Oertle's

DECISIONS OF NATIONAL LABOR RELATIONS BOARD MFY Industries, Inc., d/b/a Oertle's and Internation- al Union of Operating Engineers Local Union No. 948, AFL-CIO. Case 16-CA-6318 April 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On January 24, 1977, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, l and conclusions of the Administrative Law Judge and to adopt her recommended Order. 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 the Respondent, MFY Industries, Inc., d/b/a Oertle's, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. The Administrative Law Judge's Decision at sec. I is hereby modified by substituting Wichita, Kansas, for Tulsa, Oklahoma, as Respondent's principal place of business. However, the store involved herein is located in Tulsa. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed on or about November 14, 1975,1 by International Union of Operating Engineers Local Union No. 948, AFL-CIO, herein called the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16 (Fort Worth, Texas), issued a complaint and notice of hearing on April 2, 1976. The complaint alleges that MFY Industries, Inc., d/b/a Oertle's, herein called the Respon- dent, since on or about October 17 has refused to bargain with the Union as the certified collective-bargaining representative of a unit of its employees; has refused to reinstate certain employees who went on strike on or about February 7, and who made unconditional requests for reinstatement on or about September 18 and November 1, because they joined or assisted the Union or engaged in other protected concerted activities; and has thereby engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. The Respondent, in its answer duly filed, admits some of the factual allegations of the complaint, but denies the unfair labor practice allegations. Pursuant to notice, a hearing was held before me in Tulsa, Oklahoma, on September 16, 1976. All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing, the General Counsel presented closing argument, and, subsequent to the hearing, the Respondent on October 22, 1976, filed a brief, which argument and brief have been duly considered. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Kansas, with its office and principal place of business in Tulsa, Oklahoma, where it operates a retail discount store under the name of Oertle's Discount Center. The Respondent annually, in the course and conduct of its business operations, receives gross revenues in excess of $500,000 and purchases, transfers, and delivers to its Tulsa facility goods and materials valued in excess of $50,000 directly from States of the United States other than the State of Oklahoma. The complaint alleges, the Respondent in its answer admits, and I find that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent in its answer admits, and I find that International Union of Operating Engineers Local Union No. 948, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Principal Issues The General Counsel contends that the Union obtained membership cards on or about January 2 from the operating engineers employed at the Respondent's store, I All dates hereinafter refer to 1975 unless otherwise indicated. 229 NLRB No. 47 354 OERTLFS and requested recognition; that the Respondent on or about February 4 refused to recognize the Union; that the unit employees went on strike on February 7; that the Union was certified on or about July I as the representa- tive of a unit of all full-time and part-time employees who operate and maintain high-pressure and low-pressure boilers and air-conditioning equipment and other station- ary equipment at the Tulsa store, excluding all other employees, guards, watchmen, and supervisors, as defined in the Act; that the Respondent held some negotiation meetings with the Union but has, since on or about October 17, refused to recognize and bargain collectively with the Union and, on or about September 18 and November I, has refused to reinstate certain strikers who made unconditional offers to return to work; and that the Respondent thereby engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. The Respondent in its answer admits that the Union was certified but denies knowledge, and demands strict proof, of the unit allegations. It also asserts that it has no employees in the unit and, when it does, will employ only one operating engineer, and there is no obligation to bargain for a no-man or one-man unit; that the strikers who requested reinstatement were on-call employees working a short time each month, had permanent jobs elsewhere, and were not needed when they applied; and "That they made a conditional offer to return to work, conditioned upon the fact that respondent employ Carl Briggs who was a supervisor, and who was legitimately discharged. That said offer to return to work was unconditional." The principal issues are, therefore, whether or not certain strikers made unconditional offers to return to work; whether, if they did, the Respondent refused to reinstate them for discriminatory reasons or for lack of work; whether or not the unit became a no-man or one-man unit; and whether the Respondent refused to bargain with the certified representative of the unit employees because the unit had been reduced to a no-man or one-man unit or in violation of its statutory bargaining obligation. B. The Negotiations McEver, the Union's business manager, obtained signed membership cards on about January 2 from Carl Briggs and L. L. Howerton, 2 