Cutten Supermarket

CUTTEN SUPERMARKET 507 James W. Whitfield, d/b/a Cutten Supermarket and Retail Clerks Union Local 541, Retail Clerks Inter- national Association, AFL-CIO. Case 20-CA-9443 the Act by denying these employees such benefits in an effort to undermine the Union and take reprisals against them for supporting the strike. September 23, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On February 10, 1975, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions and a brief in support thereof. Subsequently, the General Counsel submit- ted an answer to Respondent's cross-exceptions. 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 only to the extent consistent herewith. The Administrative Law Judge recommended dis- missing the complaint in its entirety. He found that Respondent did not violate Section 8 (a)(5) and (1) of the Act by conditioning its negotiations with the Union upon resolution of an alleged question con- cerning representation raised by Respondent's filing of a representation petition , or violate Section 8(a)(3) and (1) by denying striking employees their accrued vacation pay. We find merit in the General Counsel's exceptions to both of these findings. As to the alleged refusal to bargain, the General Counsel contends that, as of the filing of the repre- sentation petition, Respondent lacked any objective basis for doubting that the Union represented a ma- jority of its employees and that Respondent, by con- ditioning bargaining on the resolution of the alleged question concerning representation, violated Section 8(a)(5) and (1) of the Act. As to Respondent's denial of accrued vacation benefits to strikers, the General Counsel contends that Respondent's striking em- ployees are entitled to accrued vacation benefits and that Respondent violated Section 8(a)(3) and (1) of Absent exceptions thereto , we adopt pro forma the Administrative Law Judge's findings that Respondent did not violate Sec. 8 (a)(5) and (1) by dealing directly with an employee regarding wages, hours, and conditions of employment, to the exclusion of the Union , and that Respondent did not violate Sec. 8(a)(1) by informing two employees that Respondent would not negotiate a collective-bargaining agreement with the Union. The Refusal To Bargain The relevant facts are as follows: On June 30, 1972, Respondent voluntarily recognized Retail Clerks Union, Local 541, Retail Clerks International Association, AFL-CIO (hereinafter called the Union), as the exclusive collective-bargaining repre- sentative of a unit of its employees 2 and signed the collective-bargaining contract then in effect between the Food Employers Council (hereinafter called FEC) and the Union, effective from late 1971 or ear- ly 1972 through May 31, 1974. By letter dated March 20, 1974,3 the Union noti- fied all parties signatory to its contract with FEC of its desire to terminate that agreement and to negoti- ate a new one . The letter requested any employer desiring "to negotiate separate and apart from the industry negotiations" to so advise the Union. The letter stated that employers which did not notify the Union of a desire to negotiate independently would "be assumed" to have agreed "to be bound by the result of the industry negotiations." Respondent re- ceived this letter on March 23 but did not respond thereto. On May 6, Respondent joined the Redwood Em- ployers Association (hereinafter called REA), an or- ganization representing employers in various indus- tries for collective-bargaining purposes. Respondent, however, did not notify the Union of its relationship with REA until June 4. On that day, the Union's business agent, James Shreeve, delivered a copy of a "Memorandum of Agreement" between the Union and FEC to Respondent's owner, James W. Whit- field. At that time Whitfield told Shreeve that Re- spondent was represented for bargaining purposes by REA, and that he would turn the document over to his attorney, David Comb of REA, who was in charge of the matter. Pursuant to Comb's instructions, REA informed the Union by letter dated June 14 that the terms of the "Memorandum of Agreement" were unaccept- able to Respondent and that it (REA) was preparing counterproposals on Respondent's behalf. The letter did not request a response, but stated that "in the meantime, questions or other communications re- garding matters dealing with [Respondent's] labor re- lations" should be directed to REA. Subsequently 2 We find, in agreement with the Administrative Law Judge, that the contractual unit consisting of all employees of Respondent excluding own- ers, meat department employees , office clericals, guards and supervisors as defined in the Act is appropriate 3 Unless otherwise indicated, all events herein occurred in 1974. 220 NLRB No. 64 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Comb commenced drafting counterproposals. No further communications between the Union and either Whitfield or REA took place until June 26. At or about 8:30 a.m. on that date, the Union's business agent, Shreeve, appeared at Respondent's market, threw a copy of a "Memorandum of Agree- ment" on the checkstand in front of Whitfield, and said "Bill, sign this." Whitfield asked if Shreeve had heard from REA and Shreeve responded that he "[did] not want to talk to those . . . people." Whit- field refused to sign the contract, stating that REA was his bargaining agent, that he was acting on the advice of his counsel, and that the problem was out of his hands. Shreeve threatened to strike if the con- tract was not signed by 10 a.m. Whitfield again re- fused to sign, and Shreeve began to picket the store with a sign stating, "Cutten Market on strike." Em- ployees Lola Bonomini, Joe Bonomini, Erica Pelton-, en, and Jerry Hawkes joined Shreeve in picketing when they arrived