Jerry'S United Super, And Jerry'S United Super, Inc.

JERRY'S UNITED SUPER Woods Chapel United Super, Inc. d/b/a Jerry's United Super, and Jerry's United Super, Inc.' and United Food and Commercial Workers Union, Local No. 782. Case 17-CA-10188 June 15, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On April 20, 1983, Administrative Law Judge Jesse Kleiman issued the attached decision. Re- spondent Woods Chapel United Super filed excep- tions and a supporting brief, and the General Coun- sel 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 conclusions2 and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Woods Chapel United Super, Inc. d/b/a Jerry's United Super, Blue Springs, Missouri, and Jerry's United Super, Inc., Independence , Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' We have amended the caption to add Jerry's United Super, Inc, which the judge found to be a single employer with Respondent Woods Chapel United Super, Inc. d/b/a Jerry's United Super (Woods Chapel United Super) 2 We reject Respondent Woods Chapel United Super's contention that we should dismiss the complaint and that the Board has no authority to issue an order against Jerry's United Super, Inc "because of General Counsel's failure to join Jerry's United Super, Inc as a party to this action." Although Jerry's United Super, Inc was not named in the com- plaint caption, the complaint alleges that it and Respondent Woods Chapel United Super were a single employer and that issue was fully liti- gated at the hearing Also , both entities share common stock ownership and corporate officers We therefore find Jerry 's United Super, Inc. had its "day in court " Contrast George C Shearer Exhibitors Delivery Service, 246 NLRB 416 fn 3 (1979), enfd. mem. 636 F 2d 1210 (3d Cir 1980), on which Respondent Woods Chapel United Super relies In that case, the Board held that it would not issue an order against an alter ego not named in the complaint and whose alter ego status was not alleged until after the hearing 7 We amend the judge's remedy to provide that the Respondent shall pay backpay as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971). Further, in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be computed at the "short- term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 125 Naomi L. Stuart, Esq., for the General Counsel. James P. Willard, Esq. (Spencer, Fane, Britt & Browne), of Kansas City, Missouri, for the Respondent. Robert L. Dameron, Esq. (Blake & Uhlig), of Kansas City, Kansas, for the Charging Party. DECISION STATEMENT OF THE CASE JESSE KLEIMAN, Administrative Law Judge. On a charge filed on February 20, 1981, by United Food and Commercial Workers Union, Local No. 782 (the Union), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, Kansas City, Kansas, issued a complaint and notice of hearing on March 31, 1981, against Woods Chapel United Super, Inc. d/b/a Jerry's United Super (the Respondent), alleg- ing that the Respondent engaged in certain unfair labor practices within the meaning of Sections 8(a)(1)and (5) and 8(d) of the National Labor Relations Act (the Act). The Respondent, by counsel, denied the material allega- tions in the complaint by answer dated April 8, 1981 . A hearing was held before me in Kansas City, Kansas, on October 15, 1981. At the close of the General Coun- sel's case the Respondent moved to dismiss the complaint on the grounds that [T]here is no evidence on the record that a demand has ever been made that the Woods Chapel group be added to the Jerry's contract or the Fish- er's contract . . . that a demand is a condition precedent to any obligation that hasn't been made I denied the motion. All parties were afforded full op- portunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. Thereafter, the General Coun- sel, the Respondent, and the Charging Party filed briefs. In its brief the Respondent requests that, "This fatally flawed Complaint should be dismissed for all the reasons set forth in this brief."' For the reasons appearing here- inafter, I deny the Respondent's request to dismiss the complaint in its entirety. On the entire record and the briefs of the parties, and on my observation of the witnesses, I make the following ' As stated by the Respondent in its brief Among these reasons the major flaws include (1) there is no single employer status here and even if there were it would be a three-store unit with two existing contracts precluding merger In any event the Complaint does not name the necessary parties to allow the remedy sought by counsel for the General Counsel (2) The Union made no demand for merger of the Woods Chapel unit into the Noland Road unit and in fact the Union did not seek or desire such merger. (3) The Union did not have a card majority among the employees in the unit at any relevant time . (4) There was no after acquired store clause in effect at any relevant time 289 NLRB No. 20 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, at all times material, has been a cor- poration organized under and existing by virtue of the laws of the State of Missouri, maintaining its principal office and place of business at 1201 North Woods Chapel Road, and Blue Springs, Missouri, where it is, and has been at all times material, continuously engaged in the retail sale of grocery and related products. In the course and conduct of the Respondent's business operations during the preceding 12 months, these operations, being representative of its operations at all times material, the Respondent purchased goods and services valued in excess of $50,000, directly from sources located outside the State of Missouri, and the Respondent's annual gross volume of business at this store exceeded $500,000. The complaint alleges, the Respondent admits, and I find that the Respondent is now, and has been at all times materi- al, an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. Additionally, the complaint alleges, the Respondent admits, and I find that at all times material, Gerald E. Fisher, the Respondent's president, and Jerry Lee Fisher2 and Gary Minton, comanagers of the Woods Chapel store, are supervisors within the meaning of Sec- tion 2(11) of the Act, and have been and are now agents of the Respondent acting on its behalf within the mean- ing of Section 2(13) of the Act. II. LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find that United Food and Commercial Workers Union, Local No. 782 is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges, in substance, that the Respond- ent violated Sections 8(a)(1) and (5) and 8(d) of the Act by failing and refusing to recognize and bargain collec- tively with the Union as the exclusive representative of the Respondent's employees in an appropriate unit. The Respondent denies this allegation. A. Background The evidence discloses that in May 1965, Gerald E. Fisher opened a United Super Store3 under the corpo- 2 Jerry Lee Fisher is the son of Gerald E Fisher, and although the Respondent's answer characterizes him as a vice president of the Re- spondent, the evidence does not confirm this a Fisher commenced his retail grocery business in or about 1951 when he first opened a United Super grocery store in the Kansas City area The evidence shows that "United Super" is a trade name for a group of independently owned and operated grocery stores served by the Fleming Food Company, a wholesale grocer or "broker " There are some "twenty to thirty" United Super stores in the Kansas City metropolitan area with Fleming Foods setting the "pricing zones" and performing all the accounting services for these stores rate name Jerry's United Super, Inc., located at 3443 South Noland Road, Independence, Missouri (the Noland Road store).4 Sometime thereafter, "another Fisher family United Super" store was opened under the corporate name Fisher's United Super, Inc., located at 2604 South Chrysler, Independence, Missouri (the Chrysler store).5 In December 1979, Gerald E. Fisher opened an additional grocery store under the corporate name of the Respondent here, located at 1201 North Woods Chapel Road, Blue Springs, Missouri (the Woods Chapel store).6 Gerald E. Fisher is the sole owner of all the stock of Jerry's United Super, Inc. (Noland Road store) and of the Respondent (Woods Chapel store) and "made all capital investments" in Fisher's United Super, Inc. (Chrysler store). Gerald E. Fisher is also the president, treasurer, and director of the Respondent and of Jerry's United Super, Inc., with his wife, Charlene Fisher, being the vice president and secretary. However, his son, Rich- ard Fisher, is president of Fisher's United Super, Inc.7 Jerry's United Super, Inc. (Noland Road store) and the Union were parties to a collective-bargaining agree- ment effective from May 14, 1979, to May 9, 1981.8 Arti- cle II of this agreement is entitled "Bargaining Unit" and Section 2.1 reads as follows: 2.1 The Employer hereby recognizes the Union as the sole and exclusive collective bargaining agent with respect to rates of pay, hours, and all other terms and conditions of employment for the appro- priate bargaining unit herein established and de- scribed as follows: All employees employed by the Employer working in the Employer' s present and future retail establishments situated within Jackson, Clay, Platte, and Cass Counties, Missouri, and John- son and Wyandotte Counties, Kansas, engaged in handling or selling merchandise or performing other services incidental or related thereto, except super- visory employees within the meaning of the Nation- al Labor Relations Act of 1947, as amended, and employees whose work is exclusively and wholly performed within the meat department locations of the retail establishment. For the purpose of this Ar- ticle, the term "retail establishments" includes only full line grocery stores generally known as super- markets and does not include free standing specialty stores (e.g., dairy stores, liquor stores, or deli). 4 The Noland Road store was managed by Gary Minton until his transfer, as comanager, of the new Woods Chapel store sometime in Oc- tober, November, or early December 1979. Thereafter, this store has been managed by Kent Fisher, a son of Gerald E Fisher 5 Another son of Gerald E Fisher, Richard Fisher, manages the Chrysler store According to the testimony of Jerry Lee Fisher, his brother, Richard Fisher, "went off on his own and opened" the Chrysler store 6 The Woods Chapel store is comanage by Gary Minton and Jerry Lee Fisher See Jt Exh 3 This agreement is signed by Richard E Fisher as president of Fisher's United Super, Inc 8 See Jt Exh I This agreement is signed by Gerald E Fisher, presi- dent, on behalf of Jerry's United Super, Inc JERRY'S UNITED SUPER 127 There was also a collective-bargaining agreement in effect from May 7, 1978, through May 9, 1981, between Fisher's United Super, Inc. (Chrysler store) and the Union with the exact same provision as set forth above.9 At the time these agreements were executed the Woods Chapel store was not yet in existence. In or about the first week of December 1979, however, the Respondent opened its Woods Chapel store for business. The Woods Chapel store is located about 8 miles from the Noland Road store and some 9 or 10 miles from the Chrysler store. The Noland Road and Chrysler stores are approximately 1-1/2 miles apart. B. The Evidence Earl G. Davis, president of the Union, testified that sometime in late September 1979, he received a tele- phone call from Gerald E. Fisher, president of Jerry's United Super, Inc., the owner of the Noland Road store, who advised him that, "You know we' re going to open a new store on Woods Chapel Road in Blue Springs and we'd like to sit down and talk to you about it." Pursuant thereto, on October 2, 1979, Davis met with Fisher at the Noland Road store with Gary Minton, who managed the store at the time, and Richard Fisher, the "owner- manager" of the Chrysler store, also being present. Davis stated that regarding the new Woods Chapel store, the following was agreed to between himself and Gerald E. Fisher: That the "Effective date for bargaining agree- ment . . . will be 5-4-1980 and the agreement will remain into (sic) effect thru May 9, 1981"; that employ- ees transferred from the Noland Road store to the new Woods Chapel store would continue to have "contribu- tion made" to the Union's health and welfare and pen- sion programs "in their behalf"; that employee David Lindsey, comanager of the Noland Road store with 20 year's credit in the "Company's pension plan" would retain such credit on his transfer to the Woods Chapel store as produce manager; and that these agreed-on terms and conditions were "an [accretion] to the agree- ments that are in effect with an effective date delayed until May 4, 1980."10 Davis related that he wrote these items down and the resulting document was then signed by himself and Gerald E. Fisher and witnessed by Rich- ard Fisher and Minton. I l He added that, subsequently, after receiving a request from Gerald E. Fisher for a copy, on November 1, 1979, he mailed a copy of the "hand-written paper" signed by the parties on October 2, 1979, with covering letter, to Fisher at the Noland Road store.12 Davis continued that in November 1979, he received a written request from the Respondent for the Union's ac- ceptance of a waiver, by an employee hired for the Woods Chapel store, of her rights under the "Retail Clerks Union Contract of May 14, 1978" to have past "comparable supermarket experience" credited towards 8 See it. Exh. 3. 10 Davis testified that Gerald E. Fisher had requested an effective date of May 4, 1980, because that was the date "new rates " under the Noland Road store contract were going into effect and this would save "a lot of bookkeeping and time." 11 See G.C. Exh. 2. 12 See G.C. Exh. 3. her salary level placement, she having agreed to accept a lesser starting wage. This request was signed by Gary Minton as "Company Officer" of the Respondent, and by the employee, Julia Edgar, and Davis related that he signed it on behalf of the Union and returned a copy to the Respondent on November 27, 1979.13 At this time the Woods chapel store had still not been opened to the public for business. The evidence shows that the Woods Chapel store opened for business on or about December 5, 1979. Just prior thereto, however, on December 3, 1979, several employees at the Noland Road store were transferred to the Woods Chapel store permanently. Gary Minton, manager of the Noland Road store, became the Woods Chapel store manager; Jerry Lee Fisher, a son of Gerald E. Fisher, became comanager, with Minton, of the Woods Chapel store,14 and employees Robert Leiblie, Mary Tignor, Dave Lindsey, Betty Hoy, and Dale Hunt all were transferred to the new store. Moreover, pursu- ant to the October 2, 1979 agreement, contributions to the Union's health and welfare, and pension funds were made on behalf of Leiblie, Tignor, and Hoy, and addi- tionally union dues deductions were remitted to the Union for these employees and at least one other em- ployee, through the end of April or May 1980.15 Davis testified that sometime in late April 1980, he re- ceived a telegram from Gerald E. Fisher that stated, in substance, that Fisher had been advised that if the Union considered the "meeting notes dated October 2, 1979 by which Retail Store Employees Union Number 782 claims to represent the employees of Woods Chapel United Super, Inc." to be an agreement between the Respondent and the Union, "such purported agreement would be in violation of the National Labor Relations Act, as amend- ed," since it was agreed to and signed prior to any em- ployees being hired at the Woods Chapel store by the Respondent. Fisher then "repudiate[d] any such purport- ed agreement." 16 Moreover, contributions to the Union's health and welfare, and pension funds, and the withhold- ing and forwarding of union dues for the aforementioned employees that had transferred from the Noland Road store to the Woods Chapel store were discontinued by Jerry's United Super, Inc. (Noland Road store).17 Davis 'a See G.C. Exh. 4. This document was prepared on the Respondent's letterhead stationery. 14 Jerry Lee Fisher had been working at the Noland Road store for only about a month when this transfer took place. 11 See G.C. Exhs. 22-33. G.C. Exhs. 22-27 relate to health and wel- fare and pension, while G.C. Exhs. 28-33 relate to union dues remittance. 16 See G.C. Exh. 5. The telegram dated April 29, 1980, also states that should the Union "desire to represent" the Respondent's employees at Woods Chapel store," said representation can only be obtained and grant- ed through appropriate procedures of the National Labor Relations Board under the National Labor Relations Act." 17 Jerry Lee Fisher's testimony concerning the discontinuance of such payments was contradictory and equivocal in part. He testified that some- time in April or May 1980, he was advised by employee Dale Minton, the son of Gary Minton, the Woods Chapel store manager, that some of the Woods Chapel employees had held a meeting at the store and voted against representation by the Union. Fisher related that based on this, the Respondent decided to "get our own health and welfare set up" and to include all Woods Chapel employees including those who had transferred from the Noland Road store and therefore to discontinue the contribu- Continued 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stated that had he not received the telegram from Gerald E. Fisher repudiating the "purported agreement" of Oc- tober 2, 1979; the Union, as is normally done, would have prepared a collective-bargaining agreement for Gerald E. Fisher to sign concerning the Woods Chapel store.18 Davis added that after receiving the telegram, he then called into his office Union Organizer James Hillen and instructed him "to go out and sign the people up. 1. The Union's organizational campaign James Hillen, employed by the Union as an organizer, testified that the Union commenced its organizing cam- paign to represent the Respondent's Woods Chapel store employees in or about June 1980. Hillen stated that he distributed union authorization cards to various employ- ees, who signed the card in his presence and returned it to him.19 The evidence shows that the following em- ployees signed union authorization cards and returned them to Hillen: Donald Gann and Marvin Paul, authori- zation cards dated June 14, 1980;20 Betty Hoy, whose card is dated July 1, 1980;21 Madalene Hunt, whose card is dated July 29, 1980; Robert Leiblie, whose card is dated August 26, 1980;22 Joan Prine, whose card is dated November 13, 1980; Bernadette Cox, whose card is dated November 18, 1980; Mary Cooper, whose card is dated July 3, 1980; Tim Hicks, whose card is dated Janu- ary 1, 1981; Cheryl Baker, whose card is dated January 16, 1981; Cindy Kreiser, whose card is dated January 18, tions being made on their behalf to the Union's health and welfare pen- sion funds and the dues withholding payments. On cross-examination , however, Fisher testified that their then legal counsel, Rick Noble, had advised him and his father, Gerald E. Fisher, that the payments being made for the transferred employees should cease, which was done He then changed his testimony , asserting that the basis for the above action was the employees' desires not to be represented by the Union. It appeared to me that Fisher's testimony was contrived and evidenced a desire on his part to testify in furtherance of the Respondent's position rather than the truth of what actually occurred is The Respondent in its brief states. While the agreement [G.C. Exh. 2] is unclear and incomplete on its face, Union President Davis testified that had the purported agreement not been repudiated he would have prepared a separate contract for Woods Chapel (Tr 59) consistent with the contracts with the other Fisher family stores (Jt Exhs I and 3) and consistent with the acknowledgment of two agreements Whatever counsel for the Respondent means by this, I agree that Davis' testimony could well be construed to mean that the bargaining agreement to be prepared would have been in physical form, a separate agreement, and one consistent in content with the contracts then in exist- ence covering the Noland Road and Chrysler stores is Hdlen testified that at the time the signed authorization cards were returned to him, he made a notation on each of them indicating the date, from whom he had received it, the place he received it, and that he per- sonally had been given the card. 20 Hillen testified that these cards were actually signed on June 13, 1980, and his notation lists the date as Friday, June 13, 1980 See G.C Exhs 9-10, respectively 21 Hillen's notation on the card lists the date as April 1, 1980. He testi- fied that Hoy signed and returned the authorization card to him on July 1, 1980, but that he inadvertently wrote down "4/1/80" instead of "7/1/80 " See G C Exh 11 22 The notation on Leiblie's authorization card indicates that Repre- sentatives Mark Perrone and Shaun Barclay of the United Food and Commercial Workers International Union, the Union's international parent organization , were also present at the time Leiblie signed and re- turned the card to Hillen 1981; Mary Lou Watters, whose card is dated January 19, 1981; and Ruth Grey, whose card is dated February 3, 1981.23 The authorization cards of Gann, Paul, Hoy, Hunt, Leiblie, Prine, Cox, and Cooper all have the fol- lowing heading: "Retail Store Employees Union Local 782 chartered by United Food and Commercial Workers International Union (affiliated with the AFL-CIO & CLC).24 Those of Hicks, Baker, Kreiser, Watters, and Grey all have the following heading: "United Food & Commercial Workers International Union affiliated with AFL-CIO-CLC."25 Hillen testified that at the time he distributed the au- thorization cards to these employees and solicited their signatures he told them that, [W]e had an organizing campaign going. I told them that the cards would be confidential unless we went to a hearing. I told them that the cards could be used in several different ways. I said, "If we get a majority of the employees signed up, that we'll re- quest a card check ...." And I said, "Another route we can take is the election route if the Com- pany refuses to grant us a card check. We can file for an election with the Labor Board." Hillen related that he also told these employees that if the Union "got recognition on a card check or won an election," it would then "sit down with the Employer and would negotiate contracts to cover their wages, hours and conditions of employment" and that any re- sulting agreement would be submitted to the employees for approval with "a chance to vote on the contract.1126 Shaun Barclay, employed as a union representative for the United Food and Commercial Workers International Union, Region 10, testified that he was involved in the Union's organizational campaign at the Woods Chapel store in the fall of 1980 and "into part of 1981" distribut- ing authorization cards and soliciting employee signa- tures.27 The evidence shows that the following employ- ees signed authorization cards and returned them to Bar- clay: Sondra Hertzog, whose authorization card is dated August 27, 1980;28 Sondra Straw, whose card is dated September 9, 1980; Jeanne Hubbard, whose card is dated September 8, 1980; Barbara Robinson'29 whose card is 22 The notation by Hillen on Grey's card indicates that International Union Representative Mark Peronne was present when she signed and returned her authorization card to Hillen. 