engineers who worked for the Respondent full time, and Don Arnold, John Clark, and Gerald Delay, engineers who worked for the Respondent part time while holding other jobs. McEver on January 3 went to the Respondent's store with Briggs and 0. W. Clark, International Representative of the Union, told Tom Cobb, who was at that time the store manager, that the Union represented a majority, and demanded recogni- tion. McEver testified that Cobb said he had to consult his boss, Downing,3 whose office was in Wichita, Kansas, and that the union representatives met on January 24 with Cobb and Downing, who refused to grant recognition and said the Union had to take this matter up with Rheam, the Respondent's attorney. Later McEver set up an appoint- ment for January 28 and went to the store with O. W. Clark and Howerton. Cobb and Downing were there, but said they had been unable to reach Rheam. McEver comment- ed that they were tired of coming there with the under- standing they would see someone who could discuss recognition only to find no one available to do so. Another meeting was arranged for about February 4 and was held in the management office of the store. McEver, O. W. Clark, and Howerton were there for the Union. Cobb, Downing, and Rheam represented the Respondent. McEver claimed to represent a majority of employees in the unit, offered to show the cards, and requested recognition. Rheam refused this request and told the union representatives to seek an election. On February 7 the Union called a strike for recognition, and all five engineers who had signed cards walked out. A few days later the Union filed an election petition. When notified an election was to be held, the Union pulled off its pickets. The Decision and Direction of Election issued in the representation proceeding (Case 16-RC-6868) found, on the basis of facts set forth in the record and cited Board and court authorities, that Briggs was a supervisor within the meaning of the Act, and that the engineers who relieved Briggs at times did not possess supervisory authority. The parties herein stipulated that it also found that the part- time engineers were regular part-time employees who were included in the unit and eligible to vote. The contention made by the Respondent that they should be excluded as on-call employees was rejected. The election was held on July 2. The Union was certified on July 11. McEver called the Respondent several times after the certification before he succeeded in reaching someone to set up a meeting. He received a lengthy letter from Rheam, dated August 8, which referred to the fact that Rheam on July 15 had confirmed a meeting for "our first negotia- tions" on August 13, but left the time and place open because two of the Respondent's negotiators were coming from Wichita; suggested the time of the meeting and that it be held in "a neutral place" for which both sides would split the expense equally; discussed a number of other conditions for the general format of the negotiations; stated that "Since a majority of our employees have selected your Union to represent them. .... The Company assures you that it intends to bargain in good faith, and we know that your Union will do the same.... we demand that negotiations be conducted in a gentlemanly manner without threats or strong-arm tactics as your Union has indulged in in the past. Should any strong-arm tactics be used, you are advised that the Company negotiators will walk out of the meeting." The letter also advised the Union that Rheam intended, for several reasons that were set forth, to use a tape recorder in the negotiation meetings. The letter does not mention the place of the meeting, which was held on August 13 at the Trade Winds Central, with McEver, O. W. Clark, and Delay representing the Union, and Kenneth McGee, who became manager of the store on August 1, Downing, and Rheam representing the Respondent. Rheam was seated at one end of a table about 8 feet long, with a tape recorder at that end and a 2 This name appears in the record at times as Hallerton. 355 3 Downing was not called as a witness. DECISIONS OF NATIONAL LABOR RELATIONS BOARD microphone in the middle of the table. McEver was seated at the other end of the table. After introductions were made, McEver said the tape recorder was not conducive to good-faith negotiations and asked Rheam not to use it, but Rheam said he had used it in other negotiations and would at that time. After more discussion along this line, O. W. Clark said Rheam would not use it and jerked out the plug with such force it hit McEver on the forehead. Rheam said they were there to negotiate as gentlemen and he would not stay for this kind of conduct. The Respondent's representa- tives then left the room about 5-10 minutes after the meeting began, and they did not return although the union representatives waited about 45 minutes. McEver got in touch with Rheam and arranged another meeting in late August, but a mediator who became involved in these negotiations changed the date to September 8. The meeting, held at a courthouse, was not a face-to-face meeting but one with the mediator carrying messages to each party. McEver, who was accompanied by Arnold, Delay, and possibly also John Clark, gave a form contract to the mediator as the Union's proposal. The parties stipulated that the mediator gave it to the Respon- dent. No proposals were forthcoming from the Respondent on that date. McEver testified that he, Delay, and possibly Arnold represented the Union at the next