bargaining unit, and the Respondent has advanced no substantial evidence to the contrary. Accordingly, I find that all field inventory personnel, assigned to a regular traveling crew, employed by the Milwaukee division of National Food Stores, Inc., excluding office clerical employees, retail store employees, professional employees, managerial and con- fidential employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. As all these employees voted in favor of the Union at the May 11, 1962, election, I also find that at all times since or on about May 11, 1962, the Union has been the certified representative for the purposes of collective bargaining of a majority of the employees in the above-described bargaining unit, and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. C. Organizational activities; interference, restraint, and coercion Lewandowski, International representative of the Union, obtained authorization cards from the inventory clerks in mid-March 1962, and on March 24 wrote to the Company, advising it that a majority of the employees had designated the Union and requesting a bargaining conference. Two days later he filed a petition for an election by the Board; it was in consequence of this petition that the parties entered into a stipulation, on April 27, to hold a consent election. During the last week of April each of the inventory clerks was called from whichever store he chanced to be a conference in the office of either Zarzynski, divisional accountant and office manager, or Cloverdale, personnel manager. Zarzyn- ski is their ultimate superivsor, above the captains who travel with the inventory clerks. Zarzynski testified that he called these conferences, after receiving the Union's claim letter, in order to learn what dissatisfactions had led the clerks to join the Union, and that he and Quirk, the Company's labor relations director from the Chicago main office, had discussed the matter and wished to "adopt some other methods of solving their problems and easing their work." Three were called in as a group; one clerk, Kinney, recalled he was alone; another, Schnapp, said he went in with Halla, one of the supervisory captains. It is conceded that Zarzynski and Cloverdale were present on each occasion, that Zarzynski did most of the talking for the Company, and that all five clerks were in fact called in late in April. The clerks were invited to the Milwaukee office again in the same manner within about a week, this time separately. Four were called, by letter or telephone, on May 5; Urbach, another clerk, on May 4.1 In each instance the clerk spent about 15 minutes in conference with the divisional accountant and personnel manager. For the most part, Zarzynski and Cloverdale did not contradict the testimony of the clerks as to what was said during these conversations. In April, Zarzynski told the clerks he had called them because of their union activities, and that he wanted to know why they had joined the Union. They told him, and among their "gripes" listed the 4-day week-they preferred 5; wages-they desired a raise; the careless driving of one of the captains; meals on the road-they should be better; insurance and pension for them-the Company should pay more. As to what was said in the May 5 interviews, there is also substantial agreement. Zarzynski said he called them to inform them of the date that had been set for the forthcoming election; they had not heard, and he told each of them. And finally, in what seems to have been a major subject of discussion-what Zarznyski called the various "alternatives" open to the Company then-there is also no disagreement among the witnesses. On this matter of the alternatives which Zarzynski listed, all five clerks consistently and in corroborative detail recalled he talked to them in the first meetings. Zarzynski passingly said he spoke of some of the alternatives, at least to some individual employees, in May. I am satisfied he did so at the early meetings; the important thing is he did not dispute having advised the employees of what the Company could do. 2 Urbach is sometimes referred to in the record as Baker, without explanation. NATIONAL FOOD STORES, INC. 343 On two details of the testimony there is conflict. Did Zarzynski tell each of the clerks in May that the Company already had two or three votes in its favor? Did he tell them that in another division of the Company-in Minnesota-Laughlin, branch manager, "broke" the Union by resortmg to one of the alternatives? One of the April meetings brought clerks Urbach, Williams, and Fazendin to the office. According to Urbach, after the employees had answered Zarzynski's inquiry as to why they wished a union, Zarzynski said: "You know we want to keep control of the inventory unit. We do not want a union, and we will try and fight the Union . Of course, if the Union does come in, there could be some things we could do. We could . transfer some of the boys out of town to Portage or Shawano, and you could work from out of there. If you didn't want to do that you could quit." The last of the alternatives which Urbach recalled was that the Com- pany could "lay off a couple of men and take inventory with just two or three " Williams corroborated Urbach's testimony as to Zarzynski's statements at this meet- ing; he also recalled that the office manager said. ". . . If we should vote the Union down, or out, that we could get together monthly, either a representative of our group or even all of us, and work out our differences." Fazendin testified as did Urbach and Williams. According to him, Zarzynski said: "We will not tolerate a union, and if you persist, or you continue in this action, we are not threatening, mind you, we are not threatening you, but here are some of the alternatives." He also quoted them (Cloverdale and Zarzynski) as saying ". . . we should be able to get along and we could be more a part of a family . . . if we could get together the situation would be rectified, and maybe we could get together every month, either one or all of us, and we can try to work on these things and see if we didn't get more benefits for you." Fazendin's recollection of Zarzynski's alterna- tive was quite as related by Urbach and Williams. Kinney was interviewed on April 19, primarily by Cloverdale, before Zarzynski entered the office. His testimony substantially accords with that of the other three clerks. He quoted the personnel manager as saying, "National didn't intend to have this crew organize