24 See G C Exhs 9-16, respectively 25 See G C Exhs. 17-21, respectively. 26 Ruth Gray testified that when Hillen gave her an authorization card to sign he said that, "they were getting a majority of the cards to have a union, you know, in the store " She stated that it was her understanding from what Hillen had said that if the Union got in it would negotiate a "regular contract" with the Respondent on behalf of the employees 27 Barclay testified that when the signed authorization cards were re- turned to him he noted on them the date, time of day, place, and identity of the employee who had signed and given him the card 28 The notation on Hertzog's authorization card indicates that Interna- tional Union Representative Mark Perrone was also present when she signed and returned her card to Barclay 29 Robinson testified that when she signed the authorization card on September 10, 1980, Barclay "just said how we needed to get-we were signing the cards to get the majority And then we could go on from there, you know We had to get a majority JERRY'S UNITED SUPER 129 dated September 10, 1980; and Mary Tignor, whose card is dated September 10, 1980.30 The authorization cards of Hertzog, Straw, and Hubbard have the Union's head- ing while the cards of Robinson and Tignor are entitled, "Retail Clerk's International Union, affiliated with AFL- CIO-CLC." Hillen testified that, by letter dated January 16, 1981, the Union notified the Respondent that it represented a majority of the Respondent's Woods Chapel employees and requested recognition as the employee's "exclusive bargaining representative , and bargaining." 3 t In re- sponse, according to the testimony of Union President Davis, the Respondent, by letter dated January 22, 1981, advised the Union that it disbelieved the Union' s claim of majority representation, declined to recognize and bargain with the Union, and expressed its position that "only through the process of a [Board] secret election" could the employees' rights under the Act and their wishes concerning representation be "properly ex- pressed."32 Hillen testified that on Tuesday, January 20, 1981, sub- sequent to the Union's receipt of the Respondent's letter refusing to recognize and bargain with the Union, he, Shaun Barclay, and Mark Perrone visited the Noland Road store and Hillen asked Gerald E. Fisher if they could speak to him about the Union's letter demanding recognition and bargaining. Hillen stated that Fisher re- ferred them to his attorney, Rick Noble, who was "han- dling everything" and stated that he was going on vaca- tion and that they should "Talk to my attorney," where- upon Fisher left the store. Hillen continued that Fisher had indicated that Noble would contact the Union and towards the end of that week, Friday, January 23, 1981, the Union received a telephone call from James R. Wil- lard, an attorney, but since Hillen was not in the office at the time, no discussion ensued. Hillen added that he was successful in contacting Willard by telephone on the fol- lowing Monday, January 26, 1981, and Willard informed Hillen that he was now representing the Respondent. Hillen related that he told Willard that the Union repre- sented a majority of the Respondent's employees at its Woods Chapel store and asked Willard, "[H]ow about a card check?" According to Hillen, Willard responded, "Well, I won't give you a card check. But I won't fight you too hard if you go to an election." Hillen testified that the Union filed its "Petition" with the Board on January 30, 1981, seeking an election and certification as the exclusive bargaining representative of the Respondent's Woods Chapel employees in an appro- priate unit.33 On February 13, 1981, the Respondent and the Union, by counsel, executed a "Stipulation for Certi- fication Upon Consent Election." The appropriate bar- gaining unit stipulated there was, All employees employed at the Employer's facili- ty located at 1201 North Woods Chapel, Blue Springs, Missouri, but excluding all meat depart- ment employees, office clericals, guards, and super- visors as defined in the Act, as amended.34 The evidence also shows that Hillen issued a letter dated February 10, 1981, to the Respondent's employees at the Woods Chapel store in which the employees were noti- fied that a picket line would be instituted "in front of Jerry's United Super in Blue Springs" for "advertising to the public that Jerry's United Super is not providing you with a union contract . . . continued to refuse to recog- nize Local 782 in spite of the fact that a majority of the employees have signed authorization cards . . . . This picket line, hopefully, will influence Jerry's United Super to give us recognition or at least bring about a speedy election . ..."35 Additionally, the Union sent a letter dated Febuary 18, 1981, to the Woods Chapel store em- ployees notifying them that the "Certification Upon Con- sent Election" stipulation had been approved by the Board and that an election would soon be held negating the need for a picket line. The employees were also in- formed that the Union had "uncovered some additional information which leads me to believe the store in which you work should already be Union according to the Fed- eral Labor Law," and that the Union had filed an unfair labor practice charge with the Board against the Re- spondent that might "slow our progress to get an elec- tion."36 2. The operation of the Woods Chapel, Noland Road, and Chrysler stores The evidence shows that although the Woods Chapel and Noland Road stores are owned by separate corpora- tions, Woods Chapel United Super, Inc. d/b/a Jerry's United Super and Jerry's United Super, Inc., respective- ly, Gerald E. Fisher owns all the stock in both corpora- tions, and the corporate officers thereof are the same, with Fisher being the president, treasurer, and director, and his wife, Charlene Fisher, the vice president. Re- garding the third "Fisher family United Super" store, the Chrysler store, the evidence discloses that although Gerald E. Fisher contributed all the capital investment needed to open this retail grocery store, his son, Richard Fisher, is the president of the corporate owner thereof, Fisher's United Super, Inc.37 Moreover, Jerry Lee Fisher, another son of Gerald E. Fisher and "co-manag- er" of the Woods Chapel store, testified that all the busi- ness licenses necessary and required to operate the Woods Chapel grocery store were issued to Gerald E. Fisher and he assumed that this was also true of the Noland Road and Chrysler stores as well.38 The Woods 3° See G C Exhs 34-38, respectively 31 This letter is addressed to Gary Minton, the Woods Chapel store manager, and signed by Hillen See G C Exh 7 33 This letter is addressed to Davis, as president of the Union, and signed by Gerald E Fisher, as the Respondent's president See G C Exh 6 33 See R Exh I 34 See R Exh 2 3s See R Exh 3 36 See R Exh 4 37 The record does not disclose the owner of the stock of Fisher's United Super, Inc, nor the other officers of the corporation 33 For example, retail liquor and agricultural produce sales licenses 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chapel store is managed by Jerry Lee Fisher and Gary Minton, the Noland Road store by William Kent Fisher, and the Chrysler store by Richard Fisher.39 According to the testimony of Jerry Lee Fisher, the Respondent owns the equipment, fixtures, and inventory of the Woods Chapel store and holds the licenses required to operate this grocery store.40 3. The role of Gerald E. Fisher in the Woods Chapel and Noland Road stores The testimony concerning the role of Gerald E. Fisher in the management and operation of these stores tended to be primarily limited to the Woods Chapel store and was somewhat conflicting in nature between the wit- nesses for the Respondent and the General Counsel. Jerry Lee Fisher, a witness for the Respondent, testified that although his father, Gerald E. Fisher, owns all the stock of the Woods Chapel store, he receives no salary therefrom. He stated, "From mid-1980 up to the present time [Gerald E. Fisher] does very little at Woods Chapel United Super. He does show up there occasionally. He goes up to an office upstairs that we have-that we use jointly. "4 t Jerry Lee Fisher continued that Gerald E. Fisher "had nothing to do with the hiring of any em- ployees there at Woods Chapel," nor is his father "in- volved any longer" in the firing and layoff of employees at Woods Chapel. He recounted that he and Minton set the wage rates for employees and discuss this with Gerald E. Fisher "after we've already made the adjust- ments, we notify him of what we've done."42 Jerry Lee Fisher testified that the Respondent had a hospital insurance program for its employees with Con- necticut General but that he became unhappy with it and changed to coverage with Bankers Life of New York, adding disability coverage for the employees under this new plan. He stated that after the change in plans was made, he told his father, Gerald E. Fisher, about it, "I had told him that I felt we needed to do that for the people." According to Fisher his father responded, "[I]f 99 Jerry Lee Fisher used the term "owner-manager" in his testimony describing the relationship of the Fisher brothers to the respective stores that they manage There is no evidence in the record, however, other than this, that Jerry Lee Fisher or William Kent Fisher have any owner- ship interest in the Woods Chapel or Noland Road stores, respectively, albeit as previously noted, Richard Fisher is the president of the corpo- rate entity that owns the Chrysler store, Fisher's United Super, Inc. If anything, the evidence clearly shows that the actual owner of the Woods Chapel and Noland Road stores, and possibly the Chrysler store as well, is their father, Gerald E Fisher Additionally, almost all of the evidence submitted in this proceeding centered on the operation of the Woods Chapel store and its interaction , actual and/or alleged, with the Noland Road store 40 As indicated before, however, Fisher also testified on cross-examina- tion that the required licenses are all in the name of Gerald E Fisher 41 Both Jerry Lee Fisher and Gary Minton testified that they also use this office on occasion, and he, Minton, his father, Gerald E Fisher, and Robert Leiblie, the Woods Chapel assistant manager, all have keys to the office 42 Gary Minton testified that as manager of the Woods Chapel store he reports to Gerald E. Fisher such things as the "fall-off" of business, layoff of employees, store damage, and major store equipment failure and replacement that's what you think we ought to do, then go ahead and do it, you know. 1143 Fisher also related that he had decided to discharge the Respondent's labor counsel, Rick Noble, and on Jan- uary 22 or 23, 1981, he advised Noble of this decision. He added that he then hired Spencer, Fane, Britt & Browne, Esqs., to represent the Respondent in its labor relations.44 Although it can be reasonably inferred from the record evidence that Noble represented Gerald E. Fisher concerning labor relations at both the Noland Road and Woods Chapel stores until January 1981, sub- sequently the law firm of Spencer, Fane, Britt & Browne, Esqs., represented only the Woods Chapel store. Fisher did not know who represented the Noland Road and Chrysler stores thereafter. In summing up his testimony concerning the role of his father, Gerald E. Fisher, in the operation of the Woods Chapel store, Jerry Lee Fisher testified, As far as day to day procedures or, you know, how the store runs, dad doesn't take any active role. I advise him of what decisions Gary and I make. And, you know, I guess if he doesn't like it, he'll let me know he doesn't like it. But, you know, I make the final decisions. He doesn't ever reverse a decision that I've made .45 Fisher also acknowledged that his father had the author- ity to remove him as comanager of the Woods Chapel store if he so desired. Comanager of the Woods Chapel store, Gary Minton, testified that he reports any "fall-off' of business to Gerald E. Fisher, as well as store damage, major equip- ment failure, and replacement. He stated that he had re- ported Cathy Choates' layoff to Fisher when and after this occurred, more about which will be set forth. 99 Although Fisher maintained that he had effectuated the health plan coverage change before he discussed it with his father, Gerald E Fisher, a careful reading of his testimony indicates that he may well have sought his father's acquiescence in the change before it was implemented, not after. 44 Fisher's testimony on cross-examination concerning the hiring of this law firm was evasive and contradictory He, at first, testified that he had contacted the law firm of Spencer, Fane, Britt & Browne, Esqs. He then testified that he could not recall whether it was he or his father, Gerald E Fisher, who contacted them He then changed his testimony when questioned by the administrative law judge, stating that he had made the decision to, and actually did, contact this law firm to retain them as labor counsel. The record reflects that counsel for the Respond- ent, James E Willard, Esq., of this law firm, submitted a "position paper" to the Board during the investigative segment of this case and a copy was sent to Gerald E Fisher, not Jerry Lee Fisher I am unconvinced that Willard admittedly sent copies of correspondence to the Union, and the Board to Gerald E. Fisher instead of Jerry Lee Fisher, mistakenly or in- advertently, as he asserted at the hearing Willard impressed me as being intelligent and a highly experienced and able labor attorney, and I believe copies of such correspondence and documents were sent to Gerald E Fisher because he was still the owner and chief executive officer of the Woods Chapel store, and until the Respondent realized that it might be faced with a "Kroger" type issue in this case, a prerequisite thereof being the "single employer" issue, as will be discussed 45 Fisher testified that his father calls the Woods Chapel store "three, four, five times a week" to find out how much money was taken in that day JERRY'S UNITED SUPER 131 Robert Leiblie, 46 assistant manager of the Woods Chapel store and a witness for the General Counsel, tes- tified that Gerald E. Fisher appeared at the Woods Chapel store "many times . .. maybe every other day, once a day. It would just depend on what he comes down there for. He was there a lot though." He stated that Fisher would come to the store during the morning or afternoon hours, would speak to various employees, inquire about the day's business at the "courtesy booth" and then proceed to "his office upstairs right next to the deli eating area," remaining in the store anywhere from "five or ten minutes to a couple of hours." According to the evidence, this office is located on a second floor level above the liquor shop and while Leiblie character- ized the office as being that of Gerald E. Fisher's, as did other witnesses, Leiblie acknowledged that Jerry Lee Fisher also uses his father's office at times and that Gary Minton uses it also, but only "Once in a great while."47 Leiblie continued, "I've seen [Gerald E. Fisher] pay bills before, going over the daily record, you know, what we did yesterday and comparing it with last year or with the Noland Road store. You know, a number of different things." Leiblie added that he had observed Jerry Lee Fisher, Kent Fisher, Richard Fisher,48 Gary Minton, and the "Fleming representative" talking to Gerald E. Fisher at various times in Fisher's office.49 Marvin Paul and Cathy Choate, witnesses for the Gen- eral Counsel, also testified that they had seen Gerald E. Fisher at the Woods Chapel store. Paul, a former em- ployee,50 related that Fisher would come to the Woods Chapel store "about every other day in the afternoon," talk to some of the employees, and then "he would go upstairs to his office . . . . And he would pay bills and stuff." Paul stated that he had never seen either Jerry Lee Fisher or Gary Minton use Fisher's upstairs office, although on occasion Gerald E. Fisher would summon Minton to his office over the public address system at the store. Cathy Choate testified that while employed as a checker at both the Woods Chapel and, thereafter, the Noland Road store, and although she usually worked the night shift, she had observed Gerald E. Fisher "a couple of times a week" at these stores when she sometimes worked earlier hours. Choate added that Fisher used the upstairs office at the Woods Chapel store on these occa- sions and the main office at the Noland Road store. She 46 Leiblie testified that he was originally hired as a clerk at the Noland Road store prior to December 3, 1979, and that on or about November 26 or 27, 1979, he was offered the assistant manager's position at the new Woods Chapel store in a meeting attended by Gerald E. Fisher, Kent, Richard Fisher, and Gary Minton, effective December 3, 1979. 47 The evidence shows that there is another office located at the Woods Chapel store in the "courtesy booth," which is used regularly by comanagers Gary Minton and Jerry Lee Fisher as their office. 48 Leiblie testified that over a period of approximately "six months to a year," he had seen Richard Fisher at the Woods Chapel store with Gerald E. Fisher about "twenty times, maybe less .... It's hard telling if he's doing business . . . or if he's in there just as a visit or what." 49 Leiblie related that when the Woods Chapel store first opened for business, the Fisher's, father and sons, met regularly once weekly and that "later on as the store got going more on itself," they met once monthly. 