Mock Road Super Duper, Inc.

MOCK ROAD SUPER DUPER, INC. 983 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. UNITED NUCLEAR CORPORATION, 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. If employees have any question concerning this notice or compliance with its pro- visions , they may communicate directly with the Board's Regional Office, 1015 Tijeras Street NW., Albuquerque, New Mexico, Telephone No. 247-2520. Mock Road Super Duper, Inc. and Retail Clerks Union Local 1059, Retail Clerks International Association , AFL-CIO. Case No. 9-CA-3302. January 18,1966 DECISION AND ORDER On April 19, 1965, Trial Examiner John H. Eadie issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, Respondent filed excep- tions to the Decision and a brief in support thereof. The General Counsel also filed a brief in support of limited exceptions to the Decision. The National Labor Relations 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 Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner to the extent consistent herewith. 1. We agree with the Trial Examiner that Respondent unlawfully interrogated its employees by asking them whether they thought they needed a union and threatening them with stricter work rules and loss of employment if the Union was successful, thereby violating Section 8(a) (1) of the Act. However, contrary to the Trial Examiner, we find that Respondent's no-solicitation rule was unduly broad in scope. 156 NLRB No. 82. '984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As promulgated in a company handbook, the rule prohibited "solicita- tion in any form ... on store premises," which can only be construed as forbidding solicitation during nonworking time whether on or off the selling floor and in or out of work areas. While there was no evi- dence that Respondent had ever attempted to enforce the rule, we find that its mere existence had an inhibiting effect on employees receiving the handbook. Accordingly, we conclude that the no-solicitation rule on its face was violative of Section 8 (a) (1) of the Act.' 2. We also adopt the Trial Examiner's finding that Respondent violated Section 8(a) (3) of the Act by discharging employee Hooper because of his membership in the Union and his activities on its behalf. In addition to the fact that Supervisor Betts knew Hooper was the leading union adherent and this knowledge is attributable to the Respondent,2 the record indicates that Hooper had engaged in organiz- ing in the unit consisting of only 19 employees at a time when the 3 daughters of Store Owner Jeffers were working within the unit. Respondent's knowledge of Hooper's activities is readily inferable from the smallness of the unit and the close working relationship of Jeffer's daughters to the other grocery department employees. 3. As set forth in the Trial Examiner's Decision, on August 20,1964, Union Representative Dan Lee telephoned James Jeffers, the sole stockholder of Respondent Company, and demanded that Respondent recognize the Union as the majority representative of nonsupervisory employees at the store, excluding the employees in the meat depart- ment. Jeffers told Lee he doubted the Union represented the majority of his employees and that he would check further into the matter. The next day, the Union sent a letter to the Company confirming the previous day's conversation, and expressing willingness to have a neu- tral outside party conduct a card check at the earliest possible date in order that contract negotiations could soon thereafter begin. On August 24, Respondent's attorney telephoned Lee and questioned the appropriateness of the unit claimed by the Union and urged that an election be held. The Trial Examiner found that the separate unit of grocery employ- ees was appropriate. Respondent has excepted to this finding and urges that only an overall storewide unit, including the meat depart- ment employees, was appropriate. Respondent's position is based upon Sclhaeffers Prospect IGA Store,3 in which the Board held that a storewide unit was the only appropriate unit where no union seeks to represent the meat department employees separately. However, we are of the opinion that a finding based upon Schaeffers that the I Marshall Field & Company, 98 NLRB 88. e Montgomery Ward & Company, incorporated, 115 NLRB 645, 647. 8124 NLRB 1433, 1434. MOCK ROAD SUPER DUPER, INC. 985 storewide unit is the only appropriate unit would be incompatible with unit principles consistently applied by the Board. The princi- ple underlying Schae f f ers is that a union must seek representation in the most appropriate or largest possible unit. The Act, however, and the principles based thereon require only that the unit sought be an appropriate unit.4 In determining the appropriateness of any unit, the Board considers many factors, among which are area practice, the history of bargaining in the industry, the current bargaining patterns, and the community of interest among particular employees. Schae ff ers itself implicitly recognizes that separate units of grocery and of meat department employees may be appropriate under certain circumstances, and such separate units have frequently been estab- lished by agreement of the parties with and without the Board's approval. In fact, it appears that separate grocery units have become the general bargaining pattern in the retail food store industry. In addition, recent cases have made it clear that tinder the Act, a unit of less than all of the employees in a retail store may be appropriate.5 These cases constitute a logical application of the principles, supra, that the appropriate unit for self-organization among the employees of a given employer is generally based upon a community of interest in their occupation as manifested, inter alia, by their common experi- ences, duties, organization, supervision, and