Raytown United Super, Inc.

RAYTOWN UNITED SUPER 1155 Raytown United Super, Inc. and United Food and Commercial Workers, Local Union 576. Case 17-CA- 12943 29 January 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 8 September 1986 Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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 and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent and the Union orally agreed to all substantive contract terms by 25 September 1985' and the Respondent therefore violated Section 8(a)(5) of the Act by re- fusing to execute a collective-bargaining agreement embodying them. For the following reasons we conclude that the parties did not reach full agree- ment on a contract, and we therefore reverse the judge's decision and dismiss the complaint. It is undisputed that the parties agreed, on 15 August 1985, that the contract term would run from 1 September 1985 to 28 February 1987. No final agreement on all terms was reached, however, by 1 September and, as negotiations continued, the Respondent's president and owner, Danny Kays, proposed a new contract term. Thus, on approxi- mately 17 September, Kays proposed an effective date for the contract that corresponded with ratifi- cation by the Union's membership.2 The judge found that the Union never acceded to this propos- al by Kays but consistently maintained that agree- ment on the contract's term was for 1 September 1985 to 28 February 1987.3 i All dates are to 1985 unless otherwise indicated 2 There seems to be no real dispute that Kays made this proposal Thus the judge referred to "Kays' belated proposal" [see fn 4 infra], and the Union's own negotiating notes for 17 September show "Term-Date of rat - 2/28/87 " At the same time, the evidence does not support the statement in the Respondent's brief that "it was resolved on September 17 that the terms would begin as of the date of ratification " (Emphasis added) Finally, we note that the record contains no mention of "retroac- tivity" in connection with the discussion of the contract term proposals 3 We cannot find that the Union's rejection of Kays' proposal served to revive the parties' earlier agreement on this subject matter absent evi- dence that Kays withdrew his proposal and reaffirmed that agreement Unlike the judge, we find that the parties had no agreement on an effective date for the contract term as of 25 September. Although, as noted, they had reached a tentative agreement on a contract term in August, that agreement was essentially can- celed out by their inability to reach agreement on all provisions of a contract before the agreed-on ef- fective date (1 September) had come and gone and by the Respondent's proposal of a new effective date on 17 September. There was no allegation that the Respondent changed its contract-term proposal at this point to avoid reaching final agreement, so it would be inappropriate for us to pass on the 17 September proposal as evidence of the Respond- ent's bad faith.4 Because the Union did not agree to that proposal, we find that, as of 25 September, the parties had no agreement concerning the con- tract's term. The judge also concluded that the parties agreed on all aspects of a seniority provision. He found, however, that on 17 September the Respondent proposed that promotions be based solely on merit and not subject to the grievance procedure. Al- though the judge recognized that the Union did not accept this proposal and continued to adhere to its position that merit promotions were grievable, he characterized the Respondent's 17 September offer as an effort to evade an agreement already reached on the Union's overall seniority proposal. Consequently, he held that the Respondent was bound to the Union's proposal of subjecting merit promotion selections to the grievance procedure. We disagree with the judge because his rationale is inconsistent with his findings and the General Counsel's theory of the case. The judge found that the parties had not discussed whether the grievance procedure would be applicable to merit promotions until the Respondent raised the issue on 17 Septem- ber. There is no basis for finding that the Respond- ent advanced its proposal to evade agreement. The Respondent was free to make the proposal, and the Union was free to accept or reject it. The Union's rejection, however, established that the parties were not in complete agreement on a substantive issue. Further, the General Counsel neither alleged nor argued that the Respondent bargained in bad faith by attempting to sever its merit promotion se- lections from the grievance procedure. The com- plaint alleged only that the Respondent refused to execute an agreed-on contract, and the parties con- fined their litigation to that theory. 