Moore Mill and Lumber Co.

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laila Moore d/b/a Moore Mill and Lumber Company and Retail Clerks Union, Local 899, Retail Clerks International Association, AFL-CIO. Cases 31- CA-3764-I and 31-CA-3764-2 June 28, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On November 20, 1973, Administrative Law Judge Herman Coreman issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions and supporting briefs, and Respondent filed a brief in response to the exceptions of the General Counsel and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith. 1. On May 19, 1973, in reaction to the Union's previous request for recognition, Respondent distrib- uted a notice to employees advising them that certain changes would be made in their wages, hours, and working conditions. We agree with the Administrative Law Judge that, by announcing and effectuating changes in employment conditions, Respondent sought to punish employees for their union activities and thereby violated Section 8(a)(1) of the Act.' How- ever, we note that not all the rules announced in this notice constituted deviations from past practice. Thus, the announcement that personal calls would be kept to a minimum and that permission would be required for borrowing tools was merely a restatement of rules which had been previously enforced. Accord- ingly, we find that Respondent's reiteration of these existing policies did not violate Section 8(a)(1) of the Act. Similarly, we find that although the Respondent's announcement that henceforth there would be only two 10-minute coffeebreaks did not represent an actual change in the existing rule, it did constitute a threat to enforce the rule more strictly in the future and thereby violated Section 8(a)(1). 2. We agree with the Administrative Law Judge's i Having found these actions to be violations of Sec 8(a)(I), we find it unnecessary to decide whether they also constituted violations of Sec 8(a)(3) since the remedy would be the same in any event finding that Respondent's extensive unfair labor prac- tices affecting virtually all the employees in this small unit were of such a serious nature as to make the holding of a fair election impossible. Here the Re- spondent coercively interrogated most of the unit em- ployees, threatened them with plant closure, and suggested that they seek employment elsewhere. In addition, Respondent reacted quickly to the Union's request for recognition by threatening more onerous working conditions for its employees, withdrawing certain of their existing benefits, and reducing their hours of work. Furthermore, Respondent learned, through coercive interrogation, that dissatisfaction with the wage rates was a reason for the employees' interest in the Union, and shortly thereafter granted across-the-board increases in hourly rates of pay. By thus attempting to foreclose any desire for collective negotiations over wages through unilaterally confer- ring a benefit in this principal area of employee con- cern, Respondent has created a situation which cannot be remedied by mere words. When considered in combination with the other threatening and coer- cive conduct here present, we see no practical hope that a conventional notice posting requirement can adequately dissipate the lingering effects of the Respondent's acts. Thus no fair election can be held with reasonable certainty that employees would vote freely and without being substantially influenced by the unlawful conduct above described. We therefore find that the cards freely signed by employees, indi- cating their support of the Union, provide in this con- text a more reliable test of the employees' true desires. Since a majority of employees, by that means, indi- cated their desire for representation, we shall order the Respondent, on request, to recognize and bargain with the Union as the statutory representative of its employees for the purposes of collective bargaining.' 3. We find, in agreement with the Union and the General Counsel, that the employees should be reim- bursed for any losses they may have incurred as a result of the unlawful reduction in hours and elimina- tion of a free meal for employees who worked on Sundays.3 Therefore, we shall remedy the effects of the Respondent's conduct as to these matters by pro- viding the appropriate make-whole provisions in our Order. 