Super Saver

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Houshang Vazin, an Individual, d/b/a Super Save; Parviz Paul Vazin, an Individual, d/b/a Super Save; Houshang Vazin and Pariz Paul Vazin a Partnership, d/b/a Super Save; and Shefun Company, Inc. d/b/a Super Saver and United Food and Commercial Workers, Local 1167, United Food and Commercial Workers Interna- tional Union, AFL-CIO-CLC. Case 21-CA- 22021 30 November 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 15 February 1984 Administrative Law Judge Earldean V. S. Robbins issued the attached deci- sion. The Respondents filed exceptions and a sup- porting statement, and the Charging Party filed a brief in opposition to the Respondent's exceptions.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, statement,' and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recom- mended Order2 as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Houshang Vazin, an individual, d/b/a Super Save; Parviz Paul Vazin, an individual, d/b/a Super Save; Houshang Vazin and Parviz Paul Vazin, a partnership, d/b/a Super Save; and Shelun Company, Inc. d/b/a Super Saver, River- side, California, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Add the following to paragraph 2(c). "Any backpay due the employees under this pro- vision shall bear interest to be computed in the 1 The Charging Party's motion to strike the Respondent's exceptions is denied as the exceptions conform to the requirements of the Board's Rules and Regulations The Charging Party's motion for attorneys fees and expenses is denied as an award of such fees and expenses is appropriate only when a re- spondent has raised patently frivolous defenses Tudee Products, 194 NLRB 1234 (1972) Our review of the record reveals that the Respond- ents' defenses, while unpersuasive, are not patently frivolous 2 We correct the judge's Inadvertent reference in her remedy and rec- ommended Order to "September 8, 1983," rather than "September 8. 1982," as the date on which the Respondents and the Union reached agreement on the contract 3 We shall modify the recommended Order to require that the Re- spondents provide Interest on all backpay due the employees, expunge the discharged employees' files, and notify the Regional Director of its compliance efforts manner set forth in Florida Steel Corp., 231 NLRB 651 (1977) (see generally Isis Plumbing Co., 138 NLRB 716 (1962))." 2. Insert the following as paragraph 2(e) and re- letter the subsequent paragraphs. "(e) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way." -3. Add the following as paragraph 2(h). "(h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 4. Substitute the attached notice for that of the administrative law judge. - APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that We violated the National Labor Relations Act and has ordered us to post and 'abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to recognize United Food and Commercial Workers, Local 1167, United Food and Commercial Workers International Union, AFL-CIO-CLC as the exclusive bargaining representative of our employees in the unit found appropriate. WE WILL NOT fail and refuse to execute our col- lective-bargaining agreement with the Union agreed to on 8 September 1982. WE WILL NOT repudiate our obligation to abide by the terms of the collective-bargaining agree- ment. WE WILL NOT fail and refuse to make contrac- tually required contributions to the various benefit trust funds nor fail and refuse to grant the cost-of- living increases as provided for in the collective- bargaining agreement. WE WILL NOT unilaterally reduce wage rates nor eliminate any of the fringe benefits provided for in the collective-bargaining agreement. 273 NLRB No. 4 SUPER SAVE 21 WE WILL NOT bypass the Union and bargain di- rectly with our employees with regard to the terms and conditions of their continued employment. WE WILL NOT discharge employees in an attempt to avoid our obligation to abide by the collective- bargaining agreement and our obligation to recog- nize and bargain with the Union. WE WILL NOT tell employees that we can only hire a certain percentage of the Super Save em- ployees in order to keep our Riverside store from being a union shop. WE WILL NOT tell employees that they cannot be rehired for at least 30 days in order to avoid having our Riverside store become a union shop. WE WILL NOT tell employees that they will have to obtain withdrawal cards from the Union as a condition of their continued employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL recognize the above-named Union as the exclusive collective-bargaining representative of our employees in the appropriate unit described below and, on request, meet and bargain with the Union concerning wages, hours, pension and wel- fare benefits, and other terms and conditions of em- ployment; and, if an understanding is reached, WE WILL embody it in a signed document. The appro- priate unit is: All food clerks, bakery, health and beauty aides, and household hardware clerks, general merchandise clerks, clerk's helpers, and snack bar and take-out food department employees employed by us at our 3981 Chicago Avenue, Riverside, California facility; excluding all office clerical employees, meat department em- ployees, janitorial employees, maintenance em- ployees, professional employees, guards and supervisors as defined in the Act. WE WILL acknowledge that we are bound by the Retail Food, Bakery, Candy, and General Mer- chandise Agreement between the Union and cer- tain other unions and Food Employers Council, Inc. and Independent Retail Operators effective by its terms from 27 July 1981 to 29 July 1984 as modified by us and the Union on 8 September 1982 and WE WILL abide by the terms of the agreement both retroactively and prospectively. WE WILL make our employees whole by paying retroactively the wage rate and health welfare trust fund contributions as provided in the collective- bargaining agreement with the Union which have not been paid, and which would have been paid absent our unlawful reduction and/or unilateral dis- continuance of these payments, and WE WILL pay interest on any retroactive wages due our employ- ees. WE WILL offer the employees named below im- mediate and full reinstatement to their former jobs or, if those positions no longer exist, to substantial- ly 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 by reason of the discrimination against them, plus interest: Robert Blair Miles Tilghman Michael Elder Robert Robbins Diane Ferneding Richard Heimstra Verna Fuches Jack McMillan Luis Guerrero Stephen Wakeman Ed Home Anthony Bullock Barbara Luce Michele Gracia Denise Martin Jack Summers Sue Ellen Mott Barry Swift Mary Snyder Roy Webb Larry Delgado Joseph Vargas Leo Smith Jr. Mark McCoy Anna Guzman Kenya Tapscott WE WILL notify each of the above-named em- ployees that we have removed from our files any reference to his or her discharge and that the dis- charge will not be used against him or her in any way HOUSHANG VAZIN, AN INDIVIDUAL, D/B/A SUPER SAVE; PARVIZ PAUL VAZIN, AN INDIVIDUAL, D/B/A SUPER SAVE; HOUSHANG VAZIN AND PARVIZ PAUL VAZIN, A PARTNER- SHIP, D/B/A SUPER . SAVE; AND SHELUN COMPANY, INC. D/B/A SUPER SAVER DECISION STATEMENT OF THE CASE EARLDEAN V S. ROBBINS, Administrative Law Judge. This matter was heard before me in Riverside, Califor- nia, on October 11, 12, and 13, 1983 The charge was filed by United Food and Commercial Workers, Local 1167, United Food and Commercial Workers Interna- tional Union, AFL-CIO-CLC (the Union) on March 3, 1983, and served on Houshang Vazin, an individual, d/b/a Super Save, and Parviz Paul Vazin, an individual, d/b/a Super Save, and Houshang Vazin and Parvtz Paul Vazin, a partnership, d/b/a Super Save (Respondent Vann) on March 4, 1983, and a first amended charge was filed by the Union on April 25, 1983 and served on Respondent Vazin and Shelun Company, Inc , d/b/a Super Saver (Respondent Shelun and collectively Re- spondents) on April 27, 1983 The amended complaint, which issued on July 8, 1983, alleges that Respondent 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). The basic issues are: 1. Whether Respondent Vazm is a successor employer to Market Basket obligated to recognize and bargain with the Union and whether Respondent Shelun is the alter ego of Respondent Vazin. 