and would fight it in every way, that this had been tried in other branches and had failed, and this would fail here . " He also testified that Cloverdale said the Company had various alternatives "if you went into the Union," and added that if the Company were compelled to increase wages, it might be forced to exact greater work output per man and reduce the complement, with Kinney in danger of discharge because he was the last to be placed on the crew. Schnapp heard the same details concerning alternatives from Zarzynski when he was called to the office on April 21. According to him Cloverdale also said, in Zarzynski's presence: ". . Mr. Laughlin had the same trouble in Minnesota when he was Branch Manager there when they tried to join the Union, and he broke the Union there and he could just as well do it here . . The individual interviews in early May were shorter and again each clerk was called from his route work to meet Cloverdale and Zarzynski at the office. In each instance Zarzynski informed the clerk of the election date a week later. Schnapp's testimony is that Zarzynski also told him he should vote as an individual, that the Company was confident of at least three votes, but that "if we joined the Union they would definitely fight us all the way." According to Kinney, Zarzynski told him the Company "had two votes in its favor" and that he, Kinney, "might be in line for a crew captain's job." Williams testified Zarzynski asked him what his "feelings were about the coming election," and added the Company was sure of two votes and hoped Williams "would do what was right." Fazendin said that Zarzynski told him ". . . we have two sure votes for the Company . . . I don't want to influence your vote in no way whatsoever-with another vote we will be in good shape and we can straighten this all out." Urbach, called to the office the day before, testified that among other things Zarzynski said, "You know you have the most years on the crew and therefore would be the first in line for a crew captain's job . Now with the Union here we would think twice before promoting you because in a job like that we would want a company man in that position and not a union man . .. . Zarzynski concluded with, "I'm sure we have three votes on our side . . . you are old enough to know what you are doing. Vote the way you want." Throughout their entire testimony Zarzynski and Cloverdale contradicted that of the five clerks on only three details; for the rest they were not inconsistent with all the foregoing testimony. Zarzynski expressly denied having said the Company had two votes in its favor; he said he told the individual clerks on May 5 that the election could turn on three votes, and that each man should cast his ballot as an individual. Both he and Cloverdale denied having said that Branch Manager Laughlin else- where had broken a union. Zarzynski did say, however, that "in discussing some of the approaches we might have to use to reduce costs if the cost continued to rise and 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I think we mentioned Mr. Laughlin in connection with our St. Louis Branch, operating their inventory with the District Manager and store help without a separate inventory crew." And, from Cloverdale's testimony: "I mentioned Mr. Laughlin's name in this respect, . . . another alternative to reducing the inventory cost would have been using supervisory personnel and store personnel to take the inventory. This was a system used in Sioux City division." At the hearing the two company officials colored their testimony in terms of a concern over the danger of increased costs in the event the Union should prevail and force higher wages or other indirect expenses upon the Company. In their conversa- tions with the employees, however, although at times the matter of relative operating expenses was mentioned, the tenor of the interviews as a whole was clearly to convey the thought that the "alternatives" were being considered more as a means of eliminat- ing the Union than as necessary economic measures Zarzynski said he called the meetings seeking to find "some other method of solving their problems and easing their woik." But each of the "alternatives" he proposed-forcing them to work nights or weekends, replacing them with supervisors or store personnel, transferring some clerks to distant locations, laying off some of them, or contracting away the work entirely-was a direct detriment to their well-being, including, indeed, the most extreme hurt they could suffer in consequence of continued union activity. To defend these proposals as intended to "ease" the work of the clerks, "or solving their prob- lems," runs counter to simple realities. If these "alternatives" were truly meant to be invoked only in the event sincere collective bargaining should fail to compromise the just needs of both parties, there was no occasion to tell the employees they could materialize "if the Union does come in," or "if you continue in this action," or "if we went into the Union," and that the alternatives could be avoided "if we could get together" without a union. Zarzynski's own testimony shows that he was seeking not to avoid increased costs, but to eliminate the Union instead. "I asked them what their problems were, what were the things bothering them in their minds. I told them that it was possible we could reach some other approaches to this beside organizing . . . Neither Zarzynski nor Cloverdale denied the testimony of Urbach, Kinney, and Schnapp that they told the clerks the Company would not "tolerate" a union among the clerks, and that it would "fight" to prevent it Zarzynski did not deny telling Urbach and Kinney, when he had each in his office, that they might become captains, with the inescapable implication that this might come about only if they voted against the Union. And the further statement to individual employees, closeted with their supervisors in the locus of authority, that in another branch of the Company the "problem" had in fact been solved by eliminating inventory clerks and using other employees instead, could only have been intended, or understood, as an alternative to union activities, and not necessarily as a last resort the Company might turn to only in the ultimate event union demands should force a defensive "alternative." More- over, the very fact that in May, immediately before the election, each clerk was called in separately to hear his supervisor voice the Company's opposition