2 Chairman Miller and Member Penello for the reasons stated by the majority in Steel-Fab, 212 NLRB No 25, do not adopt the Administrative Law Judge's finding that Respondent violated Sec 8(a)(5) of the Act, but rather enter this bargaining order as a remedy for the serious unfair labor practices committed by Respondent herein Member Fanning, for the rea- sons cited in his dissent in Steel-Fab case would adopt the Administrative Law Judge's finding in this regard 7 We shall also order that the Respondent reinstate the practice of provid- ing a meal to employees who work on Sundays or , if that is not convenient, provide the monetary equivalent with which to purchase their own meals 212 NLRB No. 27 MOORE MILL AND LUMBER COMPANY 265 4. We adopt the Administrative Law Judge's find- ing that the extraordinary relief requested by the Union is not warranted in this case. But, in so doing, we do, not rely on his finding that the unfair labor practices resulted from Respondent's naivete. ORDER- Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Laila Moore d/b/a Moore Mill and Lumber Company, Lompoc, Califor- nia, her agents, successors, and assigns, shall: 1. -Cease and desist from: te(a) Coercively interrogating employees concerning their union membership and sentiments; castigating employees for joining the Union; threatening to close down to obstruct union activity; reducing hours of work and increasing wage rates to discourage union activity; denying employees paid vacations or health insurance coverage for the purpose of discouraging union activity; more strictly enforcing coffeebreak rules to discourage union activity; eliminating free meals for employees who work Sundays to discourage union activity; and inviting employees who have joined the Union to quit Respondent's employment for the purpose of discouraging union activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Make whole Barney Fish for any losses he may have suffered by being deprived of health insurance coverage after August 2, 1973, including the cost to him of any premium payments he made in order to retain equivalent insurance coverage, with interest at 6 percent per annum. (b) Make whole employees for any monetary losses they may have suffered as a result of the discriminato- ry reduction in hours with interest at 6 percent per annum. (c) Reinstate the practice of providing a meal to employees who work on Sundays or, if that is not convenient, provide the monetary equivalent with which to purchase their own meals, and make employ- ees whole for any losses they may have suffered as a result of the discriminatory elimination of this benefit. (d) Upon request, bargain with the Union as the exclusive representative of the employees in the ap- propriate unit as set forth in the attached Decision of the Administrative Law Judge and embody in a signed agreement any understanding reached. (e) Post at its establishment at Lompoc, California, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Re- gional Director for Region 31, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted.' Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint, as to all allegations not found to be violations of the Act, be dismissed. 4 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government I WILL bargain collectively, upon request, with Retail Clerks Union, Local 899, Retail Clerks International Association, AFL-CIO, as the ex- clusive representative of my employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached , embody such un- derstanding in a signed agreement. The bargain- ing unit is: All full-time and regular part-time employees employed by Respondent in its retail hardware and lumber operations at Lompoc, California; excluding guards, casual employees, sons of management and supervisors as defined in the Act. I WILL make whole employees for any losses they may have suffered as a result of the reduc- tion in hours and discontinuation of Sunday din= ners. I WILL make whole Barney Fish for any mone- 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tary losses he may have suffered after August 2, 1973, because I deprived him of health insurance coverage. I WILL restore the benefit of Sunday dinners or its monetary equivalent. I WILL NOT coercively interrogate my employ- ees concerning their membership in or feelings toward the Union or concerning their reasons for joining or adhering to the Union. I WILL NOT threaten to close the plant for the purpose of discouraging union membership or activity. I WILL NOT castigate or otherwise threaten em- ployees with reprisals because of their union membership or activity. I WILL NOT change rates of pay or hours of work for the purpose of discouraging membership in the Union. I WILL NOT threaten to strictly enforce coffee- break rules to discourage membership in the Union. I WILL NOT deprive employees of earned paid vacation or group insurance or discontinue Sun- day dinners to workers for the purpose of dis- couraging membership in the Union. I WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. LAILA MOORE d/b/a MOORE MILL AND LUMBER COMPANY (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, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7352. DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Administrative Law Judge: Upon charges filed in the above-entitled matter on May 24, 1973, by Retail Clerks Union, Local 899, Retail Clerks Interna- tional Association AFL-CIO, and duly served on the Re- spondent, Laila Moore d/b/a Moore Mill and Lumber Company, the General Counsel of the National Labor Rela- tions Board on July 18, 1973, issued a complaint alleging that the Respondent had violated Section 8(a)(1), (3), and (5) of the Act. An amendment to the complaint was filed August 3, 1973. The Respondent filed an answer on July 31, 1973, and an amended answer on August 31, 1973, denying that the Respondent had engaged in unfair labor practices. The case came on for trial before me on September 6, 1973, at Santa Maria, California. The parties appeared and were afforded full opportunity to be heard, to call, examine and cross-examine witnesses, to produce evidence, to argue orally on the record, and to submit briefs. Briefs submitted by the parties have been carefully considered. Upon the entire record in the case, my observation of the witnesses, and consideration of the briefs, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The pleadings establish, and I find, that the Respondent is a sole proprietorship with its principal office and place of business located in Lompoc, California, where it is engaged in the operation of a retail hardware store and lumberyard. In the course of its business operations, Respondent annual- ly receives gross revenues in excess of $500,000 and annual- ly purchases goods valued in excess of $2,000 originating outside the State of California. I find that the Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local 899, Retail Clerks Interna- tional Association, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Designation of the Union as Majority Representa- tive Union Business Representative Thomas Herndon met with six of Respondent's employees at the Holiday Inn at Santa Maria on the evening of May 10, 1973. There, the six employees, who constituted a majority of Respondent's work force, signed individual authorization cards reciting as follows: MOORE MILL AND LUMBER COMPANY 267 I hereby designate Retail Clerks International Associa- tion, Local 899, as my agent for the purposes of collec- tive bargaining. By so doing I have authorized Local 899 to negotiate with my employer for a signed collec- tive bargaining agreement to provide for my compen- sation and other conditions of employment. The employees who signed cards on May 10 were P. L. Cruz, John S. Dugas, Barney E. Fish, Jack R. Lara, Donald F. Boddy, Jr., and Mark Goodrich. Other employees i em- ployed by the Respondent were James Rudolph, Grethe Bjorkland, Marjorie Davidson, and Nancy Randall. Em- ployee Pilar signed a union authorization card on June 5, 1973. B. The Request for Recognition and the Respondent's Reac- tion On May 17, 1973, Union Representatives Tom Herndon and James Aaron called on Mrs. Moore at her place of business. They carried with them the six signed union au- thorization cards and a letter requesting recognition as ma- jority representative. The letter read as follows: This letter shall constitute official notice that Retail Clerks Union, Local 899, has submitted evidence satis- factory to Moore Mill and Lumber Company that Re- tail Clerks Umon, Local 899, has been designated by a majority of the employees as the exclusive bargaining representative of all the employees employed by the employer with the exception of supervisors employed at the employer's store located at 320 North D Street, Lompoc, California 93436. It is understood and agreed that Moore Mill and Lum- ber Company does hereby recognize -Retail Clerks Union, Local 899, as the sole and exclusive bargaining agent for its employees for the purposes of collective bargaining in respect to rates of pay, wages, hours and other conditions of employment. Please execute a copy of this letter and return it for our files. Mr. Aaron was the spokesman. He introduced himself and Mr. Herndon and explained to Mrs. Moore that they were there to inform her that the Union represented a ma- jority of her employees and to demand recognition. Mrs. Moore asked for proof that the Union represented her peo- ple. Mr. Aaron handed her the six signed cards which she examined. At that time Mr. Aaron also handed her the recognition letter for her to sign. Mrs. Moore read the letter i I have not included Mrs. Moore's two sons who are also in her employ because Sec. 2(3) of the Act excludes an individual employed by his parent but refused to sign it. Mrs. Moore told the union representa- tives-that they didn't have a majority, stating to them that she had 12 people working and the Union had'only 6 cards. When the union representatives responded that it was their information that there were 11 employees, she replied that there were 12, counting herself. At this moment Mrs. Moore brought employee Jack Lara into the office. There she asked Lara if the employees knew what they were doing by signing the cards. She told Lara if the employees were not happy to find other jobs, and she threatened to close down. Aaron cautioned Mrs. Moore not to get into unfair labor practices, and Lara left the office. According to the credible testimony of Union Representative Herndon, Mrs. Moore asked "what do they want what are they after-I pay good wag- es-I give 3 weeks vacation-I have insurance-what do they want." Aaron told Mrs. Moore they were not there to negotiate; all they wanted at the moment was recognition. They told her they wanted her to sign the recognition letter. Mrs. Moore refused. She then brought employee Donald Boddy to the office and said to him, "Do you know what you signed," and he said, "Yes," and she said, "What did these people promise you," and Boddy replied, "Nothing." Mrs. Moore then asked, "Why did you sign it," and Boddy replied, "Because I wanted more money." Mrs. Moore said, "Well you'll recognize you'll make less money," and she asked, "Did these people tell you you have to pay them money," and Boddy replied, "Yes, about $7.00 per month." At this point Union Representative Aaron again cautioned Mrs. Moore about calling people in and talking to them. Aaron asked Mrs. Moore to contact her attorney for advice. Mrs. Moore went out and called employee Jack Lara in again to the office and again asked him if he knew what he signed and he said, "Yes." Mrs. Moore told Lara if he was unhappy working there, "Why don't you get a job some place else." Lara replied that he was not unhappy working there. Mrs. Moore then asked Lara why he signed a card and he replied that he thought he deserved more money. Mrs. Moore interrupted to state that Lara made more mon- ey than her boys and he turned and left.2 Mrs. Moore then said, according to the credible testimony of Union Repre- sentative Herndon, "I think I'll fire the six of them-if they're unhappy, I'll just fire all six of them." The union representatives again cautioned Mrs. Moore to contact her attorney before she took any action. At this point Mr. Aaron asked for the return of the cards and again asked Mrs. Moore to sign the recognition letter. The cards were returned, but she again refused to sign the letter acknowledging recognition of the Union as majority representative. Union Representative Herndon credibly tes- tified that Mrs. Moore said she didn't make any money- she had the business going only for the employees-she didn't get any money out of it, and if this was the way it was going to be, she would just go out and close the gate and lock the place up. from the definition of "employee." Foam Rubber City #2 of Florida d/b/a Scandia, 167 NLRB 623. 2 The conversation between Boddy and Mrs. Moore recited above is in accordance with the credible testimony of Umon Representative Herndon. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Further Interference with, Coercion, and Restraint of Employees in the Exercise of their Section 7 Rights Accompanying the employees' paychecks on May 19, 1973, Mrs. Moore enclosed the following notice concerning their wages, hours, and working conditions: Starting next week 5-21-73 you will be working 40 hours per week only. There will be 2 to work on Sunday from 9:00-3:00. One Sunday-worker will have Monday and Tuesday off-the other Thursday and Friday. The balance will have Wednesday off. John and Mark will work from 9:00 a.m.-6:00 p.m. each day worked. Pete and Jack will work from 7:30 a.m.-4:30 p.m. each day worked. Don and Barney will work from 8:00 a.m.-5:00 p.m. each day worked. Sunday workers will bring their own lunch and will be paid for the 6 hours worked only. If they want to make up the other 2 hours, they may do so during the week. Each one will punch a time clock coming and going each day worked and will be paid accordingly. If they leave the premise at any time, they will punch the clock, haircuts or any personal matter included. The driver will punch in the morning and when leaving at night only. Personal telephone calls will be at a minimum. The two working on Sunday will be the same two for one month duration then changing to a new crew-of 2 for 1 month. No one is to borrow any tools from the lumber yard unless they get permis- sion from me. Coffee breaks will be 10 min. in the morning and 10 min. in the afternoon and no others will be permissable. Vacation time will be figured June to June and will be taken during the summer months only unless I personally give them permission. You must have worked 12 months continually in order to receive a paid vacation. You have set up your own schedule for a long time now and now it is my turn. If there is any questions about the schedule, please feel free to ask me. In essence, the changes made in wages and working con- ditions were as follows: The number of Sunday employees was reduced by one; employees' days off were changed; the workweek for employees was cut from 48 to 40 hours per week; the serving of dinner to employees who worked on Sunday was discontinued; personal phone calls by employ- ees were restricted; employees were admonished not to bor- row company tools without permission and they were limited to 10-minute coffeebreaks in the morning and af- ternoon; vacations were limited to the summertime; and the employees were notified that to be eligible for vacation, they be required to have had 12 months' continuous employ- ment. Although the notice recited that employees would henceforth be paid only for 6 hours worked on Sunday, contrary to the past practice of paying 8 hours for 6 hours of actual work, Mrs. Moore did not in fact change the practice of paying 8 hours' pay for 6 hours' work on Sunday. Although the notice is silent on the matter, Mrs. Moore increased the hourly rate of pay of _most employees 60 cents per hour and increased Pete Cruz' hourly rate by 75 cents. The reduction in hours from a 48- to a 40-hour workweek was kept in force about 7 weeks, from May 21 to July 14, when the 48-hour workweek was restored, but Mrs. Moore let the increased hourly wage rate stand even though the workweek was increased from 40 to 48 hours. Other instances of unlawful interference engaged in by Mrs. Moore are as follows: Mrs. Moore talked to employee Mark Goodrich in the presence of the two union representa- tives on May 17. She asked Goodrich if he signed a card. When Goodrich replied, "Yes," Mrs. Moore told him if he didn't like the place he could leave. That same afternoon, in the presence of her son and employee Grethe Bjorkland, Mrs. Moore again asked Goodrich why he signed the union authorization card, what he was looking for in the Union, and what benefits he wanted. Goodrich told Mrs. Moore that he was looking for retirement and medical benefits. Mrs. Moore replied that he had social security. At the time Mrs. Moore issued the notice regarding certain wages, hours, and working conditions, she told the group in her office that before her husband had passed away, they had resolved that if a union ever tried to come in, they would cut back the hours of work. Goodrich testified credibly that several times during this time period Mrs. Moore told em- ployees that if she couldn't run her business, then nobody was and she was going to close down. On the day following the visit of the union representatives to the store, Mrs. Moore posted a newspaper clipping which said "Retail Clerks on strike," accompanied by her handwritten remark "if that's what we wanted." Employee Jack Lara testified credibly that on several occasions following the visit of the two union representa- tives, Mrs. Moore threatened to close down and close the gates. Employee Barney Fish credibly testified that on the same day the two union officials visited the store, Mrs. Moore told us "if we weren't happy that we should find other jobs, and she asked us if we knew what we signed and we said yes." Corroborating testimony from other employees, Fish testified credibly that on at least 10 occasions Mrs. Moore told employees that she might close the business. Fish testi- fied that usually every time Mrs. Moore received a phone call having anything to do with the Union, you would hear the "threat to close down all day." Fish testified credibly and without contradiction that on August 2, 1973, having been employed 90 days, thereby becoming eligible for inclusion in the Respondent's health insurance plan, Fish asked Mrs. Moore if she was going to sign him up for it. Mrs. Moore replied, "No," that she wasn't giving anybody anything until the "union deal" was over. Fish testified he therefore retained his existing Blue Cross insurance which was costing him $44 every 3 months 3 Fish credibly testified further that on the day after the union officials visited the store, Mrs. Moore told some of the employees "we had stabbed her in the back-slapped her in the face-that that we all had been one happy family before that." Employee John Dugas credibly and in corroboration of similar testimony by other employees testified that on the 3 I find that by declining to include Barney Fish in the health insurance plan when he became eligible on August 2, 1973, the Respondent violated Sec 8(a)(1) and (3) of the Act MOORE MILL AND LUMBER COMPANY 269 morning after the union representatives visited the store, and in the presence of Barney Fish, Mrs. Moore told them that we stabbed her in the back, tht there wasn't anything worse we could do to her. Dugas replied to Mrs. Moore that, "I didn't feel it was that way, that it was a betterment for ourselves, and for our jobs, and that I felt that the paycheck I picked up every week was like a knife in my back." Dugas also testified credibly and in corroboration of similar testi- mony of other employees that in the first week Mrs. Moore said, "that her husband had always said that's what he would do if they went union; he would set a 40-hour work- week. Dugas also testified in corroboration of other testimo- ny in the record that Mrs. Moore, after receiving a phone call, would say "I'm going to close it up boys; I'm going to close it up." Dugas also testified credibly that following the visit of the two union representatives, Mrs. Moore called him into the second office and shut the door and asked him who had made the initial contact with the Union. Dugas told her he had made the initial phone call which resulted in the Union's invitation to the employees to meet with them, and that he had passed this information on to the other employ- ees. Mrs. Moore expressed her desire to Dugas, "that we all quit." Peter Cruz, employed by the Respondent for 27 years, testified credibly that on the same day the two union repre- sentatives visited the store , and after they left; Mrs. Moore mentioned installing a timeclock. When Cruz asked Mrs. Moore for a vacation, she told him he couldn't take a vaca- tion until "this union thing was settled." Cruz, like others, heard Mrs. Moore remark several times that she was going to close the business and on several occasions, like other employees, heard Mrs. Moore say, "if we weren't happy we could leave." Cruz testified that only 2 days before he testi- fied he heard Mrs. Moore say, "you're going to pay for an attorney-she wasn't going to pay for it-we were going to have to pay for it." I am not persuaded by the Respondent's contention that the reduction of the workweek from 48 to 40 hours was based on business considerations, namely, that business had slacked off; a lumber shortage had developed and the price of lumber had increased; or that the Respondent was over- staffed with employees due to increased working hours of employee Mark Goodrich. On the contrary, I am persuaded that the change was motivated by Mrs. Moore's policy, passed on to her by her departed husband in his lifetime, and expressed by Mrs. Moore at the time that the workweek was reduced on May 19 to 40 hours, and that she and "her husband, before he passed away, discussed this, and if a union ever tried to come in, that they would cut back the working hours." Moreover, Mrs. Moore admitted that the union representatives' visit to her plant on May 17 "proba- bly helped a lot" in her decision to issue her May 19 notice to the employees announcing changes in wages, hours, and working conditions. Aside from the fact that Respondent produced no records to show a substantial business decline, Mrs. Moore's hire of Barney Fish on April 30 refutes her testimony that she had decided in April to reduce hours of work; for if she had decided to reduce hours for lack of work, she would not have hired Fish on April 30. I am persuaded by the timing of the announcement of the change in working conditions only 2 days after the Union had demanded recognition; by the substance of the other changes announced in the May 19 notice; by the substantial hourly wage rate increase that accompanied the announce- ment ; and by the accompanying threats by Mrs. Moore made in the same time frame, to close down ; that the em- ployees had stabbed her in the back; and that they could quit and go elsewhere if they were unhappy-that under all the surrounding circumstances the May 19 changes in wag- es, hours, and working conditions were instituted to dis- courage and defeat unionization and therefore violated Section 8(a)(1) of the Act. C. The Appropriate Unit The General Counsel's complaint` alleges the appropriate unit as follows: All full-time and regular part-time employees em- ployed by Respondent in its retail hardware and lum- ber operations at Lompoc, California; excluding guards, casual employees, relatives of management and supervisors as defined in the Act. I agree with the General Counsel's description of the appropriate unit, with this modification that the "relatives of management" to be excluded from the unit should be limited to Mrs. Moore's two sons who are excluded from the term "employees" by Section 2(3) of the Act. I have con- cluded in agreement with the Respondent, however, that Mrs. Moore's niece, Nancy Randall, who was hired July 14, 1973, and works as a billing clerk, and Mrs. Moore's sister- in-law, Marjorie Davidson, who clerks and checks sales tickets, do not enjoy special status by reason of marriage or blood relationship to Mrs. Moore and therefore should properly be in the unit. Fresno AG Hardware, 185 NLRB 412. It is clear, and I find, that the entire enterprise of the Respondent consisting of the yard, mill, salesroom, and office is under the sole supervision of Mrs. Moore, and its employees constitute a homogenous group with overlapping functions who are in daily contact with one another, are paid by the hour, and enjoy substantially the same fringe benefits,4 and no other labor organization aeeks to represent them on a different unit basis. It is well established by Board precedent that the single establishment is presumed to constitute an appropriate unit, where no labor organization seeks a different unit. Golub Corp., 159 NLRB 503. Moreover, all parties are in agree- ment that the appropriate unit is an establishment wide unit. D. The Union Majority I find contrary to the Respondent's position that the Union's request for recognition is a sufficient request to bargain. As the Respondent refused to grant recognition, a further request to, bargain would be futile.5 On May 17, 4 Part-time employees do not have health insurance 5 N L.R B v Barney's Supercenter, Inc., 296 F.2d 91 (C.A. 3, 1961); also NL RB. v. Burton-Dixie Corporation, 210 F.2d 199 (C.A. 10, 1954) 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,1973, the date of the Union's demand for recognition, there were 10 employees in the unit,6 6 of whom had signed union authorization cards, as I have previously noted above in paragraph III,A. The duties and functions of the various employees are as follows: 1. John Dugas (a card signer) clerks, waits on customers, and marks and stocks merchandise as well as other miscella- neous duties. 2. Jack Lara, (a card signer) sweeps out the shop, loads trucks, and waits on customers. 3. Mark Goodrich (a card signer) clerks and marks mer- chandise as well as other miscellaneous duties as required. Is a regular part-time employee during the school year and works full time during summer vacation. 4. Don Boddy (a card signer) repairs screens and win- dows, makes picture frames, waits on customers, and loads and unloads trucks. 5. Barney Fish (a card signer) is the local delivery truck- driver. 6. Pedro Cruz (a card signer) is a millman who repairs doors, cuts wood, makes picture frames, helps customers, and loads trucks. 7. Pilar Lara (a card signer who signed on June 5) is'the regular part-time janitor who works 2 hours a day and as a regular part-time employee belongs in the unit. Callahan- Cleveland, Inc., 120 NLRB 1355, 1357; Bachmann Uxbridge Worsted Corporation, 109 NLRB 868. His son, Danny, helps him occasionally, but only Pilar, the father, is on the Respondent's payroll. 8. Grethe Bjorkland is primarily a bookkeeper but also waits` on customers. 9. Marjone Davidson (Mrs. Moore's sister-in-law) clerks and checks sales tickets. 10. Nancy Randall (Mrs. Moore's niece, who was hired July 14, 1973) was working 40 hours a week engaged in bookkeeping functions, adding up sales, and getting out the bills. She will work part time while attending college. I find that on May 17, the date the Union requested recognition, it held valid authorization cards from six em- ployees, which constituted a majority of the employees in the unit which I have herein found appropriate.? I find that the unfair labor practices engaged in by the Respondent have made a free and fair election impossible, and under the circumstances the cards will serve to establish the union majority. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the 6I find that Jimmy Rudolph is a "causal employee" who does not have a sufficient community of interest with the other employees , and it therefore excluded from the unit. Mr Rudolph is a school teacher who works part time at his own pleasure and determines his own hours , computing inventory He He does no other work and comes and goes when he pleases. In 1973 he worked a total of approximately 80 hours in the first 3 months of the year and will not return to work again until late in 1973 or early 1974. M & M Charter Lines, 173 NLRB 605, 607. 7 A seventh union authorization card was signed by Pilar Lara on June 5, 1973, and it should be counted although the six cards establish the majority. Area Disposal, Inc, 200 NLRB 350. Respondent described in section I, above , have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that the Respondent cease and desist therefrom and from in any other manner infring- ing upon its employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union was a majority representa- tive of Respondent's employees in an appropriate unit on May 17, 1973, and that the Respondent, by engaging in unfair labor practices aimed at destroying the Union's ma- jority, discloses a disposition to evade its obligation to bar- gain, it is found that a simple cease -and-desist order would not prevent Respondent from profiting from its unlawful conduct, and that only a bargaining order can restore, as nearly as possible, the situation which would have obtained but for Respondent's unfair labor practices. See N,L P B. v. Gissel Packing Co., 395 U.S. 575 (1959). Accordingly, it will be recommended that Respondent bargain with the Union as the collective-bargaining representative of its employees in an appropriate unit and, if an agreement is reached, embody such agreement in a signed contract. The charging union, alone, and without the concurrence of the General Counsel seeks a Tiidee remedy (Tiidee Prod- ucts, Inc.,, 194 NLRB 1234). It requests that the Board order the Respondent to mail the notice to employees to each of the employees in the unit, allow the Union access to the Respondent's bulletin board for the posting of its notice, and order the Respondent to reimburse the Union and the Board for their expenses of litigation in this matter. The Respondent's enterprise is small and the employees all live in Lompoc where Respondent's establishment is located and where they can easily be contacted by union representatives. The unfair labor practices engaged in by Mrs. Moore, a widow carrying on the business of her de- parted husband, were the product of her naivete rather than the fixed and calculated conduct of a person sophisticated in labor relations. Additionally, I do not find sufficient evidence to support a finding that the Respondent's defen- ses constituted frivolous litigation within the meaning of Tiidee Products. Accordingly, I deny the Union's request for a Tiidee remedy. See Walgreen Co., 206 NLRB No. 15 at footnote 2; Heck's, Inc., 191 NLRB 886. Upon the basis of the above findings of fact and upon the entire record in the case, I reach the following: CONCLUSIONS OF LAW 1. The Respondent is an employer 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. By interrrogating employees whether they signed MOORE MILL AND LUMBER COMPANY 271 union authorization cards and concerning their reasons for so doing; by castigating the employees for having signed union authorization cards; by threats to close the estab- lishment because the employees selected a union to repre- sent them; by telling employees who had signed union authorization cards that they had thereby stabbed the Re- spondent in the back; by reducing the workweek from 48 to 40 hours and by increasing wage rates 60 cents per hour to defeat unionization; by rescheduling the workweek; by denying employees paid vacation because of union organi- zation; by announcing restriction on such privileges as cof- feebreaks and personal telephone calls; by discontinuing serving dinners to employees who worked on Sundays; by denying health insurance coverage to Barney Fish; and by inviting employees who had signed union authorization cards to quit their employment, the Respondent has inter- fered with, restrained, and coerced employees in the exer- cise of rights guaranteed them in Section 7 of the Act and has thereby engaged in, and is- engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. On May 10, 1973, and thereafter, the Union was the exclusive representative for collective-bargaining purposes of Respondent's employees in the following described unit: All full-time and regular part-time employees em- ployed by Respondent in its retail hardware and lum- ber operations at Lompoc, California; excluding guards, casual employees, sons of management and supervisors as defined in the Act. The aforesaid unit was, and is, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. By refusing to recognize or bargain with the Union on and after May 17, 1973, as the exclusive representative of its employees in the unit herein found appropriate, with respect to wages, hours, and working conditions, the Re- spondent violated Section 8(a)(5) and (1) of the Act. [Recommended Order omitted from publication.]