50 Paul was hired by Gary Minton as a baker at the Woods Chapel store in April 1980 and worked there until February 28, 1981 , when he was laid off. recounted that she had never seen Jerry Lee Fisher use his father's office at the Woods Chapel store. Another of the General Counsel's witnesses, Ruth Gray, testified that she had seen Gerald E. Fisher at the Woods Chapel store, "maybe every other day, maybe two or three times a week. Sometimes he's not there for three or four days." She stated that when he is present at the store, "He usually stops by the service desk and then he comes through and picks up bills and he goes upstairs. Well he takes my liquor bills." Gray related that at vari- ous times while Gerald E. Fisher was in his office at the store she has observed Richard and Kent Fisher, Gary Minton, and the "Fleming people" up there with him. She added that she has also seen Gary Minton using Fisher's office at times when Fisher was not present at the Woods Chapel store. Leiblie testified that sometime in February or March 1981, Jerry Lee Fisher told him that consideration was being given to making Gary Minton a "floating manag- er" to oversee or manage the operations of the Woods Chapel, Noland Road, and Chrysler stores. He stated that Fisher said that if this should happen Leiblie would then become comanager of the Woods Chapel store along with Fisher.51 Apropos of this, Minton testified that he often visits the other stores owned by Gerald E. Fisher, especially the Noland Road store, and discusses with the other store managers business problems, al- though he was never instructed to do so by anybody. In this connection, Mary Lee Tignor, employed by the Re- spondent in its Woods Chapel store bakery and deli de- partments52 since December 3, 1979, testified that some- time in February 1981, Gary Minton had informed her that "eventually he would probably become floating manager and go between the three stores."53 Additionally, Marvin Paul testified that in or about February 1981, while he, another employee, Ruth Gray, and Gerald E. Fisher were together in the liquor depart- ment of the Woods Chapel store, Fisher told them that he had taken $20,000 from the Noland Road store to help finance the new Woods Chapel store and that, "[I]f any department didn't carry its own weight, he would shut them down because he wasn't going to go in the hole for anybody." Ruth Gray testified similarly regard- ing this conversation. 4. Interrelations of operations Concerning employee interchange between the Woods Chapel and Noland Road stores, the evidence shows that several employees were transferred from the Noland Road store to the Woods Chapel store to staff the new store when it opened for business on December 5, 1979. Gary Minton was transferred to the Woods Chapel store as manager from his position as manager of the Noland Road store.54 Robert Leiblie became assistant manager 51 Although Jerry Lee Fisher testified, he did not deny this testimony. 52 The Woods Chapel store is operated as a retail grocery store and supermarket with various departments , i.e., bakery, produce, dairy, meat, liquors, and deli. 53 Tignor testified as a witness for the General Counsel. 54 Kent Fisher became the manager of the Noland Road store when Minton was transferred to the Woods Chapel store. Moreover , Jerry Lee Continued 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at Woods Chapel from his former position as a clerk at the Noland Road store. Dale Hunt, a butcher employed at the Noland Road store, was transferred to the Woods Chapel store, I assume in the same capacity. Dale Minton, Gary Minton's son, transferred over to the Woods Chapel store from the Noland Road store pre- sumably when his father did so. Noland Road store em- ployees Betty Hoy and David Lindsey were also trans- ferred to the Woods Chapel store along with the others listed above. Additionally, Mary Lee Tignor was brought over from the Noland Road store to the Woods Chapel store in and around the same time as the other above employ- ees. Tignor testified that during the summer and early fall of 1979 while she was still employed at the Noland Road store, Gerald E. Fisher spoke to her about work- ing at the new Woods Chapel store when it opened for business because he needed experienced employees there. Tignor stated that subsequently, in October 1979, Fisher again urged her to transfer to the Woods Chapel store and when she asked him, "What if I don't want to go down there," Fisher told her that, "I didn't have but one choice because they needed people down there that knew, you know, an employee that knew the bakery and the deli operation." Cathy Choate55 testified that she had been hired by Gary Minton, as a "checker" on April 1, 1980, for the Woods Chapel store. She related that subsequently Minton asked her to work at the Noland Road store to fill in for an employee on 90-day leave of absence. Choate related that since the Union represented employ- ees at the Noland Road store and that employees had to join the Union after 30 days, Minton wanted her to work there for 30 days, after which she would return to the Woods Chapel store and another employee would be sent to the Noland Road store for the next 30 days, after which Choate would fill in again at Noland Road for the last 30 days. Choate stated that she began work at the Noland Road store on June 3, 1980, and after the 30-day period was up she was told to continue working there and was instructed to join the Union, which she did, be- coming a permanent employee at the Noland Road store, where she is still employed.56 Regarding this, Gary Minton testified that Choate was employed at the Woods Chapel store, "about March or April, April or May [1980], she worked about two months," and because "business was down" in and around this time and Choate was "low on the seniority list," Minton considered laying her off. Minton stated that he constantly keeps in touch with employees at the Noland Road store,57 since he trained and is friendly Fisher, who had worked at the Noland Road store for approximately 1 month, became comanager with Minton of the Woods Chapel store Pre- viously, Jerry Lee Fisher had worked for the Kansas City Power and Light Company for "nine and a half years " as Cathy Choate also appears in the record as Cathy McWilliams. 56 Choate testified that when she transferred from the Woods Chapel store to the Noland Road store she was not required to fill out a new employment application since the transfer was supposed to be temporary ax Minton testified that he visits regularly with Kent Fisher, manager of the Noland Road store, Bill Englebrecht, the assistant manager, and Earl Holland, the meat department manager "probably two or three times a week," and also speaks to them over the telephone "once or with some of them, and had learned about a job opening there due to an employee's illness requiring a leave of absence. According to Minton, when he told Choate "probably the day before," that she was being laid off ef- fective May 24, 1980, he also advised her about the job opportunity at the Noland Road store and suggested that she contact Kent Fisher and see if he would hire her. He added that Choate acted on his advice and started work- ing at the Noland Road store, "I would say two or three days at the soonest" after she was laid off at the Woods Chapel store.58 Sondra Hertzog,59 employed by the Respondent as a "checker" at the Woods Chapel store, testified that shortly after the store opened for business in December 1979, a "sacker" working there was transferred to the Noland Road store because "they needed some help up there." However, Hertzog could not remember the em- ployee's name. Hertzog continued that in March or April 1981, an employee named John Pettit, a "sacker," was transferred from the Noland Road store to the Woods Chapel store for "two or three days, the weekend or something" to replace an employee named "Andy." An- other of the Respondent's employees, Barbara Robin- son80 testified that Pettit, a "checker" from the Noland Road store, was brought to the Woods Chapel store to work there "just for a few days." Regarding Pettit, em- ployee Ruth Gray also testified similarly relating that in February or March, 1981, a "sacker" at the Woods Chapel store was scheduled to be absent and an employ- ee from the Noland Road store named "John" was trans- ferred to the Woods Chapel store to fill in for the absent employee "for two or three days." Concerning the above employee transfers, Minton, while acknowledging that the Respondent had employed a "sacker" named "Andy" at the Woods Chapel store and that John Pettit had been employed as a "sacker" at the Noland Road Store, disputed as "unlikely" that Pettit had been temporarily transferred to the Woods Chapel twice" weekly Minton added that he usually talks to Kent Fisher and Englebrecht about business problems and with Englebrecht about person- al things since they have been friends for some time 58 Choate denied that Minton had ever told her that she was being laid off. However, Choate acknowledged on cross-examination that business at the Woods Chapel store had fallen off in and around the time of her transfer to the Noland Road store, which resulted in a reduction of her hours of work at Woods Chapel from " around 20" hours weekly to 10 hours weekly since she was the "most junior checker" among the em- ployees at the store Moreover, Choate's payroll records at Woods Chapel (R. Exh 5) reflect that in May 1980, her weekly work hours for 3 weeks of that month fell to 10 hours from the previous month's weekly work hours, ranging from 14 to 23 hours In the last week in May 1980, just before she left her Woods Chapel store job, Choate worked 20 hours Choate's payroll record has written thereon the following, "Laid Off Business Down Low on Seniority List " However, while Minton tes- tified that the writing on this record was not his but "possibly" could be that of Jerry Lee Fisher, Fisher never confirmed this in his testimony In fact, he was never asked about it I found Minton's testimony regarding Choate's alleged layoff and about her payroll records equivocal and at times evasively guarded , it just did not seem forthright 59 Hertzog commenced her employment with the Respondent at the Woods Chapel store when it opened for business in December 1979 She was called as a witness for the General Counsel 60 Robinson commenced her employment with the Respondent also at the time the Woods Chapel store opened for business in December 1979 She testified as a witness for the General Counsel JERRY'S UNITED SUPER store from the Noland Road store to fill in as a "sacker," testifying that it was "unlikely that we would bring an- other sacker down from some place else." His testimony was similar regarding the "sacker" who was transferred temporarily from the Woods Chapel store to the Noland Road store.81 5. Other instances of store interaction Robert Leiblie testified that sometime in March or April 1980, the Woods Chapel store "started transferring bakery goods over to the Noland Road store and to the Chrysler store. And that continued for approximately a year." He stated that the bakery goods were baked on the Woods Chapel premises with the "bulk of it" being sold at the Woods Chapel store and the rest transferred daily to the Noland Road and Chrysler stores for sale there.62 Marvin Paul and Mary Tignor63 testified some- what similarly. Paul related that the baking was done at the Woods Chapel store and the bakery goods then de- livered to the Noland Road and Chrysler stores in the approximate proportion of one-third the production to each store, each day, except Sunday. He stated that this continued until February 28, 1981, when he was advised by Minton that he was being laid off because the Noland Road and Chrysler stores were "discontinuing taking bakery goods." He recounted that Mary Tignor "the deli and bakery supervisor" recommended that he call Gerald E. Fisher to ascertain if "he still wanted to have bakery goods delivered to the Noland Road store" presumably to see if a baker's job might again be available for Paul. Paul added that he called Fisher a few days later and asked Fisher "if he was going to continue the bakery goods and Fisher responded, "No, that there were always problems with delivery." Regarding this, Jerry Lee Fisher testified that the Woods Chapel store had been producing bakery goods for its own retail trade and also for the Noland Road and Chrysler stores until he and Minton decided that there was insufficient profit in this operation because of the problems involving the transfer and delivery of the baked goods to the other stores, whereupon it was dis- continued. He stated, Gary [Minton] and I discussed, you know, that things weren't working out the way they should in the best interest of all three stores, you know. It 61 Although Minton maintained that part-time employees at the respec- tive stores would be used to fill in for employees out for one reason or another, it should be noted that he kept using phrases in his testimony such as, "I don't recall him coming down and working " and "It doesn't seem likely," when testifying about the interchange of "sacker " employ- ees between the Woods Chapel and Noland Road stores. 82 Leiblie testified that the Woods Chapel store kept 50 percent of the baked goods for store sale and sent 30 percent of the bakery goods to the Noland Road store, and 20 percent to the Chrysler store. 63 Mary Tignor testified that bakery goods were baked at the Woods Chapel store and, starting in the spring or summer of 1980 until February 1981, part of the production was shipped to the Noland Road and Chrys- ler stores. According to Tignor, the Chrysler store would submit orders regarding how much of the bakery goods it wanted, and the Woods Chapel employees would themselves " guess" at the Noland Road store needs and supply it . Employees at the Woods Chapel bakery department would record what bakery goods were to be shipped and "Gary Minton would take care of it." 133 was hurting everybody. We just ceased to transfer bakery goods to other stores. I noted that while, throughout his testimony, Jerry Lee Fisher sought to create the impression that his father, Gerald E. Fisher, had no input concerning important and significant changes or innovations instituted in the oper- ation of the Woods Chapel store, yet his testimony ensu- ing after the above quote is instructive, significant, and compelling Q. And you're telling the Administrative Law Judge here that you didn't go to your father first, before you implemented that decision? A. I told him what I would like to do and he said, you know, "If that's what you need to do, fine, go ahead and do it." Q. And then you implemented it, right? A. Yes, sir.64 Moreover, Fisher testified that the Respondent pur- chases items from the Noland Road and Chrysler stores for sale at Woods Chapel in instances where the Woods Chapel store has run short, or when one of the other stores is overstocked with an item, i.e., meat or chicken, produce, etc., and the Woods Chapel store will purchase the overstocked item at cost. He continued that the Re- spondent also makes such purchases from other United Super stores in the area, although such transactions con- stitute only a small percentage of the Respondent's pur- chases and sales, less than 1 percent.65 Additionally, Leiblie testified that in the early part of 1981 he was told by Jerry Lee Fisher that consideration was being given to the transfer of "cash registers that we've got at our store [Woods Chapel] over to the Noland Road store and Woods Chapel buying scanners." Also, Ruth Gray,66 the Woods Chapel store's "liquor manager," testified that in March 1981, at Minton's re- quest, she assisted Richard Fisher in "setting up" a liquor department at the Chrysler store. Gray added that Minton had advised her that Richard Fisher would pay her out of Chrysler store funds for the day she had worked there since this had been her scheduled day off. 6. Other evidence Union President Davis testified that he had negotiated on behalf of the Union a new collective-bargaining agreement with representatives of an "employer's group," which included Jerry's United . Super, Inc. (Noland Road store) effective May 10, 1981, through March 1984. Davis related that after the agreement had been signed by all the parties on July 15, 1981, the Union found "some errors in the deli in reference to the rates of pay" and Davis contacted Gerald E. Fisher about this in July 1981. Davis recounted that he met with Fisher at 64 Also see fn. 43 as another example of such testimony by Jerry Lee Fisher. 65 According to Fisher, the Respondent purchases dried flowers for resale at the Woods Chapel store from Raytown United Super. 66 Gray related that when Minton hired her at the time of the opening of the Woods Chapel store, he stated to her that "within six months there'd probably be a Union." 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Noland Road store, at which time Fisher introduced him to his son, William Kent Fisher, and said, "One of these days I'm going to get completely out of it." Rates of pay for two employees, John Woods and Genevieve Jacobs, were agreed on by Davis and Gerald E. Fisher at this meeting.67 The evidence shows that during these above negotiations the Noland Road store and the Chrysler store were represented by the law firm of Stin- son, Mag & Fizzell, Esqs. Furthermore, the General Counsel introduced into evi- dence a newspaper advertisement from the Kansas City Star dated Sunday, October 4, 1981.68 "United Super" is prominently displayed in the lower right-hand corner of the advertisement. This advertisement, approximately three-quarters of an average newspaper page in size, fea- tures a picture of Kent Fisher, Gerald E. Fisher69 and Richard Fisher'70 largely displayed in full length, posing side by side and holding canned goods and produce.71 Listed in the advertisement are their names and under- neath the picture the following: "Jerry's United Super, 35th & Noland Road, Indep., Mo.; Jerry's United Super, 1201 N. Woods Chapel Road, Blue Springs, Mo.; Fish- er's United Super, 2604 S. Chrysler Ave., Indep., Mo." There also appears therein a copy extolling the variety and quality of the grocery products obtainable at the "in- dependent United Super store," with the use of the words "we" and "our" throughout the text. Jerry Lee Fisher testified, however, that the Respondent does not usually jointly advertise with the Noland Road or Chrys- ler stores, but does advertise independently the Woods Chapel store in the "Pony Express," a "separate paper" in Blue Springs, Missouri, in which only the Woods Chapel store appears. C. Analysis and Conclusions 1. The single employer issue The threshold issue presented is whether the Respond- ent, Woods Chapel United Super, Inc. d/b/a Jerry's United Super (Woods Chapel store), and Jerry's United Super, Inc. (Noland Road store) together constitute a "single employer" as alleged by the General Counsel and the Charging Party or, as contended by the Respondent, each is a separate, distinct, and individual employer.72 67 See G.C. Exh 8 It should be noted, however, that William Kent Fisher signed this document as owner on behalf of Jerry's United Super, Inc., although the letter is addressed to Gerald E. Fisher 68 G.C Exh 39 69 Gerald E Fisher's name appears as "Jerry" Fisher in the advertise- ment 7° Richard Fisher's name appears as "Dick" Fisher in this advertise- ment 71 Jerry Lee Fisher does not appear in this advertisement 72 The Respondent also asserts, however, that if these employers are found to be a "single employer," then consideration must be given to the inclusion of Fisher's United Super, Inc (Chrysler store) within the scope of this "single employer" status. It should be noted that the complaint makes no mention of Fisher's United Super, Inc (Chrysler store) More- over, although the General Counsel stated at the hearing that, [T]he Fishers, although they have three stores and the Employer's position is they are all separately run, in fact consult together and that there is common management not only between the Jerry's United Super at Noland Road and Woods chapel but also the other store at Chrysler As will become clear from the discussion of this issue that follows, the question of "single employer" status is a close one based on the facts present in this case. As the court stated in United Telegraph Workers v. NLRB, 571 F.2d 667 (D.C. Cir. 1978), cert. denied 99 S.Ct. 101: As in other areas of the law, corporations nor- mally are treated as separate entities under the Labor Act. The Board treats multiple corporations as a single employer only when it is established that the nominally separate corporations are in fact oper- ated as a single integrated business enterprise.73 In Malcolm Boring Co., 259 NLRB 597, 600-601 (1981), the Board affirmed the decision of an administra- tive law judge in which the tests for "single employer" were set forth as follows:74 In Radio & Television Broadcast Technicians Local Union 1264, IBEW v. Broadcast Service of Mobile, Inc., 380 U.S. 255 , 256 (1965), the Supreme Court held that in determining whether enterprises consti- tute a single employer: "The controlling criteria, set out and elaborated in Board decisions , are interrela- tion of operations, common management, central- ized control of labor relations and common owner- ship." 16 Though the Board and the courts have not always agreed on how to apply the standards enun- ciated by the Supreme Court, the decision of the Court of Appeals for the District of Columbia in Local No. 627, International Union of Operating En- gineers, AFL-CIO [South Prairie Construction Com- pany and Peter Kiewat Sons' Co.] v. N.L.R.B., 518 F.2d 1040 (1967), appears to be controlling. In that case the court of appeals reversed the Decision of the Board in Peter Kiewat Sons ' Co. and South Prai- rie Construction Co., 206 NLRB 562 (1973). Part of the circuit court's decision was affirmed by the United States Supreme Court in South Prairie Con- struction Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO, 425 U.S. 800 (1976). The Board had made two separate findings. The first was that two entities did not constitute a single employer and the second was that each entity had a separate appropriate bargaining unit for collective- bargaining purposes . The court of appeals disagreed and found both a single employer and a single unit. On appeal, the Supreme Court affirmed that part of the court of appeals' decision which found that the two entities were a single employer and reversed and remanded to the court of appeals that part of the decision which related to the unit question.17 As the Supreme Court has affirmed the circuit Courts' decision with regard to the single employer, in her brief she maintains that the Respondent , Woods Chapel United Super, Inc. d/b/a Jerry's United Super (Woods Chapel store) and Jerry's United Super, Inc. (Noland Road store) are a "single employer," as does the complaint. 