Cooks Markets, Inc.

1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cooks - Markets, Inc. and Retail Clerks Organizing Council of Southern California, Retail Clerks International Association, AFL-CIO and Local 229, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO. Cases 21-CA- 6785 and 68¢3. June 24,1966 DECISION AND ORDER On April 15, 1966, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning 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 Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in these cases, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] [The -Board dismissed paragraphs 22 and 23 of the complaint since they allege violations of Section 8(a) (5) and (1) of the Act not found herein.] DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE This case , with all the parties represented , was heard before Trial Examiner James R. Webster in El Centro, California, on October 26 and 27 and November 9, 1965, on consolidated and amended complaint of the General Counsel and answer of Cooks Markets, Inc., herein called Respondent. The consolidated com- plaint was issued on October 4, 1965, upon a charge filed on June 18 , 1965, in Case 21-CA-6785 and filed on July 20, 1965 , in Case 21-CA-6843 and amended on September 28, 1965. The complaint alleges that Respondent has refused to bargain with each of the charging parties and has discharged, laid off, and reduced the hours of employees because of their union activities and has engaged in sur- veillance, interrogated employees, threatened employees, made promises to employ- ees, unilaterally granted wage increases , and polled employees , and by this conduct has thereby violated Section 8(a)(1), (3), and (5 ) of the National Labor Rela- tions Act, as amended, herein called the Act. 159 NLRB No. 109. COOKS MARKETS,-,INC. 1183 The General Counsel and the Respondent have filed briefs, and they have been carefully considered. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent operates a chain of retail grocery stores located in Brawley, Calexico, El Centro, Holtville, and Imperial, California. Respondent, in the course and conduct of its business operations, has a gross volume of business in excess of $500,000 per annum, and has purchased during the past 12-month period in excess of $50,000 in goods and services directly from suppliers located outside the State of California. Respondent is now, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Retail Clerks Union Local No. 1167, Retail Clerks International Association, AFL-CIO, herein called the Clerks Union, and Local 229, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein referred to as the Meat Cutters Union are now, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues 1. (a) Whether Respondent was obligated to bargain with the Meat Cutters Union during the period that determinative challenges were pending. (b) Whether Respondent unilaterally put into effect a profit-sharing plan. 2. Whether Respondent discriminatorily discharged Stanley Peterson and dis- criminatorily reduced hours of work of Raul Mazon, Roger Hoskins, Rick White, Mike Schnur, and Dale Griggs. 3. Whether Respondent interfered with, restrained, or coerced employees by surveillance, interrogations, threats, promises, and illegally motivated pay raises. 4. (a) Did the Clerks Union represent a majority of employees in an appropriate unit in June, 1965, (b) if so, did Respondent have a good-faith doubt as to this majority; and (c) did Respondent refuse to bargain in good faith with said Union. B. The alleged refusal to bargain with the Meat Cutters Union Pursuant to a decision and direction of election issued by the Regional Director for Region 21 on January 12, 1965, in Cooks Market, Inc., Case 21-RC-9211, an election was conducted on February 12, 1965, in an appropriate unit of employees of Respondent which included all full-time and regular part-time butcher workmen and meat cutters and their apprentices at Respondent's then existing six retail markets in the Imperial Valley area of California, and excluded office clericals, grocery clerks, grocery cashiers, watchmen, guards, professional employees, and supervisors as defined in the Act. On July 22, 1965, the Regional Director certified the Meat Cutters Union as the bargaining representative for this unit of employees, following the determination and counting of challenged ballots. Since the certification, Respondent and the Meat Cutters have met in contract negotiations and proposals have been exchanged. On about October 10, 1965, Respondent submitted a proposal on a profit-sharing plan. The General Counsel contends that Respondent was obligated to bargain with the Meat Cutters immediately following the election of February 12; but at that point challenges were determinative, and the final results of the election were not known. I cannot find from the evidence that Respondent's challenges were made in bad faith. Although it was eventually determined that a majority of the employees had voted for the Meat Cutters, I cannot find that the unfair labor practices, found herein to have been committed in June, 1965 in connection with the Clerks Union's organizational activities, would warrant a finding of a refusal to bargain with the Meat Cutters on and after February 12, 1965. - 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contends that Respondent refused to bargain by unilater- ally instituting a profit-sharing plan on or about July 1 , 1965. I do not find any evidence that a profit -sharing plan has in fact been instituted . On June 16, Respondent's general manager, Jody Crane , told several employees in the clerks' unit (paragraph C, infra ) that the Company had a profit -sharing plan under con- sideration . At the company meetings of June 17, clerks were told that Respondent had planned to give bonuses to assistant managers, produce managers, and clerks; these employees were told that they were going to get it in 1966 . In October, 1965, Respondent submitted to the Meat Cutters a proposal for a profit -sharing plan. I find that there is insufficient evidence that Respondent has refused to bargain with the Meat Cutters Union or has unilaterally instituted a profit -sharing plan for employees in the unit represented by them. C. Discharge of Stanley Peterson on June 5, 1965 The Clerks Union commenced organizational activities among the employees at Respondent's Imperial Valley stores in the latter part of May, 1965. On Saturday, June 5, 1965, at approximately 7:30 p .m. General Manager Crane was in the back of one of the markets in El Centro when he was called to the front of the store for approval of a check . As he walked through the produce depart- ment, Tom Palomino , the produce manager, informed him that Stanley Peterson, an employee from one of Respondent's other stores, was in the store talking to employees about the Union and trying to get them to attend a union meeting; he also told Crane that Peterson had been in the store three or four times on other occasions doing the same thing . As Crane walked to the front of the store he observed Peterson talking with a clerk, John Rohe. Rohe was stocking shelves at the time. Crane walked over to Peterson , took him by the arm and escorted him to the front door and told him "I never wanted to see him in my stores organizing my help on Company time while the Company is paying them. I didn't want him talking about union activity on company time. I also told him I did not want him back at the store at any time again . I told him that he did not work in that market, he had no business there, and he had no business taking up the employees' time talking about union activities ." At the time Respondent had no policy with respect to employees going into other stores and talking to employees while working. Crane then called Budd Broome , store manager at Store No . 2, and told him what had occurred and that he was not to let Peterson in that store again. On Friday, June 4, 1965, Peterson had told Store Manager Broome that he had a chance to go to work for another retail grocery company at union wages and that he would be leaving his job . At Broome's insistence he agreed to work for Respondent for another week so that a replacement could be found . Peterson then made arrangements to start at the other company on June 14, which he did. By a letter dated June 22, Respondent offered Peterson reinstatement effective June 28, which he declined. I find that Respondent terminated Stanley Peterson on June 5 , 1965, because of his union activities, and thereby violated Section 8(a)(3) and (1) of the Act. D. Sequence of events relative to the Clerks Union The Clerks Union held meetings for employees of Respondent 's stores on June 3, 8, 14, and 15 . The meeting of June 8 was held at Motolodge in El Centro. This meeting was kept under surveillance by Jody Crane, general manager of Cooks Markets, Robert Thing , produce manager of Cooks Markets, Frank Potter, store manager of Cooks Market No. 7, and David Winter , store manager of Cooks Market No. 6. These individuals, all supervisors within the meaning of the Act, engaged in surveillance of this union meeting to ascertain which of Respondent's employees were engaging in union activities. Their presence was known to the employees attending the meeting. I find that by this conduct Respondent violated Section 8 (a)(1) of the Act. The third union meeting, on June 14, was held at the residence of employee Janette Glaze in Brawley , California . One purpose of this meeting was to explain to employees the results of a request to recognize made by the Union to Respond- ent on June 11; the request was not granted . A secret strike vote was taken and all employees present voted to strike. COOKS MARKETS, INC. 1185 The union meeting of June 15 was held at the residence of William H Mazon in El Centro. At that time Mazon was produce manager in Store No. 2 in El Centro, at which Buddy Broome was store manager . At approximately 10.30 p in., Broome came to the residence of Mazon. One of the employees at the meeting saw Broome drive up, and Union Representative Glazer went outside. Broome asked if he could see Mazon . Glazer told him that he would call Mazon but that Broome had no business there. Broome told him he just wanted to talk to Mazon about his reporting time the next morning. Mazon stepped outside and talked with Broome . Broome asked what was going on. Mazon replied that they were having a union meeting . Broome told him that he (Broome ) was going to be late to work the next morning and for Mazon to come to work at 8 o 'clock instead of 7. Mazon at that time had an unlisted telephone number, as he had just moved to the city of El Centro, but Broome had on one occasion called Mazon on the telephone at this number. At this meeting six employees were in attendance; a strike vote was taken and all voted for strike action. The General Counsel contends that by his conduct of that evening Broome was engaging in surveillance of the union meeting. I cannot agree . Since Broome planned to arrive late at his store the next morning, it is logical that he would want to convey this information to employees in charge of store departments. I cannot conclude that he was engaging in surveillance in violation of the Act in so doing. Following one of the union meetings, and judging from the nature of the remarks contained in the conversation , I assume it was the meeting of June 8, 1965, when Mazon had a conversation with Robert Thing , produce manager of all of Cooks Markets. The conversation took place at Cooks Market No. 2 in El Centro. Thing asked Mazon if he was at the union meeting. Mazon replied, "How did you find out about it?" Thing stated "Well, I get around." Thing told him that he had been in the Union before and that the Union had treated him poorly; that the Union is not worth a damn; that if he were Mazon's boss , he would fire him on the spot. Thing, as the general produce manager and a supervisor within the meaning of the Act, occupied a position of authority and supervision over Mazon, a store prod- uce department manager. I find that by this conduct, Thing interrogated and threatened Mazon. On June 15, Crane was called by Curtis Wright, store manager of Store No. 1 in Brawley, and was told that employee Larry Laird wanted to talk to him. Crane went to the store and met with Laird. They walked to a coffee shop to converse and Laird told him about the union meeting the night before and the strike vote and the walkout planned for Friday morning , June 18. Crane told Laird that if the employees walked out Friday morning , he would hire new employees to pro- tect the business and that anyone who walked off the job was basically quitting his job. Crane then went back to Store No. 1 and spoke to the employees there. He told them, "We were happy with them as employees and we wanted them to stay with us, but, in order to protect our business, that if they did walk out Friday morning that I would have to hire replacements ," and that "anyone that didn't show up on Friday morning basically quit their jobs." On the next day, Crane talked with employees at Stores No. 3 and No. 5, tell- ing them substantially the same things . Crane told several of the employees that "we had under consideration a profit-sharing plan; that we had been studying it." This plan had not been mentioned to employees prior to this occasion. Crane told employee Robert Boren that he knew he was at the union meeting the night before and that they had voted to go out on strike and that if they walked out it would be the same thing as quitting ; that he would not have them in the store again; that the Company was going to have a meeting and vote at Store No. 7; that there would be guys from San Diego there and if the employees wanted to walk out, the guys from San Diego would take over their jobs. Crane stated he did not have time to talk individually to employees at other stores. He called the store managers and told them to tell every full-time grocery and produce employee that they would like to have them attend a meeting on 243-084-67-vol. 159-76 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thursday, June 17, at the new market, Store No. 7, and that Respondent would pay them to attend. At the meeting, Crane told them that "we seem to have a minority group that was planning this action of walking out and that we hoped that this was not the general feeling of all' the employees, that we wanted them to stay with us. I emphasized that we wanted to keep them happy and content in their jobs, that if there were any suggestions we would be happy to hear them, that we could not tolerate anything such as organizing a walkout, that we couldn't go along with it and that any employee that wasn't at work on Friday morning we would assume that he had quit his job. I told them that any employee, if he wanted to say so now, that if he didn't feel that he wanted to show up for work on Friday morning that we could have his check ready for him to pick up. Mr. Mabee said that those who planned on coming to work on Friday morning should stand up and those who did not plan on coming to work on Friday morn- ing should remain seated, and that those who remained seated could get their checks Friday morning." 1 Mabee told the employees that he had planned on giving a bonus to assistant managers, produce managers, and clerks. He said the Union was nonsense. He stated that the bonus would be given if the Union was cleared away. Neither Mabee nor any other company official had mentioned a bonus or profit-sharing plan to employees prior to June 16 and 17, 1965. There were approximately 35 or 40 employees attending this meeting, and when Mabee asked those who planned to work to stand up and those who did not to sit down, all employees stood up. A second meeting of employees was held approximately 2 weeks later. At this meeting Mabee told the employees that he would have to close the stores if the Clerks Union came in; that he had some stock that he would sell to the employees at cost of the stock to him; that the Union was a lot of nonsense. At this meet- ing, Mr. Crane showed the employees a chart of what they would get if the Union was cleared away and told them that the bonus would be given in 1966.2 Following Crane's talks with employees on June 16 and 17, at which times he heard their complaints and agreed to take steps to rectify them, wage rates for some of the employees were increased effective that week. Effective that week (week of June 14-20) the rates of pay of employees Dale Griggs, Mike Schnur, and Roger Hoskins were increased from $1.25 per hour to $1.50 per hour. I find that Crane and Mabee coerced and restrained employees in violation of Section 8(a)(1) of the Act, (1) by giving employee Boren the impression of surveillance by statement to him that it was known he attended a union meeting and that a strike vote had been taken, (2) by threatening employees with termi- nation if they engaged in strike action, (3) by polling the employees as to their intentions to strike, (4) by promising employees a bonus, or profit-sharing plan, and an opportunity to purchase stock at cost to avoid the Union, (5) by threaten- ing to close the stores if the Clerks Union came in, and (6) by increasing wages of employees to interfere with their union activities. E. Reduction of hours of certain employees The picketing of Respondent's markets commenced on Friday, June 18, 1965. At that time and for a number of weeks thereafter the hours of work of Rick White and Roger Hoskins at Store No. 2 in El Centro and of Mike Schnur and Dale Griggs at Store No. 1 in Brawley were reduced, and a few weeks thereafter the hours of Raul Mazon at Store No. 7 in El Centro were reduced. The General Counsel contends that the reductions in hours was discriminatorily motivated and Respondent contends it was caused by the reduction in business brought about by picketing. 1 John C. Mabee is president of Respondent and a supervisor within the meaning of the Act. 2 Employee William Mazon is the only one who testified about this second meeting. He was asked to testify about "the walkout, strike, or union." His other testimony concerns the Clerks Union and I have concluded his references to union in this meeting is to the Clerks Union. He testified that the butchers were present, and he based this on the fact that one of the butchers was sitting next to him. COOKS MARKETS, INC. 1187 On June 17 , the day following the union meeting at the residence of William Mazon, Raul was told by his store manager, Hubert Cox , Jr., at Store No. 5 in Holtville that he was being transferred to Store No. 7 in El Centro on the follow- ing day (Friday, June 18) as they needed help there. Mazon asked if he would receive the same rate of pay and hours of work , and Cox replied that as far as he knew he would . Mazon had been employed by the prior owners of the markets and had been paid on a salary basis ; when Respondent commenced operations of the markets, Mazon continued to receive his pay on a weekly basis . He received $110.00 weekly. When transferred to store No. 7, he continued to be paid at this rate and in the fashion through June , 1965, and received $ 116 for the week ending June 27. Thereafter he was paid on an hourly basis receiving $85.00 for 40 hours for the week ending July 4, the same for the week ending July 11 , $68.00 for 32 hours for the week ending July 18, the same for the weeks ending July 25, and Au- gust 1. Mazon was told that his hours were being cut because of a drop in business. Mazon testified he could tell that the picketing was affecting business by the number of people coming into the store. Rick White commenced employment with Respondent in February , 1964 at Store No. 2 in El Centro, where Buddy Broome is store manager . White is a schoolboy and during the school year he worked for Respondent part-time as boxboy ; during the summer months he was available for as many hours as needed. On Friday, June 18, when White went to work, he was met at the door by Broome and told that it was going to be a slow day and that he would not be needed and might as well take the day off. Broome told White to check with him on the following day. Picketing was not in progress at the time but started that day. White contacted Broome the next day and was told that it (Saturday) was going to be another slow day and that he might as well not come in. White checked again the middle of the following week and was told by Broome that he had a schedule up and that White would be on it . White then worked parts of 2 days that week. Roger Hoskins commenced his employment with Respondent on September 20, 1964, as a carry-out or boxboy at Store No . 2. He attended two of the union meetings in June. The day following the meeting of June 16 at the residence of William Mazon, Store Manager Broome (who had gone to see Mazon on that evening ) asked him if he had been at this meeting. Hoskins then asked Broome how did he miss seeing his car there. Hoskins had been a part-time worker during the school year, and after school ended on June 8, he worked 8 or 9 hours some days but his total weekly hours remained approximately the same until the union picketing . On June 17 or 18, Broome told Hoskins to take the rest of the week off and to check back with him on the following Wednesday (June 23 ). Hoskins did so and found that he was on the Company's work schedule . He continued to work thereafter but for a number of weeks he worked less hours than he normally had worked. Hoskins noticed that his paycheck received for the week ending June 20 showed an increase in rate from $ 1.25 to $1 .50 per hour. He had requested a raise about 2 months before. Hoskins, as a part-time employee was not included in the company meeting of June 17. He was present outside the store, however, and was standing with Union Representatives Glazer and Webber and Rick White and a few other employees. Mike Schnur and Dale Griggs were boxboys in Store No . 1, in Brawley and signed union authorization cards on June 10, 1965. They did not testify and there is no evidence whether they attended any union meetings . Crane stated that their hours of work, along with that of White and Hoskins, were cut. The reasons assigned by Respondent for the reduction in hours of two employees at Store No. 2 are that it was approximately 1/2 mile from the new store in El Centro, and that the business at Store No. 2 had dropped off considerably after the opening of the new store , Store No. 7. The reasons given for the reduction of hours at Store No. 1 were that Respond- ent was "long on help" at that store and a general labor reduction was in order. Respondent stated that personnel is worked on the basis of percentage of person- nel to sales. The General Counsel contends that employees with less seniority than the five above-named employees continued to work longer hours than they. 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The weekly hours of work of the five above-named employees before and after the picketing is as follows: Average Weeks ending-1965 Employee date weekly , employed and Store No. hours before 6/20 6/27 7/4 7/11 7/18 7/25 8/1 8/8 8/15 8/22 8/29 June 14* D Griggs, 8/23/64, 23 6 8 8 8 8 8 11 23 25 11 20 Store A. M. Schnur, 1/10/65, 18% 6 4 4 8 6 8 Quit _______ ______ ______ ------ Store A. R. Hoskins, 33 34 6 15 6 13 26 14 20 18 27 27 9/20/64, Store #2. It. White, 3/15/64, 32 32 7 11 16 7 13 6 19 Off 27 Quit Store #2. $110 $110 $116 40 40 32 32 32 Quit _ R Mazon, 0/8/63, hrs his. hrs. hrs hrs. Store #5 and V. $85 $85 $68 $68 $68 *Average for weeks ending May 2 through June 13, 1965 The following new employees, hired in May or June, 1965 worked the following hours until they left their employment with Respondent in July and August, 1965: Employee, date Average weekly employed and Store No. hours before 6/20 6/27 7/4 7/11 7/18 7/25 8/1 8/8 8/15 8/22 8/29 June 14 C. Melton, 6/14/65, No work 31 27 28 37 31 19 16 13 31 14 Off Store A. R Irving, 5/24/65, *18 12 23 28 30 16 Quit _ #7 and-#2. - - - - - - - - - Donald Jargenson, 48 - 48 48 48 48 48 Off _ Store P. R. Pierson, 5/24/65, 40-48 48 40 40 48 40 Off _ P. *Irving worked only 1 week prior to June 14. At some time during his period of employment, he was trans- ferred from Store No 7 to Store No 2 There is no evidence that Melton, Irving, or Jargenson signed authorization cards; Rodney Pierson was one of the first employees to sign a card, signing it on June 3, 1965. F. Conclusions on reduction of hours Respondent also contends that the picketing affected its business, and employee Raul Mazon verified this fact. Also, it is logical to expect, as testified by Crane, that the operating of a second store in El Centro, Store No. 7, would have some effect on the older store in that city, Store No. 2. But, inconsistent with Respondent's contentions, that these considerations moti- vated the reduction in hours, is the evidence of Respondent's assignment of new employees to Stores No. 1 and No. 2 at the time in question, and its assignment of full hours to two new employees at Store No. 7 while reducing that of Raul Mazon. At Store No. 1, where Crane stated Respondent was "long on help," Charles Melton commenced work on June 14, 1965 and Griggs and Schnur had their hours reduced. At Store No. 2, Roger Irving, who was employed on May 24, 1965, at the opening of Store No. 7, was transferred in as part-time boxboy during COOKS MARKETS, INC. 1189 the period in question; this may have been as a replacement for Stanley Peterson ho was terminated on June 5. Irving, however, was assigned more hours per week than boxhoys White and Hoskins. At Store No 7, new employees Jargenson and Pierson continued to work 48 hours and 40 hours per week while the hours of Raul Mazon was reduced to 40 and 32 per week. The records also show that after boxboy Irving quit at Store No. 2 during the week ending July 18, the hours of White and Hoskins did not increase appreciably. Also, new employee Melton at Store No. 1 worked less than 20 hours a week for each of the weeks (except 1 week) from July 19 through the week of Au- gust 22, at which time he left. The hours of Raul Mazon did not increase after new employees Jargenson and Pierson left on July 18. Thus, without the entire records of hours worked by all employees at the three stores involved, it is difficult to determine the extent and duration of the reduction of hours of Raul Mazon, White, Griggs, Hoskins, and Schnur, and the extent of the effect of the picketing on the hours of work of employees at these three stores. These are matters to be determined in the compliance with the ordei recommended herein. My primary concern is not with the extent or duration of the reduction, but my concern is whether the reduction was motivated by the union organizational activities of employees. From the evidence of the employment of a new clerk at Store No. 1, the assignment of more hours to new employees at Stores No. 2 and No. 7, Respondent's surveillance and knowledge of the union activities of employees,3 the evidence of Respondent's animus toward the Union and the other unfair labor practices committed, the absence of any evidence of contention reflect- ing on the work performance or efficiency of Raul Mazon, White, Hoskins, Griggs, and Schnur, or any evidence explaining the additional work hours given to new employees over these named senior employees, I find that the reduction of their hours was discriminatorily motivated in violation of Section 8(a)(3) and (1) of the Act. Broome's interrogation of Hoskins I find to be a violation of Section 8(a)(1) of the Act. G. The refusal to bargain with the Clerks Union On Friday, June 11, 1965, representatives of the Clerks Union met with John C. Mabee, president of Respondent, at his office in San Diego, California. Repre- senting the Union were Samuel Kinsora, project director of the Retail Clerks Orga- nizing Council of Southern California, Dave Jacobs, business representative of Retail- Clerks Local No. 1222, and LeRoy Glazer, union organizer. The meeting was arranged by the Union to discuss the discharge of Stanley Peterson and to request recognition on behalf of the clerks at the Cooks Markets. At that time the Union had a contract with Mabee covering the clerks in the Big Bear Markets (another chain of retail grocery stores with which Mabee was associated) in the San Diego area. Kinsora informed him that the Union had been organizing employees of the Cooks Markets in the Imperial Valley and that it rep- resents a majority of these employees. The Union demanded recognition as bar- gaining agent for these employees. Mabee told the union representatives that he understood that the Union had been organizing; that the Meat Cutters had recently had an election in the meat departments at these stores; that he felt he would like an election; and that there had been an election there among the clerks several years before.4 Kinsora requested recognition without the necessity of an election, stating that the Union and Mabee had a contractual relationship in the Big Bear Markets, and were acquainted with each other. Mabee replied that he had no objections to a union in his San Diego stores, but he did have objections to a union in the Cooks Markets, as the caliber of employees there was not the same as in San Diego. 3 Raul Mazon attended several union meetings , one of which was held at his brother's residence ; White and Hoskins were turned away from the company meeting of June 17, as part-time employees , and stood around outside the store with known union representa- tives. There is no evidence of any union activities by Griggs or Schnur other than that they signed authorization cards on June 10, 1965, but with Respondent' s admitted act of surveillance "to ascertain which of Respondent 's employees were engaged in union activities," I find that Respondent had knowledge of the union activity of these employees. 4 The Union ( Local No. 1167) was decertified in Case 21-RM-957 on September 26, 1963. At that time it represented all retail store employees at three of Respondent's mar- kets excluding all meatcutters and meat department employees, truckdrivers, warehouse- men, guards, watchmen, and supervisors as defined in the Act. 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kinsora then made a formal request for recognition as bargaining agent "for all regular full-time and regular part-time employees in the stores in the grocery department, excluding meat cutters, the meat department employees, and any pro- fessional employees, supervisors and guards as defined in the Act." He stated he had authorization cards from the employees and these were offered for Mabee's examination. Mabee replied that he did not want to see them, and he referred the union representatives to Norman Jones, Respondent's consultant. On Tuesday, June 15, Kinsora called Jones. Jones had not talked with Mabee regarding the June 11 meeting in San Diego, and Kinsora told him about it. Jones then suggested that the Union file a petition for an election. By letter of this same date to Respondent, with copy to Jones, Kinsora confirmed his request for recog- nition and offer of authorization cards. By letter dated June 21, 1965, Jones replied on behalf of Respondent declining recognition "as we believe you do not in fact represent a majority of the employees working at Cooks' Markets and suggest you file for an NLRB election if you have the necessary per cent to do so." He further stated that "It is, and has always been, the policy of said Employer to allow their employees to have representatives if they so choose through the process of a free and secret election as conducted by the National Labor Relations Board." As to the appropriateness of the bargaining unit, the only issue is as to assistant store managers and three named employees. Respondent contends that the assist- ant store managers have some of the authorities of supervisors and that employees Rudy Montemayor, Jr., Elvin Cook, and Bill Meacham are meat department employees. The assistant store managers do not have authority to hire and fire; they have the keys to their stores and open and close these stores. There is testi- mony that they can recommend hire and fire employees, but it does not appear that they can "effectively" recommend such action-that is, without it being subject to the store manager's scrutiny and approval; therefore, their action in this regard is the same as that of any respected employee. I find that the assistant store man- agers are not supervisors within the meaning of the Act. As to Montemayor, Cook, and Meacham, they were hired originally as carry-out boys or boxboys, but have also worked in the meat department, spending all of their hours some weeks in that department. Crane testified that in a small opera- tion such as Respondent's, a boxboy could be called upon to do a number of things, including operating the meat scale, counter hopping, janitor work, checking and stocking shelves. He is a general helper. The three disputed employees are not butchers or meatcutters; their work in the meat department has usually been on weekends, and particularly on Sundays, and I find it to be•as a general helper. On Sundays, Montemayor, for example, worked with only one other employee in Store No. 3; the other employee, his father, the assistant store manager, worked as checker and in the front part of the store; Montemayor worked in the meat department and the rest of the store as needed; this was as a general helper. In the decision of the Regional Director in Case 21-RC-9211 involving the meat department at Cooks Markets, issued November 23, 1964, the grocery clerks who worked part-time in the meat department were excluded from the craft unit of butchers and meatcutters. I find these employees to be in the unit of grocery clerks. Respondent had in its employ in its seven markets in the Imperial Valley in the week ending June 13, 1965, a total of 61 employees in the above-described appropri- ate unit.5 Of these, 36 signed authorization cards for the Union between June 3 and 15, 1965 Only 30, however, had signed cards prior to the request for recog- nition of June 11; two employees signed authorization cards on June 11, bringing the total to 32 on that date. The Union's request for recognition was renewed by letter of June 15. For the payroll week ending June 20, 1965, there were 57 employees in the above- described appropriate unit.6 of which 32 had signed authorization cards between June 3 and 15, 1965. Thus, on June 11, the Union acquired authorizations from a majority of Respondent's employees (32 of 61 employees), and in the follow- ing week this was increased to 32 out of 57 employees. The issue presented is whether or not Respondent's questioning of the Union's majority and suggesting a Board election was made in good faith. I find that it was not. Mabee rejected the offer to examine the authorization cards and stated 6 These are listed in General Counsel's Exhibit 75; this exhibit is in error in showing 62 as the total, as this exhibit omits number 58. 1 These are listed in General Counsel's Exhibit 76. COOKS MARKETS, INC. 1191 that although he had no objection to the Union in the San Diego store, he did object to it at the Cooks Markets. In an effort to preclude the Union from gaining recognition there, President Mabee and General Manager Crane, each, engaged in unfair labor practices as found above. I find that by this conduct and by unilaterally increasing wage rates of some of its clerks after June 11, Respond- ent has refused to bargain with the Clerk's Union in violation of Section 8(a)(5) and (1 ) of the Act.7 IV. THE EFFECT OF THE UNFAIR LABOR, PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. CONCLUSIONS OF LAW 1. Cooks Markets, Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local No. 1167, Retail Clerks International Association, AFL-CIO, and Local 299, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Stanley Peterson and by discriminatorily reducing the 'hours of work of Raul Mazon, Rick White, Roger Hoskins, Dale Griggs, and Mike Schnur, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. All regular full-time and regular part-time employees working in the markets of Respondent located in Brawley, Calexico, El Centro, Holtville, and Imperial, California, excluding meat department employees, supervisors, guards, and pro- fessional employees 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. 5. The Clerks Union has been at all times since June 11, 1965, the exclusive representative 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 the conduct described in this Decision , Respondent has refused to recog- nize and to bargain collectively with the Clerks Union, thereby violating Section 8(a)(5) of the Act. 7. By conduct described in this Decision, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 9. Respondent has not refused to bargain with the Meat Cutters Union nor has it unilaterally established a profit-sharing plan for employees represented by it. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , it will be recommended that it cease and desist therefrom and that it take certain affirm- ative action 'as provided in 'the Recommended Order set forth below, which action is found necessary to remedy the untair ' labor practices and to effectuate the 'policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatory discharge of Stanley Peterson and by the discriminatory reduction of hours of five named employees, it will be recommended that Respondent make them whole for any loss of pay they may have suffered, if any, by reason of the discrimination against them, by payment to Stanley Peterson of a sum of money equal to the difference, if any, between the wages he would have earned at Respondent, absent the discrimination, from June 5 to 14, 1965, and the amount 7 Joy Silk Mil18, Inc., 185 F 2d 732 (C.A.D.C. 1950). L 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he actually earned during this period, with interest thereon,8 and by payment to Raul Mazon, Rick White, Roger Hoskins, Dale Griggs, and Mike Schnur of a sum of money equal to the difference, if any, between the wages they would have earned, absent the discrimination, and the amount they actually earned, with interest thereon. For Raul Mazon, White, and Schnur, this is to be computed tiom date of initial reduction in hours, June 18, 1965, to the date that each volun- tarily left his employment with Respondent; there is no contention or finding that they were constructively discharged. For Griggs and Hoskins, this is to be com- puted from date of initial reduction in hours, June 18, 1965, until such time as their hours of work returned to the number they would have worked in absence of the discrimination. Interest at 6 per cent per annum on loss of wages shall be computed in the manner prescribed by the Board in Isis Plumbing & Heating Co., Inc., 138 NLRB 716. Having found that Respondent has engaged in conduct constituting a refusal to recognize and bargain with the Clerks Union, it will be recommended that it cease and desist therefrom and from making unilateral changes in rates of pay or other working conditions, that it bargain collectively with the Clerks Union, upon request, and that it post appropriate notice to employees as provided in the Recommended Order set forth below. Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Cooks Markets, Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with the Retail Clerks Union Local No. 1167, Retail Clerks International Association, AFL-CIO, as the exclu- sive representative of all regular full-time and regular part-time employees work- ing in the markets of Respondent located in Brawley, Calexico, El Centro, Holt- ville, and Imperial, California, excluding meat department employees, supervisors, guards, and professional employees as defined in the Act. (b) Discouraging membership in or activities on behalf of the Clerks Union, or any other labor organization of its employees, by discharging or reducing the hours of work or otherwise discriminating against any employee in regard to hire or ten- ure or any terms or conditions of employment. (c) Interrogating employees about their union activities or the union activities of other employees. (d) Threatening to discharge employees or to close the markets as a conse- quence of union activities or affiliations by the employees. (e) Promising bonuses, a profit-sharing plan, or the opportunity to purchase stock at cost to interfere with their union activities. (f) Engaging in surveillance or giving employees the impression of surveillance of their union activities. (g) Granting wage increases to employees to interfere with their union activi- ties, and without bargaining and consulting with the Retail Clerks Union Local No. 1167, Retail Clerks International Association, AFL-CIO. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named Union or any other labor organization, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make whole the following named employees for any loss of pay they may have suffered by reason of Respondent's discrimination against them, in the man- 8 Peterson commenced employment with Mayfair Markets at higher wages on June 14, 1965 and does not desire reinstatement which was offered to him by letter of June 22, 1965 The formula for computing loss of wages on a quarterly basis as prescribed in F. W. Woolworth Company, 90 NLRB 289, is not appropriate in this instance Peterson had made arrangements prior to his discharge to commence his employment with Mayfair Markets on June 14, and would have started this employment on that date irrespective of the discrimination. To make him whole, he should be reimbursed for his loss of wages, if any, from June 5 to 14, 1965. COOKS MARKETS, INC. 1193 ner set forth in the section of this Decision entitled "The Remedy." Stanley Peter- son, Raul Mazon, Rick White, Roger Hoskins, Dale Griggs, and Mike Schnur. (b) Upon request, bargain collectively with Retail Clerks Union Local No. 1167, Retail Clerks International Association, AFL-CIO, as the exclusive representative of all employees in the above-described bargaining unit, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board and its agents, for examining 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 under the terms of this Recommended Order. (d) Post at its markets in Brawley, Calexico, El Centro, Holtville, and Impe- rial, California, copies of the attached notice marked "Appendix." 9 Copies of said notice to be furnished by the Regional Director for Region 21, after being duly signed by a managing representative of Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days of the receipt of this Decision, what steps Respondent has taken to comply herewith.10 It is recommended that the allegations of the complaint that Respondent has refused to bargain with the Meat Cutters Union and has unilaterally established a wage incentive plan, be dismissed. 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees about their union activities or the union activities of other employees. WE WILL NOT threaten to discharge employees or to close our markets because of the union activities of our employees. WE WILL NOT promise or grant benefits to our employees to interfere with their union activities. WE WILL NOT engage in surveillance of union activities of our employees nor will we give our employees the impression that we have engaged in such surveillance. WE WILL NOT discourage membership in or activities on behalf of the Retail Clerks Union Local No. 1167, Retail Clerks International Association, AFL- CIO, or any other labor organization of our employees, by discharging or reducing the hours of work or otherwise discriminating against any employee in regard to hire or tenure or any terms or conditions of employment. WE WILL NOT grant wage increases or other benefits to employees without consulting and bargaining with the above-named Union, or any labor organi- zation of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of their rights to self-organization to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, or to engage in any other concerted activi- ties for the purposes of collective bargaining or other mutual aid or protec- s 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 additional event that the Board's Order is 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." '°In the event that this Recommended Order is adopted by the Board, paragraph 2(e) thereof 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 heiewith." 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion as guaranteed by Section 7 of the Act, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos of Section 8(a)(3) of the Act. WE WILL make whole the following named employees for any loss of pay they may have suffered as a result of the discrimination against them. Stanley Peterson Rick White Dale Griggs Raul Mazon Roger Hoskins Mike Schnur WE WILL bargain collectively with the Retail Clerks Union Local No. 1167, Retail Clerks International Association , AFL-CIO, as the collective-bargaining representative of all of our employees in the unit described as follows: All regular full-time and regular part-time employees working in our markets located in Brawley , Calexico, El Centro, Holtville, and Imperial, California, excluding meat department employees , supervisors, guards, and professional employees as defined in the Act. All of our employees are free to become or to remain, or to refrain from becom- ing or remaining, members of the above-named Union or any other union, except to the extent that such rights may be affected by the provisos in Section 8(a)(3) of the Act. COOKS MARKETS, INC., Employer. Dated--- ---------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, East- ern Columbia Building, 849 South Broadway , Los Angeles, California 90014, Tele- phone 688-5229. Wright & Lopez, Inc. and Communications Workers of America, AFL-CIO. Case 26-CA-2199. June 24,1966 DECISION AND ORDER On April 15, 1966, Trial Examiner Morton D. Friedman issued his Decision 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 Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire 159 NLRB No. 116.