Awrey Bakeries, Inc.

National Labor Relations Board - Board Decisions

May 2, 1975

217 N.L.R.B. 730 (N.L.R.B. 1975)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Awrey Bakeries , Inc. and Retail Store Employees
Union , Local 40, Retail Clerks International As-
sociation, AFL-CIO. Case 7-CA-11286
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
May 2, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On January 31, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Awrey Bakeries, Inc., Livonia, Michigan,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
THOMAS A..RiccI, Administrative Law Judge: A hearing in
this case was held at Detroit, Michigan, on November 25 and
26, 1974, on complaint of the General Counsel against Awrey
Bakeries, Inc., herein called the Respondent or the Company.
The charge was filed on July 19, 1974, by Retail Store Em-
ployees Union, Local 40, Retail Clerks International Associa-
tion, AFL-CIO, herein called the Union, and the complaint
issued on September 20, 1974. The issue of the case is whether
in the discharge of seven employees on July 8, 1974, the
Respondent violated Section 8(a)(5) of the Act in that it did
so unilaterally, while failing to bargain about its decision to
change the employees-conditions of employment with their
statutory exclusive bargaining agents Briefs were filed by the
General Counsel and the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following:
Awrey Bakeries, Inc., a Michigan corporation, makes and
sells baked goods to the public and to retail stores, and main-
tains its principal office in the city of Livonia, Michigan.
During the calendar year ending December 31, 1973, a repre-
sentative period, the Company's gross revenues were in ex-
cess of $500,000; during the same period it purchased and
caused to be brought to its Michigan location materials and
goods valued in excess of $50,000 from out-of-state sources.
I find that the Respondent is engaged in commerce within the
meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
I find that Retail Store Employees Union, Local 40, Retail
Clerks International Association, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Question Presented
Awrey Bakeries is in the business of baking, distributing,
and selling bread, cake, and related products. The food is
produced in Livonia, Michigan, and from there taken in
trucks to a number of other cities and towns. One of the areas
in which the Company's products are sold is called the Flint
area, where, among other outlets, retail store chains-A & P,
Kroger, Hamady, etc.-handle the products. This case is
concerned solely with what happened in the spring, and into
July 1974, in seven of the Hamady chain retail stores in that
Flint area. And the complaint relates only to seven women,
called hostesses, direct employees of the Respondent, who for
about 3 years had been working in these stores handling the
baked goods as it passes from the Respondent's custody into
that of the Hamady store, where the general public used to,
and still does, pick it off the shelves and counters and buys
it for direct consumption, paying its money into the hands of
the Hamady storekeepers.
At least as far back as 1971 these women were represented
by Retail Clerks Local 40, the Charging Party here. The
drivers of the trucks in which the baked goods were brought
from Livonia, were, and still are, represented under collec-
tive-bargaining agreements between the Respondent and the
Teamsters Union, one local or another.
The last contract between the Respondent and Retail
Clerks Local 40, covering the seven lady employees in ques-
tion, by its terms expired on June 30, 1974. On July 1, the
next day, the Respondent sent a letter to each of the women
telling her that as of July 8 she was discharged. The work
these employees had been doing has since been performed,
beginning the very day after they left, by the persons who
drive the trucks carrying the baked goods from their point of
origin in Livonia to the Hamady retail stores. Now, instead
of just leaving the products on the store loading platform as
they did in the past, the drivers carry it into the stores,
arrange the display on counters and shelves, check the quan-
tities together with Hamady clerks to guard against error,
217 NLRB No. 127
AWREY BAKERIES, INC.
and, as always in the past, the store then pays its account for
bread and cake directly to the Respondent's central office.
The complaint alleges that the Respondent acted unilater-
ally in changing the conditions of employment the way it
did-actually discharging the people, in that it did not bar-
gain with their.statutory representative before doing so, or at
least because it acted "without giving Charging Union an
opportunity to bargain about such actions and the effects of
same on employees." Such disregard of the statutory duty to
bargain with the Union in the spring of 1974 is therefore said
to have been a violation of Section 8(a)(5) of the Act. In
denying the commission of any unfair labor practices, the
Respondent advanced several defenses at the hearing, not all
consistent. In fact, during the first clay of the hearing its
position clearly was that the Union knew, 2 months before
expiration of the contract, that the Company had already
decided with finality to make these changes in its method of
operation, and as the Union did nothing about it, what has
it to complain about now? The next day the Respondent's
president suggested as a witness for the Respondent that the
Company had not made any decision until the very
day-on July 1-it sent out the discharge notices, and that
it had been waiting to see if the Union might dissuade it from
the resolve by convincing arguments. The defenses will be
considered below.