78 See Numrich Arms Corp., 237 NLRB 313 (1978) 74 Also see Blumenfeld Theatres Circuit, 240 NLRB 206 (1979), enf 626 F 2d 865 (9th Cir 1980) JERRY'S UNITED SUPER 135 the language of the circuit court is of particular im- portance. That circuit court held [518 F.2d at 1045- 46]: 16 See also Sakrete of Northern California, Inc., 140 NLRB 765 (1963), enfd. 332 F.2d 902 (9th Cir. 1964), cert. den. 379 U.S. 961 (1965).76 17 On remand the Board issued a Supplemental Decision re- ported at 231 NLRB 76 (1977) in which it noted that the Supreme Court had affirmed the circuit court 's finding that the two entities were a single employer . The Board reconsidered the single-unit question and concluded that, even though the entities were a single employer, separate units were appropriate. Guidelines for "Single Employer" Status In Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255 . . . (1965), the Supreme Court, in a per curiam opinion affirming "a single employer" holding below, said: "The controlling criteria, set out and elaborat- ed in Board decisions, are interrelation of oper- ations, common management, centralized control of labor relations and common ownership." "The court cited several NLRB decisions includ- ing one affirmed in Sakrete of Northern California, Inc. v. N.L.R.B., 332 F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961 . . . (1965). In Sakrete, the Ninth Circuit stated, at 907: "[E]ven if the substantial evidence shows inter- relationship of operations, centralized control of labor relations, or common management only at the executive or top level, we do not agree that this precludes application of the "single em- ployer"concept." It pointed out that these three criteria "deal not with power and authority, as such, but with its exercise," and that such criteria, "on any level, are considerations in addition to the factor of common ownership or financial control."8 Although the Supreme Court in Radio Union, supra, commented that the record in that case was more than adequate to show that all of the four "controlling criteria" were present, it does not appear that all four criteria must be present. In one of the NLRB cases cited, Canton, Carpets, Inc., 125 NLRB 483 (1959), the Board observed that it had on several occasions made a finding of a single employer status in the absence of a common labor relations policy, and even when it had been affirmatively shown that each of two corporations held to be a single employer estab- lished its own labor relations policy. In another of the NLRB cases cited, V.I.P. Radio, Inc., 128 NLRB 113 (1960), the Board found that there was little or no employee interchange; but 90 per- cent stock ownership of the second corporation, the same officers and directors, and centralized 76 Also see Sakrete of Northern California, 140 NLRB 765 (1963), affd. 332 F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961 (1965). control of "general labor policy" and operations resulted in a "single employer" holding. In still another cited NLRB case, Overton Markets, Inc., 142 NLRB 615 (1963), the Board noted, at 619, that the circumstances were not "characteristic of the arm's length relationship found among uninte- grated companies."9 Its conclusion that there was a "single employer" for purposes of the Act rested on consideration of "all the circumstances" of the case.76 From the foregoing, we conclude that "single employer" status, for purposes of the National Labor Relations Act, depends upon all the circum- stances of the case, that not all of the "controlling criteria" specified ,by the Supreme Court need be present; that, in addition to the criterion of common ownership or financial control, the other criteria, whether or not they are present at the top level of management, are "controlling" indicia of the actual exercise of the power of common ownership or fi- nancial control and that the standard for evaluating such exercise of power is whether, as a matter of substance, there is the "arms length relationship found among unintegrated companies." 8 In a later decision, N.L.R.B. v. Welcome-American Fertilizer Co., 443 F.2d 19, 21 (9th Cir. 1971), the Ninth Circuit, citing Sak- rete, said that no one of the four criteria is controlling. 9 The "arm's length" test makes meaningful the Board's refer- ence in Canton, Carp's, Inc., supra at 484, to "realities of commer- cial organization ." It was applied by this court in American Fed. of Television & Radio Artists v. N.L.R.B., 149 U.S. App. D.C. 272, 462 F.2d 887 (1972). Moreover, in Gerace Construction, 193 NLRB 645 (1971), the Board stated: A critical factor in determining whether separate legal entities operate as a single employing enter- prise is the degree of,common control of labor rela- tions policies.' Thus, the Board has found common ownership not determinative where requisite common control was not shown,' and the Board has held with court approval that such common control must be actual or active, as distinguished from potential control.3 1 N.L.R.B. v. Condenser Corporation, 128 F.2d 67, 71. See also J. Howard Jenks, d/b/a Glendora Plumbing, 165 NLRB 101; L & S Construction Company, Inc., 155 NLRB 524; AAA Electric, Inc. and Simms Electric Co., 190 NLRB No. 23. 2 Joe Robertson & Son, Inc., 174 NLRB No. 160; Bel-Air Door, et al., 150 NLRB 481. 8 Los Angeles Newspaper Guild, Local 69, et al. (Hearst Corp.), 185 NLRB No. 25, enfd. 443 F.2d 1173 (C.A. 9); Poole's Warehous- ing, Inc., 158 NLRB 1281; Miami Newspaper Printing Pressmen's Local No. 46 v. N.L.R.B., 322 F.2d 405 (C.A.D.C.).77 76 See also NLRB Y. Burgess Construction, 596 F.2d 378 (9th Cir. 1979); NLRB Y. Transportation Consultant, 607 F.2d 290 (9th Cir. 1979). 77 Also see Soule Glass & Glazing Co., 246 NLRB 792 (1979); Western Union Corp., 224 NLRB 274 (1976), affd. United Telegraph Workers v. NLRB, 571 F.2d 665 (D.C. Cir. 1978), cert. denied 99 U.S. 101 (1978). 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The record evidence shows that although the Re- spondent, Woods Chapel United Super, Inc. d/b/a Jerry's United Super (Woods Chapel store) and Jerry's United Super, Inc. (Noland Road store) are separate legal entities with operations at different store locations approximately 8 miles apart, they are commonly owned by Gerald E. Fisher and have the same corporate offi- cers and directors.7 8 Additionally, each Company main- tains its own separate bank account, account books, and payrolls . Although both use the services of the "Fleming Corporation" for accounting purposes, so do all the other 20 to 30 United Super stores in the metropolitan Kansas City area, and separate records are kept by Flem- ing for each individual Company serviced. Moreover, except for the initial transfer of managerial and other experienced employees from the Noland Road store to the Woods Chapel store, when the new store opened for business in December 1979,711 there has been little employee interchange between the two stores.80 It also should be noted that Jerry's United Super, Inc. (Noland Road store) continued to make contributions into the Union's health and welfare and pension funds, and to deduct union dues payments on behalf of several of the employees who had been transferred from the Noland Road store to the Woods Chapel store when the latter opened for business in December 1979 until May 24, and March 1980, respectively, although they were now employees of the Woods Chapel store.81 These em- ployees also retained their seniority when transferred to the new store. 78 Gerald E Fisher owns all the stock of both corporations, with Fisher being the president, treasurer, and director, while his wife, Char- lene Fisher, is the vice president and secretary of these companies. The evidence also shows that Gerald E Fisher contributed all the capital in- vestment in Fisher's United Super, Inc (Chrysler store) although the record does not disclose whether he owns the stock of that corporation, or is an officer or director there Richard Fisher, one of his sons, appears to be the president of Fisher's United Super, Inc. (See Jt Exh 3.) 78 The Board has held that such initial transfer of employees in and of itself has "no significance and merely indicates , at most, where potential control might reside." See Poole's Warehousing, 158 NLRB 1281 (1966) Also see Western Union Corp, supra, Gerace Construction, supra. 80 Cathy Choate was transferred , ultimately as a permanent employee, from the Woods Chapel to the Noland Road store, and two "sackers" were interchanged between these stores on a temporary basis to fill in for absent employees . Although the testimony of these employee inter- changes was contradictory and disputed as between the witnesses for the General Counsel and those called by the Respondent, I credit the testi- mony of the General Counsel's witnesses as to this Both Sondra Hertzog and Barbara Robinson were still employed at the Respondent 's Woods Chapel store at the time they testified and as employees of the Respond- ent, their testimony, somewhat adverse to the Respondent's position, was given at risk of possible economic reprisal , including loss of employment or promotion, and thus not likely to be false See Parkview Acres Convales- cent Center, 255 NLRB 1164 ( 1981); Shop-Rite Supermarket, 231 NLRB 500 (1977), Georgia Rug Mills, 131 NLRB 1304 (1961) Although Cathy Choate was employed by Jerry's United Super, Inc (Noland Road store) at the time she testified in this proceeding , the fact that Gerald E Fisher owns both the Noland Road and Woods Chapel stores would reasonably make the foregoing applicable to her as well Moreover , Minton's testi- mony concerning this, given on behalf of the Respondent, was equivocal and as a managerial employee of long standing with the Fisher family stores and being considered for a future higher managerial position, that of "floating manager" of all the Fisher stores, he had substantial reason to testify in a favorable manner for the Respondent without regard to the accuracy Si Robert Leiblie, Mary Tignor, and Betty Hoy As previously stated, a critical factor in determining whether separate legal entities are in fact a single em- ploying enterprise is the degree of common control of labor relations policies .82 Although the Respondent admits in its brief that "Gerald E. Fisher was actively in- volved in labor relations policies at Woods Chapel in the fall of 1979 before the store opened. This is indicated by his October 2 meeting with Earl Davis which produced an 'agreement' involving Woods Chapel," the Respond- ent also asserts that , "There is no showing, moreover, that this early involvement of Gerald E. Fisher which occurred more than a year before, continued through the critical events in this case ." I do not concur with the Re- spondent's latter assessment of the evidence. Initially it is clear from the evidence that Gerald E. Fisher maintains ultimate operational control over both the Noland Road and Woods Chapel stores. Further- more, the record shows that the telegram , dated April 29, 1980, sent by the Respondent to the Union repudiat- ing the October 2, 1979 "'agreement' between them as being unlawful under the Act, was signed by Gerald E. Fisher. The Respondent in its brief asserts that actually Fisher's son, Jerry Lee Fisher, was the moving party behind the repudiation." The evidence, however, does not support this assertion. The fact that the telegram was signed by Gerald E. Fisher and not by Jerry Lee Fisher raises a strong inference that Gerald E. Fisher was the one who made the decision set forth concerning this "agreement." Moreover, while testifying about the meet- ing between his father, himself, and Rick Noble, "our counsel," during which Noble informed them of the "il- legality," of the October 2, 1979 " agreement," Jerry Lee Fisher never actually stated that he had made this deci- sion or influenced its making in any way. He acknowl- edged awareness that the telegram was going to be sent, but denied sending it himself.83 82 Soule Glass & Glazing Co, supra, Western Union Corp., supra 83 Jerry Lee Fisher's testimony concerning his father's involvement in the operation of the Woods Chapel store was at times equivocal , confus- ing, and contradictory , leading me inexorably to the conclusion that such testimony was given on the basis of supporting the Respondent 's allega- tions and positions rather than as to the actual truth. For example , Fisher testified on direct examination that the Respondent "holds" the licenses required to operate the Woods Chapel store On cross-examination, how- ever, Fisher admitted that these licenses were acquired by his father and are held in his father's name, Gerald E Fisher Additionally, Fisher testi- fied that he and Minton made all the management decisions concerning the operation of the Woods Chapel store without, or before, consulting with his father However, a careful reading of Jerry Lee Fisher's own testimony casts doubt on this assertion Regarding the change in the Re- spondent's employee health insurance program, Fisher testified that he had discussed this with his father, Gerald E Fisher, after the change had been made, but his testimony reads as follows. Q Did you discuss this with Gerald Fisher? A After I'd made the changes I did I had told him that I felt like we needed to do that for the people JUDGE KLEIMAN- And what did he say? A. He said what-you know if that's what you think we ought to do, then go ahead and do it, you know [Emphasis added ] Additionally, the whole tenor of Fisher's testimony gives rise to the strong inference that although his father had never disagreed with his major operational proposals, yet Jerry Lee Fisher had first apprised his father thereof before he implemented them This is reinforced by Min- ton's testimony to the effect that he brought to Gerald E Fisher's atten- tion all major actions that are taken at the Woods Chapel store, i e , fall- Continued JERRY'S UNITED SUPER • Moreover, it was Gerald E. Fisher who met with the Union's representatives at the Noland Road store on Jan- uary 20, 1981, wherein the Union demanded recognition and bargaining as the collective-bargaining representative of a majority of the Respondent's employees at the Woods Chapel store, with Fisher referring the Union to his attorney for further discussion. It was Gerald E. Fisher who, by letter dated January 22, 1981, advised the Union that the Respondent disbelieved the Union' s claim to majority representative of the Woods Chapel employ- ees and refused to recognize and bargain with the Union, recommending instead a Board conducted election. It was Gerald E. Fisher who met with Union President Earl Davis in July 1981 to negotiate wage rates of deli employees at the Noland Road store. And it should also be noted that Gerald E. Fisher, not Jerry Lee Fisher or Gary Minton, was "copied" on letters sent by various legal counsel employed by the Respondent in this matter.84 Of particular significance in this case is the undisputed fact that Gerald E. Fisher visits the Woods Chapel store at least every other day at which time, utilizing an office provided and maintained for his use when on the prem- ises,85 he pays the store bills, reviews the daily sales records, consults with the Woods Chapel store managers and employees, and meets with representatives of the Re- spondent's food distributors. Certainly the above in no way can be construed as "characteristic of the arms length relationship found among unintegrated compa- nies." Additionally, from March 1980 until March 1981, the bakery department at the Woods Chapel store produced and delivered bakery goods to the Noland Road and Chrysler stores for sale by these stores in their bakery goods departments. Although this in and of itself has lim- ited significance in determining the issue of single em- ployer status, yet the circumstances surrounding the dis- continuance of the transfer of such bakery goods at the other -stores impacts on this issue through the role of Gerald E. Fisher in the management and operation of the Woods Chapel store. The Respondent maintains that Fisher played no role at all therein. However, consider the following evidence: According to the uncontradicted testimony of employees Marvin Paul and Ruth Gray, Gerald E. Fisher told them sometime in February 1981 that he would "shut down" any department at the Woods Chapel store that "didn't carry its weight"; Jerry Lee Fisher, while asserting that he and Minton had made the decision to discontinue the production of bakery goods for transfer to and sale by the other Fisher family off of business, replacement of machinery, etc., albeit Minton maintained that 'he did so only after taking the necessary actions required. The record shows this assertion to be a blatant attempt to bolster the Re- spondent's position that Gerald E. Fisher had little to do regarding the management and operation of the Woods Chapel store, with the evidence being replete with other instances contradicting this, as will be set forth. 84 See G.C. Exh. 41. Although the Respondent's legal counsel, Wil- lard, at the hearing offered that he had incorrectly and mistakenly re- ferred to Jerry Lee Fisher as Gerald C. Fisher in correspondence when he actually meant Jerry Lee Fisher, he offered no actual proof thereof other than his unsworn statement thereon. 85 The Respondent asserts that Gerald E. Fisher maintains his "princi- pal office" at another location, presumably at the Noland Road store. 137 stores, revealingly testified that he and Minton had dis- cussed that "things weren't working out the way they should in the best interest of all three stores, . . . It was hurting everybody. We just ceased to transfer bakery goods to other stores, . . . Well, everybody was losing money." After acknowledging that Gerald E. Fisher owns all three Fisher family stores, Fisher's testimony appears as follows: Q. And you're telling the Administrative Law Judge here that you didn't go to your father first, before you implemented that decision? A. I told him what I would like to do and he said, you know, "If that's what you need to do, fine, go ahead and do it." Q. And then you implemented it, right? A. Yes, sir. Finally, Paul testified that in February 1981 he was ad- vised by Minton that he was being laid off because the Respondent had decided to discontinue baking goods for the Noland Road and Chrysler stores. He stated that soon after his layoff, he telephoned Gerald E. Fisher and inquired, "if [Fisher] was going to continue the bakery goods," whereupon Fisher replied, "No, that there were always problems with delivery and he-that's all, there were problems with delivery." The implication that Gerald E. Fisher made the decision whether to continue the transference of bakery goods to the other stores, im- plicit in this answer, is too strong to ignore. From all the above, there arises a strong inference that Gerald E. Fisher actually and realistically makes the major policy decisions for both the Woods Chapel and Noland Road stores.86 Importantly and applicable to the resolution of the issues here, it should be noted that Gerald E. Fisher did not testify at the hearing. Fisher, being perhaps the person best qualified to testify regarding his role in the management and operation of the various stores, particu- larly the Woods Chapel and Noland Road stores, it seems clear to me that he is in the nature of an indispen- sable witness. This being true, the failure of the Re- spondent to call him as a witness can only be construed to mean that had he testified, his testimony would have 86 The Respondent asserts in its brief that "Counsel for the General Counsel faces an even more difficult obstacle to her case because there are three corporations involved here, not two." The Respondent correct- ly states that the burden of proof on the issue of "single employer" status is on the General Counsel, who alleges the existence thereof. However, once the General Counsel has met this burden by offering sufficient proof to show that, as alleged in the complaint, the Respondent (Woods Chapel store) and Jerry's United Super, Inc. (Noland Road store) constitute a "single employer," then the Respondent has the obligation of proving that the "single employer" is other than as shown by the General Coun- sel's proof. The Respondent failed to offer any proof regarding Fisher's United Super, Inc. (Chrysler store). The only facts evidenced in the record concerning this corporation are that at least one of the officers is different than those in connection with the Woods Chapel and Noland Road stores, that bakery goods were dispatched to the Chrysler store for sale from the Woods Chapel store, and that Ruth Gray, a Woods Chapel employee, was sent to the Chrysler store to help in establishing a liquor department, for which she received additional compensation from the corporate entity that owns that store. 