to union activities, was in itself an intimidating technique. Coupled with the further undenied testimony that Zarzynski also told the clerks their "problems" could well be solved by direct dealings at periodic conferences without need for any union, all this leads me to believe that the clerks' version of the meetings are the more reliable. And finally, the testimony of the five clerks was straightforward, consistent, and mutually corroborative. On the basis of the record as a whole, considering also the demeanor of all the witnesses, I credit them. Accordingly, I find that by Zarzynski's action in interrogating all the clerks con- cerning their reasons for joining the Union, and in threatening to lay off some of them, to transfer some of them to distant locations, to replace them with other employees, and to contract away their work entirely, the Respondent restrained and coerced the employees in their statutory right to engage in self-organizational activities and thereby violated Section 8 (a) (1) of the Act. D. The bargaining conferences and the discharge of the clerks Following the Union's certification by the Regional Director the parties met by arrangement in a bargaining conference on July 17, 1962, a few weeks after the Union had sent to the Company its proposed contract. The personnel manager and Quirk, the Company's overall labor relations director, represented the Respond- ent. For the Union there were International Representative Lewandowski, three other union agents, and three of the five clerks-Urbach, Schnapp, and Kinney. The Union's proposals were read through, with union agents explaining its provisions and answering questions put by the company officers. The conference lasted about NATIONAL FOOD STORES, INC. 345 2 hours, and toward its close the Union requested the Company to come forth with its counterproposals, but to make them realistic so as to avoid protracted discussion. The Company promised to study what the Union had suggested and to bring to the next meeting its own proposed contract. During the discussions Quirk said that the Union's demands were high, a costly package. He also said, according to Lewan- dowski, that "over a period of several years" the Company had been receiving solici- tations "by out-of-town inventory agencies that said they could do the work cheaper." Quirk also testified that as he talked he waved a paper in the air, while saying: "We are constantly receiving this type of information from people who would like to perform the services for us." The parties met again on August 17, and Lewandowski started by asking for the contract proposals which the Company had promised to bring The Company had none; instead Quirk announced that the Company wished to contract out the inven- tory work. His first words were that the Union or the employees would not like what he was about to announce, but that he was sure it was best for both the Com- pany and the employees in the long run. In the same first breath he reassured the Union that the Company was deeply concerned with the employment interests of the clerks, that it wished to make every effort to place them in other jobs with the Company, and that to this end it was prepared to interview them immediately. He also added that if the men did not accept reassignment with the Company, he "would recommend them to the company that would do the work." Quirk invited Lewan- dowski to be present at such interviews and said the company personnel manager was prepared to speak to each of them that very afternoon or the next day. Lewandowski and the three clerks present showed little interest in being inter- viewed for other jobs and the union agent responded with saying he was there for purposes of negotiating a contract. Kinney asked whether the decision to contract had already been made, and Quirk replied: "The decision is made. It has been made in Chicago " Lewandowski then said: "Actually, we are not talking here of negotiations or contracts. We are talking about subcontracting which is already in effect," and Quirk replied "Yes," Urbach also testified that Quirk said in the very first part of the meeting that the decision had been made in Chicago. Schnapp, too, testified that he asked Quirk then and there whether the final decision had already been reached, and that Quirk replied that this was so. Schnapp testified further that when Lewandowski asked Quirk "if there was going to be any bargaining" Quirk said "he didn't see any need in bargaining. The job was going to be subcontracted." Although the Respondent's witnesses maintained in the totality of their testimony at the hearing that the final decision to contract the work was not reached until after the August 17 conference, neither Quirk nor Cloverdale denied the foregoing testi- mony showing clearly that they left no doubt in the employees' minds that an ir- revocable decision had already been made. Counsel for the Respondent asked Quirk how he had answered the direct question of one of the clerks at that conference as to whether the Company had "definitely made a decision." Quirk's only response was• "My answer to Kinney was specific and I realized the importance of the question at the time was that this was the desire of the Company to go to an outside inventory service. As concerned the timetable on it, if this decision was made, we wouldn't like it to involve two or three months delay, but certainly a week or two would not ')e an important factor, because I say, again the important thing we would be talking to these men and seeing that they were satisfied they were placed properly." The conference ended with the company representatives again reassuring Lewan- dowski and the clerks present of the Company's desire to interview each of the five clerks in order to offer them jobs elsewhere with the Company. The Union said the matter would be discussed with all five clerks perhaps later that day, and that Lewandowski would advise the Company whether or not the clerks were willing to be interviewed on that basis. Lewandowski met with all five clerks in the union office later that day, and as a group they decided against presenting themselves for the individual interviews de- sired by the Company. Lewandowski did not communicate with the company repre- sentative again. A week or two later both Cloverdale and Quirk telephoned Lewan- dowski's office in order to learn what the Union's position might be. Lewandowski learned of their calls but never called back. The inventory