B. Evidence of Refusal To Bargain
When the Company first started bargaining with Local 40
for its Flint area hostesses, or in-store employees, it dealt with
28 retail stores. Major bargaining was carried on between
Retail Clerks Local 876, in Detroit, and the Company; some-
times representatives of Local 40 were present, sometimes
not. The Company usually signed the same contract with
Local 40 as had been agreed upon with Local 876. In 1971,
the Company changed the system in seven of the twenty-five
or so stores covered by Local 40's contract-shifting from
hostesses to drivers to do the work in those stores. Many of
the women worked only part time-i.e., less than 40 hours
weekly-and went to more than one store most days. A cer-
tain amount of work was then lost to the Retail Clerks em-
ployees and acquired by the Teamsters drivers. Again in 1972
the Company made the same change in three more stores.
In October 1973, the Company changed the system in
seven more stores-some of them Hamady chain stores, some
of them in other grocery chains. Now Local 40 filed a griev-
ance under its contract, complaining that by thus taking a
certain amount of work away from employees covered by its
contract, and giving it to others to perform, the Company had
violated the Retail Clerks agreement then in effect. The Com-
pany defended on the ground that its move had been
economically motivated and that the action fell within the
management rights clause of the contract. The grievance
went to arbitration, and a hearing before the arbitrator was
held on May 2; on July 5, 1974, the arbitrator issued his
decision upholding the grievance.
Meanwhile, with the contract due to expire on June 30, the
parties exchanged notices to forestall automatic renewal. On
April 16 the Union wrote it wished to modify the agreement,
and formally requested bargaining: "the Union proposes
changes and revisions . . . . Negotialions to the foregoing
731
end are accordingly herewith requested." By letter dated May
2, the Company advised Local 40 of its intent "to terminate"
the agreement effective on June 30. Both letters conformed
with contract provisions.
The usual bargaining between the Company and Retail
Clerks Local 876 for the greater areas was completed early
in June and in "mid-June" Kasprzak, president of Local 40,
telephoned Mr. Robert Awrey, the Respondent's president,
reminded him of their past practice of signing the same con-
tract the Company made with Local 876, and "requested
from him if and when he wanted to get together for negotia-
tions of our contract ...." This is from Kasprzak's tes-
timony, who then added Awrey responded with "he didn't
feel there was any need for any negotiations, since they were
discontinuing their operation. . . ." Awrey's version of this
demand conversation is not substantially different: "He
called in reference to possible renewal of our contract with
local 40 . . . would we sign the same contract or something
to that effect . . . I responded that we were planning to close
out the concession operation in Flint and that we therefore
could see no point in entering into a contract, and that was
all." The telephone conversation closed with Kasprzak say-
ing he would talk to his lawyer about this.
There was no further communication between the parties
until the Union sent a telegram on July 11, again requesting
bargaining on the asserted ground that "the work performed
by our Awrey members for your company exist in Local 40
areas." The Company's answer, dated July 12, was that there
was "no reason to negotiate a contract since we no longer
operate concession bakery departments in your area." As
already stated, on July 1, the Company had written in-
dividual letters to each of the seven store employees telling
them that as of July 8 they would be discharged; the women
were released that day.
The foregoing facts prove a prima facie violation of Section
8(a)(5) by the Respondent. That in June Local 40 was the
exclusive bargaining agent for the seven women still working
under the existing contract is not questioned. That the Com-
pany, therefore, was obligated then to "bargain" with
it-as the term is used in the statute, concerning every condi-
tion of employment of these women is equally beyond ques-
tion. And finally, that discharging them outright affected
their conditions of employment is clear.' Bargaining, in the
intendment of the statute, not only means meeting with union
agents and in good faith discussing matters with them at their
request, but it also means not running the
business-where it affects the employees-as though the
union did not exist, or in a way that the cases refer to as
"unilaterally."' Twice the Union here told the Company it
wanted to talk about what the conditions of employment
would be after June 30, the last day of the old contract. Its
letter of April 16 explicitly said so, and Kasprzak's telephone
request of mid-June was a no less clear invitation to talk
about contract renewal. The Company's answer to the first
The following statement appearing in the Respondent's brief, applied to
the discharge of all the employees covered by Local 40's contract, merits
no discussion . "[E]ven if the Drivers could be classified as employees,
Respondent's actions here did not directly effect [sic] conditions of employ-
ment " -
2 Fibreboard Paper Products Corporation, 138 NLRB 550 (1962), enfd
379 U.S. 203 (1964).
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demand-saying no more than that it wished to terminate the
existing agreement-simply ignored the bargaining demand.