2. Whether Respondents unlawfully refused to bargain by unilaterally reducing wage rates and ceasing to make contributions into the various trust funds as required by the collective-bargaining agreement. 3 Whether Respondents unlawfully refused to bargain by refusing to execute a written contract embodying an agreement reached with the Union 4. Whether Respondents repudiated their collective- bargaining agreement with the Union and bypassed the Union and dealt directly with the employees concerning their wage rates and other terms and conditions of em- ployment. 5. Whether Respondents unlawfully discharged and re- fused to reinstate a majority of the unit employees 6. Whether Respondent unlawfully restrained and co- erced employees by various statements and by condition- ing continued employment on the employees' obtaining withdrawal cards from the Union. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I JURISDICTION At all times material since about the middle of Septem- ber 1982, and continuing through about February 19, 1983, Respondent Vazin, doing business under the trade name Super Save, was engaged in the business of operat- ing a supermarket located at 3981 Chicago Avenue, Riv- erside, - California (Riverside Market). At all times materi- al, since about February 21, 1983, and continuing to date, Respondent Shelun, a California corporation, doing busi- ness under the trade name Super Saver, has been en- gaged in the business of operating the Riverside Market. In the normal course and conduct of the business oper- ations, it is projected that Respondents will, within the 12-month period commencing about September 12, 1982, derive gross revenues in excess of $500,000 from the op- eration of the Riverside facility and will, during the same period of time, purchase and receive products originating from outside the State of California valued in excess of $50,000. The complaint alleges and on the foregoing I find that at all times material Respondent Vazin and Respondent Shelun have been employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, and I find, that the Union is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5), of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A. The Purchase of the Riverside Market and Respondent Vazin's Status as a Successor to Market Basket The owners and most of the agents of Respondent in- volved are of Iranian descent and are members of the same family. Houshang Vazin, referred to as Houshang, Harry, or H. Vazin, came to the United States about July 1982. 1 On his arrival in the United States, he and his family lived with his brother Parviz Paul Vazin, re- ferred to as Paul Vazin, at Paul , Vann's home in Palos Verdes,. California, for approximately 1 month. Thereaf- ter, Harry Vazin lived with Mohammad Afsan, referred to as Afsari, and his wife Shahnaz, who is the sister of Harry and Paul Vazin, at their home in Riverside, Cali- fornia, until at least February 1983. Darioush Khaledi is married to the sister of Paul Vann's wife. Khaledi and Paul Vazin have lived in the United States for some period of time prior to July and at all fillies' material herein have been co-owners and president and vice president, respectively, of K V. Mart, a company which operates a chain of retail grocery stores under the name of Top Value Afsari has lived in the United States since 1974, at- tended college here, and worked for 2 years as an engi- neer in the employ of an electrical firm. In mid-1979, Harry and Paul Vazin's brother, Nader Vazin, the owner of a Manhattan Beach, California restaurant called the House of Ribs, returned to Iran and left Afsan with the full power of attorney to operate or dispose of the House of Ribs. Afsan managed the House of Ribs until it was sold in the latter part of 1982 or the first part of 1983. Mohammad Vazin, the brother of Harry, Paul, and Nader Vann, worked at the House of Ribs as Afsaii's as- sistant manager until the House of Ribs was sold, or shortly before, at which time he began working at the K. V. Mart produce warehouse. Harry Vazin, who spoke some English but was not fluent, came to the United States with the intent of in- vesting in some business venture. Within the first month or two of his arrival, he discussed with Paul Vazin the nature of such investment. He admits that, in view of Paul Vazin's business experience in this country, he relied heavily on him to decide in what business he should invest. At some time prior to September 12, 1982, Paul Vazin learned that the Riverside Market, which was then owned by the Kroger Company and operated as one of the Market Basket chain of , grocery stores in Southern California, was for sale; and it was decided that Harry Vazin should invest in the purchase of the Riverside Market. Khaledi was to be president and Harry Vaziii was to be either vice president or secretary. Harry Vann agreed that Khaledi and Paul Vazin would handle all of the negotiations for the purchase of the Riverside Market and the lease agreement for the property where the market is located. Unless otherwise indicated, all dates in July through December are in 1982 and in January through June are in 1983 SUPER SAVE 23 The purchase and sale agreement names Houshang Vazin as purchaser within the body of the agreement; however, the agreement is signed both by Houshang Vazin and Darioush Khaledi on August 31, and by a rep- resentative of the Kroger Company on September 1 The agreement provides for a closing date of no later than September 11 and further provides, inter aim: 5. ASSUMPTION OF LIABILITIES (b) Seller, as a member of the Southern California Food Employers' [sp.] Council, Inc., is a party to the various labor contracts covering the Store(s) which are described herein and more particularly described below: (See Exhibit E). Purchaser agrees to become a successor to all of said applicable contracts and to abide by all rele- vant terms and conditions thereof. . . . Further, Purchaser agrees to contribute to the multi-employer pension plan(s) listed on Exhibit F for those employees who are currently participants in said plan(s) and who are retained and employed by Purchaser in accordance with the terms and con- ditions of the labor agreement(s) listed in Exhibit E . . . . EXHIBIT E (LABOR CONTRACTS) 1. Collective bargaining agreement between Food Employers Council, Inc and UCFW, Retail Clerks covering clerks, stockers, box people, and general merchandise clerks at the stores currently or to be operated by Seller at the store location(s) which ex- pires on or about July 29, 1984. . . . . EXHIBIT F (PENSION PLANS) The following Pension Plans covering union em- ployees at the store location(s): 1. The Southern California Retail Clerks Union and Food Employers Joint Pension Trust Fund. The lease names Houshang Vazin as the lessee. How- ever, Khaledi and Paul Vazin signed the lease as guaran- tors both individually and as K.V. Mart Co. At some point between the signing of the lease and the purchase and sale agreement on September 1 and the closing of escrow on September 11, Khaledi withdrew from the partnership arrangement Thereafter, insofar as the record reveals, he had no involvement with Respond- ent's operations. Prior to this withdrawal, however, in late August he instructed Ed Gund of Gund, Gund & Associates, the labor consultant for K V. Mart, to negoti- ate with the Union in an attempt to secure some modifi- cations -in the collective-bargaining agreement. Gund was able to secure some concessions from the Union which were embodied in a letter of understanding signed by Gand on September 9, and by Kenneth M. Schwartz, the Union's attorney, on September 20. The body of this letter reads. This letter is to confirm our telephone conversation of September 8, 1982 regarding the above-captioned market. Mr Houshang Vazin, the purchaser, has agreed to the terms we discussed. They are as follows. 1 The seniority of all employees (present and future) will start as of the take-over of the market. 