meeting, held on September 18. He also testified that at this meeting, which lasted about 1-1/2 hours, Rheam handed the mediator a partial counterproposal, listing certain other provisions that were to be presented at another time, and the mediator transmitted this proposal to McEver; that the parties later met face-to-face and went over both parties' proposals article by article; that McEver pointed out that there was no provision on wages in the Respondent's counterpropos- al or in the list of items to be presented later, which Rheam said was an oversight; and that they agreed to use the preamble in Rheam's counterproposal, which was the only agreement reached at this meeting. The parties met again at the courthouse about September 30. McEver testified that he was accompanied at this time by Delay and, he believed, also by John Clark. The Respondent presented to the Union through the mediator the remainder of its counterproposal on the items that had been listed and on wages. The parties later met face-to- face. McEver testified that he objected again to Rheam's use of a tape recorder, which on this occasion was one that made loud squealing noises, and explained that his eardrums had been damaged in Navy service and shrill noises were difficult for him to tolerate, but Rheam said he would use the recorder nevertheless; that the mediator also commented that the recorder was very noisy and asked if they could get along without it; that Rheam cut it off but kicked it on again whenever anyone began to talk and insisted he would use it in all face-to-face sessions; that this meeting, like the previous one, lasted about 1-1/2 hours; and that no agreements were reached, with the result that the parties had agreed, when that meeting ended, only on the preamble in the Respondent's counterproposal. McEver wrote a letter to Rheam on October 6 proposing that he would set up the next meeting as all the meetings thus far had been set up by the Respondent; suggesting that they meet at the Union's conference room, at a time and date convenient to the Respondent, and that he was free for the first 2 weeks of October; and commenting that: "In previous attempts to negotiate, you have refused unless the use of a tape recorder was allowed. But, as you well know the noisiness of your tape recorder at the last meeting made it impossible to negotiate without any distractions. We also stand firm on the belief that a tape recorder is not conducive to good faith bargaining." McEver, who re- ceived no response to this letter, wrote again on October 16, requesting a meeting as soon as possible, stating that the union committee would meet at any time, and urging that the tape recorder not be used. McEver received a letter from Rheam dated October 17, expressing regret at the delay in answering McEver's letter of October 6 "due to death and illness of associates," and stating further as follows: Due to the strike which was called by your union, you taught us something. Prior to the strike and election we had two full time engineers and four who were on call working part time, and we learned that we were overloaded with engineers. We learned that we need only one engineer. We have a first class engineer who was a member of your union. (We do not know his union status at this time.) However, he is a supervisor, and therefore, we do not have to bargain over his services. There are no other engineering employees, and therefore, there are no unit employees. It is well settled by the Labor Board that the principle of collective bargaining pre-supposes that there is more than one eligible person who desires to bargain. Accordingly, a one-man unit or a no-employee unit is inappropriate. Therefore, under the holding of the Labor Board, we do not believe that we are obligated to bargain with your union. Therefore, we refuse to do so. McEver testified that Rheam never mentioned this reduc- tion in the unit during negotiations. C. Requests of Strikers To Return to Work The Respondent placed in evidence, or requested that judicial notice be taken of, certain documents pertaining to other Board proceedings between the parties. These documents included a letter from the Regional Office dated September 12 refusing to issue a complaint on charges (Case 16-CA-6161) alleging that the Respondent discriminatorily rejected offers to return to work by Briggs, Clark, Arnold, and Delay, on the ground that Briggs was found in Case 16-RC--6868 to be a supervisor, and the other three conditioned their offers to return on Briggs' return; and a letter from the Regional Office dated October I refusing to issue a complaint on charges in the same numbered case alleging discrimination against Howerton, on the ground that a settlement agreement, signed by Rheam on September 25 and approved by the Regional 356 OERTLE'S Director on September 30, provided for the posting of a notice and the reinstatement of Howerton.4 McEver testified, on cross-examination, that, while Clark, Arnold, and Delay had full-time jobs with American Airlines, they had been employed by the Respondent for years, not on an on-call basis but on a regular schedule of about 12 hours a week, and, as the parties stipulated, the Decision and Direction of Election included them in the unit as regular part-time employees. Clark testified that he went to the Respondent's store with Arnold, Delay, and Briggs in September, and they made an unconditional request to return to work; that he, Arnold, and Delay went to the store again in November, accompanied