Awrey's telephone- answer to the Union's president in
June-that he "could see no point in entering into a
contract"-was no less a brushoff, as though the Union- were
not the statutory bargaining agent and as though the statute
put no burden upon the Company then. Unless what the
Respondent now argues in defense can be called adequate
reason to excuse its clear rejection of the Union's equally
clear bargaining requests, this record requires a finding that
it violated Section 8(a)(5) by literally refusing to bargain.
The basic facts could be looked at differently. It could as
well be said the Company "refused to bargain" in the oblique
sense that it fired the girls-changed their working
conditions-without regard to the Union. But the end result
could be the same. Viewed either way, the Company did not
discuss its decision with the Union. The only way the unfair
labor practice can be remedied, the only way the status quo
can be restored if the Respondent is not to enjoy the fruits of
its unfair labor practices, is for it now to restore the seven
women to their jobs, pay them for any moneys they lost
because of the illegal action, and then in good faith discuss
with the Union the Employer's intended plan to make
changes.
C. Affirmative Defense
There is confusion in the various contentions made in de-
fense, both as indicated at the hearing and in the Respon-
dent's brief. It is asserted both that the Company didbargain
about the change in method, and employees, before the
women were discharged, and that it did not bargain, because
the Union ignored the Company's overtures towards discus-
sion . The brief even more explicitly says (1) the Respondent
"has" bargained, and (2) the Union "waived" its rights to
bargain. The principal contention, urged at all times, is that
the Company totally discontinued that part of its business
which underlay its recognition of the Charging Union, that
the drivers now doing the work in question are independent
contractors, in business for themselves, with the Company no
longer concerned with what becomes of the bread and cake
once it leaves the bakery plant in Livonia. Indeed, a very
substantial part of the hearing was devoted to that
question-are the drivers now doing the work of independent
contractors? In the face of this heart defense, the brief then
says: "The status of the drivers here would therefore seem to
be an irrelevant issue not even touching on the question of
whether or not Respondent was under a duty to bargain as
to the decision to close out the retail concession outlets."
The following is my best understanding of the defense
arguments.
1. The Respondent says it went out of business in the seven
Hamady stores, and, therefore, under the rule of Textile
Workers Union of America v. Darlington Manufacturing Co.,
et al., 380 U.S. 263 (1965), could ignore the collective-bar-
gaining agent of its employees with impunity. To prove it
"discontinued" its business it relies on the fact it used to call
the in-store operations "concessions," and that now it is the
drivers who are "in business," or operate the "concessions"
and not the bakery itself. The fact of the matter is the Re-
spondent did not go out of business, neither totally nor par-
tially, and neither at this Flint location nor elsewhere. Its
business is making and selling baked goods, and throughout
the Detroit area, apparently its greatest operation, it uses
hostesses today, under its renegotiated contract with Local
876. Ronald Page, one of the drivers who now services some
of the many stores where the discharged hostesses used to
work, testified he delivers the bread there, and Hamady sends
the money for it directly to Awrey in Livonia; Hamady col-
lects in full from its customers in the store and keeps part of
it itself.
The record is replete with evidence proving the drivers,
Page -and others like him, are not "in business for them-
selves," as he repeatedly stated in purely conclusionary terms.
One critical truth, among the many, will serve to illustrate the
point. Suggesting it is he, and not the baking company, which
sells the bread to the Hamady stores, Page first said he must
absorb losses if the product is not sold fast enough. He added
if 10 pieces of bread go `stale "I give the store credit for the
ten pieces, and I have to assume the loss . . . they are mine.
If I could sell them for fifty cents a piece that would be at my
discretion." At another point Page said that his gross take
monthly is somewhere between $1,000 and $1,400; asked how
much of a loss he took each month because of stale bread or
unsold product he added "three or four hundred." It was
then brought out that the price on the products, which Page,
like the hostesses before him, puts on every piece of baked
good when placing it on display, is set by the Respondent, and
that when bread is not sold the first day, it is marked down
in price, again by Page like the girls used to do, precisely in
accordance with a formula set by the Company, which is no
more than a work instruction to the driver. The only loss to
the driver from all this is that when the Respondent is paid
less money by Hamady in consequence , because the price of
the product is now lower, the employee's commission is also
less. The real loss falls on the bakery, the entity which is
therefore " in business."