at work. Store Manager Dale Vis- nor, whose supervisory status is in issue, crossed the picket line and reported for work. Picketing by Respondent's employees continued for some 10 to 14 days and thereafter was carried on by pickets who were not former Cutten employees.4 Between June 26 and August 20, Respondent hired five new employ- ees in the following order: Jerry Coiner on June 28; Beverly Yopper on July 2; Ted Sillapanna on July 3; Mike Landing on July 16; and Ernie Nunes on Au- gust 20. On July 2, Comb spoke to Shreeve at the picket line, and asked Shreeve if he would meet to negotiate a contract. According to Comb's credited testimony, Shreeve replied that the contract had already been negotiated and that if Comb desired a meeting he should contact Carl Bunch, the Union's attorney. Shreeve subsequently contacted Bunch, apparently by telephone, and relayed Comb's message. On July 3, Comb wrote to Shreeve confirming their July 2 conversation, stating that Respondent had counterproposals prepared and that Respondent was ready to negotiate. The letter requested that the pickets be removed pending negotiations and that the Union's attorney (Bunch) contact Comb to ar- range a time to begin negotiations. By letter dated July 8, Bunch requested Comb to contact him to ar- range a mutually convenient date to begin negotia- tions. On July 9, Respondent filed an RM petition in Case 20-RM-1773. On July 10, Comb received Bunch's letter of July 8 and immediately phoned Bunch's office and sched- uled a meeting for July 29. Comb then wrote a letter 4 The record indicates that the picketing continued through the hearing in the instant case to confirm this arrangement. The letter stated that Respondent continued willing to negotiate and bar- gain in good faith "with final agreement subject only to resolution of the existing question concerning rep- resentation." Neither Bunch nor anyone else from the Union responded to Comb's July 10 letter and there was no further contact between the parties rela- tive to bargaining. Respondent executed a Stipulation for Certifica- tion Upon Consent Election on July 25 at the request of a Board agent. The Union, however, did not exe- cute the stipulation and, on August 7,5 a representa- tion hearing was conducted in Case 20-RM-1773. On August 7 and 9, the Union filed the instant 8(a)(1), (3), and (5) charges. It is well settled that Section 8(a)(5) and Section 8(d) of the Act require an employer to recognize and bargain in good faith with the bargaining representa- tive selected by a majority of its employees. That rec- ognition establishes a presumption of majority status which, in circumstances such as this, may be rebut- ted 6 The employer may lawfully refuse to bargain with the union if it rebuts the presumption by affir- matively establishing that the union has in fact lost its majority status, or shows that it has sufficient ob- jective bases for reasonably doubting the union's continued majority status.' To establish sufficient ob- jective bases, however, requires more than the mere assertion thereof based upon the employer's subjec- tive frame of mind.' Furthermore, the employer must not have engaged in any conduct tending to encour- age employee disaffection from the union.' Applying these well-established principles to the instant case, we find that the Employer has presented no evidence of objective considerations to support its assertion that on July 9, when it filed a representa- tion petition, it entertained a genuine doubt of the Union's continued majority status. Respondent con- tends that on July 9 its employee complement was such that the Union could not have won an election. Respondent bases this contention on the fact that Respondent's bargaining unit on that date consisted of four strikers,10 three strike replacements, and Store Superintendent Dale Visnor, who, Respondent con- s The Administrative Law Judge stated that this hearing , orginally sched- uled for July 25, was postponed by the Regional Director on August 23 The postponement date was in fact July 23 6 Cf N L R B v Frick Company, 423 F 2d 1327 (C A 3, 1970), Keller Plastics Eastern, Inc, 157 NLRB 583 (1966) 7 Celanese Corporation of America, 95 N LRB 664, 672 (1951), Peoples Gas System, Inc, 214 NLRB No 141 (1974) s Laystrom Manufacturing Co, 151 NLRB 1482 (1965), enforcement de- nied 359 F 2d 799 (C A 7, 1966), Automated Business Systems, Inc, a Divi- sion of Litton Business Systems, Inc, 205 NLRB 532 (1973), enforcement denied 497 F 2d 262 (C A 6, 1974) 9 Peoples Gas System, Inc, supra 10 We find, contrary to Respondent's contentions , that as of July 9 Joe Bonomini had not retired and was therefore an employee whose vote would be included in determining the Union's majority status CUTTEN SUPERMARKET tends, is a rank-and-file employee, but whose super- visory status is in question. According to Respondent's calculations, the three replacements and Visnor would oppose the Union, leaving the Union a maximum of four votes in its favor, and, therefore, not a majority. We find Respondent's contentions unsupportable and its calculations irrelevant. As to the four strikers, the record affirmatively shows that they are members of the Union. However, as to the replacements, Re- spondent has produced no evidence to indicate their voting preferences . Indeed, it is a well-settled princi- ple that new employees are presumed to support the union in the same ratio as those whom they have replaced." Furthermore, there is no presumption that an employee has rejected the union as collective-bar- gaining representative when the employee elects not to support the strike.12 On the other hand, there is a presumption that the strikers in this case, being union members, continued to support the Union. As to Visnor, we disagree