clerks continued to work until the weekend of September 13; begin- ning on the 16th their work was performed by employees of an independent con- tractor. About August 29, the Company wrote a letter to each of the five clerks inviting them to an interview in the office of the personnel manager. Each clerk came as invited, was offered employment elsewhere with the Company-without the parties reaching definitive understanding as to precisely what job they should do-and in each instance the clerks indicated unwillingness to accept other kind of 346 DECISIONS OP NATIONAL LABOR RELATIONS BOARD work with the Company. On September 8, 1962, each clerk received a letter from the Company telling him that he had "resigned"; the reaction was a telegram from the Union to the Company stating that all five clerks were ready and willing to continue in their regular inventory clerk jobs. E. The independent contractor arrangement The story of the Respondent's decision to contract out the inventory-clerk work was told by Zarzynski. He started by saying that before February 1962, he never knew there existed such an independent service in Milwaukee. In February a sales representative of a company called General Business Services made a routine solicitation call on him and on February 27 sent Zarzynski a written bid to perform the work. Zarzynski's answer was that the price was too high, but that if the price were lowered the salesmen could let him know. Zarzynski also recalled that this inquiry came to the attention of one of the inventory clerks, Fazendin, who inquired about it of his captain, Lusk. When the captain asked Zarzynski whether there was any truth in the rumor about contracting out the work, Zarzynski replied: "We didn't have anything in mind in the immediate future, and let the matter drop at that." The representative of General Business Services sent another bid to Zarzynski on April 12, but the price was essentially the same. Again Zarzynski said the price was too high. A third bid arrived on June 4, but Zarzynski ignored it completely because of the price. The subject next arose in the minds of company officials when on July 15 Winland, the Respondent's controller in Chicago, sent Zarzynski a copy of a newspaper ad in which a company called Retail Grocery Inventory Service solicited the business of taking inventory in grocery stores from the public generally. A pencil notation of Winland asked Zarzynski, "Have you contacted these people yet?" It seems that one Nicholson, of the Retail Grocery Service, had called on Winland in a solicitation call. Apparently Winland told Nicholson he could call on Zarzynski, and Nicholson did so on about July 20. Nicholson proposed a price of $2.50 per $1,000 of mer- chandise to do the inventory work. Zarzynski placed the proposal with Walter Kalm, Milwaukee divisional manager, with the suggestion it be discussed with Kalm's superiors in the home office. Zarzynski continued to relate that sometime in the middle of August the home office told him he could "investigate the situation further" and actually contract the work out if he wished. Nicholson kept calling Zarzynski to provoke a final decision, and toward the end of the month Zarzynski became "really interested." Finally, Zarzynski said that on August 24 he made the final decision to use Retail Grocery Service. He ended by saying that the divisional manager gave final approval on September 4, and that the contract was consummated on September 16, when the new company in fact took over the work. Nicholson testified that from inception of the contract he has been using part-time employees, performing the work nights and Sundays, and that the arrangement is strictly an oral one with no time provision. With the cooperation of Personnel Manager Cloverdale, Nicholson, on September 5 or 6, interviewed each of the five inventory clerks who were discharged and offered each of them the same pay they had been receiving to do the same work. He told them however they would have to work nights and Sundays. Each of them refused the offer. F. Analysis and conclusion As stated above, the complaint alleges that the Respondent "discharged" the clerks because of their union activity and "refused to bargain" with the Union concerning their conditions of employment. The basic contentions of the defense are that (1) be- cause the Respondent offered other jobs to all five clerks, it is not true that they were discharged, and (2) because the Company was ready and willing to discuss with the Union their placement elsewhere, it is not true that there was any refusal to bargain with the Union in respect to their conditions of work. In terms of those facts which are pertinent in this case, the more precise meaning of the complaint is that the Company discharged the clerks from their inventory jobs because of their desire to bargain collectively on the basis of a bargaining unit limited to their classification, and through this Union of their choice. The statutory right to engage in union activities and enjoy the benefits of collective bargaining guarantees to employees not only the privilege of having a union of their own choice, but also the concomitant prerogative of doing so on the basis of a unit which is appropriate within the scheme of Section 9 of the Act. Indeed, the funda- mental concept of majority representative status, as the sine qua non of collective bargaining, carries with it the inseparable component element of an appropriate de- NATIONAL FOOD STORES, INC. 347 lineation of the total complement of employees involved in the group within which the spokesman chosen by a majority is always tested. In this instance the clerks chose to exercise their statutory right on the basis of a unit of inventory clerks, and through the Charging Union. The Company agreed before the election was held that such a unit was correct; it is appropriate now. The clerks voted unanimously for this Union and it is therefore the statutory majority agent. But before these employees were able to engage in the collective bargaining for which all the foregoing was predicate, before their chosen agent could even discuss with the Employer the working conditions of inventory clerks-the only classification for which it was authorized both by the employees and by the statute to speak-the Respondent abolished the jobs and precluded the very collective bar- gaining which the representation proceeding contemplated and which the statute was intended to encourage and protect . If