The Circle K Corp.

THE CIRCLE The Circle K Corporation and Retail Clerks Union, Local 1428, Affiliated with Retail Clerks Inter- national Union , AFL-CIO . Case 31-CA-872 November 12, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On June 12, 1968, Trial Examiner Irving Rogosin issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain alleged unfair labor practices and recom- mended that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed excep- tions to the Trial Examiner's Decision and a support- ing brief, and the Respondent filed cross-exceptions and a brief in support thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated this case to a three-member panel. 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 the support- ing briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, insofar as they are consistent with this Decision and Order. Contrary to the Trial Examiner, we do not agree with his findings that Donald W. Taylor and Mary Lee Taylor were not discriminatorily discharged on Octo- ber 17, 1967, and that Cletus Lee Williams was not discriminatorily transferred from the Respondent's Ontario store to Respondent's Upland store on October 18, 1967, in violation of Section 8(a)(1) and (3) of the Act. As detailed in the Trial Examiner's Decision, Donald W. Taylor was hired in February 1967, initially as a grocery clerk trainee when Respondent's Ontario store was operated by Robert Fleming, an independent operator, under a franchise agreement. About a month later Taylor became a regular employ- ee and was left in charge of the store on occasions when Fleming was out of town. Around July 1 the Respondent took over the direct operation of the store from Fleming. Shortly before that date, Fleming recommend to Respondent's Zone Supervisor Smith that Taylor was qualified to succeed him as manager of the store. Fleming informed Taylor of his recom- mendation and, before the changeover, Taylor discus- sed the matter with Smith, expressing interest in taking over the store as an independent operator and conducting the business as a family operation. Smith K CORP. 713 informed Taylor that he would work as assistant manager under Terence Keegan, the new manager, for about a week, and then would assume the duties of manager. Upon Taylor's suggestion Smith approved the hiring of Taylor's wife, Mary Lee Taylor, and his stepson, Cletus Lee Williams, who had begun working for Fleming at the end of June as a part-time "bottle boy". When July 8 passed and Taylor was not made manager, he made appointments to discuss the matter with Smith. Taylor met with Smith the end of August and early in September. During the meetings Taylor spoke of the strained relations between the employ- ees, including himself, and Keegan. Smith informed Taylor that he could not be made manager of the Ontario store until Keegan was willing to transfer to another store. Later in September, Smith offered Taylor the job of manager of Respondent's Colton store, 26 miles from the Ontario store, with the understanding that after 2 weeks at Colton he would be transferred back to the Ontario store as manager. Taylor testified that he turned the job offer down because Smith's previous procrastination made him apprehensive that the 2 weeks at Colton would be extended indefinitely and that this would lead to transportation problems for him and his wife who would be still working at the Ontario store. We note that at no time during the conversations between Taylor and Smith was any criticism or dissatisfaction expressed regarding Taylor's work, nor was Taylor at any time discouraged from his ambitions to become manager of the Ontario store. Around October 6, 1967, Taylor met with Maurice Z. Cofer, field representative of the Retail Clerks Union, Local 1428, affiliated with Retail Clerks International Union, AFL-CIO, hereinafter referred to as the Union, for the purpose of discussing the prospects of organizing the Ontario store Cofer gave Taylor five union authorization cards. Between Octo- ber 8 and 10 Taylor obtained four signed authoriza- tion cards from the approximately seven employees in the Ontario store, including himself, his wife, and his stepson. On October 10, the Union sent a registered letter to the Respondent's district officer at Riverside, directed to the attention of Mr. John Campbell, district manager, stating that a majority of the Respondent's employees indicated a desire to be represented by the Union, and requested an early meeting to discuss the subject. The letter was received and accepted by an office clerk on October 11. On October 12 the letter was returned to the post office with the handwritten statement, "Not accepted by addressee", and the word "Refused" written diagonal- ly across the envelope, and thereafter returned by the post office to the Union. According to the undisputed testimony of Jacob F. Struble, Respondent's vice president and area manager, the Respondent pursuant to advice of its legal counsel maintains a strict policy 173 NLRB No 107 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of refusing registered mail. No explanation was offered as to why the office clerk had not complied with the stated policy. There was no showing that the letter was opened before being returned to the post office for redelivery to the sender, or that Respon- dent had knowledge of its contents. The envelope which was in the possession of the Respondent for approximately a full day prominently displayed the name and address, together with a facsimile of the Union's seal in the upper left-hand corner and in the lower left-hand corner the printed legend, "BUY UNION-FROM UNION CLERKS". Around the same time that the Respondent had received the registered letter from the Union, Posey, a regular part-time clerk,' testified that he overheard a fragment of a conversation between Wooding, the zone supervisor who had replaced Smith, and store manager Keegan. Posey heard the word "union" mentioned and towards the end of the conversation heard Wooding say, "things were going to start happening". Posey further testified that Wooding had his briefcase and some papers with him, which Wooding placed upon the counter next to the cash register On the papers lying on top, Posey noticed a list of names on which he could recognize only the names of Mr. and Mrs. Taylor. Later after Wooding had left, Posey asked Keegan why Wooding had visited the store, since it was not usual for the zone supervisor to call at the store. Posey testified that Keegan said that he could not tell him then, but Taylor would probably find out later. Several days later Posey and Keegan engaged in a conversation during which Posey asked Keegan, in light of "all this stuff about the union . . coming up, his `viewpoint' about it". Keegan, Posey testified, expressed no prejudice one way or the other, but "gave both sides of the story." Soon thereafter Keegan returned from a trip to the Respondent's division office in Riverside, and upon encountering Posey told him that John Campbell, division manager of the area which included the Ontario store, had talked to him about the Union. Later in the afternoon on Tuesday, October 17, area supervisor Tom Smith telephoned Taylor and told him that he and his wife "would no longer be needed, due to personnel changes at the store in Ontario". Smith offered no further explanation, and Taylor asked for none. Smith told him that if Taylor needed a letter of recommendation, to "be sure and write to him", not to the company, and he would furnish him with a reference. Taylor and his wife were thereupon terminated. The day after, Williams called in to find out what time he was to report to work and was told by Keegan he was to work thereafter at the Respondent's Upland store, a mile and a half from the Ontario store. When Williams asked Keegan the reason for the transfer, he was told only that he was needed there. A few days after Taylor was terminated, about October 20, Taylor had a conversation with Keegan in a restaurant near the Ontario market. During the conversation Keegan told Taylor that about a week prior to his discharge, Keegan had recommended to zone supervisor Smith that Taylor be made his replacement as manager of the Ontario store. Keegan was told that "this was out of the question," because "[Taylor] was on [his] way out." He further stated "that he didn't know the reason why [Taylor] was on [his] way out then, but he knew now. It was because of the union." The above evidence was based upon the uncontra- dicted testimony of the General Counsel's witnesses. None of the supervisors alleged to have been involved in discriminating against the Taylors and Williams, namely Keegan, Smith, Wooding, and Campbell, was called to testify. The Trial Examiner concluded that on the basis of the evidence adduced the General Counsel had not established a prima facie case and that there was not substantial evidence from which to draw the adverse inferences that Respondent was aware of Taylor's union activity when it terminated the services of Taylor and his wife, and transferred his stepson Williams to another store, that Respondent was opposed to the organization of its employees; and that the personnel actions in question were for the purpose of discouraging membership in the Union. Accordingly, the Trial Examiner found that the General Counsel had failed to sustain his burden of proof, and Respondent was under no duty to go forward with countervailing evidence. We do not agree. Unlike the Trial Examiner, we find that the evidence when considered in its totality, presents a strong prima facie case to support the allegations in the complaint of discriminatory dis- charges of the Taylors and transfer of Williams. It has been well-established that direct evidence is not necessary to support a finding of knowledge of union activity, but that such knowledge may be inferred by the Board from the record as a whole.' The undisputed facts clearly establish that the Re- spondent had knowledge of the employees' organiza- tional activities. Thus, the Respondent had in its possession the Union's registered letter received Octo- ber 11 on which the name and address of the Union were prominently displayed for approximately a day. Around the same time the zone supervisor made one of his infrequent calls at the Ontano store and there was testimony that the Union was discussed. Several I Posey was one of the three employees in the unit who did not sign 2 See, e g , Texas Industries, Inc, 156 NLRB 423, 424. a union authorization card. A fifth employee signed an authorization card on October 13 THE CIRCLE K CORP. days later a store clerk who was not an active union adherent discussed the Union with manager Keegan, and around the same time Keegan on his return from a visit to Respondent's division office told the same clerk that the division manager of the area which included the Ontario store had talked to him about the Union. In concluding that the Respondent had knowledge of the Union's organizational activity, we also rely upon the smallness of the Respondent's store 3 Viewed against this background the circumstances surrounding the Respondent's personnel actions take on added significance. We note that neither the Taylors nor Williams had even been disciplined or criticized concerning their work. Indeed, Donald Taylor had been considered managerial material from the time the Respondent took over the Ontario store, had been promised the managership of the Ontario store, and in late September had been offered the job of manager of one of the Respondent's other stores. As recently as a week prior to his discharge, manager Keegan had recommended Taylor for his job. The discharge of the Taylors took place only a week after Taylor had obtained authorization cards from the majority of the employees in the Ontario store including Mary Lee Taylor and Cletus Williams. We find significant not only the timing of the discharges and the transfer4 in relation to union organizational activity, but also the preemptory man- ner in which they were handled.' The Taylors were discharged late in the afternoon at the beginning of the week by a telephone call from the zone supervisor without any explanation or specific reason. The circumstances of Williams' transfer were similar. There appears to have been no clearance or consulta- tions with their immediate supervisor, Keegan, the store manager.6 From all the circumstances we find the reasonable conclusion to be drawn is that the personnel changes which the Respondent set in motion on October 17 and 18 were not for business or economic reasons, but for the purpose of ridding itself of the most active union adherents. In fact, our conclusion is buttressed by Taylor's undisputed testi- mony, referred to above, in which Keegan, the store manager, admittedly an agent of the Respondent, stated to Taylor after the discharge that although Keegan did not know at the time why Taylor was let go, Keegan knew "now" that it was because of the Union.7 3 See Dubin Haskell Lining Corp., 154 NLRB 641, 650 4 Texas Industries, Inc, supra, 425 5 Better Val-U Stores of Mansfield, Inc., 161 NLRB 762, 780, and cases cited , enfd in relevant part 401 F 2d 491 (C.A 2) 6 See Better Val-U Stores of Mansfield, Inc, supra, 781, and cases cited 7 Contrary to the Trial Examiner we cannot agree in the circum- 71 5 As the facts in our opinion establish a prima facie case of unlawful discrimination against the Taylors and Williams, we find it was incumbent upon the Respondent to have gone forward with evidence adequately explaining its personnel actions and refut- ing the adverse inferences which follow therefrom.' The Respondent offered no evidence which would dissipate the unfavorable inferences to be drawn from the General Counsel's evidence. Accordingly, we find, contrary to the Trial Examiner, that the Respondent's discharge of the Taylors on October 17, and the transfer of Williams on October 18, were for discrimi- natory reasons as alleged in the complaint, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent discriminatorily discharged Donald W. Taylor and Mary Lee Taylor on October 17, and discriminatonly transferred Cletus Lee Williams on October 18 out of its Ontario store in violation of Section 8(a)(1) and (3) of the Act, we shall order the Respondent to cease and desist from such unfair labor practices and require that it take certain affirmative action which we find necessary to remedy and remove the effects of this unfair labor practice and to effectuate the policies of the Act. We shall, therefore, order that the Taylors and Williams be offered immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay suffered by reason of the discrimination against them, from the date of the discrimination to the date of the offers of reinstatement. Loss of pay shall be comput- ed as prescribed in F W Woolworth Company, 90 NLRB 289, and interest on such backpay shall be computed at 6 percent per annum in accordance with Isis Heating & Plumbing Co., 138 NLRB 716. We shall also order the Respondent to make available to the Board upon request payroll and other records in order to facilitate the checking of the amount of backpay due. AMENDED CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record in this case, we do not adopt the stances disclosed by the record that assuming that Keegan made this statement, it can be dismissed as merely an expression of Keegan's opinion rather than an admission by Respondent which required explanation or denial by the Respondent 8 See Star Expansion Industries, Corp., 164 NLRB No . 95, Virginia Metalcrafters, Inc, 158 NLRB 958, 963. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner's Conclusions of Law 5, and adopt new Conclusions of Law, 5, 6, and 7 as follows- 5 Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. The Respondent by discharging Donald W. Taylor and Mary Lee Taylor, and transferring Cletus Lee Williams out of its Ontario store because of their interest and activity in behalf of the Union, commit- ted unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices found to have been committed by the Respondent are unfair labor practices affectmg commerce within the mean, mg of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Responent, The Circle K Corporation, Ontario, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from' (a) Discouraging membership in the Retail Clerks Union, Local 1428, affiliated with Retail Clerks International Union, AFL-CIO, or in any other labor organization of its employees, by discriminating against employees because of their union sentiments and activities by discharging or transferring them or refusing to reinstate-them. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the 'following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Donald W. Taylor, Mary Lee Taylor, and Cletus Lee Williams immediate employment at the same or substantially equivalent position at which they would have been employed had they not been discriminated against, without prejudice to any se- niority or other rights and privileges they might have acquired, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy," and notify them, if they are presently serving in the Armed Forces of the United States, of their 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. (b) 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 to analyze and compute the amount of backpay due under the terms of this Order. (c) Post at their places of business in Ontario, California, copies of the appropriate attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by respective Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other matenal. (d) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 91n the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order 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 the Re- tail Clerks Union, Local 1428, affiliated with Retail Clerks International Union, AFL-CIO, or in any other labor organization by discriminating against our employees because of their union sentiments and activities by discharging or transferring them or refusing to reinstate them. WE WILL offer Donald W. Taylor, Mary Lee Tay- lor, and Cletus Lee Williams immediate employ- ment at the same or substantially equivalent positions at which they would have been employed had they not been discriminated against, without prejudice to any seniority or other rights and privileges they may have acquired. WE WILL make Donald W Taylor, Mary Lee Tay- lor, and Cletus Lee Williams, whole for any loss of earnings they may have suffered as a result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and THE CIRCLE K CORP. 717 Service Act, as amended , after discharge from the issues , to argue orally , and file briefs and proposed findings of Armed Forces THE CIRCLE K 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 provisions, they may communicate directly with the Board's Regional Office, 215 West 7th St., Los Angeles, California, 90014. Telephone 213-688-5800. TRIAL EXAMINER'S DECISION IRVING ROGOSIN, Trial Examiner- The complaint, issued December 8, 1967, alleges that The Circle K Corporation, Respondent herein, has engaged in unfair labor practices within the meaning of Section 8(a) (1), (3), and (5) of the Act, (a) during October 1967, and thereafter, by the acts and conduct of its officers, agents, and representatives, interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) by discharging Donald Taylor and Mary Lee Taylor, on about October 17, 1967, and thereafter, refusing to reinstate them to their former positions, and transfering Clete Williams, on about October 18, 1967, from its retail store in Ontario, California, to its store in Upland, California, and thereafter refusing to reinstate him to his former or substantially equivalent position at Ontario, because said employees had engaged in union or other concerted activities; and (c) by refusing, since about October 11, 1967, to recognize and bargain collectively with the Union as the exclusive representative of the employees in an appropriate unit.' Respondent's answer admits generally the procedural and jurisdictional allegations of the complaint,2 but denies the remaining allegations, including those charging the commission of unfair labor practices. Hearing was held on March 5 and 6, 1968, at Los Angeles, California. The General Counsel and the Charging Party were represented by counsel; Respondent by an industrial relations consultant. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence relevant and material to the I The original charge was filed on October 25, 1967, the amended charge, on November 28, 1967. Service by registered mail of both charges was refused, though a copy of the amended charge , accompa- nied by a transmittal letter was served on Respondent's industrial relations consultant on November 29. Designations are as follows The General Counsel , unless otherwise stated, his representative at the hearing , The Circle K Corporation , Respondent , the Company, or the Employer, Retail Clerks International Union, AFL-CIO, the Charging Party, or the Union , the National Labor Relations Act, as amended (61 fact and conclusions of law. Respondent's motion, made at the close of the General Counsel's case, to dismiss the complaint for failure of proof, was denied. When renewed at the close of the evidence, ruling was reserved The motion is disposed of by the findings of fact and conclusions of law made herein. The General Counsel and Respondent's representative argued orally on the record. Motion by the General Counsel at the close of the hearing to conform the pleadings to the proof was granted without objection. Pursuant to an extension of time duly granted, briefs were filed on April 22 and 24, 1968, by Respondent and the General Counsel, respectively Upon the entire record in the case, his observation of the attitude and demeanor of the witnesses, and the briefs of the parties, which have been duly considered, the Trial Examiner hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's answer admits, and it is hereby found that, at all times material herein, Respondent has been a cor3oration duly organized under the laws of the State of Texas, engaged in the operation of about 200 retail food markets in the States of Arizona and California, including stores located at Ontario, Colton, and Upland, California. In the course of its business operations, Respondent sells at retail annually merchandise valued in excess of $500,000. During a corresponding period, Respondent purchases annually goods and materials valued in excess of $50,000 within the States of Arizona and California, for resale at its retail stores in those States, from wholesalers or enterprises receiving said goods and materials from sources outside the States of Arizona and California. It is, therefore, found that Respondent is now, and at all times material herein has been, an employer within the meaning of Section 2(2) engaged in commerce, and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and the jurisdictional standards of the Board. II THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local 1428, affiliated with Retail Clerks International Union, AFL-CIO, the Union herein, is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A The Issues 1. Whether Donald Taylor was, on or about October 17, 1967, a supervisor within the meaning of the Act Stat. 136., 73 Stat. 519, 29 U.S C. Sec. 151, et seq ), the Act, the National Labor Relations Board, the Board Unless otherwise stated, all dates are in 1967. 2 In its answer , Respondent corrects the allegation of the complaint regarding the state of incorporation of Respondent, asserting that it is organized under the laws of the State of Texas, rather than the laws of the State of Arizona, as alleged in the complaint. _ 3 See fn. 2 718 \ DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Whether Respondent violated Section 8(a) (3) and (1) of the Act, by discharging Donald Taylor and Mary Lee Taylor, on or about October 17, 1967, and thereafter refusing to reinstate them to their former or substantially equivalent positions. 3. Whether Respondent violated Section 8(a)(3) and (1) of the Act by transferring Clete Williams, on about October 18, 1967, from its store in Ontario, California, to its store in Upland, California, and thereafter refusing to reinstate him to his former or substantially equivalent position at its Ontario store 4. Whether Respondent violated Section 8(a) (5) and (1) of the Act, by failing to reply to the Union's request for recognition and bargaining, thereby refusing to bargain collec- tively with the Union as the exclusive representative of the employees in an appropriate unit. 5. Whether Respondent violated Section 8(a) (1) of the Act in October 1967, by (a) warning its employees, through its supervisor, of economic reprisals if they engaged in union activities or selected the Union as their exclusive bargaining representative, and (b) creating the impression of engaging in surveillance of the employees' umon activity. 6. Whether a remedial order is warranted requiring Respon- dent to bargain with the Union as the exclusive representative of its employees in an appropriate unit, irrespective of whether the evidence warrants a finding of refusal to bargain, within the meaning of Section 8(a) (5) of the Act. B. Discrimination in Regard to Hire and Tenure of Employment 1 Termination of the Taylors Prior to July 1, 1967, Respondent's market at Ontario was operated by Robert Fleming, an independent operator, under a franchise agreement.4 Donald W. Taylor was hired by Fleming early in February, initially as a grocery clerk trainee. About a month later he became, as he assumed, assistant manager.5 The store was operated on a 24-hour basis, Fleming usually working alone from 7 30 a.m. to 7 p.m For the first month, Taylor worked from 5 p.m. until midnight, with an assistant manager, identified only as "Terry," who also served as grocery clerk. Terry was terminated early in March, and Taylor became assistant manager, working the same shift. No other clerks were employed on that shift, but Fleming occasionally came to the store at night to perform chores he had left undone during the day. A clerk, identified only as "Ralph" worked from midnight to 7.30 a.m Respondent contends that Taylor was a supervisor, within the meaning of the Act, both before and after July 1, 1967, when Respondent assumed the active operation of the store. It is, therefore, necessary to consider the nature and extent of his duties and responsibilities. It is conceded that these remained unchanged after Respondent took over the operation. It is undisputed that Taylor had no authority to hire or discharge and that he never exercised such authority. Nor is there any evidence that he had authority to make such recommenda- tions, that he ever did so, or that his recommendations were acted on, with one possible exception. This involved his "recommendation" for the hiring of his wife, Mary Lee Taylor, as a clerk, in July The evidence regarding this hiring establishes that Taylor requested Tom Smith, Respondent's zone manager, to give Taylor's wife a job. This scarcely qualifies as the type of recommendation contemplated in the definition of supervisor under the Act. Apart from the fact that this was an isolated instance, it is evident that the hiring was not made on the basis of any recommendation regarding the qualifications of Mrs. Taylor, who had had no prior experience, but as a personal accommodation to Taylor. Moreover, it must be viewed in the context of the events which occurred at about the time Respondent took over the operation of the store from Flerrung. Shortly before July 1, Fleming recommended to Zone Manager Smith that Taylor was qualified to succeed him as manager of that store. Fleming informed Taylor of this and, before the changeover took place, Taylor discussed the matter with Smith in a restaurant next to the store. Taylor told Smith that he was interested in taking over the store as an independent operator, and conducting it with his family, obviously intending his wife, and stepson, Clete Williams (who was working in the store at the time), "plus part-time help and full-time for night shift." Smith told Taylor that he would work as assistant manager under Terence Keegan, the new manager, for about a week, and then would assume the duties of manager. Smith indicated approval of the hiring of Taylor's wife and stepson, who had been working for Fleming a week or two before July 1, as a part-time "bottle boy " Taylor brought home an application for employment, which his wife completed She then submitted to a lie detector test by Respondent, after which Smith notified Keegan that he authorized the hiring of Mrs. Taylor. She was lured as a grocery clerk on about July 20. This single, isolated "recom- mendation" by Taylor is insufficient to establish that, as an essential part of his duties and responsibilities, Taylor possessed authority to make effective recommendations regarding the hiring of employees in the store. It remains to be considered whether his other job functions were sufficient to render him a supervisor within the meaning of the Act While employed by Fleming, Taylor was an hourly rated employee receiving $1.65 an hour, the same rate received by all other employees. Though never officially informed that he was an assistant manager, Taylor assumed this from the fact that he substituted for Fleming during his occasional absences and on Saturdays, Flerrung's day off. Taylor understood that, under company policy, store managers and assistant managers were entitled to an 8 percent bonus based on the gross volume (or profit-it is not clear which) of business, in addition to their regular wages. Taylor received no additional compen- sation, excepting for one or two $5 payments, which were not otherwise explained. When Respondent took over the store on July 1, it reduced the hourly wage rates of all employees, including Taylor, but excluding Manager Keegan, to $1.55, the same rate paid to "bottle boys." At no time did Respondent pay Taylor a bonus. 4 The record does not disclose the terms of this agreement and a finding as to the nature of this undertaking is unnecessary to a determination of the issues. 5 Although Fleming, who did not testify , never specifically informed Taylor of his change in status , Taylor assumed that he was acting as assistant manager because Fleming left him in charge on occasions when he was out of town There was, however, no other change in Taylor's duties or compensation. THE CIRCLE K CORP. 719 It is clear that authority for the management and supervision of the store, both before and after the changeover, rested with the manager Smith informed Taylor that as assistant manager his duties and responsibilities were to comply with Keegan's orders. Although, according to Taylor, he was responsible for the "training" of new employees, he testified merely that he broke them in on their work tasks and observed their work. Between July 1, and the date of his discharge, apart from his wife, he "trained" one or possibly two clerks. Most of the clerks, Taylor testified, already knew how to operate a cash register before they were hired. In addition to performing the the tasks of grocery clerk, Taylor did the bookkeeping, balanced the cash, and made up the night bank deposit. He also trained his wife, and after about 2 weeks, she in turn trained Ed Garcia, a full-time clerk, in performing these tasks. Taylor made no determination or recommendation as to whether the employees required any further training in the performance of these tasks. The bookkeeping was usually checked by Manager Keegan the following morning and reports were picked up by the zone supervisor. Until his wife started working with hum, there were no other employees on the 3 p.m. to 11 p.m. shift, on which Taylor worked. A bottle boy did, however, come in 2 hours every evening. Two bottle boys were employed at the Ontario store-Williams, Taylor's stepson and Timothy Posey, who was hired early in September When stock was delivered, on Thursday or Friday, both boys usually worked together unloading the order On other days, they generally worked 2 hours each on alternate days. Although designated as bottle boys, it is evident that they also worked as clerks and, on occasion, at the cash register or checkout stand Work schedules were established in advance by Manager Keegan, although Taylor exercised limited authority in extend- ing or reducing the number of hours worked by the bottle boys, depending upon the amount of work required. Taylor signed for deliveries of merchandise, occasionally ordered merchandise from vendors, paid cash for produce delivered to the store, approved checks in payment of merchandise, and authorized cashing of checks in accordance with rules pre- scribed by Respondent. It is undisputed, however, that clerks on other shifts performed the same tasks. While working on the day shift, Taylor substituted for Keegan on Saturday, his day off. Shortly before his termina- tion, Taylor was assigned to the graveyard shift, working from midnight until 8 a.m. During this period, Ed Garcia, the clerk on the afternoon shift, from 3 p.m. to 11 p.m. performed substantially the same tasks as Taylor. For some time after July 1, Garcia's and Taylor's shift overlapped about 2 hours, especially on weekends During this period, Garcia, like Taylor, paid cash for produce delivered to the store. In addition to the manager, Taylor and his wife, when she worked evenings, made out the bank deposit. Mrs. Taylor also performed the bookkeeping on her shift. Early in October, Keegan requested Mrs. Taylor to train Garcia, who worked the same shift, to do the paper work and make out the bank deposit. Taylor did not have a key to the safe, but a key, kept in a drawer behind the counter, was available to and used by the clerks In other respects, Taylor's duties did not differ materially from those of the other clerks. These consisted generally of stocking shelves and rotating stock, mopping and waxing the floor (performed by Taylor while on the graveyard' shift). Whatever observations he made regarding whether work tasks had been properly performed on the swing shift, were for the purpose of deciding what