2. All holidays (which under the terms of the con- tract would be triple time) will be paid at the rate of double time. 3. Present contract shall run until July 29, 1984. If this, letter correctly states your understanding, please sign on the line provided and return to us. Please retain the enclosed executed copy for your files After the withdrawal of Khaledi from the partnership arrangement, 2 Paul Vazin continued to act on behalf of Respondent Vazin, and, although the record contains no formal partnership agreement between Harry Vazin and Paul Vazin, the application for, and subsequent transfer of, alcoholic beverage license is in the names of Hou- shang Vazin and Parviz P. Vazin The business tax certif- icate, dated September 7, 1982, is in the names of Hou- shang Vazin and Paul Vazin. Respondent's account with the State Employment Development Department is also in the names of Parviz Paul and Houshang Vann. "A county of Riverside health permit, dated January 27, is issued in the names of Houshang and Paul Vazin, d/b/a Super Save Market. On the other hand, a fictitious busi- ness name statement was filed on September 7 naming Houshang Vazin as the registrant for the fictitious busi- ness name Super Save Market and the original applica- tion for alcoholic beverage license was filed in the name of Houshang Vazm only, but was later modified to in- clude Paul Vazin. - The Riverside Market was open to the public until 4 p.m on September 11 under the name of Market Basket. After 4 p.m., an inventory was taken and the store was opened to the public on the morning of September 12 under the operation of Respondent Vazin with substan- tially the same employees, 3 substantially the same inven- tory and the same store manager as had been utilized by Market Basket. Essentially the only changes in the oper- ation of the Riverside market were its ownership and its name. 4 In these circumstances, I find that Paul Vazin is a co-owner of Respondent Vazin and that Respondent Vann is a successor to Kroger Company. NLRB v. Burns Security Service, 406 U S 272 (1972). 2 Harry Vann places the date of Khalech's withdrawal as September 11 Khalech places It as 3 to 5 days prior to September 11 3 With the exception of four or five employees, the entire Market Basket staff was retained by Respondent Vann 4 I find that the record does not support Respondent's argument that Market Basket did not have a meat department and did not have a produce department The record indicates only that the Inventory in these departments was substantially depleted at the time of the takeover 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Refusal to Execute the Collective-Bargaining Agreement Union attorney Arnold Schwartz testified without con- tradiction that in early December, during a telephone conversation, he told Gund that he would like for Re- spondent Vazin to execute a copy of the contract and that he would send him three copies of the current agreement signed by the Union In accordance there- with, Schwartz sent Gund copies of the contract with the cover letter dated December 7, the body of which reads. Re: Super Save Market and UFCW, Local 1167 Dear Ed Pursuant to our discussions, enclosed please find three (3) copies of the current Food Agreement which has been agreed upon by your client and UFCW, Local 770 So that our records are complete, please execute all three (3) copies and return two (2) of the execut- ed copies for our files 5 Sometime later Schwartz telephoned Gund and asked why he had not received copies of the contract. Accord- ing to Schwartz' underned testimony, Gund replied, "I sent them to the client. Apparently he refuses to sign them" Schwartz then sent another letter to Gund, the body of which reads: 'Re: Super Save Market and UFCW, Local 1167 Dear Ed: On December 7, 1982, we sent you three (3) copies of the Industry Food Agreement to be exe- cuted by your client. As we both know, an execut- ed copy is not required in that your client has agreed to be bound by its terms until July 29, 1984, with the exception of the items listed in your letter of September 9, 1982. Nonetheless, we feel that in order to have our files complete, it was believed it would be helpful if a formal copy were executed It would be appreciated if you could have two (2) copies executed by you or your client and have same returned to our office for our files. Season's Greetings. Schwartz had no further communication with Gund or with Respondents regarding this matter, nor was Schwartz or the Union ever notified, insofar as the record reveals, that Gund no longer represented Re- spondent Vazin. 5 Schwartz testified that the reference to Local 770 in the body of the letter was Inadvertent C. Afsan's Status at the Riverside Market Prior to February 20 Within a few days after Respondent Vazin commenced the operation of the Riverside Market, Afsan began working in the market full time. In view of his lack of experience in the grocery business, he worked in all areas in an attempt to gain experience. Harry Vazin testi- fied that although Afsan worked in the store, he was not an officially employed person, but rather assisted him According to Harry Vann, Afsan conducted some of the business of the store for him and he consulted Afsan regarding matters relating to the operation of the store. Also, Afsan could sign checks for the store, and did so. Afsan testified that Harry Vazm requested that Afsan assist him in operating the Riverside Market since Harry Vann had a language barrier and that Afsan look after Harry Vazin's interests to see that things ran smoothly. According to Afsan, sometimes he worked 40 to 50 hours a week at the Riverside Market and sometimes he was Just there walking around and he continued in that kind of arrangement from a few days after the store opened until February when Respondent Shelun pur- chased the store Afsari was not paid a salary, but Harry Vazin paid the rent on the house shared by them and took care of some of Afsan's other living expenses Harry Vazin testified that he had a draw of $1000 a week, $500 for himself and $500 for Afsan, but that this was not as a salary; rather it was the total of their living expenses. He did not actually give Afsan $500 a week; he Just used the $1,000 weekly to pay the expenses of the two families and, if Afsan needed money for other things, he would give it to him He denies that Afsan had any direct responsibilities for performing any duties in the market but, rather, was mostly helping him with the language It is undisputed that Afsan was the spokes- man and interpreter for Harry Vazin However, employee witnesses testified, without con- tradiction, that Afsan made work assignments, worked in the cashier's office, approved customer checks, picked up money drawers from checkers, closed the store and was generally in charge of the night shift, granted time off to employees, signed checks for the store to buy cash from the bank, authorized customer refunds, resolved disputes when the cashier felt a customer was not enti- tled to a refund, authorized employees to take groceries from the store on an IOU basis, and directed the day-to- day work of employees. They further testified they con- sidered him as a boss and felt obligated to follow his orders Employee Anna Guzman testified that when she complained that she was receiving conflicting orders from Munt and Afsan, Munt told her to follow Afsari's orders. Employee Luis Guerrero testified that .Afsan told him he owned a small interest in the store Harry Vazin admits that Afsan spoke to the union rep- resentatives who came to the store but denied that he spoke to them on Harry Vazin's behalf According to him, he told Afsan to tell the union representatives that Respondent Vann had not signed any contract or agree- ment with the Union and were not bound to the Union. However, the record is clear that Afsan was Respondent Vann's spokesman in dealings with the Union. Thus, SUPER SAVE 25 when the Union filed grievances in November and De- cember regarding contractually guaranteed minimum pay for holidayg and weekends, it was Afsan who' resolved the grievances with the Union. It was also Afsan who resolved the grievances concerning the persons who were employed in violation of the employment proce- dures provision of the collective-bargaining agreement and the failure to schedule employees as required by the agreement. When the Union demanded in November that Afsan's wife, Shahnaz, join the Union as required by the union-security provision of the contract, the demand was addressed to Afsan and, in compliance with the demand, Shahnaz did join the Union. In late December, the