4 See the discussion in Soule Glass & Glazing Co v NLRB, 652 F 2d 1055, 1082-1083 (1st Cir 1981) The absence of any such allegation also explains why it was inappropriate for the judge to characterize Kays' proposal as "belated " 287 NLRB No. 115 1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD An obligation to sign a collective-bargaining agreement arises only if a meeting of the minds on all material terms has occurred. It is clear that the parties had not agreed on at least two material terms, and the judge's conclusion that all that re- mained for the parties was to reduce the contract to "legalistic language" is therefore incorrect. Auto- mobile Mechanics Local 701 (Avis Rent A Car System), 280 NLRB 1312 (1986), on which the judge relies, is distinguishable from the present case because in Avis the parties orally agreed on all ma- terial contract terms and had only to reduce their comprehensive agreement to a written contract. Here, the parties' substantive differences on materi- al contractual terms preclude finding that only the language formality remained. Accordingly, we find that the Respondent did not violate the Act by re- fusing to sign a contract.5 ORDER The complaint is dismissed. 5 In view of our decision, we find it unnecessary to pass on the judge's discussion of Sec 10(b) of the Act or his reliance on Torrington Construc- tion Co, 235 NLRB 1540 (1978) Lyn R. Buckley, Esq, for the General Counsel. Stanley E. Craven and David Wing, Esqs., for Respondent Employer Jerome F. X. Waterman, Esq., for the Charging Union DECISION CLAUDE R. WOLFE, Administrative Law Judge. This proceeding was litigated before me at Kansas City, Kansas, on 15 and 16 July 1986 pursuant to charges filed and served on 11 April 1986 and complaint issued 30 May 1986. The complaint alleged that Raytown United Super, Inc. (Respondent or Employer) has violated Sec- tion 8(a)(5) and (1) of the National Labor Relations Act (the Act) by failing and refusing to execute a negotiated collective-bargaining agreement between Respondent and United Food and Commercial Workers Local Union 576 (the Union) Respondent denies this allegation. On the entire record,' the demeanor of the witnesses testifying before me, and after considering the able post- trial briefs of the parties, I make the following FINDINGS OF FACT I JURISDICTION Respondent is a corporation, with places of business at Raytown, Missouri, where it is engaged in the operation of retail grocery stores During the 1985 calendar year, Respondent, in the course and conduct of its business op- erations at Raytown, purchased and received at its Ray- town, Missouri facilities, products, goods, and materials i The motions to correct the record filed by both parties, in the ab- sence of objection , are granted valued in excess of $50,000 directly from points outside the State of Missouri, and derived gross revenues in excess of $500,000 from the business operations Re- spondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II. LABOR ORGANIZATION The Union is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. IIi. ALLEGED UNFAIR LABOR PRACTICES A Facts Found2 Respondent recognized the Union as the exclusive col- lective-bargaining representative of an appropriate unit of its employees in 1979 The two then executed a col- lective-bargaining agreement effective 24 June 1979 through May 1982. The complaint alleges and Respond- ent admits that the Union continues to date as the repre- sentative of the unit employees.3 On 23 August 1983 Re- spondent presented its final proposal for a new contract. No agreement was reached and Respondent implemented its final proposal. The legality of the implementation is not at issue. Thereafter, Respondent conducted its busi- ness in accord with the provisions of the expired con- tract as modified by its final proposal By letter of 24 July 19854 the Union, by its business representative, Michael J. Costanza, requested negotia- tions for a new contract. Respondent, by letter of 2 August from its lawyer, Stanley E. Craven, proffered proposed meeting dates, and advised of the possibility that it might sell one of its stores within a month or two, which would require negotiation on issues related to that sale as well as the usual contract negotiations The par- ties met and bargained on 14, 15, 21, and 29 August and 6, 17, and 25 September. The 6 September meeting was devoted to some discussion of the transfer of employees from the store being sold to the remaining store. From this point on the parties were negotiating for one store rather than two. I The facts found here are based on credited testimony, exhibits, logi- cal consistency, and inherent probability To the extent that testimony or other evidence not mentioned appear to contradict the findings of fact, that evidence has been considered and rejected as incredible, lacking in probative worth, surplusage, or irrelevant I have credited witnesses in some instance, but not in others It is a rare witness whose recollections are minutely correct on every item placed before him, and it is beyond cavil that a trier of fact may properly credit some of a witness' testimony without believing all of it NLRB v Universal Camera Corp, 179 F 2d 749 (2d Cir 1950), vacated on other grounds 340 U S 474 (1951) a The alleged and admitted appropriate unit is