in fact the Respondent's motivation in con- tracting away the inventory jobs was to achieve this objective-frustration of the clerks' desire to bargain collectively with it concerning their inventory clerk jobs-it willfully denied to them the basic privilege of the procedures of collective bargaining. And the "discharge" alleged in the complaint then becomes the compulsory removal from employment as inventory clerks. As such a discharge effectively denied to these clerks the right to self-organization activities envisaged by the total scheme of the Act, it is immaterial that the Respondent simultaneously offered them jobs in other positions, or that in other employment they might be included in other appro- priate bargaining units, or that such other units are covered by collective-bargaining contracts, or even that in some of the other positions offered the clerks might be compelled, under contract, to become members of any other labor organization. There is an equally inherent fallacy in the Respondent's argument respecting the refusal to bargain aspect of the case. It is true that the Respondent was willing, indeed desirous, of discussing with Union Representative Lewandowski the matter of reassignment of the inventory clerks to positions in the stores , such as sales clerks or assistant managers . But the Union was only authorized to act as spokesman for inventory clerks; the appropriate bargaining unit only included , and the certificate was precisely limited, to these jobs . The complaint alleges, therefore , as indeed it must, that the Respondent refused to bargain over the employment conditions of inventory clerks. If in fact the Respondent's conduct vis-a-vis the statutory majority representative was such as to remove any possibility of discussion on the subject of employment conditions of inventory clerks, its action was as much a refusal to honor the certificate in favor of the Union as it would have been had the Company insisted on bargaining with this Union concerning the hiring and wages of sales clerks or assistant managers . It can be of no avail to the Respondent that it invited Lewandow- ski to the proposed interviews looking to the hiring of five men into store jobs. Such matters were outside the scope of the Union's certification; in fact any dealings the Company might have had with him relative to employment within the store comple- ment would probably have constituted illegal encroachments upon the exclusive rep- resentative status of the Retail Clerks Union, which was the recognized majority representative of the store clerks.2 I think the preponderance of the evidence, appraising the record in its entirety, proves that the Respondent contracted away the work because the inventory clerks had elected to be represented by the Union, and not for economic reasons, as it now asserts. Apart from broad conclusionary statements by company representatives, both at the August 17 meeting with the Union and at the hearing, that the cost of taking inventory through Retail Grocery Service is less than direct use of inventory clerks, there is no proof from company records in support. Zarzynski spoke of certain figures in dollars and cents reported to him by his assistant, but he did not produce the records themselves.3 The claim, also advanced by the Respondent to the Union and reiterated at the hearing, that the independent company would do the work more "professionally" and more "efficiently," and that this too was a motivating consideration, is of little persuasion in view of the Company's willingness to have the contractor continue using the same inventory clerks, after their separation from the Respondent's payroll. Quirk told the Union on August 17 that the Company had been "solicited for several years" by such outside companies, that "we are constantly receiving this type of information," but at the hearing he said his first knowledge that the Company was considering such a method came as late as July 27 And Zarzynski's testimony shows only that salesmen came to him; it contains nothing in 2 Compare Central States Petroleum Union, Local 115 (Standard Oil Company), 127 NLRB 223. 3 See International Hod Carriers, Building and Common Laborers' Uni3n of America, Local No. 41 ( A. B Anderson Construction Company), 129 NLRB 1447 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the slightest degree indicating that the Company itself evinced any interest in such a step at all before July. If anything, it shows that he was completely satisfied before this time with the operation of the inventory crew, for he summarily rejected the bids of General Business Services and completely ignored that company's last bid early in June.4 It was not until July 15, 2 days before the first scheduled meeting with the recently certified Union, that there appears the first evidence of interest by the Company to make any change. So far as this record shows, no complaints were ever voiced to the inventory crew respecting their competence or the Company's concern or dissatisfaction with their unit performance in any way. The system of direct employment of inventory clerks is of years' standing with this company, and its officers could think of none of its 13 divisions where the work was ever given out by contract. The record also strongly indicates that although many of the Respondent's other employees are covered by union contracts, no inventory clerks in any of its divisions are separately represented by a union of their own. Of greatest significance, however, is the direct evidence that Zarzynski and Clover- dale first mentioned the idea of contracting the work when they spoke to the clerks about their union activities and listed this one as among the Company's alternatives to organizational activities. Thus, the very timing of the critical events-selection of a bargaining agent by the clerks for the first time and change of system by the Company after many years-viewed against all the foregoing pertinent facts, con- clusively establishes a causal relationship between union activities and abolishment of the jobs I find, as alleged in the complaint, that the Respondent contracted away the jobs of the inventory clerks and thereby discharged them from their established employ- ment, for the purpose of discouraging their union activities, and thereby violated Sec- tion 8 (a) (3) and (1) of theAct5 Having decided that it was going to contract out the inventory work, the Respondent was under a statutory duty to negotiate "with the duly designated bargaining agent over its decision to do so." 6 Absent such bargaining, or at least an opportunity to the Union to discuss the question of whether or not the Employer should adhere to its decision to conrtact, implementation of the decision becomes a unilateral act substantially altering the clerks' condition of employment and a "refusal to bargain" with the certified representative, as alleged in the complaint. Contrary to the Re- spondent's announced desire, the clerks wished to continue in their establishment employment, and through their Union they were entitled to an opportunity to persuade the Employer to their views. As the Board has stated: Experience has shown . that candid discussion of mutual problems by labor and management frequently results in their resolution with attendant benefit to both sides Business operations may profitably continue and the jobs may be pre- served. Such prior discussion with a duly designated bargaining representative is all that the act contemplates . But it commands no less.? Labor Relations Director Quirk's own testimony of what was said at the conference when he first advised the Union of the Company's desire, shows without question that he excluded any possibility of reconsideration resulting from bargaining with the Union Despite his promise, he brought to the meeting no company proposals which might conceivably have resulted in the economic goals which the Company may have had in mind, without resort to extinction of the bargaining unit. He quickly made the matter of interviewing the clerks for other assignment the sole subject of discussion, and showed that this was the Company's main concern at this conference. "I explained that as far as the Company was concerned, the important point was that none of the men presently on the inventory taking crew would be hurt. . When Lewandowski protested, and referred to "cases of record regarding discontinu- ing present operations," Quirk said nothing about any possibility of avoiding the extreme action or of seeking to find a middle course. Instead, as he recalled, he 4 In sharp conflict with the labor relations director's statement that the Company had "constantly" received literature on this subject, Zarzynski said clearly that the only com- panies that had approached him was General Business Services and Retail Grocery Services And as to the Company controller 's note referring to Retail Grocery Service and asking him whether he had contacted "these people yet," he said he ignored it It was Nicholson who came to him, not anyone of the Company who approached Nicholson. e American Manufacturing Company o f Texas, 139 NLRB 815; Town & Country Manu- facturing Company, Inc , 136 NLRB 1022 B Ftibreboard Paper Products Corporation , 138 NLRB 550. 7 Town & Country Manufacturing Company, Inc., supra. NATIONAL FOOD STORES, INC. 349 answered Lewandowski with: ". . . I thought that there were two ways of approach- ing things, one is through litigation or legal proceedings, and then there is an easier way, and I said that on the assumption that a union is primarily interested in these men as a group and as individuals, and certainly since this was a company's main interest, that I thought it would be more proper to discuss their future so that none of them would be hurt." Schnapp and Kinney asked whether the Company's decision was final; they said he answed "Yes " In the light of his testimony gen- erally, but particularly his, as well as Cloverdale's failure to deny this testimony of Schnapp and Kinny, I credit the employees, and find that Quirk frankly conceded, then and there, the finality of the Company's determination. When one of the clerks said he did not see how an outside company could do the work at lesser cost, Quirk did contradict him, but the entire testimony as to what was spoken shows clearly that such a passing comment fell far short of bargaining on the matter, and that Quirk had no intention of considering the Union's position. Cloverdale made brief notes of what was said; his notes, received in evidence, quote Quirk as follows: No effort to break up unit-economic and efficiency move. We can use these men-won't get hurt. Won't argue economics-time will tell-it's inevitable. When the meeting broke up there was only one question which the company representatives were willing to discuss: were the clerks going to come to the office for interviews on possible reassignment, or were they not? They decided against it, and Lewandowski never communicated this decision to Quirk. He ignored Quirk's letter of reminder dated August 28, but the letter serves only to prove, all the more, that the only subject the Company was willing to discuss with the Union was transfer of the clerks to other jobs. Its critical language is: ". . You stated that you would contact our Mr. Cloverdale . . . relative to scheduling personnel inter- views with members of the inventory group concerning their reassignment . . we can only assume from the above that you . . . are not interested in the reassign- ment of the individuals in our inventory group." On the basis of the entire record, I find that the Company announced its decision to contract the work to the Union on August 17 as a fait accompli, that it shut off any avenue of discussion about the matter with the bargaining agent of the inventory clerks, and that it thereby refused to bargain with the majority repre- sentative of those employees in violation of Section 8(a) (5) of the Act. It matters not that the actual contractual arrangement with Retail Grocery Invenory Service may not have become binding until 2 weeks later. Nor is it of any significance to the true issue of the case that the Respondent may have delayed implementation of its decision a week or two in order to afford the inventory clerks an opportunity to accept other jobs, and thus avoid outright layoff. The controlling fact is that the decision to contract the work was presented to the union representatives as a matter beyond the area of those subjects which the Company was willing to discuss with them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its 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 the Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct. I shall also recommend that it be ordered to take certain affirmative action designed to dissipate the effect upon the employees of the illegal conduct found and to effectuate the policies of the Act. The critical act of the Respondent