by McEver, and, as instructed, each of the three employees made a request to return to work using the word "unconditional"; that McGee, then store manager, said there was no work available; and that he did not recall McGee saying they would be called if work became available but admitted McGee might have said this. The parties stipulated that the testimony of Arnold and Delay, if called, would be the same as that of Clark. McEver testified that he went with Arnold, Clark, and Delay in November, that each of them told McGee he was making an unconditional offer to return to work, that McGee said he recognized that they were there to make an unconditional offer but he had to get in touch with someone, and that McGee when he returned said he had made a telephone call and there were no jobs open. McEver testified, on cross-examination, that he did not recall McGee saying he would call these men if jobs became available, doubted that McGee said it, but admitted that McGee might have said it. McGee testified that Delay, Clark, and Arnold came twice to see him; that the first time they came, in mid- September, Frances Gamboa, who has been personnel director for many years and sometime before the hearing became assistant store manager also, was with him; that the three men introduced themselves, said they wanted to meet him, and were ready to return to work; and that he said he did not have any jobs then and would let them know if anything came up. Gamboa testified that the three introduced themselves and said they wanted to meet McGee so he would know they were available for work, and that McGee said he did not need any engineers and would call if he did. McGee and Gamboa did not mention Briggs being present or any reference made to Briggs. McGee testified that on the second occasion Gann 5 was with him, and McEver was with Arnold, Clark, and Delay; that they had basically the same conversation, with each of the three saying he was available for work; and that his response was that he did not have anything and would call if he did. He asserted, on cross-examination, that he was positive the word "unconditional" was not used. The parties stipulated at the hearing that, on or about September 17, Arnold, Clark, and Delay, who had T4 he notice, dated October 22, provided that the Respondent would not fail or refuse to reinstate economic strkers who have unconditionally requested reinstatement, and had offered to reinstate Howerton and to make him whole for any loss of earnings he may have suffered because of failure to accept his unconditional request for reinstatement. The settlement agreement provided for no backpay. 5 Gann was not called to testify. participated in the strike, "made an unconditional offer to return to work to the Employer, which offer was denied," and that the same three individuals, on or about November 13, "made a second unconditional offer to return to work, which offer was denied." D. Scope of the Unit Roscoe Turner, who is the boiler inspector of the city of Tulsa, was called as a witness by the General Counsel. He testified that the Respondent's store, classified by the Tulsa Code as a mercantile building, must have an engineer in the equipment room an hour before and an hour after public occupancy; that this would require, if there was only one engineer, that he work over 90 hours a week, which cannot be done and maintain safe operation; and that he believed the equipment had to be used about 46 weeks a year, and required three operators and at times a fourth part time. Turner stated, in a letter to McEver dated January 7, 1976, placed in evidence by the Respondent, that the code "states that an operator of the class required shall be on duty 'from one (1) hour before until one (I) hour after public occupancy when the equipment is in operation.' " Turner admitted that the boilerroom equip- ment was not in operation at the time of some of his inspections. Turner also testified that the code requires the posting of a log in the equipment room showing an operator's time on duty, date, and signature, but he never found such a log posted on several visits to the Respon- dent's premises although he called the matter to the attention of the operator on duty; that the certificate of the operator must be hung on the wall under glass; and that he was at the store in March when no license was on display, in April and May when the only certificate was that of Stolba, in June when two certificates, of Stolba and Hebard, were on display, and in December and again in June 1976, his last inspection, when on both occasions only Howerton's license was on display.7 Cobb and Gamboa testified that Turner came to the store about February 10, inspected the operating equip- ment while they were present, and was told that the equipment had not been operated since the engineers went on strike. Cobb also testified that when Stolba was hired as an engineer in March, he called Turner, as Turner had requested, to come in to watch when the equipment was started; that the equipment could not be started and later it was discovered a part was missing; and that the part was obtained and, finally, after about 2 weeks of work on it, the equipment was running. Cobb testified further that Turner on his first visit said the Respondent had to have an operator present when the equipment was in operation. He also testified that the heating equipment was shut off on February 7, that the temperature was below zero that night and the weather was very cold for some time thereafter, that he left the 6 The store has one story and a basement. It is open for business 7 days a week, on Monday through Saturday from 9:30 a.m. to 9:30 p.m.. and on Sunday from noon to 7 p.m. I As the Respondent argues, its failure to comply with the requirements of the Tulsa Code is not in issue herein. The testimony as to these requirements is relevant, however, to the extent that it indicates whether compliance would require employment of more than one engineer. 