All employees employed by the Employer working in the Employ- er's retail establishments situated within Jackson, Clay, Platte, and Cass counties, Missouri , and Johnson and Wyandotte Counties, Kansas, engaged in handling or selling merchandise or performing other services incidental or related thereto, EXCEPT supervisory employees within the meaning of the National Labor Relations Act of 1947, as amended, and other employees whose work is exclusively performed within the meat department locations of the retail estab- lishment 4 All dates hereafter are 1985 unless otherwise noted RAYTOWN UNITED SUPER 1157 At the first meeting on 14 August, the Union present- ed its proposal that was the contract which had expired in 1982, with changes in effective dates, wages, participa- tion in a pension program, and a proposal for continuing education to increase employee job ability and knowl- edge. Present for the Union were Costanza , Business Agent Jerry Helmick, and an employee committee. Craven and Danny Kays, Respondent's president and owner, represented Respondent After examining the Union's proposal in concert with Kays, Craven told the union representatives that Respondent did not agree to several items in the proposal, including wages, union se- curity, and the term of the contracts Discussion of these items ensued Craven advised that he would not be present at other negotiation meetings There is some dis- agreement among the witnesses regarding Craven's state- ments in this regard and the understanding reached be- tween the parties regarding the finality of agreements reached by Kays in Craven's absence. Costanza, Hel- mick, Craven , and Kays are in substantial agreement, and I find, that Craven announced he would be absent from future negotiations and any agreements Kays made would be binding on Respondent Kays had negotiated the previous contract with the Union. Craven, as he and Kays credibly testified, also stated he would be available to review and/or draft implementary language. Other testimony6 demonstrates the Union knew that Craven would draft contract language. That knowledge, I con- clude, came from Craven's announcement of 14 August Kays met with Costanza and Helmick7 on 15 August. The Union presented a list of the items it represented as unresolved to Kays The items were: Term of agreement, bargaining unit, union security, holidays, vacations, hours and overtime, wages, seniority, discharges, pensions, and health and welfare The parties continued to negotiate open issues through the 17 September meeting, and reached agreement on several On 25 September Kays and Costanza met with no one else present Kays pre- sented Costanza with a document reading as follows Proposal to the Union from Raytown United Super Unresolved issues as of this date Article II [Bargaining Unit]" Language is being drafted by Stan Craven Article III [Union security] 3.1 Shall be included in the language that mem- bership in the union is voluntary and not a condi- tion of employment 5 Costanza's testimony that Respondent made no response to the Union 's proposals is in error because Craven , Kays, and Helmick all testi- fied credibly to the contrary 6 Costanza's testimony reveals he was aware Kays was having Craven prepare contract language, and Craven credibly testified that Costanza specifically mentioned to him on 30 September that he, Craven, was sup- posed to be drafting language 7 According to Helmick, employee members of the Union's bargaining committee were also present There is no evidence of their contribution, if any, to the bargaining sessions 8 The information in brackets was added by me for ease of understand- ing Employer does agree to deduct union dues and submit to the union in a timely fashion for those who wish to join Article IV [Holidays] One personal holiday for those employees classi- fied as full-time Full-time as defined in Article IX - e Article IX [classification and wages] 9.1 9 3 Delete A, C, D Article XX [Health and Welfare] Insurance We agree to pay $100 per hour worked on all qualifying employees-as discussed earlier Article X [Seniority] Language is being drafted by Stan Craven. Note. Language on above articles will be sent to the union office completed by Stan Craven. Costanza contends that a complete collective-bargain- ing agreement was reached by the end of the 25 Septem- ber session. Kays does not agree. On 30 September. Craven told Costanza that Kays was saying he had not agreed to a contract. According to Costanza's uncontroverted and credited testimony, he reported the purported agreement to mem- bers on 13 October, and they ratified it. Later the same day, he advised Kays of the ratification He and Kays agree that Kays asked if there was a union security pro- vision in the ratified agreement. When Costanza said there was, Kays replied that he would not sign the agreement if union security was a part of it. When the Union asked Craven, still Respondent's attorney, on or about 15 April 1986, what was the status of the agree- ment, Craven replied that Kays still