conditions of employment. While the precise weight to be given to any of these factors cannot be mathematically stated, but must in each case be based upon an analysis of the various relevant factors, the policy represented by Schaeffers, we believe, gave undue weight to physical and administra- tive factors without full appreciation of the importance of such factors as job functions, skills, conditions of employment, supervisory control, and employee interchange in ascertaining employees com- munity of interest. Thus, it is clear that, as in other industries, the determination of the appropriate unit in the retail food industry must rest upon analysis of all relevant factors, rather than upon the limited criteria set forth in Schae ff ers. That decision consequently is hereby overruled to the extent that it is inconsistent herewith. Directing our attention to the instant case, we agree with the Trial Examiner that a separate unit of grocery employees is appropriate. Thus, all the grocery employees work the same hours, in the same area, under the same supervision, and receive similar wages and other economic benefits. There has often been interchange among the gro- cery employees, but there is no evidence that such interchange occurs ' See, e g, Dixie Belle Mills, Inc., a Wholly-Owned Subsidiary of Bell Industries, Inc., 139 NLRB 629 , 631; Ballentine Packing Company, Inc, 132 NLRB 923, 925. Allied Stores of New York, Inc., d/b/a Stern's, Paramus, 150 NLRB 799; Arnold Constable Corporation, 150 NLRB 788; Lord & Taylor, a Division of Associated Dry Goods Corporation, 150 NLRB 812. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the grocery and meat departments. Furthermore, the record indicates that while the store manager oversees the operation of the entire store, he exercises little or no supervision over the meat depart- ment. The meat department manager, on the other hand, interviews applicants for employment in his department, effectively recommends their hiring, apportions the work among his employees, assigns them their hours of work, and makes up their vacation schedules. There- fore, there is a complete functional and supervisory division between the grocery and meat departments which tends to foster separate communities of interest among the employees within each of the departments. There are a number of other factors that militate in favor of a separate unit of grocery employees. Thus, there is neither a prior bargaining history nor a labor organization seeking to represent the employees in the broader storewide unit.6 Further, the record con- tains 12 area contracts between the Union and various employers, 10 of which excluded the meat department employees. Upon all of the foregoing considerations, we find that the unit requested by the Union herein constitutes an appropriate unit for collective bargaining within the meaning of Section 9 (b) of the Act. 4. We have found that Respondent engaged in numerous unfair labor practices violative of Section 8(a) (1) and (3) at the same time it was requesting that an election be conducted to determine the Union's majority status. Such misconduct could only have had the effect of destroying the very conditions needed in order for a fair election to be held. Therefore, we are persuaded that Respondent had completely rejected the collective-bargaining principle and had merely sought an election in order to gain time within which to under- mine the Union and dissipate its majority. As the Union did rep- resent a majority of employees in the appropriate unit, under these circumstances only a bargaining order can adequately restore as nearly as possible the situation which would have existed but for the Respondent's unfair labor practices. Accordingly, we shall order Respondent, upon request, to bargain with the Union in the unit herein found appropriate.' Editorial "El Impartial" Inc. v. N.L.R.B., 278 F. 2d 184, 187 (C.A. 1) ; Piasecki Aircraft Corporation v. N.L.R.B., 280 F. 2d 575, 591-592 (C.A. 3) ; D. H. Holmes Company, Ltd. v. N.L.R.B., 179 F. 876, 879 (C.A. 5) ; N.L.R.B. v. Joe and Mike 9 Respondent contends that our unit finding is based only on the extent of organiza- tion. While the statute explicitly provides that the extent to which he employees have been organized shall not be controlling, this does not mean that we must ignore this factor altogether. N.L.R.B. v Metropolitan Life Insurance Co., 380 U.S 438. 7In the circumstances of this case, we find it unnecessary to determine whether Re- spondent's refusal to bargain in this unit violated Section 8(a)(5) of the Act and we shall dismiss that allegation of the complaint. MOCK ROAD SUPER DUPER, INC. 987 Caldarera, d/b/a Falstaff Distributing Company, 209 F. 2d 265, 268- 269 (C.A. 8), enfg. as modified 104 NLRB 760. Cf. N.L.B.B. v. Flo- matic Corp., 347 F. 2d 74 (C.A. 2). [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Substitute the following for paragraph 1(c) [" (c) Promulgating or maintaining rules prohibiting its employ- ees from soliciting union membership in nonpublic, nonworking areas during nonworking time." [2. Add the following as the third indented paragraph of the notice : [WE WILL rescind our rules prohibiting employees from solicit- ing union membership in nonpublic, nonworking areas during nonworking time. [3. Add the following immediately below the signature line at the bottom of the notice : [NoTE.