with Respondent's contention that he is a rank-and-file employee whose vote should be counted in determining the majority status of the Union. To the contrary, the record reveals, and we find, that Visnor is a supervisor within the meaning of the Act and is, therefore, not within the unit and ineligible to vote." Accordingly, as of July 9, there were a total of seven employees in the unit; i,e., four strikers who clearly supported the Union and three replacements whose union sentiments were not known. Respondent adduced no evidence that any of the employees expressed dissatisfaction with union representation. Furthermore, the mere filing of a petition for an election is insufficient evidence to establish either that Respondent acted in good faith or that it acted upon objective considerations in withdrawing recognition.14 We conclude, therefore, that Respondent has not rebutted the presumption of the Union's continued majority by demonstrating either that the Union had "True Temper Corp., 217 NLRB No. 180 (1975); Maywood Packing Co, 181 NLRB 778, 781 (1970), Laystrom Manufacturing Co., supra. 12 Frick Company, 175 NLRB 233, In. 1 (1969), enfd. 423 F.2d 1327, 1330 (C .A. 3, 1970). 13 Visnor was given the title of assistant manager by Whitfield when Respondent's meat department was contracted out and Visnor was relieved of his responsibilities as butcher (a position which was specifically excluded from the recognized unit). As assistant manager, Visnor has authority to hire and fire ; he alone has keys to the store and runs the store in Whitfield's absence ; he helps supervise and instruct new employees ; and, unlike other employees, is paid a weekly rather than an hourly salary and receives 2- percent commission on all profits . We find that Visnor is a supervisor within the meaning of the Act. Moreover, it is clear from the record that Visnor was initially named assistant manager, in part, to avoid the contract's union-security requirement that all rank -and-file employees join the Union. We find that Respondent cannot , at its convenience, redefine the status of its personnel. 1 United States Gypsum Company, 161 NLRB 601 (1966), Cantor Bros., Inc, 203 NLRB 774, 778 (1973) 509 in fact lost its majority status or that it-had sufficent objective bases for reasonably doubting the Union's majority status as of July 9 when it withdrew recogni- tion and filed the representation petition.15 Accord- ingly, we find that Respondent, by withdrawing rec- ognition from the Union on July 9 and thereafter by conditioning final agreement upon the resolution of an alleged question concerning representation, vio- lated Section 8(a)(5) and (1) of the Act. The Strike and the Strikers We further find that Respondent's unlawful refus- al to bargain on and after July 10 tended to impede any possible settlement of the strike and, indeed, had a tendency to prolong the strike. It follows, therefore, that from July 10 forward one of the purposes of the strike was to protest Respondent's unfair labor prac- tices.16 Accordingly, we find that the strike which be- gan on June 26 was converted to an unfair labor practice strike on July 10 " and that the strikers on that date assumed the status of unfair labor practice strikers. Thus, Respondent is obligated to reinstate, upon request, all strikers who were not permanently replaced before July 10 to their former or substan- tially equivalent positions." Denial of Accrued Vacation Benefits The General Counsel contends that the Adminis- trative Law Judge erred in failing to find that Re- spondent violated Section 8(a)(3) and (1) of the Act by denying its striking employees their accrued vaca- tion benefits.19 The General Counsel argues that Re- spondent withheld accrued vacation benefits from striking employees in an effort to undermine the Union and take reprisals against them for supporting the strike. We agree with the General Counsel. According to Shreeve's uncontradicted testimony, 1 or 2 days after the strike began on June 26, the 15 C. H Guenther & Son, Inc. d/b/a Pioneer Flour Mills, 174 NLRB 1202 (1969). 16 N L R B v Pecheur Lozenge Co, Inc, 209 F.2d 393, 399 (C.A. 2, 1953), cert denied 347 U S 953 (1953). 17 Cavalier Division of Seeburg Corporation, 192 NLRB 290, 291 (1971). 18 Laidlaw Corporation, 171 NLRB 1366 ( 1968), enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970). 19 Respondent contends that the issue of whether it is obligated to pay strikers accrued vacation benefits is a matter of contract interpretation and should be deferred under Collyer Insulated Wire, 192 NLRB 837 (1971). Respondent, however, made no affirmative plea in its answer to the com- plaint that the Board should defer this issue to arbitration and did not raise the issue of deferral at the trial. In fact, Respondent first made a plea for deferral in its brief to the Administrative Law Judge. Member Penello finds, in accordance with established Board policy , that Respondent's plea is un- timely. Conval-Ohio, Inc, 202 NLRB 85 (1973) Chairman Murphy, without taking a formal position on Collyer, agrees that the issue must, in any event, be timely raised and that here it was not Member Fanning, for the reasons stated in his dissent in Collyer, would not defer to arbitration in any event. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers expressed to him some concern about their vacation pay. Shreeve spoke to Whitfield and asked if the strikers could be paid their accrued benefits. Whitfield responded that "if they [the employees] would come into the store and sign a statement that they terminate their employment at the store" he would pay them their accrued vacation benefits. A week or two later, Shreeve repeated the request and, again, Whitfield conditioned payment of accrued benefits upon employee resignation. Whitfield did not deny that the strikers had earned vacation bene- fits 20 or contend that the contract prevented pay- ment of such benefits at that time. Nor did Whitfield contend that payment would be inconsistent with past business practices.21 To the contrary, Whitfield agreed to pay the vacation benefits, albeit on condi- tion that the employees abandon the strike and ter- minate their employment. Indeed, Respondent's at- torney Comb of REA testified at a hearing before the California Labor Commissioner on the issue of Respondent's obligation regarding these accrued benefits that Respondent's position remained un- changed 22 And in the hearing of the instant case, Comb testified that "there was no requirement for the Employer to finance a strike against themselves." In our opinion, Respondent has misperceived its legal obligations. The Supreme Court has held that withholding vacation benefits from striking employ- ees is "inherently destructive" of important employee rights and that, without proof of adequate business justification for an employer's conduct, specific proof of an antiunion motivation is not required.23 Accordingly, we find that Respondent, by withhold- ing accrued vacation benefits from the strikers in an effort to undermine the Union, violated Section 8(a)(3) and (1) of the Act.24 20 It is clear from the record that all four strikers were sufficently tenured to have earned 3 weeks' paid vacation by the beginning of the strike 21 Respondent now contends that the contract required advance schedul- ing of employee vacations Whitfield testified, however, that employees "had free rein" in taking vacations, that they would simply inform him of the time they wanted, sign up on the calendar, and then take off Thus, it is clear that Respondent never implemented the contractual requirements for scheduling vacations . Furthermore, we note that the contract on which Re- spondent relies expired on May 31 , 1974 However, even if Respondent had adhered to these contract requirements , the record shows that Respondent denied vacation benefits to two strikers who had scheduled their vacations in advance We find, therefore , that Respondent's reliance on the expired contract provisions comes as an afterthought in an effort to conceal the true and unlawful reason for denying the strikers their accrued vacation benefits 22 This hearing was held on September 10 and, on October 3, the Labor Commissioner issued a decision ordering Respondent to pay the vacation moneys owed to employees Comb then wrote a letter requesting a stay of the Labor Commissioner's order pending the outcome of the instant pro- ceedings ; the stay was granted on October 16 23 N L R B v Great Dane Trailers, 388 U.S 26, 33 (1967) 24 Cavalier Division of Seeburg Corporation, supra Remedy- Having found that Respondent engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act. Having found that Respondent, on and after July 10, 1974, refused to bargain with the Union in viola- tion of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit concerning wages, hours, and other terms and conditions of employment and, if an un- derstanding in reached, embody such understanding in a signed agreement. Having found that Respondent's refusal to bargain with the Union tended to impede strike settlement and converted the strike to an unfair labor practice strike on July 10, we will order that Respondent rein- state all striking employees, upon unconditional re- quest, who were not permanently replaced before that date to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, discharging if necessary any replacements hired after July 10;25 and that it make whole such employees for any loss of earnings resulting from its failure to reinstate them within 5 days of their uncon- ditional request, computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest at the rate of 6 percent per annum, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Such employees for whom no em- ployment is immediately available shall be placed on a preferential hiring list for employment as positions become available, and before other persons are hired for such work. Priority for placement on such list is to be determined by seniority or some other nondis- criminatory test. Having found that Respondent discriminatorily withheld from its employees vacation pay to which they had become entitled under the terms of the con- tract between Respondent and the Union in violation of Section 8(a)(3) and (1), we shall order Respondent to pay Lola Bonomini, Joe Bonomini, Erica Pelton- en, and Jerry Hawkes the vacation moneys due and 25 The record shows that not long before the strike began one of Respondent's five regular checkers , Gary Jackson , voluntarily quit Absent evidence to the contrary, we find that Jerry Colmer, employed by Respon- dent on June 28, was hired to replace Jackson, rather than one of the strik- ing employees. The record also shows that Beverly Yopper and Ted Silla- panna were hired prior to July 10 to replace two of the four strikers. It is impossible, however, from this record to determine which of the strikers was first replaced We therefore leave this determination for the compliance stage of this proceeding. CUTTEN SUPERMARKET owing to them to the extent that such was not paid to them. The amount due to each employee shall bear interest at the rate of 6 percent per annum from June 28, 1974, the date on which Respondent first refused to make such payments. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. The Respondent, James W. Whitfield, d/b/a Cutten Supermarket, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 541, Retail Clerks International Association, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. The appropriate unit for the purposes of 'collec- tive bargaining within the meaning of Section 9(b) of the Act is: All employees at Respondent's retail supermar- ket, excluding owners, meat department employ- ees, office clericals, guards and supervisors as defined in the Act. 4. At all times material herein the Union has been and is the exclusive representative of all the employ- ees in the above-described unit for the purpose of collective bargaining within the meaning of Section 9(a) and Section 8(a)(5) of the Act. 5. By withdrawing recognition from the Union and refusing, on and after July 10, 1974, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of the Respondent in the above-described appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By refusing and continuing to refuse to pay strikers the accrued vacation benefits due them un- der the collective-bargaining agreement with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 7. The strike which commenced on June 26, 1974, was converted to an unfair labor practice strike on July 10, 1974, the date Respondent unlawfully with- drew recognition and refused to bargain with the Union. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER 511 Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board hereby orders that the Respondent, James W. Whitfield, d/b/a Cutten Supermarket, Eureka, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Retail Clerks Union, Local 541, Retail Clerks International Association, AFL-CIO, as exclusive collective-bar- gaining representative of the employees in the follow- ing appropriate unit: All employees of the Respondent's retail super- market, excluding owners, meat department em- ployees, office clericals , guards and supervisors as defined in the Act. (b) Withholding vacation pay from, or otherwise discriminating against, its employees in regard to their hire or tenure of employment or any term or condition of employment to discourage membership in the above-named, or any other, labor organiza- tion. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which we find necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Retail Clerks Union, Local 541, Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate unit described above, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. (b) Reinstate, upon unconditional request, all strikers who were not replaced before July 10, 1974, to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privi- leges, discharging if necessary any replacements hired after July 10, 1974; and make such employees whole for any loss of earnings resulting from its fail- ure to reinstate them within 5 days of their uncondi- tional request, with interest at the rate of 6 percent per annum. Such employees for whom no employ- ment is available shall be placed on a preferential hiring list based upon seniority, or some other non- discriminatory test, for employment as jobs become available, in the manner set forth in the "Remedy" section of this Decision. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Forthwith pay to employees Lola Bonomini, Joe Bonomini, Erica Peltonen, and Jerry Hawkes their accrued vacation pay to which they were enti- tled as of June 28, 1974, under the terms of article XI of the agreement between James W. Whitfield, d/b/a Cutten Supermarket, and Retail Clerks Union, Local 541, Retail Clerks International Association, AFL- CIO, executed by Respondent on June 30, 1972, with interest at the rate of 6 percent per annum. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copy- ing, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records necessary to analyze the amounts due under the terms of this Order. (e) Post at its supermarket in Eureka, California, copies of the attached notice marked "Appendix." 26 Copies of said notice, on forms provided by the Re- gional Director for Region 20, after being duly signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 26 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 WE WILL NOT refuse, upon request, to bargain collectively with Retail Clerks Union, Local 541, Retail Clerks International Association, AFL- CIO, as the exclusive bargaining representative of the employees in the following appropriate bargaining unit: All employees at our retail supermarket, ex- cluding owners, meat department employees, office clericals, guards and supervisors as de- fined in the Act. WE WILL NOT withhold vacation pay from, or otherwise discriminate against, our employees in regard to their hire or tenure of employment, or any other term or condition of employment, to discourage membership in the above-named or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them un- der Section 7 of the Act. WE WILL, upon request, bargain collectively in good faith with Retail Clerks Union, Local 541, Retail Clerks International Association, AFL- CIO, as the exclusive representative of all em- ployees in the above-described appropriate bar- gaining unit with respect to rates of pay, wages, hours of employment, and other terms and con- ditions of employment and, if an understanding is reached, embody such understanding in a written and signed agreement. WE WILL reinstate, upon unconditional re- quest, all strikers who were not replaced before July 10, 1974, to their former jobs or, if such positions no longer exist, to substantially equiva- lent positions, without prejudice to their senior- ity or other rights or privileges, discharging if necessary any replacements hired after July 10, 1974; and make whole such employees for any loss of earnings resulting from our failure to re- instate them within 5 days of their unconditional request, with interest at the rate of 6 percent per annum. We shall place employees for whom no employment is available on a preferential hiring list based upon seniority