Jerry's Finer Foods

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Collage Enterprises, Inc. d/b/a Jerry's Finer Foods and Retail Clerks Union Local 1540, Retail Clerks International Association, AFLr-CIO. Case 38- CA-1415 April 12, 1974 DECISION AND ORDER On July 12, 1972, Administrative Law Judge' Paul E. Weil issued his original Decision in this proceed- ing. On July 31, 1972, pursuant to a motion filed by the Respondent, the Board remanded the case to the Administrative Law Judge for acceptance and consideration of Respondent's brief and for further consideration of his Decision in the light of such brief. On September 21, 1972, the Administrative Law Judge issued his Supplemental Decision. There- after, the Respondent filed an exception to the remedy recommended in the Administrative Law Judge's Decision and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. The Board has considered the record and the attached Decisions in light of the exceptions and briefs and has decided to affirm the rulings , findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. In December 1971 the Respondent , Gerald Coll- inge, an area supervisor for the Kroger Company, entered into an agreement with a third party whereby the third party was to try to purchase a retail grocery store in Harvard, Illinois, which was being operated by the Kroger Company and then sell the store to the Respondent. Subsequently, the transactions were accomplished in the latter part of February 1972. Kroger continued to operate the store until February 26. Kroger removed all of the supplies bearing its name as well as the meat and produce. A week or two before the store was closed by Kroger, Kroger's manager, Richard Goad, told the employees of the impending change in ownership and what they could expect in the way of wages if they accepted employment with the Respondent. All of the proferred wages were below those paid by Kroger. All six of the Kroger employees were offered employment by the Respondent and five of them accepted. On February 27 the Respondent began the clean- ing and restocking of the shelves in the store, using the five employees who had worked for Kroger. The store manager for Kroger, Goad, was retained in the same capacity by the Respondent . Respondent reopened the store for business on March 1. On February 29, two union representatives, Hook- er and Huseby, visited the store . They told Collinge that they wanted to negotiate a contract which maintained the insurance, pension, and rates of pay of the five employees working in the store. Collinge replied that he was not interested in any union. Thereafter Collinge again refused to bargain when requested to do so by a letter from the Union. Also during the interim period between February 26 and March 1, Collinge discussed wages and benefits with employees. On February 29 he told employee Dail he wanted her to work for him and asked if the offer by Store Manager Goad of $2 an hour was satisfactory . Dail told him that she and other employees thought it was unfair, and that she had talked it over with the Union but that she still wanted to work there . She also stated that the employees wanted insurance . Collinge said he would try to get the employees some insurance and would speak to her again. About 15 minutes later Collinge again talked to Dail and told her he could pay her $2.75 an hour. Dail said that was a lot better and again mentioned insurance. Collinge said that he was looking into it and was going to get insurance for the employees. During the same interview period Collinge offered employee Dowey $2.75 an hour instead of the $2 originally offered by Goad, and employee Ehle $3 instead of the original $2.75 an hour. During the same interim period the Respondent's store manager, Goad, committed several violations of Section 8(a)(1) by interrogating employees regard- ing the Union and the reasons for their loyalty to it, by a statement that the Union had driven Kroger out of business, and by a threat of a reduction in hours. All five of the employees continued to pay their union dues through the month of March. The Administrative Law Judge found the Respon- dent to be a successor to Kroger, found the violations of Section 8(a)(1) set forth above, and found that the Respondent refused to bargain in violation of Section 8(aX5). In applying the Supreme Court's decision in Burns2 he found that this case fell within that category in which an employer is required initially to consult the Union before changing the employment conditions of his employees . In drafting a remedy, however, he required the Respondent to make restitution with respect to only those benefits which he found to be direct and monetary such as wages, overtime pay, vacation pay, and sick pay. He further held that the Respondent must make restitu- tion for any loss sustained by any employee due to 1 The title of `Thal Exammer" was changed to "Adnumstrative Law 2 Burns International Security Services, Inc., 406 U.S. 272 (1972). Judge" effective August 19, 1972. 