maintained there was no contract. There the matter rested until the Union filed the charge in this case on 11 April 1986 and then sent Craven a document on 7 May 1986 purported to be the collective-bargaining agreement reached between the parties Respondent argues that agreement was never reached on the term of the collective-bargaining agreement, union security, seniority, a capped maximum rate for health insurance (i.e., health and welfare), and "other contract language." This argument is inconsistent with Kays' conduct on 13 October when the only reason he gave for rejecting the ratified agreement was the inclu- sion of union -security provisions. Respondent 's position is also a concession, which record evidence supports, that agreement was reached during negotiations on all other items on which the parties bargained The evi- dence reveals the following with respect to each of the five items urged b', Respondent as areas of continuing disagreement. 1. Term of the agreement Costanza testified that agreement was reached on 15 August that the contract term would run from 1 Septem- 1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ber 1985 to 28 February 1987. Kays concurs that an 18- month contract term ending February 1987 was agreed to. Accordingly, I credit Costanza's claim that 1 Septem- ber 1985 to 28 February 1987 was agreed to. Kays testi- fied that he changed his position in September and there- after wanted the contract to be effective on the date it was ratified by the Union's members. Nevertheless, Kays' 25 September list of unresolved issues presented to the Union on that date does not include "term of the agreement" The Union has never acceded to Kays' be- lated proposal, but has consistently maintained, and I agree, that agreement was reached on a contract term from 1 September 1985 to 28 February 1987. 2. Union security On 21 August, the Union agreed with Kays' proposals that the Union sign employees to membership on non- worktime and that dues and fees be deducted weekly rather than monthly These agreements were recon- firmed at the 29 August meeting. On 25 September, Kays presented his list purporting to reflect unresolved issues, including union security.9 When Costanza reminded him they had reached agreement on union security, Kays agreed that was so. Kays added that several of his em- ployees did not want to be union members, and he wanted to exclude them from coverage under union se- curity. It seems to me that here Kays was acknowledg- ing there was and would be a union-security clause, and only wanted some specific exclusions therefrom. The parties agreed to exclude named employees, the manag- er's wife and a social security annuitant. Another's name was mentioned as a possible exclusion. When Kays said there were probably as many as six, Costanza agreed to exclude them by letter of understanding" if Kays would furnish their names Kays has never done so, and uncon- vincingly claims he did not do so for fear of union retal- iation against them. The refusal to furnish the names, de- spite the Union's agreement to exclude them, does not obscure the fact there was agreement on union security. Respondent cannot fairly be permitted to reject that agreement by its own refusal to implement it by provid- ing the names. There is no evidence on which to base a reasonable belief the Union would retaliate against those it agreed to exclude 3. Seniority The parties' 1979 to 1982 collective -bargaining agree- ment contained the following provision- Article X Seniority 10.1 . . . [a definition of seniority] 9 When the testimony of Kays and Costanza, the only persons present at the 25 September meeting, clearly conflict, I credit Costanza who was the more detailed, certain, and believable of the two in recounting the content of this meeting 10 Kays' testimony that he was not aware of such an item as a side letter is not credited because he has prior negotiating experience and his expired 1982 agreement with the Union had both a supplemental letter and a supplemental agreement attached, and refers, at p 18 thereof, to updating letters 10 2. The employer and the union accept the principle of seniority for all employees and agree that if relative fitness and ability are equal, the length of continuous service in the bargaining unit shall govern next in regard to vacancy, layoffs, re- calling, demotions, transfers between stores and pro- motions. The employer shall determine relative fit- ness and ability, but in exercising such judgment he shall not contravene any of the articles of this agreement. The employer will exercise fairness in judging the qualifications of employees and any complaint that it has failed to do so may be taken through the grievance procedure set forth in article 15 hereof Respondent's final offer of 1983 merely deleted the last sentence of this section, which means that the remainder was still in effect, as far as Respondent was concerned, when the 1985 negotiations commenced. The same lan- guage, with the last sentence included, appeared in the