357 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fluorescent lights on at night and found the store temperature was generally 70 to 72 degrees without any heat, that he was not an engineer and had no idea how much heat came from a fluorescent light, that the store did not need any heating all winter and the boiler was not used for heating from February until warm weather, and that he would have liked to have an engineer but did not need one to heat the store. Cobb admitted, on cross-examination, that the office personnel used portable heaters after the strike began, that he did not recall if the store clerks did, that heaters were available in stock if the clerks wanted to use them, and that they might have been used without his noticing it. Cobb testified further that he decided, after discussions with other managerial personnel, that the Respondent "could get by with one engineer." Cobb admitted, however, he could not recall, as to any particular discussions, the dates when they occurred, which management representa- tives participated, or what was said. Gamboa did not testify about this. Cobb testified that he also discussed with Rheam the use of one engineer and the requirements of the Tulsa Code; that Rheam was to check on this for the Respondent, and later reported that the Respondent had to have an engineer while the equipment was in operation; and that he did not believe Rheam ever got into the number of hours an engineer would have to work under the code, but he discussed this with Arbuckle.8 When Cobb testified that he decided the Respondent "could get by with one engineer," counsel for the Respondent asked, "Did the engineer that you hired replace Carl Briggs, who was a supervisor?" Cobb answered, "I did hire Mr. Stolba in a supervisory capacity, yes." Cobb also testified that, when Stolba was hired, "we had no one for him to supervise," then Stolba supervised the janitorial crew and the basket boys as the chief engineer had done in the past. Cobb also testified that he thought the engineer was hired for a 54-hour week, and that his workweek would vary from 54 in the summer, when air-conditioning was needed, to as few as 30 in cold weather, when heat was not needed. Cobb testified that, about 2 weeks after Stolba was hired, Hebard was hired on a contractual basis to help get the equipment in working order and to relieve Stolba occasionally, with the amount of work Hebard did left up to him and Stolba to decide, and that Hebard, who was there about 4 to 6 weeks, worked 50 to 60 hours a week for the first few weeks to get the equipment operating and because of maintenance problems, but did not work many hours after the equipment was functioning again. Cobb testified further that he used some part-time engineers during the summer of 1975 after Hebard left, but did not remember their names; that there were two licensed engineers Stolba called when he had maintenance work to be done or needed time off, and it was up to Stolba to call them as needed; that these engineers billed the store for their time, which varied from week-to-week but, Cobb thought, amounted to about 15 or 20 hours a week; that he did not recall how much they were paid or whether they billed weekly or biweekly; that he thought they were paid s Arbuckle was not called to testify. 9 N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967); The Laidlow Corporation v. N.L.R.B., 414 F.2d 99 (C.A. 7, 1969). out of the store's cash fund, then recalled that their time was sent to Wichita and they were paid out of Wichita as were the other employees; and that he did not see all the bills for their time as Stolba gave them to an office clerk. Gamboa testified that there has been no heating in the store since the strike; that some heaters were used in the offices after the strike, but were before the strike as well; and that she saw no heaters around the store. She testified further that she knew Stolba, after he was hired, had trouble getting the system working and was calling in people to help; that Stolba thereafter used a service when he needed help; that she knew Hebard came in to help Stolba, and probably two others; that she could not recall their names and did not know how long Stolba continued to use them; that the service that Stolba called on for help "was billing us on an invoice through accounts payable for the work they were doing in helping him"; and that she had no role in Stolba's use of part-time engineers and did not see the invoices, which were sent to the Wichita office for payroll purposes. After McGee had testified, he was recalled by counsel for the Respondent, and was asked: "Mr. McGee, you have successfully operated the store with one engineer, is that not correct?" McGee answered "Yes." McGee also testified that his plans were to continue operating with one engineer, and that this was a decision he made on his own authority. He was not asked anything about utilization of part-time or contract engineers. Concluding Findings As noted above, the Regional Director, in the Decision and Direction