210 NLRB No. 8 JERRY'S FINER FOODS 53 the loss of hospitalization or sick benefits. He eliminated such provisions as the union shop, grievance and arbitration, and transfer provisions of the existing contract. He did not order the Respon- dent to make payments to the health and welfare and pension funds since these funds were administered by trusts to which Respondent was not a party and payments to them might thus be in violation of Section 302(c) of the Act. In a supplemental decision he found that these conclusions were in accord with the Board's decision in the Howard Johnson case.3 The Respondent did not except to the Administra- tive Law Judge's findings that it had violated Section 8(a)(1) and conceded that it had refused to bargain when the Union requested it to do so on February 29, 1972. It excepted to his remedy, however, contending that it was entitled to make unilateral changes in the terms and conditions of employment which had obtained under the former employer without the liability imposed upon it by the remedy fashioned by the Administrative Law Judge. We affirm the Administrative Law Judge's findings that the Respondent violated Section 8(a)(1) by its conduct set forth in his Decision and we find that the Respondent unlawfully refused to bargain after it had hired the predecessor's employees. But we do not agree that the Respondent was obligated to consult with the union representative before changing the wages or working conditions of the employees which had obtained under the predecessor employer prior to its actual employment of them. The Respondent does not challenge the Adminis- trative Law Judge's finding that it was a successor employer and, in any event, the record clearly supports such a conclusion. It is therefore necessary to assess the Respondent's obligations in the light of the decision in the Burns case, supra, in which the Supreme Court delineated the rights and duties of a successor employer with respect to the predecessor's employees. In the Burns case the Supreme Court established the general rule that a successor employer is ordinarily free to initially set the terms and condi- tions of employment on which it will hire its predecessor's employees. The Court, however, carved an exception to the general rule stating: [T]here will be instances in which it is perfectly 3 Howard Johnson Company, 198 NLRB No 98 It is on this point that we find this case distinguishable from the Howard Johnson Company case, supra, relied on by the Administrative Law Judge, and the later case of Good Foods Manufacturing & Processing Corporation, Chicago Lamb Packers, Inc.Division, 200 NLRB No 86. In those cases the successor employer unilaterally changed the terms and conditions of employment after having already hired almost all of the predecessor's employees. The obligation to bargain had therefore already attached before the unilateral changes were made. s Spruce Up Corporation, 209 NLRB No. 19; Ranch Way, Inc, 203 clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms. The Administrative Law Judge concluded that the Respondent "planned to retain all of the employees in the unit" and that this case therefore falls within the exception to the general rule enunciated by the Supreme Court. We do not agree that the evidence supports his conclusion. The record discloses that in hiring the predecessor's employees the Respondent did not hire the employ- ees and then present his terms and conditions of employment .4 On the contrary, they were told that the Respondent could not afford to continue the predecessor's terms and conditions of employment from an economic standpoint and were offered terms considerably less advantageous than those prevailing under the predecessor. One of the employees did not accept the new terms and was not employed by the Respondent when it reopened the store. It is apparent that the Respondent thus did no more than give preference in employment to employees experi- enced in the operation of the store and that their retention as employees was contingent upon their acceptance of the terms offered by the Respondent. Such tentative offers of employment do not, in our opinion, make it "perfectly clear that the new employer plans to retain all of the employees in the unit" as we interpret the opinion of the Supreme Court.5 We conclude, therefore, that the conduct of the Respondent in this case does not fall within the exception to the general rule that the successor employer is ordinarily free to set the initial terms of employment on which he will hire the predecessor's employees. It follows that the Respondent did not violate Section 8(a)(5) of the Act by its offers of employment to the predecessor's employees made prior to the reopening of the store. The Respondent's conduct after it began opera- tions at the store on February 27, 1972, clearly violated the Act, however. On that date all of its employees were former employees of the predecessor and all had demonstrated their continued adherence to the Union which had represented them while they NLRB No. 118. Member Fanning does not agree that the offers of employment were tentative and did not reveal an intention to hire the employees of the predecessor. See his separate opinion in Spruce Up Corporation, supra. Though he would find that such offers and the employees' acceptance of them gave rase to an obligation on the part of Respondent to bargain upon request of the Union about the establishment of those terms poor to the time the employees went to work for Respondent, no such request was made, and he therefore finds no violation of the bargaining obligation in Respondent's putting the employees to work under those terms. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been employed by the predecessor. At that paint in time the Union therefore represented a majority of its employees and the Respondent's duty to bargain had matured. At this juncture the Respondent's obligation to bargain was similar to that of any employer whose employees had selected a collective- bargaining representatives It could not, as it did, negotiate with the individual employees regarding the obtaining of insurance nor could it raise the wages of the employees without consultation with the collective-bargaining representative. By doing so it violated its obligation to bargain exclusively with the collective-bargaining representative in contravention of Section 8(a)(1) and (5). Because the employees sustained no monetary loss due to the Respondent's violation of the Act, however, there is no basis for reimbursing the employees, but nothing in our Order should be construed as requiring the Respondent to revoke any wage increases or other employee benefits previously granted.? ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Collinge Enterprises, Inc. d/b/a Jerry's Finer Foods, Harvard, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as modified. 1. Delete Section 2(b) of the recommended Order, renumbering the succeeding paragraphs consecutive- ly. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. MEMBER PENELLO, dissenting in part, concurring in part: Contrary to my colleagues, I would find, for the reasons set forth in my dissent in Spruce Up Corporation, 209 NLRB No. 19, that this also is a case in which, under the Supreme Court's holding in Burns, "[I]t is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representa- tive before he fixes terms."8 Thus, 1 or 2 weeks before the predecessor's operation was terminated, all of the employees in the unit who had been employed by the predecessor were specifically asked to continue working for Respondent, albeit at a lower wage. This voiced intent to retain the employ- ees became a reality when all but one agreed to stay on under the new management. In addition, Respon- dent discussed wages individually with the employ- ees. In some instances the employees said that they considered the wage offer too low and, after brief consideration, Respondent agreed to pay more but, in each case, less than they had received under the union contract. Respondent also agreed with at least one employee that he would try to get insurance coverage for the employees. In these circumstances I conclude that Respondent having manifested an intent to hire all of the employees in the unit violated Section 8(a)(5) and (1) by refusing to bargain with the Union prior to establishing its wages and in bypassing the Union and dealing directly with the employees as individu- als both initially and thereafter about matters as to the negotiation of which the employees had a legitimate right and interest to be represented by their bargaining agent, and concerning which the Union had sought bargaining.9 6 NLRB v. Bachrodt Chevrolet Co., 468 F.2d 963 (C.A. 7, 1972) vacated and remanded 411 U.S. 912 (1973), decision on remand 205 NLRB No. 122; Ranch Way, Inc., supra. 1 Exchange Parts Co., 375 U.S. 405 ( 1964); Yale Rubber Manufacturing Company, 193 NLRB 141. 8 Burns, supra at 294-295. 9 While the language of the Supreme Court in Burns is sometimes subject to differing interpretations, the Court clearly stated that the obligation is on the employer to consult with the union in circumstances where it is perfectly clear he intends to retain all of his predecessor's employees as here. Contrary to Member Fanning, I take this to mean a union request is not necessary in this situation . Moreover, this view makes sense as otherwise the union would have to read the employer's mind in order to know whether he intends to set initial terms and conditions which differ from those of his predecessor and thus whether it is necessary to demand bargaining before the employer puts these unilateral terms into effect . Finally, Member Fanning's view produces a particularly arbitrary result in this case, as here the Respondent was aware of the Union's status before it took over; Respondent demonstrated union animus by threatening to cut hours if the Union remained in the picture and by interrogating employees about the Union during the interim period; and the Union did seek to bargain about the establishment of Respondent's initial terms which it was unaware was already a fait accompli due to the Union's lack of clairvoyance. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice, and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represent- atives of their choosing. To act together for collective bargaining or other mutual aid or protection JERRY'S FINER FOODS To refrain from any or all of these things. WE WILL NOT do anything that interferes with or restrains or coerces employees with respect to these rights. WE WILL NOT threaten to reduce the hours of our employees if we have to bargain with the Union. WE WILL NOT coercively interrogate our em- ployees about their union sentiments or activities. WE WILL, on request of Retail Clerks Union, Local 1540, Retail Clerks International Associa- tion, AFL-CIO, bargain with the Union concern- ing the wages, hours, and working conditions of out full-time and regular part-time employees excluding the manager, meat department employ- ees, professional employees, guards and supervi- sors and WE WILL sign a contract with the Union embodying any agreement we reach with it. COLLINGE ENTERPRISES, INC. D/B/A JERRY'S FINER FOODS (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Savings Center Tower 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9061, Extension 282. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On March 9 1 Retail Clerks Union, Local 1540, Retail Clerks International Association, AFL-CIO, hereinafter called the Union, filed a charge with the Officer-in-Charge of Subregion 38 of the National Labor Relations Board, hereinafter called the Board, alleging that Collinge Enterprises, Inc., d/b/a Jerry's Finer Foods, hereinafter called the Respondent, engaged in conduct in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. On April 11 the said Officer-in-Charge, on behalf of the General Counsel of the Board, issued a complaint alleging that Respondent violated Section 8(a)(5) and (1) of the Act by various acts and conduct, including Respondent's refusal to bargain with the Union, the collective-bargaining representative of the majority of Respondent's employees 55 in a unit appropriate for collective-bargaining within the meaning of the Act. By its duly filed answer Respondent denied the commission of any unfair labor practices. The matter came on for hearing before me on June 8, 1972, at Harvard, Illinois. All parties were present or represented by counsel, and had an opportunity to call and examine witnesses, and to adduce relevant and material eyidoce. The parties waived oral argument at the close of . Briefs have been received from the General CoUMd and the Union. Upon the entire record in this matter, and in c ontem- plation of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Collinge Enterprises, Inc., doing business as Jerry's Finer Foods, operates a retail food store in the city of Harvard, Illinois. It commenced business operations on March 1, 1972, purchases substantial quantities of goods from outside the State of Illinois, and has gross sales which, extended to a calendar year basis, would exceed $50000 annually. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Background Through Saturday, February 26, 1972, the Kroger Company, a multistate enterprise, operated a food store in Harvard, Illinois, under its own name. In December 1971 Gerald Collinge who had been an area supervisor for the Kroger Company entered into an agreement with Certified Grocers Co-Op of Madison, Wisconsin, pursuant to which Certified agreed to attempt to purchase the equipment and leasehold improvements constituting the retail grocery store from the Kroger Company and sell them to Collinge. Subsequently, Certified Grocers Co-Op of Madison, Wisconsin, assigned its agreement to Wisill, Inc., a corporation set up by the co-op to operate in Illinois. Subsequently, Wisill entered into an agreement with Kroger to buy equipment, fixtures, and some stock from Kroger, and entered into an agreement with Respondent to purchase the fixtures, equipment, leasehold, and stock and operate the retail food store. Kroger continued to operate the food store through Saturday, February 26, at which time Collinge took over. Kroger moved out all of the grocery supplies bearing its name, as well as the meat and produce. Commencing at the close of business February 26 and until March 1, Collinge restocked and cleaned the store and opened for business on March 1. Commencing 2 weeks before February 26, Richard Goad, who had been Kroger's manager of the premises I All dates hereinafter are in the year 1972 unless otherwise specifically stated. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and had agreed to continue managing the store for Respondent, commenced talking to employees asking them to stay on under the new management. At the time Kroger operated the store the employees, other than meat department employees, were Kurt Ulmer, Nancy Dowey, Kenneth Grider, Janet Dail, Jewell Ehle and Jean Noland. In addition there may have been some part-time employ- ees. Respondent asked all of the employees who had worked for Kroger to continue working for him, and all of those named above, with the exception of Kurt Ulmer, agreed to do so. For at least 15 years prior to its relinquishment of the store the Kroger Company had a collective-bargaining agreement with the Union covering the employees of the store, and at the time Respondent took the store over a contract was in existence which provided that all employ- ees should become and remain members of the Union. Either personally or through Manager Goad, Collinge offered each of the employees wage rates that differed from the wages that they had formerly been paid under the union contract. In some instances the employees said that they considered the wage offer too low, and after brief consideration, Collinge agreed to pay more, but in each case, less than they had received under the union contract. In addition Collinge agreed with at least one employee that he would attempt to get insurance coverage for the employees. As Kroger's supervisor, Collinge had been aware of the union contract, and it was apparently in his mind at the time that he took over operation of the Harvard store. On the day before the store opened, Manager Goad had a conversation with Janet Dail in which he asked her if she had talked to a union agent and what had been said. Miss Dail told Goad that she was going to continue to pay dues to the Union and that the Union wanted to continue to represent the employees. Goad wanted to know why she was going to continue to pay dues and Miss Dail told him that the Union had been good to her and until things were decided she wouldn't be out much money if she did pay dues. On the same day Miss Dail had a conversation with Collinge in which she told him that she was tom between working for the store and continuing with the Union because she wanted to stay on with the Union. Nancy Dowey testified that on Monday before the store opened Goad asked her if representative Hooker from the Union had called her. Goad asked Miss Dowey whether Hooker had said anything about setting up picket lines or asked her to sign anything. Miss Dowey said that if they asked her to vote for the Union she would do so, to which Goad answered that if the Union got in she wouldn't