Mr. Awrey spoke of there being two divisions, among oth-
ers, in his Company, and over which he has complete
control-a retail sales division and a home service division.
He explained that when the hostesses were used in these
stores they were under supervision of the retail sales division,
but that now the drivers who do the same work are under
supervision of the home service division. Awrey even said
that when the women were released , he, president of the
Company, hoped the home service division would take on
this added work of delivering the baked goods for the Com-
pany. He tried to create the impression that one of his subor-
dinate divisions competes with him; it was not a convincing
story.
2. In major part the defense rests upon assertion that the
drivers who now bring the bread to the stores and do the work
previously performed by the lady hostesses are independent
contractors. In a sense this seems to be part and parcel of the
first contention, that the Respondent has "gone out of busi-
ness." I find that the drivers are not independent contractors.
They are covered by a collective-bargaining contract with
Teamsters locals; they are contractually required to be mem-
bers of the Teamsters, the Respondent contributes to that
union's health and welfare fund on their behalf; the drivers
are on a commission basis-i.e., receive a percentage of the
retail price of the bread; they ride a route set by the Company
AWREY BAKERIES, INC.
and sell to customers selected by the bakery; they may not sell
any other company products; the Respondent makes social
security payments on theirbehalf and covers them with work-
men's compensation insurance ; etc. These details are men-
tioned here only because they make more clear that the Re-
spondent is still doing the same business it did before, the only
change in its system being the choice of employees now doing
the work.
Whether the Company's drivers are or are not independent
contractors, however, is irrelevant to the issue of this case
anyway. All that matters is that the Company took the work
away from the hostesses unilaterally, and the unfair labor
practice, ifit is an unfair labor practice, would be no different
if in fact the Company had taken the work from the contract-
covered employees and given it to a complete stranger. The
Broad rule of law, explicitly sustained by the Supreme Court,
is squarely in point here, Fibreboard v. N.L.R.B., supra, and
N.L.R.B. v. Adams Dairy, Inc., 350 F.2d 108 (C.A. 8, 1955),
on which the Respondent relies to remove the case at bar
from the Fibreboard principles, is inapposite. There, as the
Court, at least, held, the employer in fact "liquidated that
part of its business handling distribution of milk products."
Here the Respondent's supervisors even today keep a con-
stant check on what the driver does inside the retail store,
how clean he keeps the place, how often he goes there, and
even schedules when and where he must appear to do the
necessary work. (Parenthetically, under the scheme of the
statute, the hearing examiner is bound to apply Broad law
unless reversed by the Supreme Court.)
3. The Respondent contends it had every right to make this
change because it was losing money under the old system.
There is even a stipulated statement from its record indicating
this may have been so. The argument here seems to be that
so long as a business change that affects conditions of employ-
ment is economically advantageous to the employer, the
statutory duty to bargain with the employees' representative
is inapplicable. It is a mistaken notion, and has been rejected
too often to justify precedent citation. Neither the statute nor
this complaint suggests that the Respondent, or any em-
ployer, is not free to discharge people, to change their pay,
to alter their conditions of employment for economic reasons.
All Section 8(a)(5) requires, and all this complaint complains
about, is that the employer is obligated, whenever, as here,
there is an exclusive bargaining agent, to discuss the proposed
change with the union. There was nothing to prevent this
Company from making the change when it did, and in a
manner perfectly consistent with the statute. All it had to do
was respond cooperatively to the Union's April 16 letter, or
to its telephone call to Awrey in June, and talk with union
agents about the proposed change. This is all that collective
bargaining is about. It may well be that no amount of talk,
even good-faith consideration of conflicting arguments,
would have diverted the Respondent from its determination
to change the system. But the statutory duty to meet and
confer in good faith is not limited to only those situations
where mutually acceptable compromise is guaranteed, or
even reasonably likely.'
3 From the Supreme Court language in Fibreboard-
. . national labor policy isfounded upon the congressional determina-
733
4. Another defense is that the Union "waived" its statutory
right to be consulted or to bargain about the unilateral dis-
charge of the seven women. At times the Respondent seemed
to be saying the waiver appears in the Union's expired con-
tract; at times the waiver contention appears based on the
conduct of the parties apart from the contract. One phrase of
the agreement reads that "No . . . person not covered by this
Agreement, shall perform work customarily performed by
employees covered by this Agreement. . . ." This language,
at least, fits precisely what happened here. Another section
of the contract provides that "direction of the work force,
including the right to discharge for proper cause . . . or other
legitimate reasons . . . are vested in the Employer." This is
the management rights clause which the Respondent relied
on before the arbitrator to justify the unilateral change it
made in 1973; the arbitrator rejected the defense. Clearly,
however, if the two clauses be considered together, it must be
held there was no "clear and unmistakable showing of a
waiver" Tide Water Associated Oil, Co., 85 NLRB 1096
(1949), no "clear and unequivocal" language-such as the
Board has always required before holding a union had waived
a statutory right to represent employees. The Timken Roller
Bearing Co., 138 NLRB 15 (1962), enfd. 325 F.2d 746 (C.A.