of Election, found the Respondent's part- time engineers to be regular part-time employees who were included in the unit and eligible to vote in the election, rejecting the Respondent's contention that they were on- call employees. The Respondent in its answer again asserts that they were on-call employees. There is no evidence, however, that the Respondent appealed the decision of the Regional Director, and no evidence was presented in the instant proceeding to warrant a different disposition of this issue. I find, on the entire record, that Arnold, Clark, and Delay were regular part-time employees of the Respon- dent. I find further that Arnold, Clark, and Delay, who had gone on strike on February 7, retained their employee status while on strike,9 and made requests to go back to work on or about September 17 and November 13. The Respondent points to a Regional Office letter, issued in Case 16-CA-6161, stating that investigation showed a request made on September 10 was conditioned upon the reinstatement of Briggs, who had been found to be a supervisor. This was an administrative determination, however, made in another case and not based upon litigation of the issues at a hearing. I find this determina- tion not binding as the evidence presented in this proceeding shows, and I find that no such condition, or any other condition, was attached to the request to come back to work made by Arnold, Clark, and Delay on or 358 hired as an engineer for a 54-hour week during the summer, to vary to as few as 30 in cold weather, but did not explain what functions would be performed by an engineer for 30 hours a week if the heating equipment was not in operation. Moreover, the testimony presented by the Respondent as to the employment of engineers to assist Stolba was exceedingly hazy. One name, Hebard, was given, and testimony that he worked 50-60 hours the first few weeks he worked. Cobb, the former store manager, and Gamboa, the assistant manager and personnel director, did not know, and McGee, the present store manager, was not asked, the names of the other engineers who assisted Stolba for, Cobb thought, about 15 or 20 hours a week, the dates when they were employed, how many hours they worked, or how much they were paid. The records that would show this, which were within the Respondent's control, were not produced. There was also no explanation of the situation as to Howerton, who had been a full-time employee and who, according to a settlement agreement Rheam signed on September 25, was to be offered reinstatement. Further- more, Howerton, according to a posted notice, dated October 22 and signed by McGee, had been offered reinstatement and, according to Turner's testimony, had a license on display in the boilerroom in December 1975 and in June 1976. The Respondent in its brief cites a number of Board and court decisions holding that an employer will not be ordered to bargain collectively with a representative on behalf of an appropriate unit that has been reduced to a one-man unit. The Respondent's claim that the certified unit was reduced to a no-man or one-man unit was made for the first time in a letter to the Union dated October 17, about 8 months after Cobb discovered, as he testified, that the store did not need any heating even in very cold weather. It was also about a month after the Respondent refused discriminatorily, as found above, to reinstate three striking employees; about a month and a half after Cobb, who testified he decided the store could operate with one engineer, had been replaced as store manager by McGee, and after McGee, as he testified, had been operating with one engineer and would continue to do so; and about 3 months after the Union was certified. It is long-established Board and court law that a certified union is entitled to an irrebuttable presumption of continued majority status during its certification year absent unusual circumstances," that "an employer must bargain with the certified representative during the certifi- cation year even if the union has lost its majority status"'2 that, "If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least II Ray Brooks v. N.LR.B., 348 U.S. 96, 103 (1954); Adams Potato Chips, Inc., 176 NLRB 130 (1969). 12 N.LR.B. v. F Strauss and Son, Inc., 536 F.2d 60, 64 (C.A. 5, 1976). about September 17. Another request was made on or about November 13 by the same three individuals, who were accompanied on this occasion by the union represen- tative. I credit the testimony that each of the three made an unconditional request to return to work. McGee, who had replaced Cobb as store manager, told the three on both occasions there was no work. On the second occasion, he checked with someone on the telephone before stating there was no work. The Respondent maintains that on both of these occasions McGee said not only that there were no jobs open but also that he would call if work became available. The General Counsel disputes that McGee said he would call if work became available. I find, based on testimony of the Respondent's witnesses, and on admissions of the General Counsel's witnesses that it might have occurred, that McGee also said on each occasion he would call these men if work became available. I also find, however, that work did become available but McGee did not call them. Accordingly, I find, based on all the relevant evidence, including stipulations of the parties, that Arnold, Clark, and Delay made unconditional offers to return to work on September 17 and again on November 