be able to work 40 hours a week because the store couldn't afford the wages and he said that the Union had put Kroger out of business. Jewell Ehle testified that sometime between February 26 and March 1 Goad asked her if she was still paying union dues. When she answered in the affirmative, he asked why. She answered that she wanted to protect her pension and Goad said that he could understand that. Business Representative Robert C. Hooker and a fellow representative of the Union met with Collinge on February 29 at the store. Hooker testified that he told Collinge that they were there to talk about maintaining the benefits for the people in the store and they wanted him to sign a contract and maintain the insurance, pensions, and rates of pay for the employees that worked in the store. Collinge said he wasn't interested in any union. The union agents attempted to make an appointment with Collinge, but he answered that he had no comment. Kenneth Rada, the president of the Union, thereafter sent a letter to the store.2 In the letter Rada stated his opinion that Respondent was a successor to the Kroger Company and called on it to maintain the conditions of the collective-bargaining agreement for the employees in the store. According to Collinge his conversation with Hooker was very brief. Hooker wanted to know whether he was ready to negotiate a contract and he answered that he had no comment. He denied saying that he was not interested. The employees, Dale, Dowey, Ehle, Rider, and Nolan all maintained their union memberships through the payments of dues at least through March. Discussion and Conclusions The General Counsel contends that Respondent is a successor to Kroger and that accordingly it has a duty to bargain with the Union. The General Counsel additionally contends that the duty to bargain includes a duty not to change working conditions in existence at the time Respondent took over the operation of the store. Accord- ingly the General Counsel contends that an order should issue providing that Respondent make the employees whole for the difference between what they would have earned under the contract and what they were paid by Respondent.3 Respondent contends that it is not Kroger's successor and accordingly, has no duty to bargain with the Union, and in any event that if it had a duty to bargain with the Union it had no duty to maintain the Kroger conditions of employment. Respondent, in this regard, relies upon the language in the Burns decision in which the Supreme-Court declined to find a violation in the employer's changing of working conditions established in the union contract with Bums' predecessor employer. I conclude that, in fact, Respondent is a successor to Kroger in the operation of the Harvard, Illinois, store. All of the important factors which the Board has considered are present in this case. Respondent is continuing the same line of business, selling groceries, in the same store with the same equipment, the same employees and the same supervision, as did Kroger. The only substantial change is the name over the door and the fact that Kroger-labeled merchandise, which comprised some 40 percent of the stock during Kroger's administration of the store, is no 2 The letter was misaddressed to Collins rather than Collinge. However the complaint was issued, but before hearing, the decision of the Supreme Respondent admitted its receipt . Court in N.LR B v. Burns International Security Services, Inc., 406 U.S. 3 The General Counsel originally prayed for an order requiring , 272(1972), was issued At the opening of the hearing the General Counsel Respondent to adopt the terms and conditions of the Kroger contract . After moved to dismiss that portion of the complaint . The motion was greased. JERRY'S FINER FOODS longer sold, but has been supplanted with other, similar merchandise. All employees were represented by the Union prior to the change-over. All employees continued to be represent- ed by the Union after the change-over and it appears that by its interrogation of the employees, Respondent knew that at least three of them proposed to continue their union membership after the change-over. Accordingly, Respon- dent, even if it were not a successor, has had a duty to bargain with the Union, whom it knew to represent a majority of its employees in a unit which it does not contend is inappropriate, consisting of all employees excluding the meat department employees, guards, and supervisors as defined in the Act. The General Counsel contends, and I find, that the interrogations of the employees by Goad and Collinge violate Section 8(axl) of the Act. They were unaccompa- nied by any assurances of a business need for the information or as to the job security of the employees who answered the questions asked of them, and in one instance, the interrogation was accompanied by Goad's statement that the employee's hours would be cut if a union were recognized. The only issue remaining is whether this case is one where Respondent is required to maintain the wages, hours, and working conditions established by its predeces- sor under the union contract. Respondent contends that under the language of the Burns decision, no such duty exists. In Burns, the Court made the following statement: Although Bums had no obligation to bargain with the Union concerning wages and other conditions of employment when the Union requested it to do so, this case is not like a Section 8(a)(5) violation where an employer unilaterally changes a condition of employ- ment without consulting a bargaining representative. It is difficult to understand how Bums could