Union's proposal of 14 August and the draft contract submitted to Respondent by the Union on 7 May 1986. As Respondent points out, the testimony of Helmick fairly reflects that the Union agreed that merit, as evalu- ated by Respondent, would control the transfer of em- ployees from the sold store to the retained store. The above section, with or without the final sentence, re- serves the right to Respondent to fairly evaluate relative merit and give the superior employee preference over the senior employee All the final sentence, deleted by Respondent but reinserted by the Union in its draft, does is submit the question of fairness in the determination of relative merit to the grievance procedure. The Respondent's expressed concern from the begin- ning of negotiations was directed at the question of how to handle interstore transfers. This was resolved by the agreement credibly attested to by Helmick Such an agreement was probably inevitable because, as Costanza testified, there was no existing contract preventing trans- fers by merit By the time of the 17 September meeting, the transfers had been completed solely on the basis of merit as evaluated by Respondent. The transfers were thus a fait accompli before negotiations were completed, and were not thereafter a viable bone of contention. Re- spondent then raised another issue on 17 September, i.e., the right to promote on merit From Kays' testimony, I conclude this was the first time this was broached to the Union Promotion by merit, subject to grievance pro- ceedings on the reasonableness of the merit determina- tion, was permitted by the old agreement. There is no evidence Respondent raised any issue in the negotiations of the applicability of the grievance procedure to merit determinations So far as the record shows, merit promo- tions had never been an issue prior to 17 September. Re- spondent's prior requests for permission to transfer on merit had been agreed to, and no other exceptions to the proposed contractual provision on seniority had been raised. The Union was entitled to believe that its agree- ment on the transfers took care of Respondent's concerns on the application of seniority, and the positing of a pro- posal for merit promotions, presumably without recourse to grievance, on 17 September strikes me as an effort to RAYTOWN UNITED SUPER 1159 avoid an agreement already reached, i e , the acceptance of the Union's proposal but for its application to inter- store transfers. The evidence persuades me that when the Union acceded to Respondent's request on transfers solely by merit, the parties were in agreement on con- tractual seniority provisions This conclusion is support- ed by Costanza's credible testimony that, on 25 Septem- ber, Kays said he knew seniority was agreed to, but he wanted to check with Craven, at which point Costanza said it was alright to check with Craven but there was an agreement on seniority. That the parties were in fact in agreement on seniority in substance is also supported by Kays' testimony that Costanza suggested that he, Cos- tanza, would submit some language on seniority, where- upon Kays agreed that would be fine if the language met with Craven's approval. Taking the testimony of Kays and Costanza together, I am persuaded the substance of a seniority agreement had been reached and all that re- mained was its reduction to mutually agreeable language. ployment of the Unit to be incorporated in a collec- tive-bargaining agreement between the Union and Respondent (b) Since on or about October 13, 1985, and con- tinuing to date, Respondent, by oral statements, has failed and refused to execute a written document embodying the agreement described above in para- graph 7(a). 8 By the acts and conduct described above in para- graph 7(b), and by each of said acts, Respondent has failed and refused, and is failing and refusing, to bargain collectively and in good faith with the rep- resentative of its employees, and Respondent there- by has been engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) and 8(d) of the Act 4. Capped maximum rate for health insurance Kays conceded that on 25 September agreement was reached that he would adopt a health and welfare plan proposed by the Union, and would pay a $1-an-hour pre- mium. He denies that he agreed to pay an additional 10- cent-ad-hour maintenance of benefits rate increase should it become necessary in the future. Costanza claims Kays agreed to pay the 10 cents if necessary Kays' self-serv- ing personal note that he did not agree to pay the dime has little evidentiary weight. The determining factor is Helmick's credible testimony that Kays was advised of this possible maintenance of benefits increase on 29 August when he was provided with two programs from which to choose. Kays is clearly an intelligent gentle- man, and I am persuaded he knew that a possible in- crease in the rate was part of the plan, and was some- thing neither Costanza nor Helmick could waive. Kays' denial that he agreed to pay the 10 cents when he ac- cepted the program is not credited. 