remained for him to do on the graveyard shift. Although he questioned employees as to why particular tasks had not been done on the swing shift, he was obliged to content himself with the answer that they had been too busy, apparently having no authority to impose or recommend discipline. Although he sometimes "double- checked" the cash when the books did not balance, and verified the bank deposits while on the graveyard shift, he denied any responsibility for doing so, asserting that this was the responsibility of the swing shift. After his transfer to the graveyard shift, he ceased to substitute for Keegan on his days off on Saturday Except for Taylor's limited authority in extending or reducing the hours worked by the bottle boys as work required, there is no evidence that Taylor was author- ized, as a regular part of his duties, to assign work to employees, regulate their working hours, lay off, or discipline them by dismissing them before the completion of their day's work, or that he ever exercised such authority. Contrary to Respondent's contention, the record does not establish that Taylor possessed authority responsibly to direct other em- ployees, effectively recommend the hiring of employees , assign work to and discipline them for derelictions, or that Taylor exercised such authority, except to the very narrow and limited extent already indicated The facts regarding Taylor's duties and responsibilities are not sufficiently distinguishable from those delineated in Purity Food Stores, Inc, 6 to warrant a different conclusion than was reached there. It is, therefore, found that Taylor was not, at any of the times material herein, a supervisor within the meaning of Section 2(11) of the Act On about October 6, 1967, Taylor discussed with Maurice Z. Cofer, field representative of the Union at Pomona, California the prospect of organizing the employees at Respon- dent's Ontario store. The union representative gave him some authorization cards, and instructed him in the manner of securing execution of the cards. Taylor signed a card himself and secured the signatures of four other employees, including his wife and stepson.7 He forwarded the signed cards to the Union. Late in the afternoon on Tuesday, October 17, Zone Supervisor Smith telephoned the Taylor home. Mrs. Taylor answered the phone in her bedroom, and summoned Taylor who was outside. He took the call in the kitchen, while Mrs. Taylor remained on the extension in her bedroom. Smith told Taylor that, due to a personnel change at the Ontario store, he and his wife would no longer be needed Smith offered no further explanation, and Taylor asked for none. Smith told him, however, that if he needed a letter of recommendation, to " be sure and write to hum," not to the Company, and he would furnish him with a reference. Taylor and his wife were thereupon terminated. Several days later, about October 20, Taylor had a conversation with Store Manager Keegan in a restaurant near the market. During the conversation, Keegan told Taylor that, on October 10 or 11, prior to Taylor's discharge, he had 6 Purity Food Stores, Inc, 150 NLRB 1523, enforcement denied on other grounds 354 F.2d 926 (C.A. 1), original decision affirmed on remand, 160 NLRB 651, set aside on other grounds 376 F.2d 497 (C. A. 1). See also Quick Shop Markets, Inc., 168 NLRB No 30. 7 Since it has been found that Taylor was not a supervisor, Respondent's contention that the cards which Taylor solicited may not be relied on because obtained by a supervisor, is not applicable. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommended Taylor to Zone Supervisor Smith as his, Keegan's replacement as store manager . He was told by the "office staff," an apparent reference to Smith, that "that was out of the question, because [Taylor] was on [his] way out." Taylor testified that, following his initial conversation with Smith, in which it was indicated that Taylor would take over as manager about July 8, the date passed with no further mention by management until early in August. When Taylor brought the matter up then, Smith postponed the date to August 15. That date, too, passed without any further action, and when Taylor again broached the subject with Smith, the latter set still another date. During this conversation, Taylor spoke of a strained relationship between employees, including himself, and Keegan, and complained that Keegan had assigned work to him and the other employees, which required them to work beyond their normal 8 hours, while Keegan merely worked a regular 8-hour day. Taylor commented that he did not regard that as fair, adding that he worked hard, and that if he could work that hard, there was no reason Keegan could not do so 8 Late in September, Smith offered Taylor the job of manager of Respondent's Colton store. Taylor denied that Smith told him that one of the reasons for this proposal was that he, Taylor, and Keegan did not seem to be getting along. According to Taylor, Smith had offered him the job of manager of that store for about 2 weeks, after which he would return to the Ontario store and take over as manager . Taylor testified that, because of Smith's procrastination in the past in appointing him manager of the Ontario store, he had no confidence that Smith would keep his promise to transfer him to the Ontario store after 2 weeks at Colton. Moreover, according to Taylor, he was apprehensive that the 2-week assignment would last indefinitely, and this would create a hardship upon him and his family because of transportation difficulties, since the Colton store was located some 26 miles from his home, and, with only one car in the family, his wife, who would still be working at the Ontario store, would have no transportation to work. Taylor testified that he related this to Smith on that occasion Keegan, according to Taylor, had been unaware that Smith had offered to appoint Taylor manager of the Ontario store, after 2 weeks in the Colton store, until Taylor mentioned it to him later. Earlier, Smith had told Taylor that he could be manager of the Ontario store if Keegan were willing to transfer to another store. Taylor testified that, when Keegan took over the Ontario store, the latter was unaware that it had been "prorrused" to Taylor, and that Keegan understood that was to be his store. When Taylor asked Smith, early in September, why he had not kept his promise to make him manager of the Ontario store, Smith replied that it was because there was no store to which they could transfer Keegan. According to Taylor's undisputed testimony, the Ontario store was Respondent's "No. 1 [store] in Southern Califor- nia," with the greatest volume of business. Because of Respondent's policy of a percentage bonus to managers and assistant managers, the Ontario store was regarded as the most desirable store in that area. It should be noted that the record is barren of any direct evidence of Respondent's knowledge of Taylor's union activity or his efforts to organize the clerks in the Ontario store. Nor is there any evidence of union animus or expressed opposition or hostility toward union affiliation by Respondent's employees. The nearest thing to any knowledge of union activity, or a basis upon which such knowledge may be inferred, is an incident which occurred about a week before the Taylors were discharged. According to the undisputed testimony of Timothy Lyn Posey, a regular part-time bottle boy and clerk, he overheard a fragment of a conversation between "Red" Wooding, the zone supervisor who replaced Smith, and Store Manager Keegan. While Posey was behind the cash register, Wooding and Keegan were engaged in conversation in front of the candy display, about 7 feet from where Posey was working. In Posey's words, "I was sort of halfway listening and halfway not, and I heard the word `union' mentioned. There was a lot of talk around the store about the union so I paid a little closer attention to what Mr. Wooding said about the union. And then towards the end of the conversation Mr. Wooding also said that things were going to start happening, and that's all I heard." Posey testified that Wooding had his briefcase and some papers with him, which he placed on the counter next to the cash register. On the paper lying on top, Posey noticed a list of names on which he could recognize only the names of Mr. and Mrs. Taylor Later, after Wooding had left, and while Posey and Keegan were engaged in casual conversation, Posey asked Keegan "what it was all about," remarking that it was rather unusual for Wooding to call at the store. Keegan said that he