be said to have changed unilaterally any pre-existing term or condition of employment without bargaining, when it had no previous relationship whatsoever to the bargain- ing unit, and prior to July 1, no outstanding terms and conditions of employment from which a change could be inferred. The terms on which Bums hired employees for service after July 1 may have differed from the terms extended by Wackenhut and required by the collective-bargaining contract, but it does not follow that Bums changed its terms and conditions of employment when it specified the initial basis on which employees were hired on July 1. The General Counsel, however, relies on the paragraph next following the above-quoted matter in which the Court stated: Although a successor-employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is 4 Business representative Hooker testified on cross-examination that the contract he asked Respondent to sign was a form contract identical in terms to the contract between Kroger and the Union b Hen House Market No 3, 175 NLRB 596, and cases therein cited. 6 The record reveals that there was no change in the job content of any 57 perfectly clear that the new employer plans to retain all of the employees in the unit, and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms. The General Counsel contends that this is a situation in which it is perfectly clear that the new employer planned to retain all of the employees in the unit. Accordingly, Respondent appropriately should have initially consulted with the Union before he fixed such terms. Indeed, there is no question that this is so. All of the employees in the unit who had been employed by Kroger were asked to continue working for Respondent. Additionally, Respondent was aware of the fact that these employees were covered by a contract and was aware of the terms and conditions thereof. Finally, the Respondent was asked by the Union to negotiate a contract as well as to adopt the contract of its predecessor.4 Accordingly, I find that the General Counsel has met the only condition recited by the Court in the Bums decision under which Respondent has the duty to initially consult with the Union. The Court leaves it to the Board to fashion a remedy in the event that Respondent does not fulfill this duty. Normally, when an employer has a duty to bargain with the union concerning the working conditions of its employees and refuses to do so, either establishing working conditions unilaterally or establishing them after direct bargaining with the employees, which is in itself an unfair labor practice under the circumstances, the Board will order that the working conditions be "rolled back" to the status quo ante the Employer's unfair labor practice, except to the extent that the employees have been advantaged by improved wages or working conditions by the Employer's unlawful action.5 But, Respondent could argue, inasmuch as Respondent had no duty to adopt its predecessor's contract with the Union there is no status quo ante to which to roll back, other than the terms which Respondent unilaterally set after negotiation with the employees individually. In my opinion, this contention is based on form rather than substance. Indeed these employees had no break in service, they finished their work on Saturday, February 27, as employees of Kroger and resumed work either Sunday or Monday as employees of Respondent doing essentially the same work which they had been doing.6 Thus, the conditions which the employees had enjoyed under the union contract are easily ascertainable, were known to the Respondent and necessarily would form a starting point from which Respondent and the Union could and would have bargained had Respondent fulfilled its bargaining duty. The Court in the Burns decision clearly made a distinction between situations such as that in Burns where the employer would not know whether it had a duty to bargain until it had filled its employee complement and that in the instant case where the Employer planned to employee. Although the first days of Respondent's ownership of the store were spent in restocking and cleaning the shelves, this was work that was normally done by the employees concerned although not necessarily on a full-time basis for a period of 2 days. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retain all of the employees in the unit. If no affirmative orders were entered herein but merely a prospective order that Respondent should now bargain as it should have done when it first was requested to do so by the Union, which is precisely the order that would issue under the Burns type succession, this would then constitute a distinction without a difference. I decline to believe that the Supreme Court meant for this result to follow. On the other hand, were I to order that Respondent reestablish all the working conditions under which the employees worked under the union contract , I would effectively require that Respondent continue its predeces- sor's contract for its term. It appears to me that this remedy is barred by the Court's decision in Burns. In addition, if Respondent is not viewed as the "alter ego " of its predecessor, the provisions of the contract with reference to health and welfare and pension funds are not available to Respondent since the payment of these funds is required by the contract to be made to trusts to which Respondent is not a party, in which case the order would appear to run afoul of Section 302(c) of the Act. Whether on negotiating with the Union, pursuant to an order herein, Respondent becomes a party to pension and health and welfare