-We will notify Barry Hooper if presently serving in the Armed Forces of the United States of his right to full rein- statement upon application 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.] [The Board dismissed the complaint insofar as it alleges unfair labor practices not herein found.] MEMBER JENKINS took no part in the consideration of the above Decision and Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was held before Trial Examiner John H. Eadie in Columbus, Ohio, on January 18 and 19, 1965, on the amended complaint of the General Counsel and the answer of Mock Road Super Duper, Inc., herein called the Respondent.1 The issue litigated was whether the Respondent violated Section 8(a)(1), (3), and (5) of the Act. After the hearing the General Counsel and the Respondent filed briefs and a stipulation with me. The stipulation and the document attached to it are received in evidence as Trial Examiner's Exhibit No. 1 and General Counsel's Exhibit No. 19, respectively. Upon the entire record in the case, and from my observation of the witnesses, I make the following. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation engaged in the operation of a retail food store in Columbus, Ohio. During the year preceding the date of the amended com- plaint herein, the Respondent had an indirect inflow, in interstate commerce, of pur- chases valued in excess of $50,000, which were transported directly to its store in i Charges were filed on August 26 and September 28, 1964. The amended complaint issued on January 4, 1965. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbus, Ohio, and received from other enterprises in Ohio, including inter aka, S. M. Flickinger Co. of Columbus, Ohio, which, in turn, had received the said prod- ucts directly from points outside the State of Ohio. During the same period, the Respondent's gross retail sales exceeded $500,000. The amended complaint alleges, the Respondent's answer admits, and I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local 1059, Retail Clerks International Association, AFL- CIO, herein called the Union, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Status of McCarthy, Robbins, and Betts James Jeffers is the sole stockholder of the Respondent. Russell (Jack) Smith is the Respondent's store manager. The Respondent admits that Smith is a supervisory employee within the meaning of the Act. Delano Robbins is the Respondent's head grocery clerk. He has complete charge of the store at least one night each week when neither Jeffers nor Smith is present. He had charge of the store during July 1964 when Smith was on vacation. Robbins assigns work to employees, checks their work, and effectively recommends punishment for infraction of the Respondent's rules. Eugene McCarthy is the manager of the meat department. He supervises the work of three employees, assigning them their work and their hours of work, interviews applicants for employment in the meat department, and effectively recommends the hiring of employees. Michael Betts is the Respondent's produce manager. He supervises the work of one or more employees, schedules the work, and has the authority to recommend the reprimand of employees and their hiring and firing.2 Robbins, McCarthy, and Betts attend management or supervisory meetings and participate in a bonus arrangement for supervisors. At a management meeting held on the night of August 19, 1964, Robbins, McCarthy, and Betts each received a bonus of $100 3 because of a profitable period of operations for the preceding 3 months. I find that Robbins, McCarthy, and Betts are supervisory employees within the meaning of the Act. B. Sequence of events; interrogation The Union commenced organization of the Respondent's employees during July 1964. On or before July 29, 11 employees, including Betts, signed authorization cards of the Union. On August 3 a union meeting was held at the home of employee Barry Hooper. The meeting was attended by about five employees, including Betts, and two representatives of the Union. On Monday, August 17, Jeffers attended a meeting at Flickinger Company and learned that the Union was attempting to organize the Respondent's employees. On August 19 about 11 a m., Union Representative Dan Lee called the Respondent's store and asked for Jeffers. When informed that Jeffers was not present, Lee stated that he was a representative of the Union and asked that a message be left for Jeffers to call him. As stated above, a meeting of the Respondent's supervisors was held on the night of August 19. At this meeting Jeffers told Smith to discharge Hooper. During the morning of August 20, Hooper was called to Jeffers' office. Smith and Robbins were present. Smith told Hooper that he was discharged because he was not performing his work properly and because of "a lack of interest" in his work. On August 20 about 4:30 p.m. Lee called Jeffers. Lee demanded recognition of the Union as the representative of the employees at the Respondent's store and at the "Big D" store on Cleveland Avenue in Columbus.4 He told Jeffers that the Union repiesented a majority of the employees at each store "excluding the meat department and management employees"; and that the Union was willing to prove its "majority status through a neutral outside party conducting a signature check of the employees 2 Betts, called as a witness by the Respondent, testified to the above without con- tradiction and during direct examination. In its brief the Respondent concedes that Betts is a supervisory employee 3 Betts had not received a bonus before the above 4 At the above time Jeffers had an interest In the Big D store. MOCK ROAD SUPER DUPER, INC. 989 who had signed authorization cards for the union." Jeffers replied that he did not doubt the Union's majority at Big D but did doubt it at the Respondent's store. He informed Lee that he had to check with his "partner" at Big D and that he was going to question the Respondent's employees to "determine whether they signed cards or what their ideas were." Lee and Jeffers agreed to resume their talk on Monday, August 24. Jeffers testified that immediately after his conversation with Lee he spoke to Betts; that he told Betts that the Union had demanded recognition and asked him, "Do you feel that the employees in the store want