13, which the Respondent rejected; that the Respondent did not tell the three on September 17, or tell the Union at the negotiation session on September 18, that the unit had been reduced to a no-man or one-man unit; and that the Respondent, after telling these three part-time employees there was no work, employed others on a part-time basis to do unit work. In conclusion, therefore, I find, based upon the entire record, that the Respondent refused to reinstate these employees not for lack of work, as it asserted, but because of their union membership and activities and in order to dissipate the Union's representative status, and that the Respondent thereby discriminated against these employees in violation of Section 8(a)(3) and (1) of the Act.'l With regard to the refusal-to-bargain allegations, the Respondent points to a Regional Office letter refusing to issue a complaint in this proceeding on the ground that the Respondent had shown it was operating with only one engineer. On appeal by the Union, however, a complaint was issued. The issues herein will, therefore, be determined on the basis of the evidence developed at the instant hearing. Cobb, who was then the store manager, testified that he decided the store could operate with only one engineer after discussions with other managerial personnel as to the feasibility of doing so. He admitted he could not recall, however, when any particular discussions of this matter were held, with whom, or what was said. He also discussed this with Rheam. Evidently Cobb had some question about compliance with the city code if there was only one engineer as he asked Rheam to check on this matter. Cobb testified further that, even though he did not need an engineer to heat the store, he would have liked to have one, but did not state what functions the engineer would perform. Cobb also testified that he thought Stolba was 10 See Global Automotive Enterprises, 172 NLRB 627 (1968); C. H. Sprague & Son Co., 175 NLRB 378 (1969); Selecto-Flash, Inc., 176 NLRB 170 (1969); Skaggs Drug Centers, Inc., 176 NLRB 737 (1969); Lou Taylor, Inc. and Mr. T., Inc., 226 NLRB 1024 (1976); Swearingen Aviation Corporation, 227 NLRB 228 (1976). OERTLFS 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until the Board has given some indication that his claim has merit"; 13 and that, in a withdrawal of recognition case, the employer bears the burden of proving the Union's loss of majority and the presumption of majority must be rebutted by clear, cogent, and convincing evidence.' 4 I find that the Respondent failed in its obligation to continue bargaining while petitioning the Board for relief, and failed also to show "unusual circumstances" existed in this case to justify its withdrawal of recognition of a certified union. While the Respondent contends that its obligation to bargain ended when the unit was reduced to a no-man or one-man unit, it failed to establish that the unit was in fact so reduced, or that this situation, if it existed, was permanent. I do not credit the assertions of Cobb that, as store manager, he hired only one engineer and that one had supervisory status, or the assertions of McGee that, as store manager, he operated successfully and would continue to operate with only one engineer, on the basis of their demeanor as witnesses, the inconsistencies, contradictions, and improbabilities in their testimony, and the evidence, presented by the Respondent, that during the period in question the store employed as engineers Stolba, Hebard, Howerton, and unnamed individuals who did unit work about 15 or 20 hours a week. The Respondent introduced no payroll records or other documentary evidence showing the employment status or tenure of any of these engineers. And the Respondent, as found above, attempted to dissipate the Union's representative status by discriminato- rily rejecting the requests of striking unit employees to return to work. Accordingly I conclude and find, on the entire record in this proceeding, that the Respondent has, since on or about October 17, refused to bargain collectively with the Union as the certified collective-bargaining representative of the Respondent's employees in an appropriate unit, and thereby violated Section 8(a)(5) and (I) of the Act. 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 its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce 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)(l), (3), and (5) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees' 13 Brooks v. N.L.R.B., supra, N.L.R.B. v. U.S. Sonics Corporation, 312 F.2d 610, 616 (C.A. 1, 1963); International Harvester Company, 227 NLRB 85 (1976); Tahoe Nugget, Inc., 227 NLRB 357 (1976). 14 N.L.R.B. v. Vegas Vic, Inc. d/b/a Pioneer Club, 546 F.2d 828 (C.A. 9, 1976). Section 7 rights,15 and to take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent, on and after September 17, 1975, discriminatorily refused to reinstate striking employees Don Arnold, John Clark, and Gerald Delay upon their unconditional requests for reinstatement. I shall therefore recommend that the Respondent be ordered to offer these three employees reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any individuals employed to do engineering work part-time since September 17, 1975, and to make each of these employees whole for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him, by payment to each of a sum of money equal to the amount he normally would have earned during said period, less his net earnings in an equivalent part-time job during such period, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).16 I have also found that the Respondent unlawfully refused to bargain with the Union as the certified representative of its employees in an appropriate unit. I shall therefore recommend that it be ordered to bargain collectively with the Union, upon request, concerning rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. The Respondent, MFY Industries, Inc., d/b/a Oertle's, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers Local Union No. 948, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing on and after September 17, 1975, to reinstate striking employees Don Arnold, John Clark, and Gerald Delay upon their unconditional request for rein- statement, because of their union membership and activi- ties and in order to dissipate the Union's representative status, the Respondent has discriminated against employ- ees in regard to their hire or tenure of employment, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. All full-time and part-time employees who operate and maintain high-pressure and low-pressure boilers and air-conditioning equipment and other stationary equip- ment at the Respondent's Tulsa, Oklahoma, store, exclud- ing all other employees, guards, watchmen, and supervi- sors, as defined in the Act, constitute a unit appropriate for 15 N.LR.B. v. Express Publishing Company, 312 U.S. 426, 437 (1941); N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941). 16 See Hargis Mine Supply, Inc., 225 NLRB 660 (1976); P. B. Mutrie Motor Transportation, Inc., 226 NLRB 1325 (1976). 360 OERTLE'S the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since July 11, 1975, International Union of Operating Engineers Local Union No. 948, AFL-CIO, has been the certified representative of the employees in the aforesaid appropriate unit. 6. By refusing on and after October 17, 1975, to bargain collectively with International Union of Operating Engi- neers Local Union No. 948, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. 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 foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER t 7 The Respondent, MFY Industries, Inc., d/b/a Oertle's, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to reinstate striking employees upon their unconditional request for reinstatement, or in any other manner discriminating against employees in regard to their hire or tenure of employment, because of their membership in or activities on behalf of International Union of Operating Engineers Local Union No. 948, AFL-CIO, or in order to dissipate that Union's representative status. (b) Refusing to bargain collectively with International Union of Operating Engineers Local Union No. 948, AFL- CIO, as the certified collective-bargaining representative of its employees in the unit found appropriate herein. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Don Arnold, John Clark, and Gerald Delay reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings they may have suffered by reason of the Respondent's discrimi- nation against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (c) Upon request, bargain collectively with International Union of Operating Engineers Local Union No. 948, AFL- CIO, as the certified representative of the employees in the unit found appropriate with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All full-time and part-time employees who operate and maintain high-pressure and low-pressure boilers and air-conditioning equipment and other stationary equip- ment at the Respondent's Tulsa, Oklahoma, store, excluding all other employees, guards, watchmen, and supervisors, as defined in the Act. (d) Post at its place of business in Tulsa, Oklahoma, copies of the attached notice marked "Appendix."' 8 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's representative, 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 17 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 herein 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. 1s 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 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 to reinstate striking employees upon their unconditional request for reinstatement, or in any other manner discriminate against employees in regard to their hire or tenure of employment, because of their membership in or activities on behalf of International Union of Operating Engineers Local Union No. 948, AFL-CIO, or in order to dissipate that Union's representative status. WE WILL NOT refuse to bargain collectively with the aforesaid Union as the certified collective-bargaining representative of our employees in an appropriate unit. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer to Don Arnold, John Clark, and Gerald Delay reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make each of them whole for any loss of earnings they may have suffered as a result of the discrimination against them. WE WILL, upon request, bargain collectively with the aforesaid Union as the certified representative of our 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in an appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All full-time and part-time employees who oper- ate and maintain high-pressure and low-pressure boilers and air-conditioning equipment and other stationary equipment at our Tulsa, Oklahoma, store, excluding all other employees, guards, watchmen, and supervisors, as defined in the Act. MFY INDUSTRIES, INC., D/B/A OERTLE'S 362