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been adverse to the Respondent's positions on the issues here.87 In considering all the above and the close family con- nection, and the lack of an arm's-length relationship commonly found among unintegrated companies, I find that the Respondent, Woods Chapel United Super, Inc. d/b/a Jerry's United Super, and Jerry's United Super, Inc.88 were and are a single employer for the purposes of collective bargaining.89 2. The additional store clause Having found that the Respondent, Woods Chapel United Super, Inc. d/b/a Jerry's United Super (Woods Chapel store) and Jerry's United Super, Inc. (Noland Road store) constitute a single employer for purposes of the Act, the next issue to be resolved is whether the "ad- ditional store clause" in the collective-bargaining agree- ment between Jerry's United Super, Inc. and the Union is applicable to the Respondent's Woods Chapel store. In Kroger Co., 219 NLRB 388 (1975), the Board stated at 388, 389: 87 From the failure of a party to produce material witnesses obviously within its control without satisfactory explanation , the trier of the facts may draw an inference that such testimony would be unfavorable to that party See 7-Eleven Food Store, 257 NLRB 108 (1981), Publishers Printing Co., 233 NLRB 1070 (1977), Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977), Broadmoor Lumber Co., 227 NLRB 1123 (1977). 88 The Respondent, in its brief, asserts that any order that may be issued here premised on a finding of "single employer" is unenforceable since Jerry's United Super, Inc. (Noland Road store) was not "named as a respondent or even a party in interest." I do not agree. The complaint itself clearly asserts that the Respondent and "Jerry's United Super, Inc " constitute a single employer , and that the unit appropriate for the pur- poses of collective bargaining includes employees of both corporate owner's stores, the Woods Chapel and Noland Road stores. Because Gerald E Fisher is the owner, president, and treasurer of both corporate entities, it would be incredible to suppose that "fair notice and an oppor- tunity to litigate fully" the question of "single employer " status was not had here See George C. Shearer Exhibition Delivery Service, 246 NLRB 416 (1979). It should be noted that in the Shearer case, no allegation had been set forth in the complaint regarding the "alter ego " status of the other corporation, while here the complaint distinctly alleges "single em- ployer" status regarding the Respondent and Jerry's United Super, Inc The Respondent cites the case of NLRB v Doug Neal Management Co, 620 F 2d 1133 (6th Cir 1980), in its brief in support of its above conten- tions However, a critical distinguishing factor between the cited case and the instant one is the lack of the existence of some connective owner- ship link that would make notice to one separate corporate entity suffi- cient notice to the other In the Doug Neal Management Co case, the owner of the property was not named as a party therein, but only the company managing the property In the instant case, however, the Re- spondent and Jerry's United Super, Inc are commonly owned and have been found to be a "single employer " This finding of "single employer" status also distinguishes this case from the other case cited by the Re- spondent in its brief to support its contention, Concrete Haulers, 106 NLRB 690 (1953). Although the better procedure would have been to name Jerry's United Super, Inc., as also a party here, as is done in most cases involv- ing separate legal entities regarding a "single employer " issue, the failure to do so does not in this case negate the enforceability of any order im- posed for the reasons set forth above See Arundel Corp., 252 NLRB 397 (1980), wherein "single employer" status was found and only one of the corporate entities involved is named in the heading Also see Jacob Wirth Restaurant, 248 NLRB 191 (1980) 89 Jacob Wirth Restaurant, 248 NLRB 191 ( 1980), enfd 646 F 2d 706 (lst Cir 1981), Blumenfeld Theatres Circuit, 240 NLRB 206 (1979) It should be noted that the Respondent and Jerry's United Super, Inc , as a single employer, will also be referred to as the Employer when necessary for purposes of an easier reading of this decision We begin our reconsideration of this case by stat- ing again our acknowledgement, recognized by the court, that the principles of accretion do not resolve the issue presented in this case, inasmuch as the stores in question have a sufficient separate exist- ence to constitute separate appropriate units.3 We also acknowledge that the Board has held that "ad- ditional store clauses" are valid in situations where the Board is satisfied that the employees affected are not denied their right to have a say in the selec- tion of their bargaining representative.4 .. . Interpreting these clauses to mean that an em- ployer can voluntarily recognize a union or demand an election renders them totally meaningless and without effect, for unions need no contract authori- zation to establish their representation status in a Board-conducted election. However, these clauses can be read to require recognition upon proof of majority status by a union.. . . The court examined these clauses in the context of this case and found that they constituted a waiver by Kroger of its right to demand an election in these circumstances. Upon reconsideration we now adopt this view as the only reasonable inter- pretation which saves these clauses from meaning- lessness or from impinging on functions reserved solely to the Board... As we have interpreted them, these clauses are contractual commitments by the Employer to forgo its right to resort to the use of the Board's election process in determining the Union's representation status in these new stores. To permit the Employer to claim the very right which it has forgone, per- haps in return for concessions in other areas, would violate the basic national labor policy requiring the Board to respect the integrity of collective-bargain- ing agreements. . . . The Board has held that an employer may agree in advance of a card count to recognize a union on the basis of a card majority,7 and we can perceive of no reason why it may not contract with the union to do so in advance of the time the union has commenced organization. s Melbet Jewelry Ca, Inc and LD.S -Orchard Park, Inc, 180 NLRB 107 (1969) 4 Retail Clerks Union, Local 870, Retail Clerks International As- sociation, AFL-CIO (White Front Stores, Inc.), 192 NLRB 240 (1971). 7 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB 709 (1961) From the foregoing, it is clear that the Respondent, Woods Chapel United Super, Inc. d/b/a Jerry's United Super, and Jerry's United Super, Inc., as a single em- ployer, is obligated to recognize the Union as the exclu- sive bargaining representative of its employees in an ap- propriate unit when the Union represents a majority of the employees in that unit.so 90 Also see Joseph Magnin Co, 257 NLRB 656 (1981 ); Arundel Corp, supra JERRY'S UNITED SUPER 139 3. The Union's majority representation In Joseph Magnin Co., 257 NLRB 656 (1981), the Board stated: In Houston Division of the Kroger Co.,4 the Board concluded that a contractual clause such as the one by which Respondent is bound constitutes a waiver of an employer's right to insist upon a Board-con- ducted election when faced with a demand for rec- ognition but that it does not relieve a union of its obligation to provide the employer with proof of its majority status among the employees in the group to be added to the existing unit. By this interpreta- tion of after-acquired-stores provisions, the Board allows parties as much freedom as possible to struc- ture their bargaining relationship through negotia- tions without permitting them to deny to affected employees the statutory right to select or reject a bargaining representative. Under usual circum- stances, therefore, Respondent's statutory duty to recognize the Union as the representative of the Gucci store employees and to apply the current col- lective-bargaining agreement to the new operation would have arisen only if the Union presented it with concrete evidence of support by a majority of the Gucci store employees. 4 219 NLRB 388 (1975). 4. The appropriate unit The complaint alleges that All employees employed at the Employer's facili- ties located at 3443 South Noland Road, Independ- ence, Missouri, and 1201 North Woods Chapel Road, Blue Springs, Missouri, but excluding all meat department employees, office clericals, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. The Respondent denies this allegation in its answer and affirmatively states that "the only appropriate unit for the employees of Woods Chapel United Super, Inc. is a unit limited to the store employees at 1201 North Woods Chapel, Blue Springs, Missouri." That the Woods Chapel store has a sufficient separate existence to constitute a separate appropriate unit is clearly evidenced. However, this does not necessarily mean that a unit limited to the employees at the Woods Chapel store is the only unit that may be found to be ap- propriate for the purposes of collective bargaining. It should be remembered that the Respondent and Jerry's United Super, Inc. have been found to be a single em- ployer. With the Noland Road agreement containing an "after-acquired-store" clause, it becomes evident that the Kroger case is applicable to the instant case. In Kroger, the Board held at 219 NLRB at 389 fn. 6 While these clauses could be interpreted as an agreement concerning the appropriate unit, we agree with the court that the Board's ultimate right to establish units would render them illusory if they were so construed, since any such agreement which did not coincide with Board Policy would be unen- forceable whenever a Board certification was in- volved. Therefore, in order that "after-acquired-store" clauses not be rendered totally meaningless and without effect, a unit composed of the employees of an employer's store covered by the collective-bargaining agreement contain- ing the "after-acquired-store" clause and the new store employees must also be appropriate for the purposes of collective bargaining unless contrary to Board law or policy. In this connection, the Respondent failed to intro- duce any evidence to show that the unit alleged by the General Counsel as appropriate was repugnant or con- trary to Board law or policy concerning the appropriate- ness. Because of the above, I find and conclude that the unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act consists of. All employees employed at the Employer's facili- ties located at 3443 South Noland Road, Independ- ence, Missouri, and 1201 North Woods Chapel Road, Blue Springs, Missouri, but excluding all meat department employees, office clericals, guards, and supervisors as defined in the Act.9 t 5. Unit placement of employees The parties stipulated at the hearing that there were 33 unit employees at the , Woods Chapel store during the relevant period, January 16 through February 13, 1981, these employees being: Cheryl Earlene Baker, Cheri Lynn Borchers, Teresa Borchers, Crysanne Casteel, Mi- chael D. Childs, Cheryl K. Coffman, Mary Kay Cooper, Bernadette Cox, Donald Howard Gann, Ruth Gray, Matthew Hankel, Andy Henry, Sondra Hertzog, Tim Hicks, Betty Hoy, Jeanne Hubbard, Madalene R. Hunt, Brian Kackly, Andy Kreiser, Robert Leiblie; David Lindsey, Dale P. Minton, Marvin Paul, Joan Viola Prine, Barbara Ann Robinson, Jeff Sargent, Donnie Scardino, Sandra A. Straw, Mary Tignor, Greg Warnock, Richard Washburn, Mary Watters and Gregory M. Wochner.92 Despite this stipulation, the Respondent asserts in its brief that Robert Leiblie is a supervisory and/or manage- rial employee, and that Mary Tignor and Ruth Gray are managerial employees and they, therefore, should be ex- 91 The Respondent and the Union executed a "Stipulation For Certifi- cation Upon Consent Election" in Case 17-RC-9193 on February 13, 1981, in which the unit set forth as appropriate for the purposes of collec- tive bargaining was: All employees located at the Employer's facility located at 1201 North Woods Chapel Road, Blue Springs, Missouri, but excluding all meat department employees, office clericals, guards, and supervi- sors as defined in the Act, as amended. I do not find that this changes in any way my above finding and con- clusion. The Union sought alternately to establish its right to represent the Woods Chapel employees by means of a Board-conducted election as authorized under the Act after the Employer unequivocally refused its recognition request. 92 See R. Exh. 4. 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cluded from the unit appropriate for the purposes of col- lective bargaining. 9 3 a. Robert Leiblie Robert Leiblie is the assistant manager of the Woods Chapel store. Leiblie testified that his duties include, "Well, you close up and . . . you run a certain depart- ment if you've got one. You do the books and you cash checks, you know, do all the running. You solve prob- lems, you know. Basically, that's about it." Minton, the Woods Chapel store manager, testified that Leiblie's "main function is the Dairy Department94 opening and closing up and generally running the store."95 Minton related that Leiblie has keys to the store, the cash regis- ters, and the offices, and possesses the combination to the safe at the Woods Chapel store. Comanagers Minton and Jerry Lee Fisher, and Leiblie are the only employees who "open and close" the store. Minton stated that when he and Fisher are absent from the store, Leiblie is then in charge.96 Leiblie is paid on a salary basis and re- ceives no overtime pay for hours worked in excess of 40 hours per week. Although Minton's testimony concerning whether Leiblie has the authority to discharge and/or discipline employees was at times equivocal,97 he did testify that he had informed Leiblie that he had such authority and "will take care of disciplinary matters at Woods Chapel when Minton and Fisher are not present. However, in agreement with Leiblie's testimony, Minton acknowl- edged that he does all the hiring of employees and that Leiblie "has never disciplined, never issued, say, a writ- ten discipline to an employee at the Woods Chapel store," nor terminated any employee therein. Significantly, Leiblie testified that sometime in the summer of 1980, he had reported to Minton that employ- ee Greg Grace was a "goof-off," taking extensive break periods, and recommended Grace's termination. When 98 The Respondent in its brief maintains that "There are at least four distinct circumstances based on the evidence in this case that cause the Union's apparent majority of 18 of 33 employees to disappear Each of them stands alone and is an independent basis for finding that no card majority exists." The Respondent discusses this particular one in its brief as the "third reason for finding no majority." 94 According to Minton, Leiblie's duties in "running the Dairy Depart- ment" are to order dairy products, set displays, stock the milk, and "put up cheese." Leiblie is the only employee in this department, although at times other employees will assist him in stocking the shelves, and Leiblie spends between 20-24 hours a week "physically in the Dairy Depart- ment " 95 Minton testified that the Woods Chapel store is open 24 hours a day He stated that "opening the store," usually done at 7 am, consists in, "We open the safe We pull the two night drawers out of the cash register and we put the four-five register drawers in the registers ready for the day's business Take the cash out of the bottom of the safe, put it in the cash drawers in the office ready for the day's business. . . Clos- ing the store consists of counting the daily cash drawers down. Putting the night drawers into the registers Making up the deposit for the next day Taking all the money out of the cash drawer and putting it into the safe. Putting the day drawers into the safe. Locking the safe " 96 However, although apparently an unusual occurrence, when neither Minton, Jerry Lee Fisher, or Leiblie are present at the Woods Chapel store, Minton's "office girl" is left in charge of the store 9' When Minton was asked if he had told Leiblie about such authority, Minton at first responded that "[Leiblie] realizes that, I believe, yes." When pressed for a more direct response , Minton then answered, "Yes," that he had actually told Leiblie this Grace appeared for work that day, Minton fired him. Minton testified that he had discharged Grace "within the next two or three minutes" after Leiblie had recom- mended his dismissal. Concerning this, however, Minton related that Grace "was a problem" employee and that other employees may have complained to him about Grace on prior occasions. Leiblie also testified that sometime in December 1979, he and Jerry Lee Fisher had questioned employee Rich Washburn about food thefts at the Woods Chapel store and Washburn had apparently implicated other employ- ees involved, whereupon either Fisher or Minton dis- charged two of these employees with Leiblie having no input in the decision whether to fire the employees or not and which employees were to be discharged. Moreover Leiblie testified that he never attends any of the management meetings at the Woods Chapel store among Gerald E. Fisher, Jerry Lee Fisher, and Minton. He stated that he brings all his work-related or employee problems to Minton, as do the other employees at the store, "I would say 90 percent of the time it's Gary Minton. You go to him because he makes the schedules out and that's usually what the biggest complaint, you know, you want off or you need a vacation, whatever. But he usually is the one you usually go to." Minton ac- knowledged that problems concerning the Woods Chapel employees are generally brought to him for reso- lution.98 However, Minton also testified, "Well, anytime that we've got a problem with some people that I can't talk to personally when I go home of an evening before they come in or something [Leiblie] takes care of that situation. He'll talk to them and he'll tell them what needs to be done and if there's any discipline.... When I'm not there, yes, he will take care of it."99 Furthermore, the evidence shows that the collective- bargaining agreement between the Union and Jerry's United Super, Inc. (Noland Road store) includes the po- sition of assistant manager in the wage rate schedule. The record also shows that William Englebrecht, the Noland Road store's assistant manager, performs the same duties at that store as does Robert Leiblie, the as- sistant manager of the Woods Chapel store, and that Englebrecht is included in the bargaining unit as set forth in that agreement, with the Employer making monthly contributions to the Union's health and welfare and pension plan on behalf of Englebrecht, as well as de- ducting union dues from his paycheck that are remitted to the Union.100 Additionally, Jerry Lee Fisher testified 98 Mary Tignor testified similarly 99 Minton related that he generally spends from 10-12 hours daily at the Woods Chapel store, 6 days a week, sometimes being present during the day hours and sometimes during the evening hours depending on need, such as truck deliveries of goods, Minton's testimony concerning this was somewhat equivocal i00 See A. Exh 1 , G.C Exhs. 28-33, and the testimony of Gary Minton. Moreover, while Leiblie testified that when he worked at the Noland Road store, Dave Lindsey was the assistant manager and that he believed that Lindsey was not "a member of the unit covered by the Col- lective Bargaining Agreement," there is much evidentiary confusion con- cerning this. Union President Davis identified Lindsey as "co-manager" of the Noland Road store with Gary Minton poor to the opening of the Woods Chapel store Leiblie himself initially was not sure if Lindsey was Continued JERRY'S UNITED SUPER 141 that he had observed a notice posted by Leiblie in the dairy department that stated, "The next clown I catch eating food or drinking milk or whatever in this depart- ment, I will fire on the spot." The Respondent alleges that Robert Leiblie is a super- visor within the meaning of Section 2(11) of the Act and a managerial employee as defined by the Board in case law. The General Counsel and the Charging Party assert that Leiblie is neither a supervisory nor a managerial em- ployee. Section 2(11) of the Act provides: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employ- ees, or reasonably to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Supervisors are excluded from collective-bargaining units of rank-and-file employees.) 01 The status of supervisor under the Act is determined by an individuals' duties, not by his title or job classifica- tion. 102 It is well settled that an employee cannot be transformed into a supervisor merely by the vesting of a title and theoretical power to perform one or more of the enumerated functions in Section 2(11) of the Act.103 To qualify as a supervisor, it is not necessary that an in- dividual possess all of these powers. Rather, possession of any one of them is sufficient to confer supervisory status.104 However, although these enumerated functions comanager or assistant manager . Davis' uncontradicted testimony shows that Gerald E. Fisher had arranged to continue forwarding health and welfare and pension benefit payments for Lindsey under the Noland Road store agreement on Lindsey's transfer to the Woods Chapel store in order to ensure Lindsey's continuity of accrued credit for pension benefit purposes and to ensure that no lapse in benefit coverage would occur. Because union dues payments were continued by Jerry's United Super, Inc. (Noland Road store) for all the employees who had transferred to the Woods Chapel store, excepting Lindsey, I am uncertain whether Leiblie might not have said or meant that Lindsey was not a member of the "Union" rather than the "unit" and that the record transcript contains an inadvertent or typographical error that was not picked up by the par- ties. Lindsey's transfer to the Woods Chapel store as "produce manager" when he was either comanager or assistant manager of the entire Noland Road store tends only to further confuse this. Be that as it may, the above was never clarified by any of the parties here. 101 See, for example, Conair Corp., 261 NLRB 1189 (1982); Republic Corp., 260 NLRB 486 (1982). 102 New Fern Restorium Co., 175 NLRB 871 (1969); Meat Cutters Local 347 v. NLRB, 422 F.2d 685 (D.C. Cir. 1969); NLRB Y. Bardahl Oil Co., 399 F.2d 365 (8th Cir. 1968); NLRB v. Southern Bleachery & Print Works, 257 F.2d 235 (4th Cir. 1958), cert. denied 359 U.S. 911 (1959). 103 Magnolia Manor Nursing Home, 260 NLRB 377 (1982); NLRB v. Southern Bleachery & Print Workers, supra. 104 Kern Council Services, 259 NLRB 817 (1981); Penn Industries, 233 NLRB 928 (1977), and cases cited therein. Also see NLRB v. Berger Transfer & Storage Co., 678 F.2d 679 (7th Cir. 1982); NLRB Y. Joe & Dodie's Tavern, 666 F.2d 383 (9th Cir. 1982); NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (6th Cir. 1948), cert. denied 335 U.S. 908 (1949). in Section 2(11) of the Act are to be read in the disjunc- tive, that Section also "states the requirement of inde- pendence of judgment in the conjunctive with what goes before."105 Thus the individual must consistently display true independent judgment in performing one of the functions in Section 2(11) of the Act. The exercise of some supervisory tasks in a merely "routine," "clerical," "perfunctory," or "sporadic" manner does not elevate an employee into the supervisory ranks.106 Further, the ex- istence of independent judgment alone will not suffice; "the decisive question is whether [the individual in- volved has] been found to possess authority to use [his or her] independent judgment with respect to the exercise ... of some one or more of the specific authorities listed in Section 2(11) of the Act." 107 In short, "some kinship to management, some empathetic relationship between employer and employee must exist before the latter be- comes a supervisor for the former." 1 ° 8 Moreover, in connection with the authority to recommend actions, Section 2(11) requires that the recommendation must be effective. t 09 The Board has also excluded managerial employees from bargaining units of rank-and-file employees, with approval of the Courts. I 10 The Board has defined "man- agerial employees" as those who formulate and effectu- ate management policies by expressing and making oper- ative the decisions of their employers, and those who have discretion in the performance of their jobs inde- pendent of their employer's established policy. t t t As concerns "managerial employees," the Supreme Court, in NLRB v. Textron, Inc.,' 12 stated: Of course the specific job title of the employees involved is not in itself controlling. Rather, the question whether particular employees are "mana- gerial" must be answered in terms of the employees' actual job responsibilities, authority, and relation- ship to management.' The Board itself, in Textron, Inc., 219 NLRB at 385, stated: . . . managerial status is not conferred upon rank- and-file workers, or upon those who perform rou- tinely, but rather it is reserved for those in execu- tive-type positions, those who are closely aligned 105 Poultry Enterprises Y. NLRB, 216 F.2d 798 (5th Cir. 1954). 108 Kern Council Services, supra; Complete Auto Transit, 214 NLRB 425 (1974); NLRB Y. Security Guard Service, 384 F.2d 143 (5th Cir. 1967); NLRB v. Lindsay Newspapers, 315 F.2d 709 (5th Cir. 1963). 107 NLRB v. Brown & Sharpe Mfg. Co., 169 F.2d 331 (1st Cir. 1948). 108 NLRB v. Security Guard Service , supra. 109 It should be noted that the burden of proving that one is a "super- visor" rests on the party alleging such status to exist. See Commercial Movers, 240 NLRB 288 (1979); Benson Wholesale Co., 164 NLRB 536 (1967); Risso & Co., 127 NLRB 1327 (1960); Plumbers Local 636 (Detroit Edison), 123 NLRB 225 (1959). 110 NLRB Y. Textron, Inc., 416 U.S. 267 (1974); NLRB v. Yeshiva Uni- versity, 444 U.S. 672 (1980). 111 Eastern Camera & Photo Corp., 140 NLRB 569 (1963). Also see Lockheed Aircraft Corp., 217 NLRB 573 (1975); General Dynamics Corp., 213 NLRB 851 (1974). 112 416 U.S. 267, 268 fn. 19 (1974). 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with management as true representatives of manage- ment. The General Counsel asserts that "it is irrelevant whether Leiblie's job responsibilities as assistant manager are supervisory within the meaning of Section 2(11) be- cause the Union's and the Employer's bargaining history, practice, and agreement is that the assistant manager is in- cluded in the bargaining unit." I do not agree. The Board, in Washington Post Co., 254 NLRB 168, 169 (1981), held: Thus, except in certain limited and well-defined fac- tual situations, the Board, when presented with an appropriate petition or claim, is required to exclude positions from a bargaining unit where the inclusion of those positions would violate the principles of the Act. While it may be that certain of the posi- tions sought to be excluded by a unit clarification petition have long been included under previous contracts, and the job duties of those positions have remained unchanged, nonetheless, if it can be shown that the persons in such positions meet the test for establishing supervisory, managerial, or confidential status, we are compelled to exclude them.)" s .. . Of course, a history of inclusion in the bargaining unit for many years may be evidence that such a classification in fact is properly included in the unit. If there are no changed circumstances in terms of job duties, this, too, may constitute evidence on the status of the individuals sought to be excluded.' 2 12 See, e.g , McAlester Hospital Foundation, Inc., d/b/a McAles- ter General Hospital, 223 NLRB 589 (1977), where the Board con- cluded that the disputed employees were intended to be included in the unit, but, in so deciding , placed the burden on the employer, which wanted to exclude the employees, to demonstrate that they were statutory supervisors at the time of the stipulation or that cir- cumstances had changed justifying their exclusion. The employer's prior agreement that the disputed employees were not statutory employees at the time of the stipulation , although not controlling, was found by the Board to be "considerable in assessing any con- flict that may arise" out of contrasting testimony Id. 233 NLRB 589, fn 1 . See also Peerless Publications, Inc, 190 NLRB 658 (1971) In applying all the above to the question of Leiblie's supervisory status, I find and conclude that he is indeed a supervisor within the meaning of Section 2(11) of the Act. As assistant manager, his duties include "opening and closing" the Woods Chapel store, tasks that are per- formed only by himself and store comanagers Minton and Fisher. He also "does the books, cashes checks, solves problems" and "does all the running of the store," when the comanagers are not present. Since Leiblie spends between 20-24 hours a week attending to duties in the dairy department, he therefore performs the duties enumerated above as assistant manager for anywhere from 40-50 percent of his worktime during which he "solves problems" and sees to the "running of the store" with or without the presence of a comanager on the premises. Along with the comanagers, he has keys to the store, the offices, and the cash registers. He also has the combination to the safe. Leiblie is paid differently than 113 Also see Brotherhood of Locomotive Firemen & Engineers, 145 NLRB 1521 (1964). most of the other employees , on a salary basis and he re- ceives no overtime pay for hours worked in excess of 40 hours per week. Although the evidence is contradictory whether Leiblie possesses the right to discharge employ- ees, and although he admittedly has never terminated or disciplined any employee, he has, on at least one occa- sion, effectively recommended an employee's discharge. And despite his own testimony to the contrary , Leiblie must believe, and most likely has been told , that he has the authority to at least effectively recommend dis- charge, if not terminate employees himself, as evidenced by the sign he posted in the dairy department threatening employees with dismissal if they are found "eating food or drinking milk."114 Therefore I will exclude Robert Leiblie from the unit of employees found appropriate. b. Mary Tignor Tignor testified that she works in the bakery and deli- catessen department at the Woods Chapel store along with eight or nine other employees.) t s She stated that her duties entail ordering the "bakery stuff," reporting to Minton what bakery goods are on hand, and discussing with Minton what bakery items should be placed on sale. Tignor related that although she works alongside the other employees in the department performing the same kinds of work that they do, she does tell employees what has to be done that day after consulting with Minton re- garding the day's bakery needs. On occasion, albeit not occurring often or regularly, Tignor has complained to Minton about an employee's work or conduct, and Minton has spoken to the employee about this.11"6 Ac- cording to the testimony of Tignor, all employee re- quests for time off and all personnel problems in the de- partment are brought to Minton directly by the employ- ees themselves and not by her. Minton admittedly han- dles all such problems himself. She added that Minton schedules employees' work hours, including her own, and where they work. The evidence also shows that Tignor performs the same work as the other employees in the bakery and deli departments, baking goods and stocking bakery items on the shelves. Marvin Paul, a former bakery employee at the Woods Chapel store, testified that Mary Tignor was the "deli and bakery supervisor" and "in charge of the deli and the bakery, seeing that things got done and seeing that people did what they were supposed to do." Paul related that Minton and Tignor would discuss the operation of the department every day, that Tignor orders the sup- plies for the bakery and deli department, 117 and that any requests for time off by employees and any other person- nel problems in the department were handled by Minton. He stated that at the time that Minton had interviewed and hired him for the job, Minton had also introduced him to Tignor, stating that Paul would "be working with 114 Valu King, 206 NLRB 1 (1973), Food Marts, 200 NLRB 18 (1972) 115 Marvin Paul testified that there were about "15-20" employees in this department when he worked there. This could mean over the entire period and include different employees at different times 116 Paul testified that he had observed this happen on one occasion 117 Tignor testified that Betty Hoy also orders "deli goods" for the delicatessen department JERRY'S UNITED SUPER 143 her" (emphasis added). Paul recounted that Tignor per- formed the same kind of work as did the other employ- ees in the bakery and deli department, working alongside the other employees. Minton testified that Tignor was in charge of the bakery and deli department, making sure that the bakery products are available, that the quality of the products is maintained, and that the employees perform their work properly. He stated that he consults with Tignor daily regarding how many employees are needed in the de- partment and what bakery products should be put on "special," with Tignor determining the quantity of the bakery goods needed because of her more extensive ex- perience in bakery goods production. Minton related that Tignor discusses employee problems with him and makes recommendations. He added that in the event Tignor recommends an employee's termination, Minton usually speaks to the employee to ascertain all the facts and, if discharge is necessary, Minton fires the employee. Tignor has no authority to discharge employees. The Respondent asserts that Mary Tignor is a manage- rial employee and should be excluded from the unit of employees at the Woods Chapel store. The General Counsel and the Charging Party dispute this. On the facts in this case, I find and conclude that Tignor is nei- ther a managerial nor a supervisory employee as defined by Board law and the Act, respectively. Tignor does not "formulate and effectuate management policies by ex- pressing and making operative the decisions of their em- ployers" and "does not have discretion in the perform- ance of her job independent of her employer's estab- lished policy." The record shows that Tignor was trans- ferred from the Noland Road store to the Woods Chapel store to provide an "experienced employee" in the bakery and deli department. Moreover, Tignor has no authority to resolve any personnel problems in her de- partment, has no authority to hire, fire, or discipline em- ployees, and the record does not show that she effective- ly recommended any of the above. t t 8 Additionally, while Tignor, apparently as part of her duties, sees that the work is performed properly, she does not schedule the employees regarding their work hours or where they work. It is clear from all of the above that Tignor is neither a managerial nor supervisory employee but, because of her vaster experience and knowledge of the operation of a bakery and deli department, functions more likely in the nature of a working foreman. In view thereof, Mary Tignor should be included in the appropriate unit of em- ployees at the Woods Chapel store. c. Ruth Gray Ruth Gray is the "Liquor Manager" at the Woods Chapel store. She is the sole employee in the liquor de- 18 While Minton sought in his testimony to clothe Tignor with at least the authority to effectively recommend such actions, for the reasons noted concerning Minton's testimony, I credit that of Tignor and Paul over his. Besides, Tignor was still employed by the Respondent at the time she testified and, her testimony being somewhat adverse to the posi- tion of the Respondent, was given at some risk of possible reprisal and, therefore, not likely to be false. See Parkvtew Acres Convalescent Center, supra, and cases cited therein. partment. Her duties consist of ordering the stock, checking invoices regarding cost charges, counting the items when liquor deliveries are received, deciding what and how much inventory is needed, and stocking the shelves. However, she does not prepare payment of the invoices; Gerald E. Fisher does. The Respondent asserts that "With this broad power to affect Respondent's busi- ness and pledge its credit, she is clearly a managerial em- ployee and should be excluded from the bargaining unit." I do not agree. A careful reading of her testimony concerning her duties does not support the Respondent's contention in any way. A substantial part of Gray's duties entail the kind that would normally be performed by a "head clerk," not requiring the formulation and ef- fectuation of management policies, nor does she exercise the discretion usually associated with an independence in the performance of her job beyond her employer's estab- lished policy. Nor is Gray a supervisory employee as de- fined in the Act.' 1 9 Because of all the above, I find and conclude that Ruth Gray should be included in the unit. 6. The Union's majority status As indicated, the parties stipulated that there were 33 unit employees at the Woods Chapel store during the relevant period here. My finding that Robert Leiblie is a supervisory employee and should be excluded from this unit decreases this to 32 unit employees. The General Counsel submitted signed authorization cards for the fol- lowing employees in the unit: Cheryl Earlene Baker, Mary Kay Cooper, Bernadette Cox, Donald Gann, Ruth 18 See Smith's Complete Market, 237 NLRB 1424 (1978), and cases cited in fn. 6. The Respondent cites Parkwood IGA Foodliner, 210 NLRB 349 (1974), and Ed's Foodland of Springfield, 159 NLRB 1256 (1966), in support of its contention that Gray is a managerial or supervisory employee. Both cases are distinguishable from the instant case . In Parkwood IGA Foodliner, the "produce manager," unlike Gray, had a part-time employee as an assist- ant four mornings a week, received a percentage of the profits from the produce department under certain circumstances, received certain fringe benefits provided only for supervisory and managerial employees, and set his own hours of work. Again in Ed's Foodland of Springfield, the "meat department manager" had the authority to hire and discharge or effectively recommend the same." He did all the meat buying and chose the items to be put on the special list each week. He directed the meat department employees in their work and assigned them their work schedules . . . made the pri- mary decision as to the choice of the specials . . . it was his duty and responsibility to see to it that the meat department made a profit." The administrative law judge in the case found on the basis of the above that the "meat department manager" was "a supervisor and that in any event because of his duties of meat buying and thereby pledging the Respond- ent's credit and because of his duties in making up the ads and the spe- cials in the meat department, he was an employee closely allied with management." Aside from the obvious fact that Gray is not a supervisory employee as was the "meat manager" in the cited cases, regarding her managerial status the apparent differences are: that the "meat department manager" had discretion in the purchasing of meat that would imply the choice of quality, and price, with further discretion about what items to consider as a "special," while it would seem that Gray ordered standard brands on the basis of stock needs, with "specials" dictated by the whole- salers' pricing of the item rather than her independent judgment thereof; under the Respondent's theory, it could be said of anyone who places an order for merchandise , without more, that the employee is a managerial employee because he pledges an employer's credit. The Board certainly did not intend such a result when it carefully evolved the case law defin- ing a managerial employee. Circumstances such as nature, scope, discre- tion, and other duties, must be considered in determining this. 144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gray, Sondra Hertzog, Tim Hicks, Betty Hoy, Jeanne Hubbard, Madalene Hunt, Cinda Kreiser, Marvin Paul, Joan Prine, Barbara Robinson, Sandra Straw, Mary Tignor, Mary Watters. Thus, 17 of 32 unit employees au- thorized the Union to represent them for purposes of col- lective bargaining, clearly a majority of the employees in the appropriate unit. However, the Respondent in its beef asserts that state- ments made by James Hillen, a union organizer, to unit employees at the time he solicited their signatures on au- thorization cards (12 in number) constituted a material misrepresentation sufficient to negate these cards and that they therefore should "be disregarded" with the result that the Union has no majority representation among the employees in the appropriate unit.120 The Respondent maintains, The critical factor however is that [Hillen] repre- sented to each of these employees that they would have a chance to vote on any contract which might cover them. Such a representation would not offset the validity of the cards in an ordinary 8(a)(5) bar- gaining order case but this is not an ordinary case. In this case, Counsel for General Counsel contends that the cards should be used to support an order including these employees in an existing collective- bargaining agreement without an opportunity