the union?"; that a few minutes later he spoke to employee Kenneth Smith; that he told Smith about the Union's demand for recognition; that he either asked Smith "Do you want a union" or "Do you think we need a union"; that he told Smith that if the Respondent did not recognize the Union, there "could be trouble"; that later that same evening he spoke to employees Cookie Bravard and Bob Commerford; that he said to Bravard, "Cookie, the Retail Clerks have asked for recognition. Do you think we need a union?"; and that he asked Com- merford the same question. Concerning his conversation with Jeffers, Kenneth Smith was questioned and testi- fied without contradiction as follows: Q. Will you tell the Trial Examiner what Mr. Jeffers said to you? A. Well, he came-come back there and he told me that the store was-that they wanted a union in here and he said he was not going to hold anything against anybody if they voted for it, or didn't vote for it, and he hoped that I didn't vote for it and he said there is going to be some changes made if it did get in and told me good parts and bad parts about both sides, and- Q. Did he indicate to you in any manner what changes9 A. Well, he said that he didn't know for sure that if the union did get in here, but they would probably have to let some of the part time help go. That is how the union made up . Q Do you recall whether or not that he made any mention of the company rules9 A. He said they would be stricter. He said that we wouldn't have as much freedom as we did then. Q. As you did when? A. When he was working under, you know, management. He said that when the union got there-got in there, there would be a lot stricter rules than what he had. Under date of August 21, 1964, the Union sent Jeffers the following letter: This letter shall serve to confirm our telephone conversation of August 20, 1964, at which time I demanded recognition on behalf of Local 1059, Retail Clerks Union, as bargaining representative for your grocery employees in your Big D, Cleveland Avenue store and your Super Duper store located on Mock Road, and at which time you stated that the Union possibly had their majority status at Big D, but you doubted if they did in Super Duper, Mock Road. As we stated in the above conversation, we stand ready to have a neutral out- side party conduct a card-check at the earliest possible date so that negotiations may begin on a contract covering rates of pay, working conditions, fringe bene- fits, hours of work, etc. The Union is in majority status in both of these stores. It is the Union's sin- cere desire to work out with you the problems we are both facing in this matter on a peaceful and harmonious relationship. On August 21 or 22, McCarthy, using Jeffers' office talked to about 10 employees concerning the Union. Kenneth Smith testified credibly that he was called to the office by Betts; that McCarthy told him that Jeffers had asked him (McCarthy) to question the employees about the Union as he (Jeffers) "was not allowed to do that"; that McCarthy told him "some good things and some bad things" about the Union, that he said that if the Union got in the store the Respondent's "rules would be stricter" and the employees no longer would have break periods when business was slack; and that as he left McCarthy told him to send employee Louis Calderone to the office. Concerning his conversations with the employees, McCarthy testified as follows: .. I explained it to them. They had breaks now where they didn't have to ring in and out on their cards and just take the full time, and I told them if the union shop would come in, they would have to ring their time cards in, and if the employer insisted, they would ring out on their break and ring back in, and being as there would be no coffee on the premises and they would have to first ring out, 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD go over to the drugstore and being as there might be no coffee there, there might be a chance that they might not even be waited on during that ten- or fifteen- minute break. . . . I told them there may be a raise in wages if the union came in. I said, but on the.other hand, some of them which were going to high school and college, I said, the hours might not be available to them when the union come in, that they had been working now as they were working at the present time and Mr. Smith would let them off the nights they wanted for football games, ,et cetera, and I told them if the union comes in, they might not be able to do this. They might have to take the time off. In its brief the Respondent contends that the above questions and statements of Jeffers and McCarthy were permissible under Section 8(c) of the Act. This con- tention is rejected. Jeffers' statements were made shortly after and during the same day of Hooper's discharge; and McCarthy talked to the employees 1 or 2 days later. Jeffers not only questioned the employees as to their union sentiments, but also made threats of reprisal. For example, he told Kenneth Smith that if the Union got in, the Respondents "would probably have to let some of the part time help go" and its rules would be "stricter." At the time Smith was a part-time employee. McCarthy made the same threats of reprisal. Further, according to Betts, the Respondent's own witness, and Kenneth Smith, the employees were called to the office by McCarthy. Accordingly, I find that the above conduct of Jeffers and McCarthy was violative of Section 8(a) (1) of the Act.5 On August 24 Joseph Millions, the Respondent's attorney, called Lee. Millions stated that Jeffers had requested that he call him (Lee); that he questioned the unit which the Union claimed to be appropriate; and that an election should be held. Lee refused to consent to an election, stating "due to the action of the company . . . it would be impossible