upon which the major findings of violations of the Act rest was its unilateral decision to abolish the inventory clerks' jobs and to contract out the work instead to Retail Grocery Inventory Service. Execution of this agreement with the contractor constituted both the unlawful discrimination in em- ployment against the five clerks and the refusal to bargain with their Union. Appropriate remedial action to undo the coercive effect of the illegal discharges requires that the clerks be restored to the employment they held before the commis- sion of the prohibited discrimination against them. Similarly, unless the refusal to bargain which has occur red it to be permitted to stand, the bargaining unit of 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inventory clerks must be recreated so that the affirmative order to bargain with the Union now can effectively be carried out. In the special circumstances of this case, therefore, I shall recommend that the Respondent be ordered to cancel its agreement with Retail Grocery Inventory Service, to reestablish the inventory clerk group as direct employees of the Company, and to reinstate to their old positions the five clerks named in the complaint. I shall also recommend that it bargain in good faith with the Union with respect to the working conditions of the inventory clerks on this basis. In further conformity with long-established Board practices, I shall also recommend that the Respondent be ordered to make whole each of the five clerks for any loss of earnings he may have suffered in consequence of the illegal discharges, with interest upon any money due In its brief the Company contends that in no event may an employer be denied the privilege of altering its methods of doing business, including changes from the use of direct employees to independent contractor arrangements In advancing this contention here, the Respondent misconceives the import of the remedy I shall recommend, and of the holding of the Board decisions upon which its rests 8 An employer is always free to discontinue direct employer-employee relations, and to engage independent contractors instead, with or without reason , and certainly with no obligation to justify its action to the satisfaction of the National Labor Relations Board. The sole limitation upon that right, so far as the Labor Management Rela- tions Act is concerned, is that the change may not be motivated by a purpose of infringing upon the right of employees to engage in self-organizational activities, and to bargain collectively with their employer. The compulsive force of the order to cancel the contractor arrangement in this case is not a curtailment of the Respond- ent's freedom to operate its business at will, but rather a necessary curb upon the practice of denying to the employees their statutory rights under the guise of economic privilege. If the Company's general prerogative to run its own business were to take precedence over the clerks' right to engage in union activity in this instance, a viola- tion which goes to the heart of the Act would remain unchallenged, and the Respond- ent would enjoy to the full the fruits of its illegal conduct. The Respondent also argues that because the clerks refused to accept other jobs, both with the Respondent and with Retail Grocery Inventory Service, they incurred "willful losses," and that therefore any wages they would have earned in such jobs must be deducted from the make-whole provisions of any remedial order. As a broad proposition, and in other circumstances, there may be some merit in this argument; I find no occasion here to consider it generally. Conceivably, in the con- text of a dispute over an employer's right to discharge an employee, an offer of equivalent interim employment pending legal resolution of the labor dispute and for the purpose of minimizing damages that might result from a good-faith miscon- ception of employer privileges under the statute, could equitably be a factor in determining backpay liability Such was not the case here. Work for the independent contractor meant night and Sunday duty, which I do not believe the clerks would have been obligated to accept in any event. Nor can I say definitively on this record that the jobs the Respondent was ready to offer each clerk-they never were con- cisely defined-constituted in fact equivalent employment. But apart from such considerations, it is clear that what the Respondent wanted the clerks to do was not only to accept remunerative employment, but also to agree with its overall scheme and forget any thought of bargaining through their chosen union and on the basis of an inventory clerk bargaining unit. Its offer was an invitation to cooperate toward fulfillment of one of the very threats-contracting away their work-which Zarzynski had voiced to them at the inception of their union activities. This was the "easy wav" which Quirk suggested to the union International representative on August 17, as an alternative to any attempt to vindicate collective-bargaining rights through Board proceedings. Thus, not only was there no suggestion that the clerks' statutory rights might be preserved for Board enforcement, but the clear implica- tion attached to acceptance of these job offers was complete surrender to the Respondent's determination not to "tolerate" a union for inventory clerks. On these facts, I cannot recommend that the clerks' refusal to accept the Respondent's "alter- native" to collective bargaining, be viewed as wilful losses such as the Board normally considers in backpay proceedings.9 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: 9 See Fibreboard Paper Products Corporation, supra, and Town d Country Nanofactur- inc Companan, Inc., supra. 9 Elcctro-Nrclaanical Products Company, 126 NLRB 637 NATIONAL FOOD STORES, INC. 351 CONCLUSIONS OF LAW 1. National Food Stores , Inc., is an employer within the meaning of Section 2(2) of the Act. 2. Office Employees International Union, Local No. 9, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All field inventory personnel , assigned to a regular traveling crew, employed by the Milwaukee division of National Food Stores , Inc., excluding office clerical employees, retail store employees, professional employees , managerial and con- fidential employees, and supervisors as defined in the Act , constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since May 11, 1962, the Union has been the exclusive representa- tive of all the employees in the aforesaid bargaining unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally discontinuing its inventory crew operations without first bar- gaining collectively with the Union as the exclusive representative of the employees in the aforesaid appropriate unit , the Respondent has committed unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By discharging Eugene Fazendin, Walter Williams, John Schnapp , John Kinney, and Robert Urbach, because they engaged in union activities, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By the foregoing conduct, by interrogating employees concerning their reasons for joining the Union, and by threatening to lay some of them off, to transfer them to distant locations, to replace them with other employees, and to contract away their work, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act and has thereby com- mitted unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent , National Food Stores, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Office Employees International Union, Local No. 9, AFL-CIO, as the exclusive representative of all field inventory per- sonnel, assigned to a regular traveling crew, employed by the Milwaukee division of National Food Stores, Inc., excluding office clerical employees , retail store em- ployees, professional employees, managerial and confidential employees , and super- visors as defined in the Act, and from unilaterally changing their conditions of employment without prior consultation with the above -named Union or any other union which they may select as their exclusive bargaining representative. (b) Discouraging membership in the above-named or any other labor organiza- tion of its employees by discharging any of its employees or otherwise discriminat- ing against them in regard to their hire or tenure of employment or any term or condition of employment. (c) Interrogating employees concerning their reasons for joining the Union, or threatening to lay them off, to transfer them to distant locations , to replace them with other employees, and to contract away their work, because of their membership in, or activities on behalf of, the above-named Union or other labor organizations. (d) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights to self-organization , to form labor organizations, to join or assist the above-named Union, or any other labor organization , to bargain col- lectively through representatives of their own choosing , and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities except to the extent that such rights 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Cancel its contractual agreement with Retail Grocery Inventory Service and reinstitute its roving inventory clerk operation in the Milwaukee division, and offer to Eugene Fazendin, Walter Williams, John Schnapp, John Kinney, and Robert Urbach immediate and full reinstatement to their former or substantially equivalent 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them in the manner set forth in the section above entitled "The Remedy." (b) Upon request, bargain collectively with the above-named Union as the ex- clusive representative of all the employees in the appropriate unit in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and embody any understanding reached in a signed agreement. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful to determine the amount of backpay due and the rights of reinstatement under the terms of this Order. (d) Post in each of its stores in the Milwaukee division, and in the central office of that division, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith." 10 If this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 11 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Office Employees Inter- national Union, Local No. 9, AFL-CIO, as the exclusive representative of all our employees in the following bargaining unit: All field inventory personnel, assigned to a regular traveling crew, employed by the Milwaukee division of National Food Stores, Inc., exclud- ing office clerical employees, retail store employees, professional employees, managerial and confidential employees, and supervisors as defined in the Act. WE WILL NOT discourage membership in the above-named or any other labor organization of our employees by discharging any of our employees or otherwise discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their reasons for joining the Union, or threaten to lay them off, to transfer them to distant locations, to replace them with other employees, or to contract away their work. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights, to self-organization, to form labor organizations, to join or assist Office Employees International Union, Local No. 9, 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 purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such rights 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. INT'L LADIES' GARMENT WORKERS' UNION, AFL-CIO 353 WE WILL offer to Eugene Fazendin, Walter Williams, John Schnapp, John Kinney, and Robert Urbach, immediate and full reinstatement to their former or substantially equivalent position, without prejudice to any rights and privileges previously enjoyed by them, and make them whole for any loss of wages suffered as a result of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or re- maining, members of Office Employees International Union, Local No. 9, AFL-CIO, or any other labor organization, except to the extent that such rights 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. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. NATIONAL FOOD STORES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams Street, Chicago, Illinois, 60603, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. International Ladies' Garment Workers' Union, AFL-CIO and Federation of Union Representatives. Case No. 2-CA-8849. April 29, 1963 DECISION AND ORDER On January 31, 1963, Trial Examiner Samuel M. Singer issued his Intermediate 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the Charging Party filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. The Trial Examiner found that the Respondent violated Section 8 (a) (5) and (1) of the Act by its admitted refusal to bargain with FOUR, which had been certified by the Board as the representative of an appropriate unit of the Respondent's employees. The Respond- ent contends that because the Board refused to grant it a hearing on 142 NLRB No. 46.