5. The contract language As evidenced by Craven's credible testimony that Cos- tanza advised him on 30 September that Craven was sup- posed to be drafting contract language, and Craven's fur- ther credible testimony that the agreement on 14 August was that he would take part in the drafting of language if agreement was reached between Kays and the Union, the parties had agreed that agreements reached would be submitted to Craven for reduction to appropriate con- tract language This submission to Craven for language review or drafting apparently never came about. It nec- essarily follows that the parties have not agreed on con- tractual language. B. Contentions and Conclusions The complaint allegations read as follows- 7 (a) On or about September 30, 1985, the Union and Respondent reached full and complete agree- ment with respect to terms and conditions of em- Respondent first contends that the General Counsel's theory must be one of anticipatory repudiation of the ob- ligation to sign which first occurred on 30 September 1985, more than 6 months prior to the filing of the charge on 11 April 1986, and was therefore outside the 10(b) limitations period.' 1 Whether Craven's 30 Septem- ber report to Costanza that Kays had said to Craven that he had not agreed to a contract constituted an anticipato- ry refusal to sign a contract embodying the parties' agreement is of no moment. Kays on 13 October refused to sign an agreement. Whether Kays' 13 October rejec- tion was a repetition of an earlier refusal12 or the first refusal, it falls within the 6-month period of Section 10(b) and is not time-barred For reasons elucidated above, I find, contrary to Re- spondent, that final oral agreement between the parties was, reached by 25 September 1985 on all issues other than the final contract language The oral agreement is binding on the parties. It has been held that the necessity of further consultation between the parties for the pur- pose of drafting mutually agreeable language expressing the oral agreements reached neither excuses the rejection of a binding oral agreement, nor imposes a hardship on a party to require it to reduce an oral agreement to "legal- istic language" in consultation with the other party 13 The Union has expressed no unwillingness to meet with Respondent to thrash out implementing language Quite the contrary, Costanza's agreement with Kays that Craven could check contract language so long as it con- veyed the agreements reached, and Costanza's later in- quiry of Craven on 30 September regarding Craven's progress in drafting contract language, together with the simple fact that most of the Union's original written con- tract proposal was not excepted to by Respondent, war- rant a fair conclusion that the Union is prepared to dis- cuss and develop appropriate language and that the task is not especially formidable. 11 Sec 10(b) of the Act provides generally that no complaint shall issue based on any unfair labor practice occurring more than 6 months prior to the filing and service of the charge 12 Torrington Construction Co, 235 NLRB 1540 fn 2 (1978) i3 Machinists Local 701 (Avis Rent A Car), 280 NLRB 1312 (1986) 1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD For all the reasons set forth above, I conclude and find that Respondent has, since on or about 13 October 1985, refused to execute a written document embodying a collective-bargaining agreement reached with the Union on or before 25 September 1985, and thereby vio- lated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1 Raytown United Super, Inc. (Respondent) is an em- ployer engaged in comerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3. All employees employed by the Employer working in the Employer's retail establishments situated within Jackson, Clay, Platte, and Cass Counties, Missouri, and Johnson and Wyandotte Counties, or performing other services incidental or related thereto, EXCEPT the owner's wife, the manager's wife, comanagers, office clerical employees, supervisory employees within the meaning of the National Labor Relations Act of 1947, and employees whose work is exclusively performed within the meat, pharmacy, video, and floral department locations of the retail establishment constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. i' 4 At all times material, the Union has been and now is the exclusive representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing since on or about 13 October 1985 to execute a collective-bargaining agreement including all the terms and conditions to which the parties had agreed on 25 September 1985, Respondent violated Section 8(a)(5) and (1) of the Act and engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 14 The unit alleged and admitted is amended by the addition of the pharmacy, video, and floral department employees , the owner's wife, the manager's wife, comanagers, and office clerical employees to the list of exclusions because the parties agreed during negotiations to exclude these employees from the unit