for the employees to have a free choice." In explanation, Lee referred to Jeffers' interrogation of the employees. Under date of August 27, 1964, Jeffers posted in the store a notice signed by him as follows: The Retail Clerks Union have told me that a majority of you want to have a union represent you. I doubt that a majority of you want a union, but so as to be sure I have asked by a petition that the Labor Relations Board conduct an election at this store. The only way to know for sure whether a majority of you do or do not want a union is to have a vote This is my reason for asking for the election. Millious sent Lee a letter dated August 28, 1964. The letter states in part as follows: Please be advised that insofar as your claim of a majority status is concerned at the Mock Road and Cleveland Avenue stores, the employer has a good faith doubt to such an alleged majority status There has been no agreement as to what would constitute an appropriate bar- gaining unit and there appears to be some difference of opinion as to the number of employees to be included in the bargaining unit. As a consequence, a card check would avail nothing and it is the employer's' position that an election should be conducted by the National Labor Relations Board so as to definitely ascertain: (1) determination of an appropriate bargaining unit; (2) the real desires of the employees involved herein. On August 28 the Respondent filed a petition with the Board 6 The unit contained in the petition was "all clerks and maintenance employees employed at the employer's place of business at Columbus, Ohio, at Mock Ridge Super Duper, Inc., 2200 Mock Road, Columbus, 19, Ohio, excluding all office, clerical employees, guards and super- visors as defined in the Act as amended." C. The discharge of Barry Hooper Hooper was hired by the Respondent as "a carry out boy" in September 1961. Later he was transferred to the produce department. During March 1964, Jeffers inquired of Russell Smith if he thought Hooper could perform the job of produce manager. Smith replied that with a "little additional 5 The above finding does not include Jeffers' Interrogation of Betts. 6 Case No. 9-RM-356. MOCK ROAD SUPER DUPER, INC. 991 training" he could have Hooper ready for the job.7 Thereafter Hooper was informed that he might get the job of produce manager. During the first 2 weeks of May 1964, while Produce Manager Betts was on vaca- tion, Hooper was put in charge of the produce department. When Betts returned to work, Hooper continued as acting manager of the department for another 2 weeks.8 On or about June 1 Hooper was told that he would not get the job of produce manager. Smith transferred him to the job of "frozen and dairy manager." 9 Hooper remained on this job until his discharge. Hooper was one of the leading adherents of the Union. As related above, a meet- ing of the Union was held at Hooper's home on August 3. He signed a union card and while at work discussed the Union with other employees and asked them to "help organize the Union " Concerning the reasons for Hooper's discharge, Jeffers testified that about the mid- dle of June he noticed that "merchandise was not stocked with sufficient amount in the dairy department, nor was the frozen food department filled"; that at the time he told Russell Smith "to do something to get [Hooper] on the ball or something would have to be changed"; that one of Hooper's duties was "to check the ice cream case to see if it was frozen up underneath", that on or about June 21 Robbins,10 while in charge of the store, checked the ice cream case and found the ice cream soft and the coils of the freezing unit underneath "covered with ice"; that Robbins called Hooper at his home and told him to come to the store, that when Hooper reported to the store, Rob- bins told him what was wrong and asked him to fix it; that Hooper told Robbins "to go to hell"; that Betts then "finished up and cleaned the case out that particular day"; that during the middle of July one of the frozen food freezers went out of order; that on a Monday after it was repaired during the morning, Smith instructed Hooper to refill the case; that Hooper started filling the case about noon; that between noon and 2 p in. he (Jeffers) entered the store while Hooper was filling the case and observed that "the case was down again and it was warm"; 11 that at this time he told Smith that this was "the last straw" and to discharge Hooper; that on or about August 10 he noticed Smith take three cases of lima beans to put into a freezer; that at the time he told Smith, "I am tired of you being a grocery clerk When are you going to get that boy [Hooper] on the ball?"; that one of Hooper's duties was to make price changes on Saturday night or Sunday morning to conform to "ad prices" for the following week; that on Monday night, August 17, Robbins reported to him that Hooper "again" had failed to make such price changes, that this had happened "several times," and that employee Kenneth Smith had had to make the changes; and that he told Robbins "this was it, ... Mr. Hooper was released." Jeffers denied having any knowledge of Hooper's union activity before his termination of employment. Russell Smith testified that shortly after Hooper was made frozen and dairy man- ager, Jeffers told him (Smith) that the condition of the department was "not accept- able"; that he "talked to Barry concerning things that he could do to have a better department and better operation", and that after his vacation about the middle of July, either from Jeffers or Robbins, he leas tied that Hooper had not defrosted the ice cream case. As to the reasons he gave Hooper at the time of his discharge, he testified as follows: . Mr. Jeffers wanted a complete line of cut cheese instead of pre-packaged cheeses which I had not gotten The milk orders, they were not being ordered correctly. I had asked him to increase them and so forth. That was not done. Price changes we have weekly, and also ad price changes which were not being done properly, and the-for instance, the defrosting the case, which wasn't done, and I had one other situation in a breakdown in a frozen case which I 7 Both Jeffers and Smith testified that Hooper was an "average" employee at the time. Smith further testified that normally a produce manager would be selected from a "better than average" employee 8 Jeffers testified that on this job Hooper's work was "good" and "acceptable." 