6, 1963).
Apart from the contract, the Respondent points to the fact
it made like changes in, other stores covered by Local 40's
contract in 1971 and again in 1972, when the Union did not
protest or file any charges. The record does not show what
happened at that time, what the parties may have said to one
another. If those changes were also made unilaterally, it may
well be that had the Union filed 8(a)(5) charges the Board
would have found unfair labor practices were committed. No
such issue is presented here. But an employer could hardly
defend- an illegal discharge today-a violation of Section
8(a)(3) of the Acton the ground that it had discharged
others in like fashion in the past and that the employees'
bargaining agent had stood by mute. In any event, when the
Company again in 1973 made the same changes in still other
stores-seven of them-the Union filed a grievance under the
contract, and it won the resultant arbritration. It did not file
8(a)(5) charges then, it is true, but surely its militant protest
belies any suggestion of a "waiver" by the Union of any
rights, contractual or statutory.
I find there was no waiver by the Union in this case.
5. What can be called Respondent's last defense, appears,
as can be gathered from the hearing, to be a merger of two
separate ideas. In cross-examining the witnesses called to
support the complaint the Respondent made every effort to
establish the fact that its representatives had given the Union,
and the ladies as well, to understand, long before June 30, that
the jobs would be abolished. Terrence Brady, Local 40 repre-
sentative, was present at the arbitration hearing on May 2. He
testified that in the course of that hearing Gerald McLellan,
the Company's spokesman, said "irregardless of the arbri-
trator's decision they were going to terminate their operation
in Flint and turn it over to the Home Service delivery men
[sic]." Counsel for the Respondent made sure on cross-exami-
tion that the chances are good enough to warrant subjecting such issues
to the process of collective negotiation
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation that Brady again admitted McLellan having said "it
was the intention of the bakeries to shut down all of the retail
concessions ...." When McLellan appeared as a defense
witness during the second day of the hearing, he attempted
to soften the finality of the language he used on May 2. Thus
he said all he stated on May 2 was that the Company was
making "a study" of what to do about the seven remaining
stores; he said he "indicated the chances are they would be
closed." There was other testimony drawn from the women
themselves at the hearing, aimed at establishing that they
knew early in June or surely by the time Kasprzak telephoned
the Company, that their discharge was already finally de-
cided.
Also at the arbitration hearing, the Respondent offered
documentary evidence to convince the arbitrator that the
changeover from hostesses to drivers to do the work in ques-
tion was economically necessary. This information, coupled
with the persistent position that the Union knew of the Re-
spondent's determination, seems to be the basis for a conten-
tion that in fact the Company did discuss with the Union the
merits of weaknesses of its intention to change the system.
The fact of such debate before the arbitrator is then equated
to "bargaining" as required by the statute. I think, however,
whichever way the defense be turned, it is not persuasive. In
one breath the Respondent says the Union had knowledge of
the decision and did not itself demand bargaining. In the next,
it says no decision was made at all until the very end of June,
that the matter was only being studied, and that the Union's
arguments were being awaited. What the evidence shows, and
what I find, is that the Company had decided with absolute
finality even as early as the date of the arbitration hearing on
May 2, that the last seven stores were going to be changed,
the entire unit represented by the Union was going to be
wiped out, and nothing anybody could say was going to have
any effect upon the determination already reached. This is
what McLellan said that day-that regardless of the arbi-
trator's decision the Company was going to do the same thing
again.
But the question in dispute then was contract construction,
and not whether the Company should or should not run its
business one way or another, how many employees it should
use, and how it should pay them. These last questions are the
ones pertaining to collective bargaining and they were not
discussed that day. At best all the Respondent can repeat is
that the Union knew of its intentions and because it did not
itself do anything to avoid the unilateral action by the Em-
ployer, it surrendered the right to be consulted on whether or
not the Employer should make the changes. Merit or no
merit,4 the idea is entirely beside the point in this case, be-
cause the Union did demand bargaining, not once but twice,
and the Respondent refused to meet with it for that purpose
after specific request.