Union learned that Respondent had not been making the contractually required contribu- tions to the health and welfare funds Further, they had reports that there was a clerk working in the store who was not receiving the contractual rate of pay. About Jan- uary 18, Union Representatives Susie Prior and Frank Mott visited the store. First, they requested that book- keeper Waldo Foltz permit them to audit the books. Foltz said he could not do that without authorization from Afsan or Harry Vazin Prior and Mott then dis- cussed the matter with Munt and advised him of what Foltz had said. Munt agreed to show them the timecards. During their discussion, Afsan came into the office and Prior and Mott began discussing with Afsan and Munt the requirements of the collective-bargaining agreement. They discussed the benefits and the rate of pay and at some point, according to Mott's undefiled testimony, Afsan said, "Well, I know what you're telling me, or I understand what you are telling me, but that certainly makes it hard to run a business. When I have my restau- rant, we don't have to do it that way I call my relatives when I want I bring them in when I want, and it's much easier to run it on that basis." Mott replied, "But this is not the House of Ribs. This is the grocery store, and you've got to do it a different way" They continued to discuss the contractual wage and benefit requirement and the difference in the operation at the House of Ribs Some remark was made regarding Afsan's wife being a member of the Union and Afsan asked if he would have to join the Union Mott said he did not know, they would have to check it out, but if he was an owner he probably would not have to Afsan did not respond but, as Prior and Mott were leaving, Prior jokingly said, "Come on, Mo, 6 you can really tell us. Don't you own some of this?" Afsan laughed and replied, "Well, yeah, but it's not on paper." On February 18, Prior and Munt returned to the market and spoke to Afsari. Mott asked Afsan if he was paying the health and welfare contributions. Afsan re- plied that they would have to talk to his attorney Mott asked, "Who is your attorney?" Afsan said, "Mr. Jones of Jones, Jones & Jones" Mott asked several times whether Afsari was making the required contributions to the fund. Each time Afsari said he did not know, that they would have to talk to his attorney. Mott then asked if they could reach his attorney. Afsan said he had a Afsan is sometimes referred to as "Big Mo" and Mohammed Vazin referred to as "Little Mo telephone number but it was difficult to reach him Prior and Mott left the office, called the Union's attorney and asked him to call Jones The attorney called back 5 or 10 minutes later and said he could not reach Jones. Prior and Mott then went back to Afsan, told him they could not reach Jones and that this was a serious problem Afsan said, "I know We don't want to do any- thing wrong, but you know, I can't say anything more about it until you talk to my attorney on it" According to Mott, he replied, "Mohammad, you are telling me, and you've told me before, what good employees you've got here, what a good job they do, and how nice people they are But you are not paying the insurance." Afsan said, "I can't talk about it. You'll have to talk to my at- torney." Mott said, "Mo, if you're not paying those ben- efits, you're shafting those people." Again Afsan said, "I can't talk to you about it" Mott replied, "Okay, fine Is your attorney going to be in?" Afsan said, "He should be here this afternoon about 3.00." Munt said, "We'll come back." Afsan said, "I don't think he's going to want to talk to you" Mott said, "We'll be back." At some point during the conversation, Mott asked to look at the records and Afsan said he did not have the records, that they were in Los Angeles. D The Termination of Respondent Vazin's Employees As Mott and Prior were leaving the store following their February 18 conversation with Afsan, employee Ed Horne approached them and said, "What the heck does this mean? The store is closing down." According to Mott, since Afsan had made no mention of closing the store, he thought Horne was kidding, so he started to laugh and said, "Yeah, tell us another one." Home said, "No," and pulled out an unsigned letter which read. February 17, 1983 H V., A partnership dba Super Save 3981 Chicago Avenue Riverside, CA 92507 Ladies and Gentlemen. We are sorry to report that we are going out of business as of midnight, February 19, 1983. Any monies due you from working and not paid for in the check will be available on Thursday (They will be mailed to your home.) There might be a company that will lease the building and be in the Retail Food Business, but as of today we are not sure. Should a new business start-up, then if you are interested in working for them you can contact them directly for employment Thank you for your help, but conditions are such as we have no other choice but to go out of busi- ness. All of Respondent Vazin's employees received identieal letters with their paychecks on either February 18 or February 19. Immediately following their conversation with Horne, Prior and Mott reentered the store and asked Afsari 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what this was all about. Afsari replied, "What can I tell you? We're closing down We're not doing any busi- ness." Mott then walked away because other employees were approaching them with letters that they had Just re- ceived with their paychecks. After some conversation with employees, Mott returned to Afsari and asked, "What are you doing?" Afsari replied, "You know what we're doing. We can't make any money. We are closing down." Mott asked, "Are- you terminating these people or what?" Afsari said, "There is no work for them." Mott asked, ."Are you terminating them, laying them off'?" Afsan said, "There's no work for them" Mott said, "That's not an answer. What's happening?" After a short interchange of a similar nature, Mott asked, "Are you going to open up again?" Afsari said, "I don't know. It's a new company" Mott asked, "What are they going to do?" Afsari said, "I don't know." Mott asked, "Are they going to open up?" Afsari replied, "They may, they may not. It may be a retail establish- ment It may not be" Mott said, "At this point in time, I'm telling you, if you're going to open up a retail busi- ness here or a grocery business, I'm telling you, every one of these employees is willing to come back to work for you." Afsan said, "Well, fine, they can fill out an ap- plication if a new company comes in." At some point during the conversation, according to Mott's undefiled testimony, he asked Afsan who the new owners of the company would be. To which Afsari replied, "I - don't know anything about it" E. The Formation of Respondent Shelun and the Operation of the Riverside Market Subsequent to February 20 Harry Vazin testified that he decided to sell the River- side Market about 2 or 3 months after Respondent Vazm began operating the market because he was losing money He admits that one of the reasons he was losing money was because the payroll was too high. He also admits that he did not advertise that the store was for sale and did not receive offers from anyone other than Afsari and Mohammad Vazin. Afsari testified that some- time in mid-January he and Mohammad Vann decided to purchase the Riverside Market for themselves and on behalf of a friend, Mehdi Loloee, who was attempting to enter the United States. At the time Mohammad Vann was working at the K.V. Mart produce warehouse. - At the beginning of February, Afsari sold the House of Ribs for $60,000; $50,000 was cleared from the sale of which Afsan received $15,000 and Mohammad Vazin $35,000. Mohammad Vazin and Afsari formed the corpo- ration Shelun Company, Inc., on-January 24, 1983. Ac- cording to individual financial affidavits filed with She- lun's application for an alcoholic beverage license, Afsari stated that his total financial contribution was $24,000 for the purchase of 1,000 shares of stock which sum was ob- tained as a gift from his family in Iran Afsan's affidavit also listed him as vice president, secretary, and chief fi- nancial officer. 