or some other nondis- criminatory test, for employment as jobs be- come available. WE WILL pay to employees Lola Bonomini, Joe Bonomini, Erice Peltonen, and Jerry Hawkes the accrued vacation pay to which they were entitled as of June 28, 1974, under the terms of article XI of our contract with Local 541, which was executed by Respondent on June 30, 1972, with interest at the rate of 6 percent per annum. JAMES W. WHITFIELD, d/b/a CUTTEN SUPER- MARKET DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard at Eureka, California, on November 12, 1974. The complaint, issued October 3 and based on CUTTEN SUPERMARKET charges filed August 7 and 9, 1974, by Retail Clerks Union, Local 541, Retail Clerks International Association, AFL- CIO, herein the Union, alleges that Respondent, James W. Whitfield d/b/a Cutten Supermarket, has engaged in un- fair labor practices within the meaning of Section 8(a)(5), (3), and (1) of the Act. Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a sole proprietorship engaged in the retail grocery business at Eureka, California. It annually enjoys gross revenues in excess of $500,000 and purchases goods and supplies valued in excess of $50,000 directly from sup- pliers located outside the State of California . I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local 541, Retail Clerks Interna- tional Association, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events Respondent purchased this retail grocery business in Au- gust 1971 from one, Joe Sandretto . At the same time, it also leased the grocery building and a nearby residence from Sandretto and brothers Joe and Louis Bonomini. Joe Bo- nomini and his wife Lola became employees of the market under Respondent.' On June 31 , 1972, Respondent executed a collective-bar- gaining contract with the Union running through May 31, 1974. Respondent was never a member of any multiem- ployer group and the record reflects that Respondent, on its own, agreed to an association agreement previously exe- cuted on a broader basis 2 It is uncontroverted that the Union duly reopened the contract on March 20, 1974, and announced that association negotiations would be held in Monterey, California, between April 15 and 17; the con- tract duly expired May 31, 1974. In the interim, Respon- dent decided to obtain professional help and, on May 6, 1974, duly joined an employer association, Redwood Em- ployers Association, herein Redwood, headed by David Comb which represents employers in collective bargaining. Shortly before June 4, 1974, Business Agent James i Respondent stresses that the Bonominis should not, as in essence land- lords of, the properties, be considered employees of Respondent I fail to see how this denigrates from their Sec. 7 rights as employees. Stated otherwise, as full-time employees they are subject to the protection of Sec. 7 of the Act. Cf. Everett Plywood & Door Corporation, 105 NLRB 17 (1953). 2 The contract refers to an agreement of August 15, 1971, and reflects signature by Respondent on January 31, 1972 513 Shreeve of the Union, as he testified, spoke with Whitfield of Respondent about a new contract. He left with him a memorandum of a proposed agreement, apparently signed with the multiemployer association, and stated that he would return in a few weeks after Whitfield had an oppor- tunity to look it over. Whitfield, according to Shreeve and I so find, responded that he would turn this over to his attorney and that the latter was in charge of the matter. On June 14, Jack Harper of Redwood, pursuant to instructions from David Comb, his superior, wrote the Union and stated that, upon review of the contract, it was deemed unacceptable and that Red- wood, upon instructions from Respondent, was preparing a counterproposal which would be submitted in the near fu- ture. Shreeve testified at one point that he did not recall Whit- field telling him that he was represented by Redwood. However, in one of his affidavits to the General Counsel, well prior to the events litigated herein and I so find, Shreeve deposed that Whitfield told him he would not sign the contract until he received advice from Redwood. Sig- nificantly, Shreeve also deposed therein that he then stated negotiations were completed and that he had a memoran- dum for Respondent to sign. As is readily apparent, this was contrary to the fact because Respondent in no way had participated or been invited to participate in negotia- tions for a new contract and the June 14 letter remained unanswered; this brings us to the events of June 26. The Union, as stated, did not respond to the June 14 letter from Respondent's bargaining representative. Ac- cording to Comb, he commenced the preparation of a counterproposal directly thereafter. On June 26, Business Agent Shreeve of the Union appeared at Respondent's store and spoke with Whitfield. According to Shreeve, he asked Whitfield if he had read the contract and had come to a decision. Whitfield responded that his attorney had advised him not to sign the contract and Whitfield alleged- ly then became evasive. Whitfield, an objective and straightforward witness, whom I credit, testified that Shreeve appeared that morn- ing, threw a copy of the contract on the table and directed him to sign it. Whitfield asked Shreeve if he had heard from his collective-bargaining representative; namely, Redwood. Shreeve replied that he did not want to talk to them and Whitfield then stated that Redwood was his bar- gaining representative. Whitfield also protested that he could not sign a contract, upon advice from his bargaining representative, and that the problem was in the hands of the latter. Shreeve next threatened to strike the store that morning and did so. More specifically, he promptly left and personally began to picket the store with a sign stating "Cutten Market on strike." Directly after Shreeve commenced the picketing on June 26, the employees arrived. Dale Visnor, whose supervisory status is in issue, crossed the line. Rank-and-file employees Joe Bonomini, his wife Lola Bonomini, Erica Peltonen, and Jerry Hawkes joined Shreeve on the picket line. They picketed for some 10 to 14 days and were thereafter re- placed by nonemployee pickets. Respondent hired five re- placements; - namely, Jerry Colmer on June 28, Beverly Yopper on July 2, Ted Sillapanna on July 3, Mike Landing 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on July 16, and Ernie Nunes on August 20. All five are still in the employ of Respondent.' On July 2, according to Comb an easygoing witness whom I credit, he spoke to Shreeve at the picket line , intro- duced himself, and asked Shreeve if he would meet to ne- gotiate a contract. Shreeve responded that the contract had already been negotiated and that , if Comb desired a meet- ing, he should contact the attorney of the Union, one, Bunch. Comb asked that Shreeve have Bunch call him be- cause Comb, as he uncontrovertedly testified , had encoun- tered difficulty in the past in meeting with Bunch who did not testify herein. In due course, according to Shreeve, he relayed this conversation to Bunch.4 By letter of July 3, Comb wrote Shreeve to confirm their conversation of the previous day. Therein , he stated that Respondent had proposals ready for negotiation . He made reference to the letter of June 14 (that Respondent was represented by Redwood); said that the contract demands of the Union were unacceptable ; and further said that Re- spondent would submit a counterproposal . He added that "we are willing to bargain in good faith at times and places mutually agreeable ." The letter ended by requesting that the Union remove its pickets, pending negotiations, and that the Union have its attorney contact Respondent to finalize arrangements for negotiations. On July 9, Respondent filed an RM petition for an elec- tion covering its retail food store employees , excluding owners, meat department employees, office clericals, and supervisors. On July 10, Comb received a letter sent July 8 from Bunch on behalf of the Union to the effect that Comb should select a meeting date convenient for negotiating a new contract. Comb telephoned the office of Bunch and the latter was unavailable but Comb did respond to Bunch; he wrote and acknowledged the receipt of the July 8 letter and incorporated a telephone arrangement made with the secretary of Bunch that they meet at 10 a.m. on July 29 in Eureka. Comb also acknowledged his willingness to negoti- ate and bargain in good faith for a contract on behalf of Respondent; there was no response to this letter. The Regional Office of the General Counsel notified Comb in the interim that the Union had agreed to a stipu- lation for certification upon consent election; this was exe- cuted by Comb on July 25. On August 23, the Regional Director postponed the hearing in the representation case. It appears that the Union reneged on its agreement for an election and filed the instant charges herein on August 7 and 9 which perforce blocked the election proceeding. 3 At this point, it may be noted that there is no evidence that this was anything other than an economic strike called by Shreeve . Certain conduct, much earlier, allegedly violative of Sec . 8(a)(I) of the Act is treated below, but it manifestly had nothing to do with the calling of the strike ; stated otherwise, Shreeve, authorized by the employees, called the strike because Respondent did not sign the nonnegotiated contract submitted by the Union. Viewed similarly, and treated below, is certain other conduct after the start of the strike. At the hearing, Shreeve attributed a profanity to Comb in their conver- sation of July 2 at the picket line followed by a statement that the Union and its adherents would "walk this picket line" forever . In three affidavits to the Board, Shreeve did not set forth the profanity . I credit Comb herein that he did not utter the profanity; in any event , it would not affect the instant issues. B. The Alleged Refusal To Bargain As for the refusal-to-bargain allegation, the complaint alleges that the Union sought to bargain with Respondent since March 20, 1974; that Respondent, to the contrary, dealt directly with an employee on June 24, 1974, concern- ing working conditions ; and that Respondent has bar- gained in bad faith since July 10, 1974. Four employees who struck on June 26 are also alleged to be unfair labor practice strikers because of the conduct allegedly commit- ted by Respondent. But, in view of the Union's failure to acknowledge the existence of Redwood and the lateness of the July 10 date in terms of meaningful labor relations, I have difficulty in grasping this concept on the part of the General Counsel. The complaint alleges, and I find, that all employees of Respondent, excluding owners , meat department employ- ees, office clericals, guards and supervisors constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.5 Respondent has stressed that Respondent had a genuine doubt as to union representation of a majority in the unit as well as other bases for its defense . I find one of them persuasive . In essence, I do not believe that this record will support a finding of a refusal to bargain for the following reason. Early in June 1974, Business Agent Shreeve of the Union personally submitted a contract proposal to Re- spondent and stated that he would return in several weeks. Respondent joined Redwood and , on June 14, Redwood wrote the Union to the effect that the contract, apparently an area agreement, was unacceptable and that Respondent would submit a counterproposal. This June 14 letter was