to vote. Respondent does not doubt that Hillen was sincere in making this representation to the employ- ees because, as previously discussed, it was the Union's intention to negotiate a separate contract for Woods Chapel and there is no reason to doubt the Union would have kept the promise. However, the fact is that these cards are not being used for the purpose for which they were signed and under the circumstances the promise of a vote is a materi- al misrepresentation that undermines the validity of the cards. No one can say now if these employees would have signed their cards if they had under- stood they were to be used to make them junior employees in a two-store unit tc be named later with the resulting reduction in their protection against layoffs. Hillen testified at the hearing that he told the employ- ees when he solicited their signatures on the union au- thorization cards, in substance, that the Union was con- ducting an organizing campaign, that "the cards could be used in several different ways," that if the Union ob- tained "a majority of the employees signed up," it would request a "card check" and if the "Company refuses to grant us a card check," the Union could seek a Board election. Hillen also told them that should the Company recognize the Union as the collective-bargaining repre- sentative of the Woods Chapel employees in the appro- priate unit, or the Union wins an election, then the Union and the Company would "sit down" and "negoti- ate contracts to cover their wages, hours and conditions of employment." Hillen acknowledged that he had addi- 120 This is the first of the circumstances set forth in the Respondent's brief as a "basis for finding that no card majority exists." tionally told them that "they would have a chance to vote on the contract." The Supreme Court, in NLRB v. Gissel Packing Co., 395 U.S. 575, 606-607 (1969), stated concerning the va- lidity of disputed authorization cards: [W]e think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the lan- guage above his signature. . . . We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else ... . [F]or cards to be invalidated on the basis of such misrepresentation, it is necessary that the asserted reliance on the misrepresentation be established by objective evidence corroborating or supporting the subjective assertion. A misrepresentation will be disregarded when it is clear that the employees did not rely on it in executing the authorization cards.121 And if the card unequivocal- ly and unconditionally gives the union authority, then misrepresentation, to invalidate the card, must have indi- cated that the card would be used only for a different, more limited purpose than that stated on the card.122 That the authorization cards given to the employees ap- plicable here were unambiguous is evident from the record. These were single purpose authorization cards. The card states on its face that the signer authorizes the Union to represent the employee for collective-bargain- ing purposes.123 Moreover, it is the Respondent who must show clear and convincing evidence of material misrepresentation to invalidate otherwise unambiguous authorization cards, and it has failed to do so.124 The Respondent also challenges the Union's majority representation on the grounds that: [T]wo cards obtained by Union representative Bar- clay (G.C. Exhs. 37 and 38) do not designate either Retail Store Employees Union Local 782 or the United Food and Commercial Workers Internation- al Union. Instead, Exhibits 37 and 38 designate the Retail Clerks International Union. There is no record evidence explaining what this Union may be and the cards were somewhere in the middle of the time sequence. It is submitted that at best Retail Clerks International Union was non-existent at the 121 Engineers & Fabricators, 156 NLRB 919 (1966), enf denied in part 376 F 2d 482 (5th Cir 1967) 122 NLRB Y. Gissel Packing Co, 395 U S 575 (1969) 123 WCAR, Inc., 203 NLRB 1235 (1973) 124 NLRB v. Gissel Packing Co, supra, Cato Show Printing Co., 219 NLRB 739 (1975). Although several employees who had signed union authorization cards testified here, not one of them testified that they had signed the card solely in reliance on Hillen's statement to them that "they would have a chance to vote on the contract" The record in this case clearly shows that the employees signed union authorization cards be- cause they wanted union representation. JERRY'S UNITED SUPER time the cards were signed. In any event, in the ab- sence of record evidence that this Union is the same or somehow connected with either Retail Store Employees Union Local 782 or the United Food and Commercial Workers International Union, then these cards cannot be counted. 125 Again, I do not agree. Initially, the Board has long held, with court approval, that an authorization card designating a parent labor or- ganization serves as a valid designation of its affiliate.12 e The Union was the sole union seeking to organize and represent the employees.127 Moreover, there is no evi- dence that the card signers were, in fact, confused, or be- lieved that they were designating any other union sepa- rate from the Union here, which was requesting their signatures. There is no reason to believe in this case that employees were either presented with different possible representatives or were being requested to choose a yet- to-be-determined representative. 128 I, therefore, find the authorization cards in question sufficient to evidence the employees' desire to be represented by the Union. The Respondent additionally asserts: The fourth reason that there was no majority re- lates to the dates that certain cards were signed, specifically General Counsel Exhibits 19 through 21. The only written demand for recognition and the only demand alleged in the complaint or the pe- tition for an election was the demand mailed Janu- ary 16, 1981. There is a certain lack of logic to the argument for a "continuing demand" because at least in theory it could run forever and an employer might never know when the actual bargaining obli- gation attached. The better rule, especially in a Kroger-type case, would be to insist that the Union have a majority at the time the formal demand is made. Gould, Inc., Electrical Components Division, 263 NLRB No. 35 (1982). However, even under the existing Board cases, a demand does not last for- ever. If Robert Leiblie is excluded from the unit as a supervisor, the Union has 17 cards in a unit of 32 employees. In Stoutco, Inc., 180 NLRB 178, the Board adopted the determination of Trial Examiner Maurice S. Busch at page 185 that even a continu- ing demand for recognition terminates when a peti- tion for an election is filed. At the time the petition was filed on January 30 (R. Ex.1), the Union lacked a majority because the final necessary card was not signed until February 3, 1981 (GC Ex. 21). Thus, at the time the Union's demand or demands expired with the filing of the petition, the Union had only 16 cards in a unit of 32 and lacked majority status. 125 This constitutes the second circumstance in the Respondent's brief disputing the Union's asserted majority representation. 126 NLRB v. Bradford Dyeing Assn., 310 U.S. 318 (1940); NLRB v. Franks Bros. Co., 137 F.2d 989 (1st Cir. 1943), 127 Teamsters Local 707 (Claremont Polychemical), 196 NLRB 613 (1972); Texas Electric Cooperatives, 160 NLRB 440 (1966). 128 Cam Industries, 251 NLRB 11 (1980). 145 Again, I must disagree with this argument.129 As the record clearly shows, Jerry's United Super, Inc. (Noland Road store) and the Union were parties to a collective-bargaining agreement whose term ran from May 14, 1979, to May 9, 1981. The agreement contains what can only be reasonably construed as an "after-ac- quired store" clause, stating 2.1 The Employer hereby recognizes the Union as the sole and exclusive collective bargaining agent ... for the appropriate bargaining unit herein es- tablished and described as follows: All employees employed by the Employer working in the Employ- er's present and future retail establishments. Thus, at the relevant and material times set forth, the agreement was in full force and effect including the "after-acquired store" clause therein. 130 Significantly, the Employer itself recognized that there was an "after acquired store" clause in its Noland Road store agreement with the Union that required it to recog- nize and bargain with the Union about its new proposed Woods Chapel store. What other interpretation could reasonably arise from the actions of Gerald E. Fisher in initially contacting the Union with the information that a 129 Although disagreeing with counsel for the Respondent consistent- ly, I would be remiss if I did not note, with some admiration , the fertility of his mind regarding his arguments in support of the Respondent 's posi- tions on the various issues raised here. 130 The Respondent contends that the memorandum of October 2, 1979, "effectively rescinded such clause by providing a significantly dif- ferent procedure for dealing with Woods Chapel. . . . Substitution of a different agreement has the effect of rescinding the prior agreement with regard to after acquired stores." The Respondent asserts that, therefore, no agreement containing an "after acquired store" clause "existed at any relevant time." I do not agree with this contention . At best, the memo- randum of October 2, 1979, if valid, would be a modification of the bar- gaining agreement between the parties , not a rescission thereof as con- cerns the new Woods Chapel store. No other meaning can be reasoned therefrom in view of the parties' agreement that this was an "accretion" to the agreement already in effect at the Noland Road store. Although the word "accretion" is improperly used, the "after acquired store" clause interpretation and application is evident . Moreover, the case cited by the Respondent to support this contention does not in fact do so. In that case, "Local Union 1617, United Steelworkers of America, et al. v. GF Business Equipment, Inc., 105 LRRM 2762, 2764 (U.S. Dist. Ct N.D. Ohio, 1978)," the memorandum of agreement between the parties provid- ed for improved benefits to employees by modifying the severance allow- ance provision of an existing collective-bargaining agreement specifically, "in lieu of any commitment" by the employer to continue its operations at a specified location. As the court stated: [T]he September 15, 1976 Memorandum of Agreement sets forth in clear and unambiguous language an agreement whereby for the consideration of additional severance allowance provided by the de- fendant, plaintiffs recognized the company had no commitment to continue its operations in Youngstown. If there was any prior con- tract to build a new facility in Youngstown, it would, by its very nature, have implied additional commitment by the company to its operations in Youngstown . Thus, the 1976 Memorandum of Agree- ment is inherently inconsistent with any 1972 agreement to build a new facility, and must be viewed as effecting a rescission of any 1972 contract. [Emphasis added.] In the instant case, however, the modifications made in the October 2, 1979 "agreement," if it had been valid , was not "in lieu" of any obliga- tion contained in the Noland Road agreement and thus cannot be per- ceived as a rescission of that agreement. Actually the reference in the October 2, 1979 "agreement" regarding the application thereof to the Woods Chapel employees as an "accretion" to the Noland Road agree- ment would negate any such finding of a rescission. 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD new supermarket, the Woods Chapel store, was to be opened, and would the union president meet with Fisher to collectively bargain about the Woods Chapel employ- ees, and in the wording in the October 2, 1979 memoran- dum regarding the application of the Noland Road store contract to the Woods Chapel store after the meeting be- tween the parties took place. In late April 1980, by telegram, the Employer in- formed the Union that it was repudiating the October 2, 1979 "purported agreement" and that union representa- tion of the Woods Chapel employees "can only be ob- tained and granted through appropriate procedures of the National Labor Relations Board under the National Labor Relations Act" (emphasis added). This wording in the Employer's telegram carries the strong indication that thereafter and only by means of the Board's election procedures could the Union hope to secure recognition as the collective-bargaining representative of the Woods Chapel employees. But under the Board's ruling in Kroger, 1311 the Employer had waived its right to demand an election to determine representation pursuant to the "after acquired store" clause in the Noland Road agree- ment and was duty bound to recognize the Union when and if the Union presented unequivocal evidence in the form of signed authorization cards that it represented a majority of the Woods Chapel employees in an appropri- ate unit. With this as background, the Union now sought to secure signed authorization cards from a majority of the Woods Chapel employees in an appropriate unit. By letter dated January 17, 1981, the Union notified the Em- ployer that it represented a majority of unit employees at Woods Chapel and requested recognition and bargaining. In response, the Employer, by letter dated January 22, 1981, again asserted its refusal to acknowledge or accept any claim by the Union to majority representation out- side a Board conducted election, again apparently fore- closing any consideration by it of the possibility of rec- ognition based on a signed authorization card count. The Employer also stated that, "We do not believe you rep- resent the majority of our employees." Despite the above, the Union again sought to obtain recognition on the basis of what it believed to be its ma- jority representation of the Woods Chapel employees in an appropriate unit as evidenced by signed authorization cards by visiting the Employer's Noland Road store and demanding recognition and bargaining from Gerald E. Fisher, the Employer's owner. The record indicates that Fisher refused to discuss recognition and bargaining with the Union and referred the Union to the Employer's legal counsel for any further discussion or action. On January 26, 1981, in a telephone conversation, Union Or- ganizer Hillen and Willard, the Employer's newly hired legal counsel, the Employer, through Willard, again re- fused to accept a "card check," but indicated, in effect, its acquiescence to a Board election; whereupon, on Jan- uary 30, 1981, the Union filed its "Petition" with the Board seeking, by means of the Board's elective process- 131 Kroger Co, supra es, recognition as the exclusive bargaining representative of the Employer's Woods Chapel employees.isz Under the circumstances presented above, I cannot find that the Union's demand for recognition and bar- gaining did not continue after the filing of its petition with the Board on January 30, 1981. While in fact the Union did not represent a majority of the Woods Chapel employees in an appropriate unit when it made its de- mands for recognition and bargaining up to the date of the filing of its petition, the Kroger case would, of neces- sity, require the presence of a continuing demand regard- ing an "after acquired store" clause until the Union ob- tained a majority of the new store employees or failed to do so at any time, or until the "after acquired store" clause was negated in a subsequent agreement between the parties. Therefore, according to my previous find- ings, the Union attained bargaining representative status of a majority of the Employer's Woods Chapel employ- ees on February 3, 1981, when it obtained the signed au- thorization card of Ruth Gray. Since the Union's demand continued in force and effect even after it filed its petition with the Board, the obligation of the Employ- er to recognize and bargain therewith became effective on that date. The case cited by the Employer, Stoutco, Inc., 180 NLRB 178 (1969), to support its contention that the Union's demand for recognition and bargaining was made at a time when the Union had not yet attained its majority status and such demand was "exhausted, spent, and unoperative" when the Union finally attained majori- ty status after it had filed its petition with the Board for an election, is clearly distinguishable on the facts. First, it should be noted that the "Trial Examiner" specifically limited his ruling to "the full circumstances of this case." Next, he himself set forth the differences in that case and what, in effect, are the circumstances in the instant case. He stated: Counsel for General Counsel also advances the further argument that ". . . even if the original demand were not a continuing one, the Union's processing of its representation petition in itself con- stituted a continuing demand sufficient to place on Respondent a duty to bargain." . . . American Com- pressed Steel Corporation, 146 NLRB 1463, 1470-71, enfd. 343 F.2d 307.... cited by Government coun- sel in support of these propositions, contain factual situations so entirely dissimilar from here as to be inapposite. In the American Compressed Steel Corpo- ration, the Union made written demand for recogni- tion on April 18, filed a petition for election on April 22, but did not attain majority status until 182 I am not unaware that the Union actually had not as yet obtained signed authorization cards from a numerative majority of such employees at this time However, the Employer refused and failed to view the signed authorization cards already in the Union's possession and tendered by the Union for review by the Employer, to determine if, in fact, the Union did represent a majority of the Woods Chapel employees More- over, under the circumstances in this case , the Union had reason to be- lieve, although incorrectly , that it did represent a majority of these em- ployees since, of 33 employees alleged to be in the appropriate unit, the Union had 17 signed authorization cards, with Lelblle's JERRY'S UNITED SUPER April 25, 1963. The Trial Examiner in that case whose decision the Board adopted, found a viola- tion of Section 8(a)(5) but only because the Em- ployer in that case had totally ignored the Union's demand letter and thus evinced "an outright refusal of the Union's request without regard to the number of cards here." Under these circumstances, the Examiner in the American Compressed case held "it would have been futile for the Union formally to renew its request after April 25." In the instant case, as seen, the Company did reply by letter of June 24 to the Union's request, declining recogni- tion because of a stated honest belief that the Union did not represent a majority of its employees and suggesting that the Union file an election petition. There is no indication in Respondent's letter or any other conduct of the Respondent that it might not have acceded to a later request for recognition based on a card count. The fact that the Union, on June 12, 1968, entered into a stipulation with Re- spondent for a consent election is an indication that the Union from and after the filing of its petition for an election on June 25 was no longer insisting that the Company recognize the Union as the represent- ative of its employees on the basis of a card count. That the circumstances in the instant case differentiate the above is obvious. First, as previously indicated, the Employer was obligated under the "after acquired store" clause in the Noland Road agreement to submit to a card count. Second, the Employer foreclosed any consider- ation of the possibility of recognition based on a card count in its telegram of April 29, 1980, in which it stated that "representation can only be obtained and granted through appropriate procedures of the National Labor Relations Board"; again in its letter dated January 22, 1981, in response to the Union's demand for recognition and bargaining wherein it unequivocally refused to rec- ognize the Union unless the Board' s election procedures were used; and once again in its position conveyed to the Union by its legal counsel Willard on January 26, 1981, that it would not accept a "card check," but also would not oppose an election. That the Employer's actions con- stituted "an outright refusal of the Union's request with- out regard to the number of cards here" is evident. Also clear from the above is the fact that "it would have been futile for the Union formally to renew its request" after January 26, 1981, based on the above. Furthermore, under these circumstances, the fact that the Union filed a petition for an election and on Febru- ary 13, 1981, executed a "Stipulation for Certification Upon Consent Election" does not have the same effect as similar action by the union in the Stoutco, Inc. case where it was construed to mean that the Union was "no longer insisting that the Company recognize the Union as the representative of its employees on the basis of a card count." Faced with the Employer's intransigent po- sition, the Union did what it could