'Mohammad Vazin's affidavit lists him as president and states that his financial contribution was $48,000 for the purchase of 2000 shares of stock which sum was obtained as a loan from his brothers. As of April 13, according to a corporate questionnaire signed by Afsari for the State Department of Alcoholic Beverage Control, Shelun had outstanding only the 3000 shares of stock owned by Mohammad Vazin and Afsan with no stock pending issuance. According to the pur- chase and sales agreement, and the testimony , of Harry Vazin, the grocery portion of the Riverside Market was sold to Shelun for $10,000 in cash, a $20,000 promissory note and assumption of a $70,000 loan. The liquor por- tion of the market was also to be sold to Shelun for a purchase price of $84,000. However, that purchase and sale was never consummated and Respondent Vann still owns the liquor department of the Riverside Market Afsari testified that in the beginning of February he and Mohammad Vazin sought advice from Norman Jones, labor consultant, who is representing Respondents because they were interested in purchasing the Riverside Market and wanted to operate it as a nonunion store. After several discussions with Jones, they determined that they could avoid becoming a union operation by not hiring union employees. Specifically, they determined that they would hire no more than 30 percent of Re- spondent Vazm's employees. At that time Respondent Vazin had about 34 employees, all members of the Union except for possibly 4 or 5 employees who had been hired within the preceding 30 days. Respondent Shelun hired about eight of them. Although -Respondent Vazin retained its ownership of the liquor department and Respondent Shelun was the nominal owner of the grocery departments, it is undis- puted that the Riverside Market continued to operate much as it had prior to February 9. The store was closed for one day on February 20 and reopened on February 21. Sandy McKovitch replaced Munt as store manager. No inventory of merchandise was taken at the time of the sale. According to Afsari this was because Shelun had assumed Respondent Vazm's liabilities. Afsari admits that he continued to manage the liquor department; fur- ther, he also did the bookkeeping for the liquor depart- ment. A paid bookkeeper did the bookkeeping for the grocery department. The liquor department employees were on Shelun's payroll. However, according to Harry Vazin and Afsari, Respondent Vazin reimbursed Shelun for their wages According to the undemed testimony of Leeper, who was the produce manager, after February 21, Harry Vann continued to give him orders. If Harry Vazin found merchandise that he thought was unsatisfactory he would tell Leeper to send it back or to write credits on it or not to receive it at all. He would inspect the produce and give Leeper orders as to removing certain produce that he considered unsatisfactory and putting out new produce Leeper also testified that on February 21, Harry Vazin asked him, "Don, what's the matter? You're not happy." Leeper said, "No, Harry, six months ago when I started to work for this company your broth- er, Paul, introduced us and said you would be my new boss Now nobody will tell me anything: who my new boss is, who I'm working for, or anything." Harry Vazin replied, "Don, I'm still your boss Don't be unhappy. Everything will be okay." Also after February 21, Harry SUPER SAVE 27 Vazm told Leeper to continue to buy produce from dif- ferent people he knew at warehouses in Riverside. • Elder testified that on February 19, Harry Vazin told him they liked him and the way he worked. Elder said that he liked- working there. Harry Vann said they would like for Elder to work for them but they could not do it then and he did not know at what time in the future Elder could be rehired. Elder was rehired on Feb- ruary 24 and, according to him, from that time until he left in August 1983, Harry Vazin was continuing to give orders and work assignments, he was in the office over- seeing the books and the cashier and he stocked, unload- ed trucks and received goods at the back door Accord- ing to him, Afsan also continued to do the same things he had before except that he was in the office more. Elder also testified that in August McKovach asked him to come to the office, which he did. At that time McKovitch told him he was going to have to let him go. Elder asked what the problem -was, what he had done. McKovitch said that Harry and Frank (Loloee) and Afsan did not particularly like the job he was doing, feeling he would be happier some place else Elder fur- ther testified that after February 21, Harry Vazin contin- ued to give him orders such as stocking the milk case or the shelves. McMillan, who worked for Respondent Vazin as a liquor clerk, testified that on February 22, when he returned to the market to turn in a key, Harry Vann told him that in approximately 3 to 5 months there was a possibility he would be hired back. Edgar Home testified that on February 19 he turned his keys in to Harry Vazin, Harry thanked him for the job he did, and said he would call Horne in 2 weeks. On March 28, the Union established an informational picket line which continued at least through the date of the hearing. According to Mott, he usually visits the picket line 6 days a week during which time he has an opportunity to observe duties that Harry Vann performs on the outside. According to him, the market receives One or two grocery loads a week and, at least once a week, he has observed Harry Vazin assist in unloading a grocery truck with the forklift and about once every 2 weeks he would observe him assisting in moving meat around in the back area Richard Hiemstra testified that sometime in about May when he was on the picket line he asked Harry Vazm why he had not been recalled to work. Harry Vazin replied they were going to call ev- eryone back in 30 days but "because of all this, I can't call you back." As he said this he pointed to the picket- ers. F. The Alleged Unlawful Statements Afsari admits that prior to Shelun taking over the op- eration of the Riverside Market, he told several unit em- ployees that he could only hire 30 percent of Respondent Vazin employees when the store reopened. He also admits that he asked all eight of the employees of Re- spondent Vazin hired by Respondent Shelun to with- draw from the Union; that he offered a job to one box person, in part, because he was not a member of the Union; and that he discussed with employees the terms and conditions of their continued employment by Shelun. Some were told that they would receive less wages and no benefits, one employee was told he would receive a wage increase, and Some employees were told that insur- anCe benefits would be provided in the near future. Other unit employees were told by Afsan that he would have jobs for them after 30 days On February 18, according to the undenied testimony of employee Don Leeper, Afsan told him that the com- pany was on the verge of going bankrupt bui a new company would probably open the following Monday, that he would like for Leeper to work for the new -com- pany as produce manager, but that it would be nonunion and he would receive a 10-cent-an-hour raise in pay Afsan further told Leeper that at a future time the em- ployees Would receive health and welfare coverage. Leeper was required to fill out a new application , Employee Robert Blair testified that on February 18, after he received his termination letter, Munt told hiin that the store was closing because they did not want to pay union wages, that Paul did not want the Union in there, that they were paying less wages in Los Angeles for the same kind of work. 7 Blair further testified that on February 19 Afsan asked him if he wanted to remain in Respondent Shelun's employ. Blair said, no, that Munt had told him it would be a nonunion store and he needed the benefits Afsari said they were going to have an in- surance plan available to the new employees. Blair asked if it would be a nonunion store; Afsan said it would Employee Luis Guerrero testified that on February 19 Afsan told him he would have to wait 30 days before they would let him know if he would be employed again. Afsari said their lawyers advised that they could only keep a certain percentage of the employees so they would have to wait 30 days Employee Richard Hiem- stra testified that on February 19 he asked Afsan what the deal was, if they were going to be called back. Afsan said