unanswered by the Union and, on June 26, Business Agent Shreeve again visited the store. On Shreeve's own testimony, Whitfield of Respondent told him that his attorney had advised him not to sign this con- tract. And, according to Whitfield, Shreeve declined to talk with Redwood and struck the store. Moreover, on July 2, Shreeve told Redwood's representative, Comb, as the latter testified, in response to the latter's request to negotiate a contract, that the contract had already been negotiated and that Comb should contact counsel for the Union. As is readily apparent, the Union never did negotiate a contract with Respondent and was unilaterally attempting to foist upon it a contract previously negotiated elsewhere. Not that this is reprehensible , but the simple fact is that the Union never did bargain with Respondent concerning a contract, despite the latter's expressed desire to do so. Fur- thermore, reflecting on Respondent's good faith was its let- ter of July 3 to the effect that it had proposals ready for negotiation. While Respondent did file an RM petition, it did seek to meet with the Union on July 29 and this was abortive. The Union then chose to file the charges upon which the instant complaint is based. On this picture, and upon a preponderance of the evi- In view of the findings below, I deem it unnecessary to pass upon the question of majority representation by the Union within the meaning of Sec. 9(a) of the Act. As stated, the record does demonstrate that the four strikers were ultimately replaced by five new hires, the fifth reflecting replacement of an employee whose employment had terminated prior to the strike and who was unrelated thereto. CUTTEN SUPERMARKET dence, I am unable to conclude that Respondent has re- fused to bargain with the Union within the meaning of Section 8(a)(5) and, derivatively, Section 8(a)(1) of the Act and shall recommend that this allegation of the complaint be dismissed. See AAA Motor Lines, Inc., 215 NLRB No. 149 (1974). C. Alleged Discrimination and Interference, Restraint, and Coercion Erica Peltonen, a checker in the store, testified that in March or April 1974 Whitfield approached her in the store, stated that he did not believe he would sign a union con- tract and she gave no reply thereto. As found, the Union, after duly terminating the previous contract, did not sub- mit a new contract proposal until early in June of the same year. Whitfield denied ever making such a statement to Pel- tonen but admitted telling various employees that if the Union intended to push a new contract down his throat he would negotiate it. In the first place, a new contract had not then been submitted by the Union. Secondly, when it was, and if it was, Respondent was entitled to negotiate with respect thereto. I see no violation of the Act herein. Peltonen also testified that on or about June 23, three days before the strike, Whitfield offered her $10,000 a year based on a 40-hour workweek. The record discloses that Peltonen worked a 16- to 20-hour week at a wage rate in excess of $5 per hour. But the record also discloses that a full-time employee, Jackson, had left the employ of Re- spondent shortly before and that Peltonen, on a full-time basis, would earn approximately $10,000 per annum. Moreover, according to Whitfield, Peltonen broached the subject of her further prospects of employment with Re- spondent and he then made the response set forth above. Here as well, I see no basis, on a preponderance of the evidence, for a finding supporting the position of the Gen- eral Counsel. Lola Bonomini testified that in March or April Whitfield told her that he would not sign a union contract . Again, this was prior to the Union's actual submission of the con- tract proposal . Whitfield denied stating that he would not sign a union contract and testified that he said only that he would negotiate a new contract. I see nothing here to pre- 515 ponderate in support of a finding of an unfair labor prac- tice 6 There is an issue as to the payment of vacation pay to the striking employees. The testimony concerning this is not clear. There is a conflict (1) as to whether employees who scheduled their vacations prior to the strike would receive vacation pay, and (2) whether Respondent refused to pay some employees a third week of vacation pay. There is also evidence that Respondent contributed, under the expired contract, to a vacation trust fund for a third week of vacation pay and that Respondent was to bill the fund therefor. This matter was litigated and is pending before a California labor commissioner who in effect did not pass upon the issue because of the pending unfair labor practice case and, realistically, passed the issue to the Board. Be that as it may, the commissioner did not decide the issue and I fail to see how this issue of contract interpretation can constitute an alleged unfair labor practice to be passed upon by the Board. I therefore recommend the dismissal of these allegations. It may be further noted that I conclude that the strike herein was not an unfair labor practice strike. It was com- menced by the union business agent when Respondent did not sign the original contract proposal unilaterally submit- ted by the Union which in turn ignored and refused to recognize and respond to the designated representative of Respondent. CONCLUSIONS OF LAW 1. James W. Whitfield d/b/a Cutten Supermarket is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail C1.erks Union, Local 541, Retail Clerks Inter- national Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5), (3), and (1) of the Act. [Recommended Order for dismissal omitted from publi- cation.] 6 f deem it unnecessary to treat with whether or not her husband was present, as stated in her affidavit to the General Counsel.