9In this job Hooper did not supervise or have any employee under him 10 Robbins did not appear as a witness at the hearing "Jeffers at first testified that Hooper should have known that the machine was not in operation. He then testified that the motor and the compressor were located in a back room whereas the case itself was out in the store proper, that the machine retains its temperature for several hours , that the compressor runs intermittently , that it was "possibly right" that unless Hooper was in the back room, he had no means of knowing whether or not the compressor was operating; and that by merely putting a hand in the case, a person could not tell if the compressor was running Finally, Jeffers admitted that Hooper could not have known whether or not the machine was operating 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD didn't think was handled correctly and I more or less explained to him why, and the-in other words, instead of saying you are through, I gave him the reason of why, and actually, it was an accumulation of several reasons. Concerning his knowledge of Hooper's union activity, Smith was questioned by the Respondent's attorney and testified as follows: Q. At the time Mr. Hooper was terminated, did you have any knowledge of any union activity on the part of Mr. Hooper? A. Yes. Mr. Jeffers had informed me of it by a phone call. Q. I think you misinterpreted my question. At the time Mr. Hooper was terminated, did you know that he was active in the union? A. No, not him, definitely not him. As a matter of fact Q. When did you find out he was active in the union? A. I think the first I knew of it was when we were charged with unfair labor practices by the union. Betts testified to the effect that he managed the frozen and dairy department after Hooper's discharge; that he assigned employee Kenneth Smith to work in the depart- ment for about 1 week; and that "approximately a week" after Hooper's discharge he (Betts) noticed "there were price changes which had not been done for 2 or 3 weeks 12 . There were also damaged merchandise in the cooler and freezer amounting to fifty or sixty dollars." In support of its discharge of Hooper, the Respondent called as a witness a sales representative of Standard Brands, George E. Fauth. Fauth testified to the effect that at some time during the summer of 1964 Hooper did not maintain a sufficient supply of his brand of margarine in the dairy case for about 3 weeks. He testified that after the first week he mentioned the shortage to Hooper; that Hooper said he was "out of stock"; that he (Fauth) checked with Flickinger's warehouse and found that his product was in stock; that when the product was in short supply the follow- ing week, he again spoke to Hooper; that Hooper told him that he would try to get a better supply of the brand; that he complained to Russell Smith after the third week; and that he noticed that Hooper maintained a sufficient supply of various other brands of margarine in the dairy case. Hooper testified that at one time Russell Smith told him that his department needed "some improvement," suggesting that he "cut more cheese and get a better variety"; that he did not tell Robbins to "go to hell"; that he told Robbins at the time that he did not think he should be made to clean the ice cream case on his own time; that although Robbins would not permit him to clock in, he helped Betts clean up the case; and that he received some complaints about not making price changes and not rotating merchandise properly. I am convinced that the reasons advanced by the Respondent for Hooper's dis- charge are afterthoughts. It is undisputed that the incident involving the ice cream case occurred in June. Hooper denied that he was insubordinate to Robbins. Since Robbins did not appear as a witness, I credit Hooper's version of the incident. In any event, it does not appear that the Respondent warned or reprimanded him at the time. The next serious incident, according to Jeffers, involved the frozen food case about the middle of July. Although Jeffers allegedly told Russell Smith that this was the "last straw" and to discharge Hooper, again it does not appear that Hooper was even warned or reprimanded. Smith in his testimony was silent on the subject. Also, as pointed out in the brief of the General Counsel, there are contradictions in the testimony of Jeffers on the question of whether or not Hooper was in a position to know if the compressor was not working. According to Jeffers himself, Hooper followed Smith's instructions to fill the case. Finally, there is the unsupported testimony of Jeffers concerning price changes and his conversation in this connection with Robbins on August 17. Hooper admits that he received a complaint about not making price changes, but was not questioned as to when this occurred. Nevertheless, Hooper was not discharged until 3 days later, and then only after a supervisory meeting which was attended by Betts. Betts knew that Hooper was a leading adherent of the Union. It was at this meeting that Jeffers told Smith to discharge Hooper. 12 The testimony of Jeffers, above, appears to conflict with that of Betts in this con- nection, since Jeffers' testimony indicates that the price changes were brought up to date at least as of August 17. MOCK ROAD SUPER DUPER, INC. 993 Accordingly, I find that the Respondent discharged Hooper on August 20, 1964, because of his membership in and activities on behalf of the Union, and that such discharge was violative of Section 8 (a) (3) of the Act. D. The refusal to bargain The Respondent in its answer denied the appropriateness of the unit alleged in the complaint. The Respondent offered no evidence at the hearing in this connection. The General Counsel adduced in evidence an agreement entered into in March 1961 between the Respondent and Amalgamated Meatcutters & Butcher Workmen, AFL- CIO, whereby the Respondent agreed in part to recognize that union as the bargain- ing representative of its meat department employees after a cardcheck. Also received in evidence were 12 area contracts between the Union and various employ- ers, including Flickinger Co., The Great Atlantic & Pacific Tea Company, and Kroger Co. Except for two of Atlantic & Pacific's stores, all of these contracts excluded meat department employees. Insofar as the Respondent's store is concerned, the evidence discloses that General Manager Smith exercises little or no supervision over the meat department; that McCarthy schedules the work of the employees in the meat department, makes up their vacation schedules, and assigns them their hours of work; and that there is no interchange between these employees and the grocery clerks. Accordingly, I find that the unit alleged in the complaint is appropriate for the purposes of collective bargaining. The evidence shows that as of August 20, 1964, there were 17 employees on the Respondent's payroll in the grocery department. This number includes Hooper but excludes Betts In addition, Jeffers testified that during July 1964, Thelma Gregg went on "a leave of absence," and that she returned to work on August 22. The evidence further shows that of this number 10 signed cards designating the Union as their collective-bargaining agent.13 Therefore, of the 18 employees in the grocery department, including Gregg, the Union had signed cards from 10 employees on or before July 29. Accordingly, I find that on and after July 29, 1964, the Union represented a majority of the employees in the unit found to be appropriate herein. The Respondent contends that its refusal to grant recognition to or to bargain with the Union on and after August 20 was not illegal since it had a good-faith doubt as to the Union's majority and questioned the appropriateness of the unit. This con- tention is rejected. On August 20, the same day that Lee demanded recognition, the Respondent engaged in conduct which has been found above to be violative of Section 8(a) (1) and (3) of the Act. The Respondent's unfair labor practices negate its claim of good faith and manifest an effort to undermine the Union's majority. For the above reasons, I find that the Respondent's refusal to bargain with the Union on and after August 20, 1964, was violative of Section 8(a)(5) of the Act. E. The no-solicitation rule The record discloses that the Respondent during 1961 published and distributed to its employees a booklet entitled "Your Guide Post." One of the rules in the book- let under the heading of "Selling and Soliciting" reads as follows: For your protection, soliciting in any form will not be permitted on store premises. Raffles, pools, collections for any purpose, or the sale of tickets or merchandise, either by employees or outsiders, may not be conducted without the express permission of the store manager. There are no exceptions to this regulation and you may request evidence of authorization from anyone who is engaged in selling or soliciting on the store premises. If anyone is found violating this rule, please notify the store manager. Jeffers testified to the effect that the rule was promulgated because of the fact that customers are in the store at all times and to prevent persons such as magazine and insurance salesmen from soliciting on the premises. There is no evidence in the case that the Respondent at any time interpreted or attempted to enforce the rule so as to deny its employees the right to engage in union activity on company prem- ises during nonworking time. Therefore, and taking into consideration the nature of the Respondent's business, I find that the above rule is not violative of the Act. 13 Betts also signed a card . Since he has been found to be a supervisory employee, his card has not been counted. Gregg did not sign a union card 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The wage increases The evidence shows that on September 19, 1964, Kenneth Smith received a raise of 5 cents an hour retroactively from October 12, 1963, amounting to $86.30. In this connection, Smith testified that Jeffers notified him of the raise, telling him that he should have received it during 1963 but that it had been "overlooked." Jeffers testified to the effect that Smith erroneously had been classified as a "part-time" employee for a period of time when "he had been working full-time," and that the raise merely brought his rate up to "the correct amount per hour" that he should have received for this period. Kenneth Smith also testified that employee Jerry Van Dyke received retroactive backpay "just a little bit before I got mine." When questioned about Van Dyke's raise, Jeffers testified, "The only thing I know, he got a merit raise one time"; and that it was the policy of the Respondent to grant merit raises to "capable" employees. The payroll record of Van Dyke for 1964 was received in evidence pursuant to stipu- lation. It shows that during the week ending August 8 he received a retroactive raise of 10 cents per hour. Jeffers' testimony concerning Smith's raise stands uncontradicted. The record shows that Van Dyke received his raise about 2 weeks before the Union made its demand for recognition. Accordingly, I do not find that the Respondent by granting the above wage increases to Smith and Van Dyke violated the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bargain with the Union in viola- tion of Section 8(a) (5) and (1) of the Act, it will he recommended that the Respond- ent be ordered to bargain with the Union upon request as the exclusive representative of all its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if understandings are reached, embody such understandings in a signed agreement. It has also been found that the Respondent discharged Barry Hooper on August 20, 1964. Accordingly, it will be recommended that the Respondent offer Hooper imme- diate and full reinstatement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay suffered by reason of the discrimination by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstatement, less his net earnings during such period in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such sum, such interest to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1, The Union is a labor organization within the meaning of Section 2(5) of the Act. 2, By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. By discharging Barry Hooper, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. All grocery employees of Respondent employed at its Mock Road store, exclud- ing meat department employees and all 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. MOCK ROAD SUPER DUPER, INC. 995 5. The Union has been at all times on and after July 29, 1964, the exclusive repre- sentative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing at all times on and after August 20, 1964, to recognize and bargain collectively with the Union as the exclusive representative of its employees in the aforestated appropriate unit, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning 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 the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, I recommend that the Respondent, Mock Road Super Duper, Inc , its officers, agents, successors, and assigns, shall be ordered to: 1. Cease and desist from (a) Discouraging membership in the Union, or in any other labor organization of its employees, by discharging employees or otherwise discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning their membership in or activities on behalf of the Union, or making threats of reprisal because of such activity. (c) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment with the Union as the exclusive representative of its employees in the appropriate unit found above. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to foi m labor organizations, to join or assist the above-named labor organization, 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, or to refrain from any or 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 I find will effectuate the policies of the Act: (a) Offer Barry Hopper immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole in the manner set forth in the section of the Decision entitled "The Remedy." (b) Notify Barry Hooper if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Upon request bargain collectively with the Union as the exclusive representa- tive of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understandings reached (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary for the determination of the amount of backpay due under this Recommended Order. (e) Post at its store in Columbus, Ohio, copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 9, shall, after being duly signed by the Respondent or its authorized representatives, be posted by Respondent immediately upon receipt thereof, and be "In the event that this Recommended Order is 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 "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 217-919-66-vol. 156-64 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintained by it for 60 consecutive days, thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writing , within 20 days from the date of the receipt of this Decision , what steps it has taken to comply herewith 15 15 In the event that this Recommended Order is 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 discourage membership in Retail Clerks Union Local 1059, Retail Clerks International Association , AFL-CIO, or any other labor organiza- tion of our employees , by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their membership in or activities on behalf of the above Union or make threats of reprisal because of such activity. WE WILL, upon request, bargain collectively with the above -named labor organization as the exclusive bargaining representative of all employees in the following unit with respect to rates of pay, wages , hours of employment, and other conditions of employment, and, if understandings are reached , embody such understandings in a signed agreement. The bargaining unit is: All grocery employees of Respondent employed at its Mock Road store, excluding meat department employees and all supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist Retail Clerks Union Local 1059, Retail Clerks International Association, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing , to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection , or to refrain from any or 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. WE WILL offer Barry Hooper immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become or remain , or refrain from becoming or remaining, members of any labor organization. MOCK ROAD SUPER DUPER, 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, Room 2023, Federal Office Building , 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200, if they have any question concerning this notice or compliance with its provisions.