not to worry about it, they would probably call ev- eryone back, or most everyone, in 30 days. Employee Diane Ferneding testified that on February 19, when she asked Afsan what they should do, he said to come back in and apply, they would be given a call. Afsan further said they could only hire a percentage of the Super Save employees at that time but after 30 days they could rehire all they wanted. He said, if they . re- called more than a certain percentage, the market would be considered a union store again. The following week, according to Ferneding's undented testimony, she re- turned to the store to fill out an application. At that time Front End Supervisor Denise McCormick, in the pres- ence of Afsan, told her she would be called back after 30 days at a quoted wage rate which was roughly half the rate she had received at Super Save and that there would be no benefits. Employee Mary Snyder testified that on February 19, after she had received her termination notice, she asked Afsan what was going to happen. He replied, "Don't worry, it will be okay" He then told her to come in on Monday and fill out an application. He further said he was sorry but they had to close the store because they 7 This conversation may have been immediately after Munt left Re- spondent's employ 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were just not making it; the business was not what they had expected it to be and it was costing too much money. At some point in the conversation, when they were discussing why it cost so much money, Snyder said she had been surprised that Respondent Vazin. retained the Union when they bought the store. Afsari said that was the only way it could be purchased. He further said they owed $50,000 to the Union and they were going to have to pay it. Employee Verna Fuches testified that on February 21, she asked Manager Sandy McKovitch what was gOing on McKovitch said he did not know Fuches asked what was going to happen with the employees who had not been rehired. McKovitch said they could only keep a certain percentage and the rest would probably be called back within 30 days. Fuches asked if it were going to be a union store and McKovach said no. Employee Michael Elder testified that on Tuesday, February 22, he and three other Super Save employees applied for work with Respondent Shelun. On February 24, Mohammad Vann hired him to work for Respondent Shelun. At that time, Mohammad Vazin told Elder his rate of pay, which was $3 to $4 less than he was paid by Respondent Vazin. When Elder asked if there were going to be any benefits, Vann said, "Nat at this time." When Elder asked if the store was going to be union or nonunion, Vazin said, "nonunion" and that Elder would need to get a withdrawal card from the Union. Several months later, according to Elder, Store Manager Sandy McKovach told him, "they" said he needed to send a registered letter to the Union requesting a withdrawal card. McKovitch said those employees who did not get a withdrawal card were not going to be able to work G. The Alter Ego Issue Although a determination as to whether two employ- ers are alter egos, of necessity, must turn on the facts of the particular case, it is well established that the factors to be considered are: (1) interrelation of 'operations, (2) common management, (3) common ownership; and (4) centralized control of labor relations. Sakrete of Northern California, 137 NLRB 1220, 1222 (1962), enfd. 332 F 2d 902 (9th Cir. 1964), cert. denied 380 U S. 255 (1964). Thus, the Board has generally found alter ego status where the two enterprises have substantially identical management, business purpose, operation, equipment, customers, and supervision, as well as ownership. Craw- ford Door Sales Co., 226 NLRB 1144 (1976); Denzil S. Alkire, 259 NLRB 1323 (1982). No one factor is control- ling and all need not be present Complete identity in ownership is not a requisite, particularly when ownership resides in members of the same family Crawford Door Sales Co., supra; Shield-Pacific, 245 NLRB 409 (1979); Nabco Corp, 266 NLRB 687 (1983). However, central- ized control of labor relations is the most important single factor. J. M. Tanaka Construction v. NLRB, 675 F.2d 1029 (9th Cir. 1982). Here, prior to February 20, Respondent Vann owned and operated the Riverside Market which included two major departments—liquor and grocery Although Munt was the store manager, it is clear from the record that Afsari's authority superseded that of Munt, that Munt deferred to him in matters of labor relations, manage- ment, and supervision, and that Afsan in fact exercised control in these areas Further, although it appears that Harry Vann re- mained in the background to a certain extent, he was in the store regularly and, in his relationship with the em- ployees, did exercise supervisory control. The extent to which he had actual, as opposed to potential, manage- ment control of the operations is unclear from the record. There is no convincing evidence in the record that he maintained actual control, with Afsan merely serving as a conduit for the relay of instructions and de- cisions. After a hiatus of 1 day, Respondent Shelun ostensibly took over the operation of the grocery department on February 21 Although the store had a new manager, Sandy McKovitch, Afsan, now openly an owner of the market, continued in much the same management and su- pervisory role. The evidence establishes that Afsari and Mohammad Vann established labor relations policy. Re- spondent Vann continued to operate the liquor depart- ment. However, it is undisputed that the Riverside Market continued to operate much as it had prior to February 20. Afsan admits that he continued to manage the liquor department. He did most of the bookkeeping for the liquor department, a paid bookkeeper did most of the bookkeeping for the grocery department. The liquor department employees • were on Shelun's payroll, al- though allegedly Respondent Vann reimbursed Re- spondent Shelun for these wages. Shelun employees staffed the liquor department when the regular liquor clerks were out Outwardly, Harry Vann's role remained unchanged He continued to inspect produce and to give instructions to the produce manager as to the removal from display in the store, and the return to the supplier, of produce considered by him to be unsatisfactory He also instruct- ed the manager of the produce department as to what suppliers he should utilize He continued to give orders and assignments to grocery department employees, to stock, unload trucks, and receive goods for the grocery department When an employee complained of the uncer- tainty engendered by the change of ownership, Harry Vann assured the employee that he was still the employ- ees' boss. - These circumstances all indicate an interrelation of Re- spondent Vazin and Respondent Shelun operations, common supervision and management, and common con- trol of labor relations. Further, it is clear that their com- bined operations at the Riverside Market had the same business purpose, equipment, and customers as had Re- spondent Vann prior to February 20 and that the River- side Market, both before and after February 20, had management and supervision which, though somewhat different, had a substantial thread of commonality and that the same person continued in active, if not sole, con- trol of labor relations. When these circumstances are viewed in the context of the less than arm's-length transaction s and the familial 8 The business was sold at a loss, with no attempt being made to ad- vertise that the market was for sale or to secure other prospective buyers SUPER SAVE 29 relationship involved, it is apparent that Respondent Shelun is a disguised continuance of Respondent Vann. All of the owners involved here are members of the same family—a family which has a history of some family members operating enterprises for the benefit of other family members without regard to the niceties of legal ownership In this - regard, Harry Vazm testified that it is the custom in his country that business arrange- ments between members of the immediate family—father, mother, sister and brother and sometimes the spouse of the sister and brother—are not reduced to writing. Thus, even though he was not a legal owner of the family busi- ness because he was in the military and