could not tell him then, but that Taylor would probably find out later. One afternoon, several days later, Posey and Keegan, who, according to the former, were "pretty good friends," were engaged in conversation. Posey asked Keegan, in light of "all this stuff about the union ... coming up, his `viewpoint' about it." Keegan, Posey admitted, "wasn't prejudiced one way or the other. He gave me both ... he more or less explained what the union was about, and what it had to do with Circle K, and he sort of gave me-well, he gave me both sides of the story, and he wasn't either way, you know, for what was happening." On that occasion, or perhaps the day before, when Keegan returned from Riverside,9 he told Posey that John Campbell, then division manager of the area which included the Ontario store, had talked to him about the Union. According to Posey, he was uncertain whether Taylor's name was mentioned in his conversation with Keegan. During late afternoon or evening, within a few days after the Taylor's discharge, Posey had another conversation with Keegan in the back room ofthe store. Posey asked Keegan the reason the Taylors were discharged. Keegan told him he "really didn't know the reason, and what he was told he wasn't free to talk about." Pressed to give his opinion as to the reason for the discharge, Keegan told Posey that he did not know and did not want to talk about it. Posey persisted, and asked Keegan whether if he, Posey, ventured a guess as to the reason for the discharge , Keegan would admit whether he had guessed 8 Dunng cross-examination of Taylor, Respondent 's representative intimated that Taylor had faded to carry out instructions left for him by Keegan , implying that this played a part in his termination. Apart from the fact that Taylor denied that Keegan ever mentioned it to him, and that Keegan did not testify, there was no contention that Respondent relied upon this as a ground for Taylor's termination. 9 Respondent's division office. The corporate office is located in Phoenix, Arizona THE CIRCLE K CORP. correctly Posey then "guess [ed] " that it was because of the Union, but Keegan made no reply. Still not content, Posey asked Keegan if he would tell him if he had guessed "wrong," but Keegan refused to respond On this evidence, the Trial Examiner is asked to conclude that Respondent was aware of Taylor's union activity when it terminated his services and that of his wife; that Respondent was opposed to the organization of its employees; and that it terminated the Taylors' employment for that reason to discourage membership in the Union. None of Respondent's supervisors alleged to have been involved in discriminating against the Taylors, namely, Keegan, Smith, Wooding and Campbell, was called to testify. Hence, the testimony of the General Counsel's witnesses on this issue stands uncontradicted. The question, therefore, must be whether the General Counsel has established a puma facie case, for, unless he has, Respondent would be under no duty to go forward to rebut that case, and no adverse inference could be drawn from Respondent's failure to offer countervailing evidence To begin with, there is no evidence of union animus or opposition by Respondent to the affiliation of its employees with the Union. As to Respondent's knowledge of Taylor's union activity, such a finding must be based almost entirely on the relatively small number of employees, a total of seven, including full and part-time employees on both shifts. There is no probative evidence to establish that Keegan, who was apparently at the store only during the day shift, was aware of or suspected Taylor of any union activity. Posey's testimony regarding his conversation with Keegan, upon the latter's return from Riverside, in which he mentioned that Campbell had talked to him about the Union, establishes at most that he may have learned about the Union on his trip to Riverside. The fact is that, on Posey's own admission, when asked for his viewpoint, Keegan maintained a wholly neutral attitude. Nor does Posey's testimony regarding the fragments of the conver- sation between Woodmg and Keegan which he overheard, in which the word "union" was mentioned, and a reference made to the effect that "[t] hings are going to start happening," constitute probative evidence of discriminatory motive The fact that Posey observed the names of the Taylors, among others, on Wooding's lists, adds little more than further suspicion. Nor has Taylor's uncontradicted testimony, that Keegan told him a few days after his discharge that in response to his recommendation of Taylor as manager, he was told that it was out of the question because he was on his way out, been overlooked This statement is equally consistent with Respon- dent's contention, which is uncontroverted, that Taylor and his wife were no longer needed due to personnel changes at the Ontario store. It does not appear whether Keegan inquired of his superiors why Taylor was on his way out, but Keegan did not elucidate this in his conversation with Taylor. It is evident 10 Williams , Taylor's stepson , testified on cross-examination that he believed he had heard Keegan complain at a meeting with the employees that there was too much help at the Ontario store , though Williams was unable to fix the time Keegan made the statement. Since Keegan became manager of the store on July 1 , and, as will presently appear, Williams was transferred to the Upland store the day after the Taylors were terminated , the remark would have had to be made during this interval . Considering that the Ontario store was Respondent's No. 1 store m Southern California , operating on a 24-hour schedule with a total complement of 7, excluding the manager , including full and 721 that the decision to terminate Taylor was made at division headquarters at Riverside, presumably without prior consulta- tion with Keegan. Nor is the General Counsel's case aided by Taylor's similarly undisputed testimony (elicited, incidentally, under interrogation by the Trial Examiner to enable the witnesses to complete an unfinished answer on cross- examination), that although he had not known the reason at the time he was told that Taylor was on his way out, he knew then (at the time of his conversation with Taylor) that it was "because of the union." Assuming Keegan made this statement to Taylor, it was no more than an expression of Keegan's opinion, not a vicarious admission by Respondent As has been noted, the only reason which Smith offered Taylor for the termination of his employment, as well as his wife's, was that they "would no longer be needed, due to personnel change" at the Ontario store. Smith did not elaborate on this, and Taylor apparently did not press him for further explanation.) 0 Although Smith's failure to clarify what he meant by "personnel change" casts suspicion on the actual grounds for the termination, it is insufficient, for reasons already stated, to justify a discriminatory motive for the discharges, even when coupled with Taylor's undisputed testimony that Keegan had told him that when he recom- mended hum as manager , he was told that it was out of the question because Taylor was on his way out. The concurrent termination of Taylor's wife heightens the suspicion of Respondent's motivation, but this circumstance is insufficient to justify a finding of discrimination. Mrs. Taylor's activity consisted merely of the signing of an authorization card, and there is no direct evidence that Respondent was even aware that she had done so. Of course, if the evidence supported a finding of discrimination against her husband, it could more readily be inferred that Respondent would identify her with her husband's advocacy of the Union. Since her case is necessarily dependent on a finding of discrimination in Taylor's case, the failure of proof in his case deprives her of any support for hers. Although the reason advanced by Smith to Taylor for the terminations may have been unduly vague and indefinite, we cannot disregard the fundamental principle that the burden of proof is on the General Counsel to establish by a fair preponderance of the reliable, credible and probative evidence that the discharge was discriminatorily motivated, not on Respondent to prove that it was motivated by lawful -considerations not proscribed by the Act. Due consideration has been given the coincidence of the timing of the discharges, within a week after Taylor recruited the employees to join the Union, and the comparatively small complement of employees at the Ontario store. These factors, however, are insufficient