trusts and under such circumstances is permitted under the terms of those trusts to pay retroactively into them for the period of time during which it was not a party to such trusts, must necessarily be outside the ken of this decision. I conclude that under the circumstances herein, a just requirement of the remedy would be to make the employees whole to the extent that their wages and other direct monetary benefits such as overtime pay, vacation pay, sick pay, and the like have been unilaterally changed to the disadvantage of the employees. In the event that any employee has suffered loss by reason of their loss of hospitalization or sick benefits, Respondent should be required to compensate them to the extent that they would have been compensated had such benefits been available to them under their prior conditions of employment. This order would thus eliminate the union shop, grievance, and arbitration provisions, transfer provisions, and such other "housekeeping" provisions of the contract, as do not directly affect the payments to the employees for their services rendered Respondent. Respondent's liability under such an order would run from Respondent's accession to the ownership of the store to such time as Respondent either enters into and gives effect to a contract with the Union as a result of the bargaining order herein, or reaches an impasse in bargaining with the Union as a result of this order, wherein Respondent would, under existing law, be permitted to make such unilateral changes in the employees' working conditions. This order will, in my opinion, effectuate the purposes of the Act with due consideration to the decision of the Court in Burns, distinguishing on the one hand, between the mere duty to bargain imposed under the circumstances in that case and on the other hand, the adoption of the contract specifically found by the Court to be an excessive remedy in a bona fide successorship case. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(axl) and (5) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act including making whole its employees in the appropriate unit represented by the Union by payment to them of all monetary benefits of which they have been deprived by reason of Respondent's refusal to recognize and bargain with the Union prior to setting wages and working conditions for said employees for the period from Respondent's accession to ownership of the store until such time as Respondent negotiates in good faith with the Union to a new agreement or impasse. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent is a successor employer within the meaning of the Act in its accession to the ownership of the food store known as Jerry's Finer Foods from the Kroger Company, the predecessor employer. 4. All full-time and regular part-time employees em- ployed at Respondent's Harvard, Illinois, facility, exclud- ing the store manager, meat department employees, professional employees, guards, and all supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act.7 5. The Union has at all times relevant herein represent- ed a majority of the employees in the unit set forth in paragraph 4 above. 6. By interrogating its employees and by threatening to reduce the hours of employment of an employee if the Employer had to bargain with the Union, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act thereby engaging in unfair labor practices within the meaning of Section 8(axl) of the Act. 7. By failing and refusing to bargain in good faith with the Union as the exclusive bargaining representative of the unit described above, Respondent has engaged in and is 7 This is the unit which the Union represented under the Predecessor- inappropriate in the unit description. I note that the unit is the normal Kroger Contract. Although Respondent denied that it is an appropriate grocery store unit approved by the Board in innumerable cases and I find unit, it produced no evidence regarding what it considered to be that it is an appropriate unit herein. JERRY'S FINER FOODS 59 engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case and pursuant to Section 10(c) of the Act, I make the following recommended: ORDERS Respondent, Collinge Enterprises, Inc. d/b/a Jerry's Finer Foods, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing upon request to bargain collectively and in good faith with the Retail Clerks Union, Local 1540, Retail Clerks International Association, AFL-CIO, as the exclu- sive representative of all employees in a unit consisting of all full-time and regular part-time employees employed at Respondent's Harvard, Illinois, facility, excluding the store manager and the meat department employees, professional employees, guards, and supervisors as defined in the Act. (b) Threatening employees that they would have fewer hours of employment if Respondent had to bargain with the Union. (c) Unilaterally changing the wages or working condi- tions of employees without first consulting or bargaining with the Union or after bargaining individually with employees in the unit represented by such union. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively with Retail Clerks Union, Local 1540, Retail Clerks International Associa- tion, AFL-CIO, as the exclusive representative of the employees in the unit set forth above with respect to rates of pay, wages, hours of employment and other conditions of employment and if an understanding is reached embody such understanding in a signed agreement. (b) Make whole the employees for any loss of monetary benefits which they may have suffered by reason of Respondent's refusal to consult or bargain with the Union prior to establishing rates of pay, wages, and other conditions of employment for said employees by payment to them of such sums, as described above in the section of this Decision called "The Remedy." (c) Post at its place of business in Harvard, Illinois, copies of the attached notice marked "Appendix."9 Copies of said notice on forms provided by the Officer-in-Charge of Subregion 38, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places includ- 8 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herem shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 9 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced,oor covered by any other material. (d) Notify the Officer-in-Charge of Subregion 38, in writing, within 10 days from the date of this order, what steps have been taken to comply herewith.io "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Boardr 10 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to mad; "Notify the Officer-in-Charge of Subregion 38, in writmg, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 1 NLRB. v. Burns International Security Services, Inc., 406 U.S. 272(1972). SUPPLEMENTAL DECISION STATEMENT OF THE CASE PAUL E. WELL, Administrative Law Judge: On July 12, 1972, I issued a decision in the above-captioned case and it was duly transferred to the Board. On that same day a brief from Respondent was delivered to the Division of Judges. Inasmuch as I had no jurisdiction over the matter at that time I rejected and returned the brief. On July 31, 1972, pursuant to a motion on behalf of Respondent, the Board remanded the proceeding to me for acceptance and consideration of Respondent's brief and for further consideration of my decision in the light thereof . Respon- dent having refiled his brief, I duly considered the brief together with the briefs of the other parties which were timely filed and the entire record in the proceeding. After due consideration, I conclude that no warrant is shown for changing the conclusions and recommendations in my original decision. Discussion In my original decision I conclude that Respondent was a successor-employer to the Kroger Company and had a duty at all times to bargain with the Union. In its brief Respondent acknowledges that "whether or not it be deemed a `successor,' it erred in refusing to recognize and bargain with the Union ...." Accordingly, no issue in that regard remains. Respondent additionally contends in its brief that notwithstanding that it had a duty to recognize and bargain with the Union, it did not violate the Act by bargaining directly and individually with employees, reasoning, on the basis of the Burns case,' that "a successor-employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor." I dealt with this issue in my initial decision. Respondent raises no arguments or authority that I did not consider at that time. In addition, on August 8, 1972, the Board issued its decision in Howard Johnson Co. 198 NLRB No. 98, dealing with the same issue . In that case, as in this, the employer planned to retain all of the employees in the unit and the Board found that the retention of all the employees in the unit obligated Respondent to bargain with the Union before fixing rates of pay, wages , and terms of 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment and that Respondent by failing to do so violated Section 8(a)(5) and (1) of the Act. It appears, therefore, and on reconsideration of the findings in my initial decision, that they are consistent with the rule applied by the Board in Howard Johnson Co. and they therefore shall remain unchanged. Finally, Respondent contends that if it had a duty to bargain it did not "mature" until June 8, 1972, the day of the hearing in this matter, on which occasion the Employer was asked on the witness stand whether he was then prepared to bargain with the Union and stated that he was not. Respondent contends that the Union's letter of February 29 was inadequate to raise the duty to bargain because that letter contemplated a meeting based on the "honor and be bound" philosophy negated in Burns and accordingly since the Union had no right' to require Respondent to assume the earlier Kroger contract it had no duty to respond to the Union's letter. With regard to the conversation between Collinge and Business Representative Hooker on February 29 during the course of which Collinge was asked both to sign a contract with the Union and maintain the insurance, pension, and rates of pay for the employees and to make an appoint- ment to enter into negotiations, but Collinge's answer, "No comment," does not amount to refusal to bargain, Respondent contends. I have already found that Respondent had a duty to consult with the Union before initially fixing terms and conditions of employment. This conversation took place after such terms were fixed. The unfair labor practices had already been committed . Further the demand, both in the letter and in the conversation, raised the duty of Respon- dent to do something more than to say "no comment." The failure to answer is no less a refusal to bargain than a stated refusal to bargain in a situation of this nature . I find, as I found in the initial decision, that an adequate demand was made on February 29 and a refusal to bargain resulted therefrom. With regard to the remedy recommended in my initial decision I note that it is consistent with that ordered by the Board in the Howard Johnson case. Accordingly I conclude that the order heretofore recommended by me is an appropriate remedy for the violation found and I recom- mend it to the Board.