such ownership was prohibited in the military, he did have an unwritten business arrangement with his family When he retired from the military, he worked in the family business. He received no salary but drew money from the business as he needed it. Similarly, Paul Vann invested no money in Respond- ent Vazin but, as found above, had an ownership interest therein. Afsan was not a legal owner of the House of Ribs; yet he had Nader Vazin's power of attorney to op- erate and dispose of that business He did sell it and dis- tributed 70 percent of the proceeds of the sale to Mo- hammad Vazm, who also was not a legal owner of the restaurant. Further, though Afsan had no legal owner- ship in Respondent Vazin, he worked full time for Re- spondent Vazin without salary Rather, Harry Vazin gave him half of Vazin's regular draw from the business and whatever other funds he needed. Also, at the time that Respondent Vazin was operating the Riverside Market, Harry Vazin and his family lived with Afsari and his family In all of the circumstances, I find that Respondent Shelun Is an alter ego of Respondent Vazin Further, in the circumstances set forth above, coupled with Harry Vazin's admission that he wanted to divest himself of the ownership of the market because the union contract was causing Respondent to lose money, and the statements of Afsan and Mohammad Vazin that they would hire no more than 30 percent of Respondent Vazm's employees because they wanted to avoid becoming a union oper- ation, that those hired would have to withdraw from the Union and the other employees of Respondent Vazin would be hired after 30 days when their hire would not affect Respondent Shelun's nonunion status, I find that Respondent Shelun was created in an attempt to evade and avoid Respondent Vazm's contractual and statutory bargaining obligations. H. Conclusions as to the Alleged Unfair Labor Practices The complaint alleges that Respondents unlawfully re- fused to execute the September 8 agreement with the Union. Respondents do not deny that Gund and Schwartz reached such an agreement. Rather, Respond- ents argue that Gund represented Khaledi and/or K.V Mart Co., but never represented Respondent Vann, and that the agreement reached by Gund was on behalf of a proposed corporation which never came into being. I find no merit in this contention. In this regard, I note that Harry Vazin admits that Khaledi and Paul Vann had full authority to negotiate the purchase of the market, and that they negotiated a discount of $25,000 from the purchase price because of the requirement that the purchaser adopt the union contract, that Khaledi re- tained Gund to negotiate some modification of that agreement, and that in so doing Gund purported to rep- resent the purchaser of the market and specifically named Harry Vazin as having agreed to the terms of the modification Further, although Respondent never made any contribution to the various benefit funds as required by the agreement, Respondent Vazin made no attempt to repudiate the agreement and, in fact, implemented it in a number of regards, including grievance provisions. Ac- cordingly, in view of the terms of the purchase and sale agreement and the modification agreement signed by Schwartz and Gund, and Respondent Vazin's subsequent implementation of the wage and grievance provisions of the agreement, I find that Respondent Vazin adopted Market Basket's collective-bargaining agreement with the Union and was therefore obligated to execute and abide by the agreement. I therefore find that by refusing to execute the agreement reached with the Union on Sep- tember 8, Respondents have violated Section 8(a)(5) and (1) of the Act. NLRB v Burns, supra. I further find that by failing to grant employees the contractually required cost-of-living wage increase on January 31, 1983, by fail- ing to make the contractually required contributions to the benefit trust funds, by bypassing the Union and deal- ing directly with employees as to their wages and other terms and conditions of employment, and by withdraw- ing recognition from the Union and repudiating its col- lective-bargaining agreement with the Union, Respond- ent has violated Section 8(a)(5) and (1) of the Act I also find that the employees terminated by Respond- ents on February 18 and 19 were terminated because they were represented by the Union in an attempt by Re- spondents to evade their contractual and . statutory obli- gation Accordingly, I find that they were unlawfully terminated in violation of Section 8(a)(3) and (1) of the Act I further find that Respondent has violated Section 8(a)(1) of the Act by telling employees that, in order to avoid being a union store, Respondent could only hire a certain percentage of Respondent Vazin's employees; that they could not be hired for 30 days in order to avoid having the Riverside store remain a union store and that they would have to obtain withdrawal cards from the Union in order to continue their employment. CONCLUSIONS OF LAW 1. Houshang Vazin, an Individual, d/b/a Super Save, and Parviz Paul Vann, an Individual, d/b/a Super Save; and Houshang Vazin and Parviz Paul Vazin, a partner- ship, d/b/a Super Save; and Shelun Company, Inc. d/b/a Super Saver are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 United Food and Commercial Workers, Local 1167, United Food and Commercial Workers International Union, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '3. Respondent Vazin is a successor to Kroger Compa- ny, obligated to recognize and bargain with the Union and to abide by the terms of Kroger's collective-bargain- ing agreement 'with the Union as modified by the Union and Respondent Vazin. 4. Respondent Shelun is the alter ego of Respondent Vizin established for the purpose of evading Respondent Vann's obligation to bargain with the Union and to abide by the terms of its collective-bargaining agreement with the Union. 5. The following employees of Respondents constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All food clerks, bakery, health and beauty aids, and household hardware clerks, general merchandise clerks, .clerk's helpers, and snack bar and take-out food department employees employed by Respond- ents at their 3981 Chicago Avenue, Riverside, Cali- fornia facility; excluding all office clerical employ- ees, meat department employees, janitorial employ- ees, maintenance employees, professional employ- ees, guards and , supervisors as defined in the Act. 6. At all times material, the Union has been, and is now, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 7. On or about September 8, 1982, Respondents and the Union reached full and complete agreement with re- spect to terms and conditions of employment of the em- ployees in the appropriate unit described above. 8. Respondents violated Section 8(a)(5) and (1) of the Act by: (a) Failing and refusing to execute the collective-bar- gaining agreement with the Union. (b) Failing and refusing to make the contractually re- quired contributions to the various benefit trust funds and by failing and refusing to grant the January 31, 1983, cost-of-living' increase as provided for in the collective- bargaining agreement with the Union. ,(c) On and after February 18, 1983, bypassing the Union and bargaining directly with the employees with regard to the terms and conditions of their continued em- ploymCnt. (d) Unilaterally changing wage rates and eliminating certain fringe benefits on February 21, 1983. (e) Withdrawing recognition from the Union as the ex- clusive collective-bargaining representative of the em- ployees in the unit described above and repudiating its collective-bargaining agreement with the Union. , 9. By discharging the following employees and failing and refusing to reinstate them to their former positions of employment, because said employees were members of, or represented by the Union, and in an attempt to evade 'its bargaining obligation with the Union and its obliga- tion to abide by the terms of its collective-bargaining agreement with the Union, Respondent has violated Sec- tion 8(a)(3) and (1) of the Act. Robert Blair Miles Tilghman Michael Elder Robert Robbins Diane Ferneding Richard Heimstra Verna Fuches Jack McMillan Luis Guerrero Stephen Wakeman Ed Home Anthony Bullock Barbara Luce Michele Gracia Denise Martin Jack Summers Sue Ellen Mott Barry Swift Mary Snyder Roy Webb Larry Delgado Joseph Vargas Leo Smith Jr. Mark McCoy Anna Guzman Kenya TapscOtt 10. Respondent has violated Section 8(a)(1) of the Act by' (a) Telling employees they could only hire a certain percentage of Respondent Vann's employees in order to keep it from being a union shop. (b) Telling employees they could not be rehired for at least 30 days in order to avoid having the Riverside Market remain a union store (c) Telling employees that they would have to obtain withdrawal cards from the Union as a condition of their continued employment. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. Having found that Respondent Vazin and Respondent Shelun are alter egos and that Respondents have unlaw- fully withdrawn recognition from the Union, have un- lawfully repudiated its collective-bargaining agreement with the Union, and have unlawfully unilaterally reduced the wage rates of employees and failed and refused to make contractually required contributions' to the various benefit trust funds, I shall recommend that Respondent recognize and, on request, bargain with the Union as the exclusive representative of the employees in the appro- priate unit, that Respondent acknowledge that it is bound by the collective-bargaining agreement agreed to with the Union on about September 8, 1983, that it abide by the agreement and that it make the employees in the ap- propriate unit whole by paying retroactively the wage rates provided for in its collective-bargaining agreement with the Union and by paying all contractually required contributions to the various trust funds which have not been paid and which would have been paid absent Re- spondents' unlawful unilateral discontinuance of such payments. 9 9 Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide for interest at a fixed rate on fund payments due as part of a _'make-whole" remedy We therefore leave to further proceedings the question of how much interest Respond- ent must pay into the benefit fund in order to satisfy our "make-whole" remedy These additional amounts may be determined, depending on the circumstances of each case, by reference to provisions in the documents governing the fund at issue and, where there are no governing provi- sions, to evidence of any loss directly attributable to the unlawful action, which might Include the loss of return on Investment of the portion of funds withheld, additional administrative costs, etc, but not collateral losses See Merryweather Optical Co, 240 NLRB 1213, 1216 at fn 7 (1979) SUPER SAVE 31 Having found that Respondent unlawfully discharged its employees named below in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that Respondent be ordered to offer each of them immediate and full rein- statement to his or her former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his or her seniority or any other right and privilege previously enjoyed, and make each of them whole for any loss of earnings he or she may have suf- fered by reason of the discrimination against them, plus interest, in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1961):" Robert Blair Miles Tilghman Michael Elder Robert Robbins Diane Ferneding Richard Heimstra Verna Fuches Jack McMillan Luis Guerrero Stephen Wakeman Ed Home Anthony Bullock Barbara Luce Michele Gracia Denise Martin Jack Summers Sue Ellen Mott Barry Swift Mary Snyder Roy Webb Larry Delgado Joseph Vargas Leo Smith Jr. Mark McCoy Anna Guzman Kenya Tapscott As the unfair labor practices committed by the Re- spondent are of a character striking at the very heart of the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any other manner on the rights guaranteed in Section 7 of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondents, Houshang Vann, an Individual, d/b/a Super Save; Parviz Paul Vann, an Individual, d/b/a Super Save, Houshang Vazin and Panz Paul Vazin, a Partnership, d/b/a Super Save, and Shelun Company, Inc d/b/a Super Saver, Riverside, California, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize the Union as the exclusive bargaining representative of its employees in the unit found appropriate herein (b) Failing and refusing to execute its collective-bar- gaining agreement with the Union agreed to on Septem- ber 8, 1983. (c) Repudiating its obligation to abide by the terms of the collective-bargaining agreement. (d) Failing and refusing to make contractually required contributions to the various benefit trust funds and fail- ing and refusing to grant the January 31, 1983, cost-of- See generally Ins Plumbing Co, 138 NLRB 716 (1962) If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses living increase as provided for in the collective-bargain- ing agreement (e), Unilaterally reducing wage rates and eliminating certain fringe benefits provided for in said collective-bar- gaining agreement. (f) Bypassing the Union and bargaining directly with the employees with regard to the terms and conditions of their continued employment. (g) Discharging employees in an attempt to avoid, its obligation to abide by said collective-bargaining agree- ment and its obligation to recognize and bargain with the Union. (h) Telling employees that Respondent could only hire a certain percentage of Respondent Vazm's employees in order to keep the Riverside Market from being a union shop (0 Telling employees that they could not be 'rehired for at least 30 days in order to avoid having the River- side Market remain a union shop. (j) Telling employees that they would have to obtain withdrawal cards from the Union as a condition of their continued employment. (k) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize the above-named Union as the exclusive collective-bargaining representative of its employees in the appropriate unit described below and, ,upon reqiiest, meet and bargain with the aforesaid Union concerning wages, hours, pension, and welfare benefits, and other terms and conditions of employment; and, if an under- standing is reached, embody it in a signed document The appropriate unit is: All food clerks, bakery, health and beauty aids, and household hardware clerks, general merchandise clerks, clerk's helpers, and snack bar and takeout food department employees employed by Respond- ents at their 3981 Chicago Avenue, Riverside, Cali- fornia facility; excluding all office clerical employ- ees, meat department employees, janitorial employ- ees, maintenance employees, professional employ- ees, guards and supervisors as defined in the Act. (b) Acknowledge that it is bound by the Retail Food, Bakery, Candy, and General Merchandise Agreement be- tween the Union and certain other unions and Food Em- ployers Council, Inc , and Independent Retail Operators effective by' its terms from July 27, 1981, to July . 29, 1984, as modified by Respondents and the Union on Sep- tember 8, 1983, and abide by the terms of said agreement both retroactively and prospectively. (c) Make its employees whole by paying retroactively the wage rate and health and welfare trust contributions as provided in said collective-bargaining agreement with the Union which have not been paid, and which would have been paid absent its unlawful reduction'and/or uni- lateral discontinuance of such payment (d) Offer the employees named below immediate and full reinstatement -to their former jobs or, if such posi- 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lions 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 suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." Robert Blair Miles Tilghman Michael Elder Robert Robbins Diane Ferneding Richard Heimstra Verna Fuches Jack McMillan Luis Guerrero Stephen Wakeman Ed Home Anthony Bullock Barbara Luce Michele Gracia Denise Martin Jack Summers Sue Ellen Mott Barry Swift Mary Snyder Roy Webb Larry Delgado Joseph Vargas Leo Smith Jr. Mark McCoy Anna Guzman Kenya Tapscott (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (f) Post at its place of business in Riverside, California, copies of the attached notice marked "Appendix " 1 2 Copies of said notice, on forms provided by the Regional Director for Region 21, after being signed by Respond- ents' authorized representatives, shall be posted by Re- spondents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. 1 2 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "