Purity Food Stores, Inc.

PURITY FOOD STORES, INC. 651 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, 17th Floor, U.S Post Office and Courthouse, 312 North Spring Street , Los Angeles, California, Telephone 688-5840. Purity Food Stores, Inc. (Sav-More Food Stores) and Local 1435, Retail Clerks International Association, AFL-CIO. Case 1-C A-.46!4. August W), 1966 SUPPLEMENTAL DECISION AND ORDER On February 3, 1965, the National Labor Relations Board issued its Decision and Order in the above -entitled proceeding,' finding that Respondent violated Section 8(a) (5) and (1) of the Act by ref using to recognize and bargain with the Charging Union, as collective- bargaining representative of employees at Respondent's retail food market in Peabody, Massachusetts, and by engaging in an unlawful course of conduct designed to undermine the Union 's status as major- ity representative. Thereafter, the Board filed a petition with the United States Court of Appeals for the First Circuit for enforcement of its Order. The court denied enforcement of the 8 (a) (5) portion of said Order and remanded the case solely for consideration of certain factual matters to which the Board's original Decision made no refer- ence and upon which Respondent relies in contending that a single store unit is not appropriate for collective bargaining herein.2 There- after, briefs were filed by the Respondent , the Charging Union, and the General Counsel. In the light of the court's comment that Respondent "is certainly correct" in contending that the Board's initial unit determination "ignores substantial parts of the record, and misstates and miscon- strues other parts . . .," the Board has painstakingly reexamined the entire record including the court 's Decision and the briefs of the parties. In view of the multiplicity of factual issues, their varying significance and clarity, and our disagreement with certain of Respondent 's represent at ions of the record, we have set forth, in footnotes below , those factual matters which pertain to our findings, pointing up their relative importance to the basic issue before us for determination. Initially, however, it appears appropriate to excerpt fully from Respondent's brief to the court, the facts upon which Respondent relies in contesting the appropriateness of a single-store unit herein. 1150 NLRB 1523 =fiI , B v Parity Food Stoles, tuic (Sav-More Food Stores ), 354 F.2d 926 (C.A. 1). 160 NLRB No 53 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Specifically, Respondent argues that the administrative structure of its retail food chain reflects centralized control over the seven outlets sufficient to render them "so closely integrated" that "a sepa- ration of any one store from the other six for purposes of collective bargaining would be an unreasonable and even capricious disruption of Respondent's business . . ." and would "arbitrarily impose un- reasonable obstacles to the management ...." 3 As set forth in its brief to the court, Respondent points to the following facts in sup- port of its position, which facts, unless otherwise indicated, we find to be in accord with the record : (A) Respondent's Business (1) Respondent is a Massachusetts corporation, having engaged, since 1935, in the operation of a small chain of retail food stores. Respondent now owns and operates seven supermarkets, six of which (including the one at Peabody) are owned in the name of Purity Food Stores, Inc. ; the store at Winchester, Massachusetts, was purchased from Converse Supermarket Corp., Respondent having purchased all of the outstanding capital stock at Con- verse Supermarket Corp. Ownership of the entire chain of seven stores is equally divided between the brothers Albert S. and Leo Kahn, the officers and directors of the parent Purity Food Stores, Inc., and its wholly-owned subsidiary Converse Supermarket Corp. being the same for both companies. All seven stores are located North of the City of Boston and within a radius of 30 miles of Respondent's central office at Chelmsford, Massachusetts. (2) In addition to having its central offices at Chelmsford, Respondent also operates at that location a produce and dairy warehouse. It owns and operates its own trucks and trailers and employs its own drivers. (3) Distribution of Merchandise to Stores. Respondent pur- chases 90% of its dry groceries from one wholesaler located in Lawrence, Massachusetts, the merchandise being picked up by Respondent's trucks, operated by Respondent's drivers, and being distributed to all 7 stores. Eighty percent of all groceries, 10Jo of produce items, and 40% of delicatessen items which are sold in Respondent's stores are distributed and delivered to the stores by Respondent's own trucks. (4) Integrated Operations. The record establishes the follow- ing facts as indicative of the high degree to which the opera- tions of Respondent's seven stores are integrated : (a) Respondent's central office determines what merchandise shall be handled at its stores, how such stock shall be displayed, 3 Respondent's brief to the court, pp. 17, 20-21 PURITY FOOD STORES, INC. 653 and the uniform prices at which merchandise is to be sold throughout the chain. Promotional sales, when held, take place uniformly in all 7 stores. (b) All merchandise is purchased by Respondent's central office. To the extent that certain merchandise is delivered to the stores by so-called vendors, such procedure involves, at most, a simple ministerial act of ordering by the individual stores as dis- tinguished from actual purchasing. [But see footnote 11, infra.] All vendors are selected by Respondent's central office executives who negotiate the prices to be paid vendors, and store personnel are not aware of the prices paid to the vendors. All vendors are paid directly from Respondent's central office. (c) Respondent's Chelmsford office maintains detailed records of operations of all 7 stores, and apart from the time cards being used in the current workweek, all personnel records are main- tained at the central office. At the end of each workweek, time cards from all' 7 stores are sent to Chelmsford. (d) Radio advertisements and some newspaper advertisements identify the locations of all 7 stores. [See footnote 6, infra.] (e) Respondent assigns to certain central office executives responsibility for purchasing certain categories of merchandise (viz, groceries, meats, etc.) for all 7 stores; and the executive having responsibility for purchasing such a category of mer- chandise is also given the responsibility for supervising, in all 7 stores, those departments handling his particular category of merchandise. [But see footnote 15, infra.] These executives spend part of their time in Respondent's Chelmsford office and part of their time at the various stores. Certain central office executives, in addition to the foregoing chain-wide duties, are assigned overall responsibility for the ' operation of a specific store. Thus, Mr. Goggin is responsible for buying groceries for all 7 stores, is responsible for operation of the grocery depart- ments in all 7 stores, and has overall responsibility for the oper- ations of the stores at Peabody and Billerica. When the chain executive is absent from the store for which he has overall responsibility, the so-called store manager assumes responsibil- ity,,the so-called store manager assumes responsibility for only certain portions of the store, while the other departments in that ,store are controlled by .the other central office executives. [But see footnote 15, infra.] A - close and continuing liaison between the central office and the seven stores, and as between stores, is maintained, Respondent's telephone expenditures being about $1500 monthly. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Respondent contracts with outside contractors who per- form, respectively, all refrigeration maintenance work, all elec- trical work, and all laundering of uniforms for all 7 stores. (g) Employees in certain departments of the stores (i.e., meat, produce, and delicatessen) are hired by those Chelmsford executives having responsibility for purchasing and merchan- dising those products for the chain. While some full-time gro- cery clerks are hired, at the store, by the Chelmsford executive having overall responsibility for the particular store, other full- time grocery clerks are hired at the Chelmsford office. [But see footnote 8, infra.] Some part-time employees are hired by the store manager, but most are hired by the Chelmsford executive responsible for that store. [But see footnote 8, infra.] All cash- iers are trained by Mrs. Rose, a central official, and Mrs. Rose determines, after a trial period, whether a cashier is to be retained. Uniform employment application forms are supplied to all 7 stores. All new employees receive the Company'g employee manual. Almost all firing is handled by the central office executive responsible for the particular store, and no dis- charges are effected without consultation with that executive- [But see footnote 12, infra.] (h) Respondent's President determines the hours during which each store is to be open for business, and the number of employees to be employed in each store is based upon a chainwide formula which is applied by Respondent's central office. [But see foot- note 9, infra.] (i) Day-to-day control of each of the stores is vested in and exercised by a number of Respondent's central office executives. [But see footnote 15, infra.] A single security officer working out of the Chelmsford office handles cases of employee dishon- esty for all stores. (j) The daily receipts from all 7 stores are transferred to, Respondent's general corporate account at a bank in Lowell,. Massachusetts. [But see footnote 7, infra.] Employees in all stores are paid by checks prepared by the central office. Unem- ployment, withholding, and Social Security taxes are handled on a chain basis at the Chelmsford office. Insurance policies pro- viding workmen's compensation coverage, fire, and liability cov- erage are applicable to the chain as a whole. An annual outing is open to all employees of the chain, and Respondent publishes an employee newspaper which is distributed to the employees in all stores. (k) Respondent's established system of job classifications and wage rate ranges apply uniformly in all seven stores. General PURITY FOOD STORES, INC. 655 wage increases, when granted, are applied to the employees in all stores. (1) Respondent provides its full-time employees with paid vacations, paid holidays, weekly sickness and accident insurance benefits, paid sick leave benefits, Blue Cross and Blue Shield benefits, and a profit sharing-retirement plan, and all of which policies are applied uniformly in the 7 stores. Part-time employees, who work 15 hours or more per week, are eligible for paid vacations and paid holidays, but part-time employees who work less than 15 hours weekly do not receive either vacation pay or holiday pay. No part-time employees receive any of the fringe benefits other than vacations and holidays. (m) Paid vacations are based on the individual employee's continuous length of service (i.e., seniority) in the employ of Respondent as a whole. Vacation schedules for the employees in all 7 stores are subject to review and changes by Respondent's central office. (n) There is frequent and continuing transfer of merchandise between the stores. From October 1962 to May 1964, there were 162,311 units of groceries transferred between the stores. (o) Respondent employs approximately 400 employees in its chain. There have been numerous transfers (temporary and per- manent) from one to another of the 7 stores, generally for the convenience of Respondent's business. [But see footnote 16, infra.] In the 2-year period from June 1962 to May 30, 1964, there was a total of 557 employee transfers, 118 transfers being into or out of the Peabody,store. Some employees regularly divide their normal workweek between two stores, and frequently an employee, in addition to performing his normal workweek in one store, works overtime in another store. In all such cases, the employee dividing his time between stores is paid by a single check issued by Respond- ent's Chelmsford office. (p) In the week ending August 29, 1964, Respondent gave a general wage increase to the employees in all 7 of its stores. This increase was the same as the wage increase which, shortly before August 1964, was negotiated between the Retail Clerks Interna- tional Association and other chains such as The First National Stores and Stop & Shop. In all the years it has been in business, Respondent has given its employees the same general increases as have been given by those other chains. (5) Workforce in Peabody Store. During the period relevant to this proceeding, there were 108 employees in the Peabody 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store, of which number 32 were part-time employees who nor- mally and regularly work less than 15 hours weekly. [But see footnote 8, infra.] We agree with Respondent that the record fairly construed reveals that operation of its various stores is accomplished through a sub- stantial degree of centralized control. And, as we are mindful that unit findings should not ignore the desirability of accommodating the opportunity of employees to engage in collective bargaining with the impact of single store bargaining upon management's ability to run its business, we are in complete agreement with the observation of the court of appeals herein that "there should be some ... consid- eration given to the employer's side of the picture, the feasibility, and the disruptive effects of piecemeal unionization." 4 Significantly, however, we are not here confronted with a multi- facility operation, so integrated that separation of one store from the others for purposes of collective bargaining would, as Respond- ent contends, obstruct centralized control and effective operation of the chain. Thus, the Peabody store is not dissimilar from the tradi- tional retail chain outlet insofar as it functions as a distinct economic unit within Respondent's overall operations. Being located about 30 miles from Chelmsford, and about 10 miles from the next' nearest of Respondent's remaining stores, it is separated geographically and serves a different trade area from Respondent's other facilities. The employee complement of that store constitutes about 25 percent of the total number of Respondent's employees. The varied store hours 5 and local advertising campai nss as well as separate accounting procedures,7 attest to the economic independence of Peabody from the other outlets. As is customary in any chain operation, employees at each store perform parallel, as distinguished from integrated, functions, with the success or failure of one store in no way deter- minative of the effectiveness of day-to-day operations at any other store. That the Peabody store possesses substantial autonomy both with respect to normal operational matters and the local implemen- tation of chainwide policy is evidenced by the degree of in-store s N L.R.B. v. Purity Food Stores, Inc , supra, 931. s The record shows that store hours are set by the central office but vary in at least some of the stores This is apparently a reflection of local market conditions. 6 In addition to Respondent' s chainwide advertising campaigns, it also utilizes local communication media for sales promotion within the immediate trade area served by a particular store. Office clericals employed at Peabody tabulate daily receipts of that store, and reconcile them against register tallies. Daily receipts are then deposited in a separate branch depository before remittance to a' chainwide account. Those clericals also prepare employee timecards for submission to the central office. . At the Chelmsford office , separate books are maintained on each store, with each having its own profit and loss statement. PURITY FOOD STORES, INC. 657 hiring 8 and the store's internal responsibilities for scheduling work,9 all handling of customer complaints, ordering,10 some purchasing," and discipline.12 In our opinion, the foregoing amply demonstrates that the Pea- body store, which as a retail outlet is the analogue of the industrial plant,13 possesses significant autonomy within Respondent's overall operation, ". .. is composed of employees closely and distinctly related in location and function, and is inherently apt for bargain- ing purposes." 14 The Peabody store employees regularly work together and have common interests in relation to their Employer, some of which are separate and apart from those of employees in other locations. ; The freedom of choice of this one cohesive group of employees to have or not to have a bargaining representative should not be dependent upon the interest or lack of interest in such representation on the part of other employees in separated, and in this case' somewhat distant, retail chain outlets serving other mar- kets in a populous 'area. As heretofore indicated, there is a substan- tial amount of hiring done at the Peabody store and of autonomy in the direction of day-to-day operations, reflecting the Respond- ent's own allocation of distinct responsibilities there. Nevertheless, s Although testimony concerning general policy of the chain indicates that meat, delicatessen , and produce employees are hired centrally, the specific testimony of Edward Goggins with respect to the Peabody store shows that, of about 107 employees at Peabody, all part-timers are hired at the store, and only 3 or 4 . full-time employees were hired cen- trally and referred to that store. 9 Although weekly man-hours for a particular store are estimated from a formula based on expected volume of business which is prepared by the central office, the decision as to bow the weekly man-hours will be distributed between 'part-time and full-time em- ployees is made at the store level . Thus, after the allowable weekly hours are furnished to the department heads, each prepares a schedule of employees to work in his respective department, which is then submitted , at the Peabody store, for approval of either Goggins or the in -store manager. In Goggins' absence the in-store manager will approve the schedules to Although purchasing of meat, produce, delicatessen , and some groceries is done cen- trally, all ordering originates with the individual stores. In addition to groceries, the record plainly reveals that ordering of meat, produce, and delicatessen is accomplished by periodic discussion , generally by telephone, between the in-store department manager and the executive responsible for the particular product line n The record shows that individual store management is authorized to purchase certain products from an approved list of vendors We cannot agree with Respondent that this purchasing constitutes "a simple ministerial act of ordering." The discretion exercised by local store management as to the quantities purchased, and hence the extent to which Respondent's credit may be pledged , involves considerable responsibility and could reflect upon the economic success of the particular store Accordingly, the fact that prices are negotiated centrally and that Respondent is billed centrally does not negate this form of local purchasing authority. 13 The in-store manager , in the absence of the executive responsible for his store, has authority to discharge employees. Although there is general testimony that chainwide policy requires consultation with executives over discharges, the more specific testimony of executive and Peabody store Supervisor Goggins discloses that the Peabody store manager can discharge an employee in his absence 13 Metropolitan Life Insurance Company ( Woonsocket, R.I.), 156 NLRB 1408. 14 N.L R B v. Sun Drug Co., 359 F 2d 408, 413 (C A 3). 257-551-67-vol. 160-43 658 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Respondent claims that the appropriateness of that unit is overcome by the other factors set forth above, which assertedly establish that' single store bargaining would be arbitrary and impede manage- ment's ability to run its business. We disagree. Respondent's conten- tion is essentially premised upon the administrative structure of the chain, which does reflect a large degree of centralized control, includ- ing delegation of authority over individual store operations to dual function executives. With respect to the latter, we are not persuaded that the autonomy of the Peabody store is compromised by the fact that in-store managers and department heads-the highest level, full- time representatives of management within the stores-are subor- dinate to central office executives in the operation of Respondent's various outlets.15 For the status of a chain store as a distinct economic unit does not depend upon the identity of the individual, within a particular line of administration, who is responsible for exercising store level authority, but upon the fact that decisions, which have, no relevance to other stores, are and must be made concerning inde- pendent operations of a particular store. At the same time, the degree of centralized management evidenced herein does not alter the separate economic identity of the Peabody store. Such control is not to be confused or equated with the degree of interrelationship of operations effective to merge a single estab- lishment into a more comprehensive unit hence defeating the indi- vidual identity of that facility.16 In the retail industry centralized control and multistore supervision is a common attribute of any chain operation. Consistent with this fact, our decision in Sav-On rc Although the record is far from clear with respect to the extent to which the execu- tives actually participate in normal operation of stores within their formal supervisory control, we shall assume, for purposes of the instant case, that Goggins, whose chainwirde responsibilities would appear far more time consuming than his activities In connection with Peabody, nevertheless is actively engaged in day-to-dav supervision of that store However, we reject Respondent 's factual assertion that Goggins and other central office executives actively supervise day-to-day activities of their respective departments in all seven stores. Although the record includes testimony to this effect, it strains credulity to conclude that the executives , rather than the store manager and department heads are in addition to their other duties, actively engaged in hour-by-hour or day-by-day supervision of the various departments throughout the chain 30 See e g. Dixie Belle Mills, Inc, 139 NLRB 629, 631. Respondent points to its practice of interchanging merchandise and personnel between the various stores as defeating the appropriateness of the single store unit herein How- ever, neither factor, considered independently or in conjunction with others established on this record, necessitates such a result herein It is our opinion that the interstore transfer of merchandise and personnel interchange (which as found in our previous decision represented an iiierage of about one transfer per week in a unit with an excess of 100 employees), fails to reflect the degree of operational integration necessary to detest either the separate identity of the Peabody store, or its inherent appropriateness as a bargaining unit Cf. Black and Dec4er Menufactursnp Company, 147 NLRB 825 Moreover, the weight to be assigned to employee interchange as a reliable measure of actual, functional integra- tion is lessened where, as here. the Employer has engaged in an unlawful campaign to undermine the designated bargaining representative and the eiidence conceiving the incidence of interchange appears limited to that which occurred atter the Employer acquired knowledge of the Union's organizational interest PURITY FOOD STORES, INC. 659 Drugs, Inc.,17 which reversed the prior rule that the appropriate unit in retail chain operations must embrace employees in all stores within an employer's administrative or geographical area, clearly indicates that administrative control is not to be regarded as con- clusive in determining the appropriate unit in this industry. Thus, in speaking of the prior policy, we stated : Reviewing our experience under that policy we believe that too [frequently] it has operated to impede the exercise by employ- ees in retail chain operations of their rights to self-organization guaranteed in Section 7 'of the Act. In our opinion that policy has overemphasized the administrative grouping of merchan- dising outlets at the expense of factors such as geographic sep- aration of the several outlets and the local managerial autonomy of the separate outlets; and it has ignored completely as a fac- tor the extent to which the claiming labor organization had sought to organize the employees of the retail chain. We have decided to modify this policy 'and to' apply to retail chain oper- ations the same unit policy which we apply to multiplant enter- prises in general. Therefore, whether a proposed unit which 'is confined to one of two or more retail establishments making up an employer's retail chain is appropriate will be determined in the light of all the circumstances of the case.- In the instant case, we are satisfied that bargaining limited to the Peabody store, which as previously indicated constitutes,a distinct, self-contained economic unit, will neither preclude Respondent's continued reliance upon centralized policy determinations, defeat its practice of utilizing central office executives to oversee day-to-day store operations, nor otherwise impair effective management of the chain. It is also noteworthy in this connection that the impact of any labor dispute at the Peabody store is not likely to be felt at Respondent's other outlets which serve different markets.19 In our judgment, the institution of localized bargaining on behalf of the separate, identifiable group of Peabody employees, involving, inter alia, such matters as the establishment and administration of local work rules, grievance protections, vacation programs, seniority, and pension rights, as well as the setting of wage rates, 20 is not only entirely feasible, but would not unduly encroach on the Employer's 17135 NLRB 1032. See also Walgreen Conipany, 114 NLRB 1105, 1169. 18lbid, page 1033. 18 This is not to suggest, however, that the potentiality or want thereof, of such an impact on other unorganized stores would in itself be a controlling factor in determining separate unit appropriateness. 20 Indeed, on wage rates (see Respondent's contention , sups a ) the Employer asserts that it already adheres to wage levels worked out by competing chains in agreements with Petitioner's International union. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various administrative controls. In these circumstances, it is our opinion that to regard Respondent's administrative structure as defeating the appropriateness of the single-store unit would artifi- cially disadvantage the organizational interests of these and other chain-store employees, simply because their employer operates a chain rather than a single-store enterprise. Additionally, in view of the substantial autonomy, nonintegrated nature, and geographic sep- aration of the Peabody store, it is our opinion that to view Respond- ent's administrative organization as controlling herein would not only undermine the considerations basic to our decision in Sav-0n Drugs, Inc., supra '21 but would vest the chain operator with absolute power alone to control the scope of the apropriate unit contrary to the statutory scheme which entrusts the Board with such responsibility. Nor can we adopt the suggestion that a single-store unit would be based on, extent of organization and that the Board is precluded under Section 9(c) (5) of the Act 22 from finding that unit appro- priate. In the words of the Supreme Court : ". . . both the language and legislative history of § 9(c) (5) demonstrate that the provision was not intended to prohibit the Board from considering the extent of organization as one factor, though not the controlling factor, ... in its unit determination." 23 Stated otherwise, that section was merely intended to -preclude a unit determination based solely upon extent of organization, where other relevant criteria of appropriate- ness are absent. It was not intended to invalidate units, which,, as here, qualify under other tests of appropriateness. Thus, in the instant case, in addition to the absence of a bargaining history and the fact that no labor organization is seeking a broader unit, we have found that the Peabody store is not functionally integrated with others of Respondent's outlets and that it constitutes a geo- graphically separate and functionally distinct economic unit "inher- ently apt" for bargaining purposes. In such a context, it seems obvi- ous to us that the unit found appropriate herein conforms fully with the mandate of, Section 9 (c) (5) of the Act.2* n See footnote 18 herein Section 9(c)(5) provides In determining whether a unit is appropriate for the purposes specified in subsection ( b) the extent to which the employees have organized shall not be controlling. sa N L R B. v. Metropolitan Life Insurance Company, 380 U S. 438, 441-442 2' The fact that the Union, having previously petitioned for a broader unit of Respond- ent's employees, may now be motivated by the extent to which it has organized in seek- ing the smaller unit is immaterial so long as the Board in making its determination does not give controlling weight to that fact. Allied Stores of New York, Inc d/b/a Stern's Paramus, 150 NLRB 799, Metropolitan Life Insurance Company (Woonsocket, R I ), 156 NLRB 1408, footnote 20 Also note The Was. H. Block Company. 151 NLRB 318, in which the Board reaffirmed its view "that the Act does not compel a labor organization to seek representation in the most comprehensive grouping unless such grouping constitutes the only appropriate unit." UNITED STATES RUBBER COMPANY 661 For these reasons, we are constrained to adhere to our initial deter- mination that all full -time and regular part-time employees of Respondent employed at its Peabody store, excluding casual employ- ees, guards, and supervisors as defined in the Act, constitute an appropriate bargaining unit herein . We wish further to note that a single-store unit in a retail chain operation may not fairly be char- acterized as an arbitrary and piecemeal grouping ; for, it generally constitutes the basic appropriate unit for chainstore employees, and is equivalent to the "plant unit," which is presumptively appropriate under Section 9(b) of the Act. Thus, we have consistently upheld the appropriateness of such a unit where sought .25 This is not to say, however, that these unit determinations give rise to an absolute rule that the single-store unit constitutes the appropriate basis for col- lective bargaining in every chain operation . But, having held in the instant case that the Peabody store possesses sufficient attributes of autonomy to be presumptively appropriate and that said presump- tion has not been rebutted herein, it is unnecessary, for purposes of this case, for us to explore the degree of integration necessary to require a more comprehensive grouping as the minimal appropriate bargaining unit. Instead, that question will be left to future consid- eration on a case-by-case basis. Accordingly, we reaffirm our pre- vious findings that Respondent engaged in unfair labor practices by, inter alia, failing to recognize and bargain with the Union as major- ity representative of employees in that unit. SUPPLEMENTAL ORDER In view of the foregoing , and on the basis of the record as a whole, the National Labor Relations Board reaffirms its Order of February 3, 1965 [150 NLRB 1523], in this proceeding. a See , e g., Primrose Super Varlet of Salem , Inc, 148 NLRB 610, 613-617, enfd. by First Circuit, unreported, cert denied 3S2 U S 830. Winn-Diane Stores Inc . 143 NLRB 848, 860-861, enfd 341 F 2d 750 (C A 5) , Merner Lumber and Hardware Company, 145 NLRB 1024, 1025-26, enfd 345 F.2d 770 (C A 9) , The H L Hudson Co, 155 NLRB 1,145, Suit Drug Cc , Inc, 147 NLRB 669, enfd. 359 F.2d 408 (C A 3). United States Rubber Company and United Rubber, Cork, Lino- leum and Plastic Workers of America, AFL-CIO. Case 23-CA- °21 47. August 26. 1966 DECISION AND ORDER On May 12, 1966, Trial Examiner John F. Funke issued his Deci- sion in the above-entitled case, finding that the Respondent had not engaged in and was not engaging in certain unfair labor practices 160 NLRB No. 64.