to satisfy the requirement of substan- tial evidences I It is, therefore, found that the General Counsel has failed to sustain his burden of proof that Respondent discharged part-time help, it might be questioned whether the store was actually overstaffed In any case , in stating to Taylor that his termination was due to a personnel change, Smith did not specifically assert that there was too much help at the Ontario store or that Keegan had so reported to him. I1 "Substantial evidence is more than a scintilla , and must do more than create a suspicion of the existence of the fact to be established `It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion "' N L R B v. Columbian Enamel. ing & Stamping Co , 306 U S 292, 300 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donald Taylor and Mary Lee Taylor on October 17, 1967, and thereafter failed and refused to reinstate them to their former or substantially equivalent positions, because of their union activities, thereby discriminating in regard to their hire or tenure or terms or conditions of employment to discourage membership in the Union, in violation of Section 8(a) (3) of the Act 2. The transfer of Clete Williams C. The Refusal to Bargain 1. The appropriate unit The complaint alleges, Respondent's answer admits, and it is hereby found that, at all times material, the following has constituted an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by Respondent at its retail store in Ontario, California, excluding guards, watchmen, and supervisors as defined in the Act, as amended. Cletus Lee Williams, a minor, stepson of Donald Taylor, was hired initially by Fleming early in July, as a "bottle boy" in the Ontario store, at an hourly rate of $1.55. When he first started, he worked an hour or two a day. Later, his hours were increased to 20 or 40 a week (he was uncertain which), occasionally 8 hours a day during the summer months when he was not attending school. He was taught to operate a cash register and occasionally did so. As has been seen, he signed a union authorization card on October 9, at the instance of his stepfather. The day after his parents were terminated, he was transferred to the Upland store. At the time of his transfer, he was working about 16 hours a week After his transfer, his hours were reduced to about 8 a week; a week or two later, to 4, and finally, to 2. About Thanksgiving, after an illness, during which Respondent called him twice over a 2-week period, to ascertain his availability for work, his employment was terminated. Williams testified that they ceased to call hum and, when his job was offered to someone else, he concluded that he had been terminated. He admitted, however, that although he claimed to be ill when he was last called, he had actually accepted another job in a drugstore. There is no allegation or contention that the reduction in his hours of work or subsequent termination amounted to discrimination. Williams testified that he believed he had heard Store Manager Keegan complain at meetings with the employees, while he was working at the Ontario store, that there was too much help, though he was unable to place the time he heard the statement He was not otherwise given any reason for his transfer to the Upland store, testifying that when he called in one day to find out what time he was to report for work, Keegan merely told him to start reporting to the Upland store. When he asked Keegan the reason for the transfer, he was told only that he was needed there. With Williams' transfer, there were four persons employed at the Upland store,-a manager, assistant manager, a clerk, and Williams. There were no other bottle boys at that store, and none were hired while he worked there. During the latter part of his employment, he worked Wednesday and 1 day on weekends Apart from the fact that the Upland store was located about a mile and a half from the Ontario store, there was no showing that there was any difference in the terms and conditions of his employment resulting from the transfer. Since no discriminatory motive has been shown for Williams' transfer, since it is evident that he did not engage in any union activities, except for signing an authorization card; and since any basis for a finding of discriminatory motive necessarily depends on such a finding in Taylor's case, it cannot be concluded that Respondent was motivated in Williams' case by a purpose to discourage membership in the Union. It is, therefore, found that these allegations of the complaint have not been sustained. 2. The Union's majority status The complaint further alleges, but Respondent's answer denies, that since about October 8, 1967, and at all times thereafter, the Union has represented, and still represents, a majority of the employees in the appropriate unit described above, and by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining, in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. It is undisputed that there were seven employees, full and regular part-time employees, excluding the store manager, at the Ontario store, on October 8. Respondent has made no contention that the part-time employees were not properly included in the unit, and on the basis of the entire record, it is found that, by virtue of the number of hours part-time employees regularly worked, they are entitled to be included within the unit It has already been found that to the extent that he may have acted as assistant manager, Taylor was not a supervisor within the meaning of the Act Three employees12 signed authorization cards on October 9, Ed Garcia, a regular, full-time employee signed a card after midnight, October 8. (The card is dated October 8.) Chester A Philbrook, a regular, part-time employee signed his card on October 13. All were solicited by Taylor and signed in his presence. There is no issue as to the genuineness of the signatures or the effectiveness of the authorization cards designating the Umon as bargaining agent. Thus, the Umon had been designated by four, out of a total of seven employees in the unit, as of October 9. It is, therefore, found, on the basis of the foregoing, and upon the entire record, that the Umon, on October 9, 1967, and at all times material since, including October 10, 1967, has been the exclusive representative of Respondent's employees in an appropriate unit for the purposes of collective bargaining as aforesaid 13 3. The refusal to bargain On October 10, the Union sent a letter from its Pomona, California, office, by registered mail, return receipt requested, addressed to Respondent at its Riverside, California, office, to the attention of Mr John Campbell, district manager. The 12 Donald and Mar, Lee Taylor, and Williams. 13 Posey later signed an authorization card on November 29, 1967 The termination of the Taylors on October 17, and the transfer of Williams the following day, did not, of course, affect the union's majority on October 10 THE CIRCLE K CORP envelope in which the letter was enclosed bore the name and address, together with a facsimile of the Union's seal in the upper left-hand corner 14 The letter was returned undelivered with the handwritten statement, "Not accepted by addressee," and the word "Refused" written diagonally across the envelope A rubber stamp with an arrow marked "Returned to Writer," listed the reason for nondelivery as "Refused." It appears from the registered return receipt, however, that this letter was actually delivered and recerpted for, on October 11, by one Barbara Steffen, not specifically identified, but presumably a clerk, on behalf of the addressee, "Circle K " The following day, the Post Office Department (Canyon Crest Station, Riverside, California), mailed a notice to the Union on a routing slip, with the following remarks Re Registered Article #16792 [the registered number assigned to this letter] to The Circle K Corp, 1345 University Ave. Article is being returned to you. Return receipt dis- patched to you on October 11 should be destroyed as the article was accepted in error by a clerk and was subse- quently returned to the Post Office by the addressee The letter itself, dated October 10, 1967, addressed as on the envelope, with the salutation to Campbell, read as follows In order to bring the benefits obtainable through our Union contract to the employees of your store at 1553 East Fourth Street, Ontario, California; we hereby request of you, the opportunity for a conference, at which time the signing of our Retail Food Agreement may be formally discussed. You may wish us to establish to your satisfaction that a majority of the present employees of your store wish to be represented by the Union, and thus obtain the benefits coming thereby, and to that end, we hereby request of you that you permit the Conciliation Department of the State of California to conduct an authorization card check. Please write or call us within the next week, that we may schedule a mutually agreeable time and place to confer on this subject Very truly yours, John M. Sperry, Secretary-Treasurer JMS/gw cc Mr Lewis DeWolfe Conciliation Service State of California Respondent denies that it actually received this communica- tion or that it had any knowledge of its contents According to the undisputed and credited testimony of Jacob F. Struble, vice president and area manager of Respondent, for at least 4 years during the 4216 years of his tenure, under advice of its 14In the lower left-hand corner , below the name of Respondent's district manager, appeared the printed legend "BUY UNION-FROM UNION CLERKS." 