under the circum- stances and followed Board procedure for an election and subsequently filed an unfair labor practice charge. Moreover, the Employer's "good-faith doubt" of the Union's majority representation was based on an employ- 147 ee's assertion that several of the Woods Chapel employ- ees had held a meeting during which they agreed that they did not desire union representation, this employee being the son of Gary Minton, a comanager of the Woods Chapel store. A review of the signed authoriza- tion cards by the Employer could have ascertained, in fact, whether the Union represented a majority and the Employer was obligated to do this anyway. Unlike the instant case, analogously, in the Stoutco, Inc. case, the re- spondent there experienced "very large labor turnovers, with four out of six employees quitting their jobs shortly after hiring," reasonably giving rise to the respondent's "good-faith doubt" regarding the Union's then majori- ty 13 3 And finally, in its brief, the Employer, in substance, as- serts that the Union failed to communicate, in its demand for recognition and bargaining, the fact that it was re- quiring the Employer to include or "fold in" the Woods Chapel employees into the unit appropriate under the Noland Road contract pursuant to the "after acquired store" clause in that collective-bargaining agreement be- tween Jerry's United Super, Inc. (Noland Road store) and the Union. "Respondent submits that while the Janu- ary 16, 1981 letter was a sufficiently clear request for in- dividual bargaining by Woods Chapel, it did not put Re- spondent on notice that something more than bargaining was required." The brief continues: The facts of this case demonstrate that the Union did not intend that the Woods Chapel unit be merged with the Noland Road unit, let alone re- quest such a result. The request (GC Ex. 7) was di- rected to Gary Minton, manager. . . . The language of the request refers simply to bargaining for the Woods Chapel employees and contains absolutely no reference to the Noland Road store.. . . The Union's course of action for an entire month after the January 16 demand suggested that they sought only recognition and bargaining in the Woods Chapel unit. The other stores were not men- tioned. As the Third Circuit has observed, "the acts of the union and the employer at the time the demand is alleged to have been made are not to be viewed in isolation. Events subsequent to the re- quest may be examined in making the determination " Steel City Transport, Inc. v. N.L.R.B., 389 F.2d 753, 759 (3rd Cir. 1968). The petition for an election in Case 17-RC-9193 (R. Ex. 1) and the election agreement (R. Ex. 2) deal exclusively with the Woods Chapel unit and the election agreement contains the express state- ment that Woods Chapel is the only facility in- volved.. . . The Union's true intention and change in plan may be discerned from its communications to the Woods Chapel employees of February 10 and 18, 1981. On February 10 the Union was interested in a "speedy election" (R. Ex. 3) but on February 18 (R. Ex. 4) the Union announced that it has "uncovered 133 Also for the reasons asserted above, Gould, Inc., supra, cited by the Employer, does not support its contentions. 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD some additional information which leads it to believe the store in which you work should already be union according to the Federal Labor Law." [Em- phasis added.] The only inference which can be drawn from this course of action, including the communications to the employees, is that it never occurred to the Union that it might be able to insist that Woods Chapel be included under the Noland Road con- tract at the time the demand was made, at the time the petition was filed or the election agreement was entered into. Since the Union was not aware of that possibility at that time, under no conceivable cir- cumstances could it have made a demand to invoke the after-acquired store clause of the Noland Road contract. Had it made such a demand, even at that late date and given Respondent an opportunity to consider its alternative in view of the type of re- quest, the card check might have been accepted, but instead the Union left it in the posture of a demand to represent the Woods Chapel employees separately and in that situation Respondent was en- titled to an election. Regarding the Court's own finding, as cited by the Re- spondent, "the acts of the union and the employer at the time the demand is alleged to have been made are not to be viewed in isolation," and it should be noted that the Employer itself was aware that the Woods Chapel em- ployees could fall within the purview of the Noland Road contract's "additional" or "after-acquired store" clause and acknowledged the same when, with the Union, it signed the October 2, 1979 "agreement," al- though this "agreement" was unlawful under the Act. 134 As indicated above the only possible interpretation and meaning of the October 2, 1979 "agreement" between the Respondent135 and the Union196 under the facts and circumstances of this case can be that the terms and con- ditions of the collective-bargaining agreement between the parties in effect at the Noland Road store would become applicable to the new Woods Chapel store pur- suant to the "after-acquired store" clause present therein, but with the modifications worked out by the parties. As set forth above this is clearly evidenced by the follow- ing: that Gerald E. Fisher, owner of both the Woods Chapel and Noland Road stores, himself sought out the Union regarding the Union's representation of the Re- spondent's new Woods Chapel store employees; that the October 2, 1979 "agreement" makes reference to its being an "accretion" to the Noland Road store collec- tive-bargaining agreement already in force and effect, albeit an incorrect usage of the word; that Fisher's re- quest for a concession deferring the effective date and application of the terms of the collective-bargaining 134 The Woods Chapel store was not even in operation when this "agreement" was entered into, no employees had been hired at that time or "were in place," and under the Kroger case rule, the Union did not represent a majority of the Woods Chapel employees at the time 135 It should be remembered that Gerald E Fisher, the owner of both the Woods Chapel and Noland Road stores negotiated and signed the agreement on behalf of the Respondent 198 The Union's president, Earl Davis, negotiated and signed the agreement in the Union 's behalf agreement to May 4, 1980, and his statement to Davis that this date coincides with the new wage rates going into effect, which would save him a "lot of bookkeep- ing" and time, clearly referring to the Noland Road bar- gaining agreement; and the arrangements made to cover employees transferred from the Noland Road to the Woods Chapel store so that there would be no loss of their pension and health and welfare coverage under the bargaining agreement covering the Noland Road store employees for the deferred period. 113 7 Subsequently the telegram dated April 25, 1980, and signed by Gerald E. Fisher, again to be noted as the owner of both the Noland Road and Woods Chapel stores, the Employer clearly repudiated the October 2, 1979 "agreement" as being unlawful under the Act. Pointing to its significance again , the telegram states: In the event you desire to represent the employ- ees of Woods Chapel United Super, Inc., said repre- sentation can only be obtained and granted through appropriate procedures of the National Labor Rela- tions Board. This clear, unequivocal, and final statement of the Em- ployer's position regarding recognition and bargaining, when read in connection with the content and meaning of the entire telegram, could only convey one certain im- pression, that being that the Employer refused under any circumstances to grant force and effect to the "after-ac- quired store" clause of the Noland Road agreement re- garding its application to the Woods Chapel store em- ployees. As set forth, the Employer's position was restated in its letter of response to the Union's request for recogni- tion and bargaining dated January 17, 1981, made clear again when the Union's representatives demanded recog- nition in a face-to-face meeting at the Noland Road store on January 20, 1981, with Gerald E. Fisher, and once more in a telephone conversation with the Employer's legal counsel, Willard, on January 26, 1981. Because of the foregoing, I neither can credit nor comprehend how the Respondent can now allege unawareness of the Union's intent concerning its demand for recognition and bargaining or the confusion thereof. The Employer had foreclosed its consideration of the Union's demand for application of the Noland Road bar- gaining agreement to the Woods Chapel store employees on more than one occasion. What other course of action did the Employer leave open to the Union than to pro- ceed as it did. Now the Employer complains about this as resulting in confusion and being misleading. The Kroger case mandates that the Union represent a majority of the Woods Chapel store employees in an appropriate unit prior to the Employer becoming obligated to recog- nize and bargain with the Union. Since, under Kroger, that bargaining would entail the application of the Noland Road agreement to the Woods Chapel store em- 187 I find this to be true despite the use of the plural "agreements" in the October 2, 1979 "agreement " None of the circumstances described could possibly refer to the Chrysler store bargaining agreement but only to that affecting the Noland Road store JERRY'S UNITED SUPER ployees as is, or with modifications based on the needs of the Woods Chapel store employees, as perceived and agreed on by the Employer and the Union, and since the Employer had previously repudiated the October 2, 1979 "agreement" as unlawful, there having been no employ- ees hired at Woods Chapel at the time, after having ini- tially evidenced knowledge and acceptance of the "after- acquired store" clause in the Noland Road agreement, it could well be argued that the Union's demand concern- ing the Woods Chapel employees intended compliance with the Kroger requirement of majority representation, and to remedy the Employer's previous basis for its re- fusal to recognize and bargain with the Union thereun- der. The Employer was represented by competent legal counsel and had already, once before, acknowledged possible Kroger compliance. The Employer cannot now assert it had no knowledge concerning what the Union was seeking when it demanded recognition and bargain- ing. Under the circumstances in this case, the Union could have validly been seeking either a Kroger case result or a Board election without the Employer being entitled to challenge the efficacy of the Union's demand on the basis of conclusion or being mislead. Significantly the Employer never raised this in its contacts with the Union at any time.138 From all the above, I find and conclude that the Em- ployer violated Section 8(aX5) and (1) of the Act when it failed and refused to recognize and bargain with the Union on February 3, 1981, when the Union represented a majority of the Woods Chapel employees in an appro- priate unit. As a single employer, this Employer was committed to recognize the Union, under the "after-ac- quired store" clause, as the exclusive bargaining repre- sentative of such employees and to apply the collective- "I Regarding its assertion that the Union failed to make proper demand, the Employer in its brief also maintains The Board has faced a somewhat similar problem in an accretion context and has imposed upon the Union a duty to make its demands known at the earliest possible stage, observing that. Also the Seafarers apparently did not consider the Siboney as ac- creted to the existing unit; inasmuch as the Seafarers failed to raise the accretion issue at the time Respondent requested information as to what type of area contract might be applicable in the con- templated use of the Siboney Reynolds Metal Company, 219 NLRB 624, 625 (1975) Before a person can be required to take certain action on the demand of another, that demand must be clear enough to put the person on notice that certain conduct is requested. A demand for recognition and bargaining addressed to the manager of one corporation surely cannot trigger an obligation of an unidentified separate corporation whatever the maximum effect of the single employer doctrine may be I find that the Employer's position is untenable because of the facts and circumstances present in this case and my above findings concerning the demand. Moreover, the case cited by the Employer in support of the above, Reynolds Metal Co., supra, is clearly distinguishable from the in- stant case. Aside from the obvious difference that accretion and Kroger- type cases have different principles applicable thereto, in Reynolds Metal the existing bargaining agreement was found to have no application to the new ship involved, and the union failed to raise the accretion issue when specifically asked by the employer about "what type of contract might be applicable in the contemplated use of the Siboney " In the in- stant case, the Noland Road agreement was applicable under Kroger to the new Woods Chapel store, the Employer was aware that it was that agreement and none other under consideration initially , and though the Union never indicated a change, and in certain terms indicated such in its demand requests, yet the Employer, if confused, never requested clarifi- cation or any information. 149 bargaining agreement the new Woods Chapel store oper- ation, and its refusal and failure to do so was violative of the Act.' 39 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Employer set forth in section III, above, found to constitute unfair labor practices occur- ring concerning its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. V. THE REMEDY Having found that the Employer has engaged in cer- tain unfair labor pactices, I recommend that they be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. I shall recommend that the Employer be ordered to recognize and bargain with the Union on request as the exclusive representative of the Woods Chapel store em- ployees in the unit found appropriate; on request, to apply and extend the existing collective-bargaining agree- ment it has with the Union at the Noland Road store with retroactive effect from and after February 3, 1981, the date the Union attained its majority representation of the Woods Chapel store employees; make the unit em- ployees at the Woods Chapel store whole for any loss of pay and benefits resulting from the Employer's failure to apply the terms and conditions of such collective-bar- gaining agreement to them, the backpay due thereunder shall be computed with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977);14° post an appropri- ate notice at its Noland Road and Woods Chapel stores as provided for here; and cease and desist from in any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaran- teed to them by Section 7 of the Act.141 CONCLUSIONS OF LAW 1. The Respondent, Woods Chapel United Super, Inc. d/b/a Jerry's United Super, is an employer engaged in commerce within the meaning of Section 2(5) of the Act. 2. Woods Chapel United Super, Inc. d/b/a Jerry's United Super and Jerry's United Super, Inc. constitute a "single employer" within the intendment of Board doc- trine. 3. United Food and Commercial Workers Union, Local No. 782, is a labor organization within the mean- ing of Section 2(5) of the Act. 4. All employees employed at the Employer's facilities located at 3443 South Noland Road, Independence, Mis- souri, and 1201 North Woods Chapel Road, Blue Springs, Missouri, but excluding all meat department em- 13° Kroger Co, supra Also see Joseph Magnin Co., supra 140 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 141 Hickmott Foods, 242 NLRB 1357 (1979). Also see Joseph Magnin Co., supra. 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees, office clericals, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The collective-bargaining agreement between the Employer and the Union concerning the store located at 3443 South Noland Road, Independence, Missouri, effec- tive May 14, 1979, through May 9, 1981, contains a valid "after-acquired store" clause. 6. Since February 3, 1981, the Union has been the ex- clusive collective-bargaining representative of all em- ployees employed in the unit found appropriate in Con- clusion 4, above, more particularly those employed at 1201 North Woods Chapel Road, Blue Springs, Missouri, for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 7. By refusing, on or after February 3, 1981, to recog- nize and bargain with the Union as the collective-bar- gaining representative of the employees employed at 1201 North Woods Chapel Road, Blue Springs, Missouri, as part of the appropriate unit, the Employer violated Section 8(a)(5) and (1) of the Act. 8. By refusing, on or after February 3, 1981, to apply and extend to the employees in its store located at 1201 North Woods Chapel Road, Blue Springs, Missouri, as part of the appropriate unit, the existing collective-bar- gaining agreement it has with the Union at its store lo- cated at 3443 South Noland Road, Independence, Mis- souri, the Employer violated Section 8(a)(5) of the Act. 9. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed142 ORDER The Respondent, Woods Chapel United Super, Inc. d/b/a Jerry's United Super and Jerry's United Super, Inc., their officers, agents, successors, and assigns, Blue Springs and Independence, Missouri, shall 1. Cease and desist from (a) Refusing to recognize and bargain with United Food and Commercial Workers Union, Local No. 782, as the exclusive representative of their employees in their store located at 1201 North Woods Chapel Road, Blue Springs, Missouri, as part of the unit found appropriate here. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain collectively with United Food and Commercial Workers Union, Local No. 782, as the exclusive representative of their employ- 142 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. ees in their store located at 1201 North Woods Chapel Road, Blue Springs, Missouri, as part of the appropriate unit. (b) On request, apply and extend to the employees in their store located at 1201 North Woods Chapel Road, Blue Springs, Missouri, as part of the appropriate unit, the existing collective-bargaining agreement they have with United Food and Commercial Workers Union, Local No. 782, at their store located at 3443 South Noland Road, Independence, Missouri, with retroactive effect from and after February 3, 1981. (c) Make the employees employed at their store locat- ed at 1201 North Woods Chapel Road, Blue Springs, Missouri, in the appropriate unit, whole for any loss of pay or benefits with interest they may have suffered by reason of the unfair labor practices engaged in by the Employer here. (d) 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. (e) Post at their stores located at 3443 South Noland Road, Independence, Missouri and 1201 North Woods Chapel Road, Blue Springs, Missouri, copies of the at- tached notice marked "Appendix." 143 Copies of the notice, on forms provided by the Regional Director for Region 17,after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 143 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered 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 representatives of their own choice JERRY'S UNITED SUPER 151 To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to recognize and bargain collec- tively with United Food and Commercial Workers Union, Local No. 782, as the exclusive representative of our employees at 1201 North Woods Chapel Road, Blue Springs, Missouri, as part of the appropriate unit noted below regarding wages, hours, or any other terms or conditions of employment, to wit: All employees employed at the Employer 's facili- ties located at 3443 South Noland Road, Independ- ence, Missouri, and 1201 North Woods Chapel Road, Blue Springs, Missouri, but excluding all meat department employees, office clericals, guards, and supervisors as defined in the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain with United Food and Commercial Workers Union, Local No. 782, as the exclusive bargaining representative of all the employees in the appropriate multistore unit as set forth above. WE WILL, on request, apply our existing contract with United Food and Commercial Workers Union, Local No. 782 at our store at 3443 South Noland Road, Inde- pendence, Missouri, to the employees in our store locat- ed at 1201 North Woods Chapel Road, Blue Springs, Missouri, as part of the multistore appropriate unit de- scribed above, with retroactive effect from February 3, 1981. WE WILL make our employees at our store located at 1201 North Woods Chapel Road , Blue Springs, Missouri, whole for any loss of earnings or other benefits resulting from our unfair labor practices, plus interest. WOODS CHAPEL UNITED SUPER, INC. D/B/A JERRY'S UNITED SUPER AND JERRY'S UNITED SUPER, INC.