15 Elmira Machine & Specialty Works, Inc., 138 NLRB 1393, Quick Shop Markets, Inc., 168 NLRB No. 30. Cf., also , City Electric Company, 164 NLRB No 116. In view of the conclusion that the refusal to accept the demand was insufficient evidence on which to predicate a finding of refusal to bargain , the issue of whether the contents of the letter comprised a proper demand , or whether Respondent entertained a 723 legal counsel, the Company has maintained a strict policy of refusing registered mail, whether at "the store level, division offices or corporate offices" because of possible legal conse- quences in failing to respond in the event a registered letter were lost. Under this policy, registered mail, as well as service of legal process, may be accepted only by Respondent's statutory agent, the CIT Corporation. Although Struble was uncertain whether this policy was promulgated in a printed statement, he testified that it probably took the form of a letter memorandum, and that it was frequently discussed at division meetings which he conducted in regard to legal matters relating to insurance claims and the like. The policy, Struble testified, was relayed by the division manager through the "chain of command" to all levels, though he could not testify that every employee at the Riverside received such instructions. No explanation was offered as to why Barbara Steffen had not complied with this directive but there was no showing that the letter was actually opened before being returned to the Post Office for redelivery to the sender. Be that as it may, there was no showing that Respondent was aware of or had reason to suspect the contents of the letter. Although the envelope bore the return address of the Union, and was addressed to the attention of Mr John Campbell, district manager (sic), there is no probative evidence that Respondent was then aware of any union activity at the Ontario store. At the time the company policy regarding acceptance of registered mail was promulgated, there had been no effort to organize employees anywhere in Respondent's operations. According to Struble's uncontradicted testimony, as a member of the Board of Management, he was unaware of any union activity prior to the instant proceeding, except from knowledge derived from the filing of the representation petition, presently discussed Furthermore, there has been no showing of hostility or opposition to the organizational activities of its employees. Under these circumstances, particularly in light of Respon- dent's stated policy, the General Counsel's contention that the Union's letter of October 10, constituted a valid demand for recognition, and that the refusal to accept the letter is tantamount to a refusal to bargain, cannot be sustained. In a comparable case, the court has said, " ... the Company never accepted the letter and, so far as the record shows, never knew that it included any request for recognition .. the refusal to accept the letter is not equivalent to knowledge of the contents of the letter Nor would the mere refusal of the letter be regarded as such contumacy as to qualify as bad faith in refusing recognition. To justify such a finding would require a conclusion that the Company knew or should have known, under the circumstances the contents of the letter. Cf. N.L.R.B v. Great Atlantic & Pacific Tea Company, 346 F.2d. 936, 939, 940, 5th Cir. 1965." Filler Products, Inc v N.L R.B., 376 F.2d 369, 380-381 (C.A. 4, 1967). The cases cited by the General Counsel in support of his contention are clearly distinguishable.' 5 In both cases the good -faith doubt as to the union 's majority , is not reached . It may be noted , in passing , however , that although the letter did not make a demand for recognition in explicit terms, the general tenor of the letter makes it abundantly clear that this was the reasonable intendment. It is well-established that a request to bargain need not be precisely worded as long as it is clearly implied that that was the purpose of the request See, a .g, J. H Rutter-Rex Manufacturing Company, Inc., 164 NLRB No 10. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer had been aware of the union's organizational campaign, had engaged in antecedent unfair labor practices shortly before the demand was made, and had demonstrated a determination not to deal with the union. Significantly, the Union here made no further effort by any of the various means available to communicate its demand for recognition to Respondent, despite the fact that it was aware that its registered letter had been refused. Instead, it filed a petition for representation on October 18, 1967, a copy of which was received by Respondent the following day, on which action was deferred because of the filing of the unfair labor practice charge. It is settled that the filing of a representation petition, without more, is insufficient to constitute a demand as a predicate for a finding of refusal to bargain 16 Inasmuch as it has been found that the Union's letter of October 10 was not actually received by Respondent, and since its refusal to accept the letter, under the circumstances shown, was not because of its knowledge or suspicion regarding the contents of the letter, or because of a determina- tion to avoid bargaining with the Union, it follows that the Union has failed to satisfy an indispensable condition prece- dent to a finding of refusal to bargain. It is, therefore, found that Respondent has not, since October 10, 1967, refused to bargain with the Union as the exclusive bargaining agent of the employees in an appropriate unit in violation of Section 8(a)(5) of the Act D. Interference, Restraint, and Coercion Except for the derivative violation of Section 8(a)(1), stemming from the alleged refusal to bargain, the evidence previously detailed, no evidence was offered by the General Counsel in support of the allegations of the complaint that Respondent (1) warned its employees of economic reprisals if they engaged in union activities or selected the Union as their bargaining agent, and (2) stated to one of its employees that 16 Western Aluminum of Oregon Incorporated, 144 NLRB 1191, Laabs Inc , 128 NLRB 374, L B Foster Company, 168 NLRB No. 15 See also John Wafford, d/b/a Wafford Cabinet Co, 95 NLRB 1407 The Respondent had engaged in surveillance of the union activities of its employees. It will, therefore, be recommended that these allegations of the complaint be dismissed. Upon the basis of the foregoing, and upon the entire record, the Trial Examiner makes the following. CONCLUSIONS OF LAW 1 The Circle K Corporation, Respondent herein, is, and at all times material herein, has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Retail Clerks Union, Local 1428, affiliated with Retail Clerks International Union, AFL-CIO, the Union herein, is and at all times material herein, has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent at its retail store in Ontario, California, excluding guards, watchmen, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 At all times material, since October 10, 1967, the Union has been the exclusive representative of Respondent's em- ployees in the appropriate unit defined above, and by virtue of Section 9(a) of the Act, has been the exclusive representative of all employees in said unit for the purposes of collective bargaining, in respect of rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby recommended that the complaint be dismissed in its entirety. General Counsel concedes this and places no reliance on the filing of the petition in Case 31 - RC-681 as a demand for recognition