I find that by discharging the seven employees on July 8,
1974, while simultaneously ignoring the Union's request that
it bargain about their conditions of employment, the Re-
spondent violated Section 8(a)(1) and (5) of the Act.
4 Cf. Florida Texas Freigh4 203 NLRB 509 (1973).
IV THE REMEDY
Having found that the Respondent committed an unfair
labor practice as alleged in the complaint, it must be ordered
to take affirmative remedial action designed to restore the
status quo and effectuate the policies of the statute. The
illegal conduct occurred on July 8, when the ladies were
discharged; the charge against the Respondent was filed by
the Union on July 19; the complaint issued on September 20.
Lawyers for the respective parties, or their agents, met and
discussed this entire proceeding and problem on two
occasions-on July 30 and again on November 7. Counsel for
the Respondent argues that at each of these meetings the
Union has "not made any request to bargain over these clos-
ings . . . we don't feel the union can sit back and do noth-
ing." At both of those meetings the parties were talking about
how to effectuate the arbitrator's decision in money terms
with respect to the earlier layoff of people in 1973. They were
also talking, perhaps, of settlement of the charge underlying
this case. But, even assuming the charging party in a Board
proceeding refuses to talk settlement with the respondent
after filing of charges and after issuance of a Board complaint,
this is hardly reason for fording that no unfair labor practice
had been committed before the filing of the charges. When
the attorney for the Respondent wanted to talk settlement of
this proceeding the employees were already gone, the unfair
labor practice had already been consummated. Even when
the Union asked the Company to talk about the problem on
July 11, before it went to the Board to complain, the Respon-
dent's expressed position was "there is no reason to negotiate
... since we no longer operate concession bakery depart-
ments in your area. ..." See Walter Pape, Inc., 205 NLRB
719 (1973).5
Restoration of the status quo requires that the discharged
employees be reinstated to their former positions, that they
be made whole for loss of earnings, and that the Respondent
thereafter bargain with the Union in good faith about any
intended change in the conditions of employment.
V THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III,
above occurring in connection with the operations of the
Respondent described in section I, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
5 I think the following statement in the General Counsel's brief is correct
the affected employees have been denied an opportunity to bargain
at a time when the Respondent was still in need of their services
and a measure of balanced bargaining power existed Although Re-
spondent at a later date expressed a willingness to bargain over the
effects, that was after the collective strength of the employees' unit had
been dissipated, and any bargaining which would have ensued could not
have been meaningful in a situation where any action by the union
would have been devoid of any economic impact.
AWREY BAKERIES, INC. 735
2. Retail Store Employees Union, Local 40, Retail Clerks
International Association , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act and has been
at all material times, and continues to be, the exclusive repre-
sentative of the Respondent's employees in the appropriate
unit.
3. All employees in retail outlets maintained by the Re-
spondent in the Flint area in the State of Michigan, excluding
store managers and all supervisors as defined in the Act,
constitute an appropriate unit for the purposes of collective
bargaining within the meaning of the Act.
4. By its unilateral action in transferring the in-store work
performed by the employees in this unit in the Flint area to
other categories of employees, and by laying off the em-
ployees previously doing such work, thereby affecting the
terms and conditions of employment of employees in the unit
set forth above, without notification to Local 40, or adequate
opportunity to bargain with respect to those actions before
they were effected, the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act.
5. The aforesaid unfair labor practices affect commence
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
-other workmen and their ,discharge on July 8, 1974, with
interest at 6 percent.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all payroll
records, social security payment records , timecards , person-
nel records and reports, and all other records necessary or
useful in determining compliance with this order , and the
computation of the amount of backpay due pursuant thereto.
(d) Upon demand , bargain with Retail Store Employees
Union, Local 40 , Retail Clerks International Association,-
AFL-CIO, as the exclusive representative of all employees in
the Flint area previously covered in June 1974 by the Respon-
dent's contract with that Union , and, if an understanding is
reached , embody it in a signed agreement.
(e) Mail to the homes of each of the employees affected by
the Respondent 's unilateral action of July 8, 1974, copies of
the attached notice marked "Appendix."7
(f) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order , what steps the
Respondent has taken to comply herewith.
I In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in this notice reading "Posted by Order
of the National -Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
- ORDER6
The Respondent Awrey Bakeries , Inc., Livonia , Michigan,
its officers , agents, successors , and assigns, shall:
[. Cease and desist from:
(a) Refusing to bargain with Retail Store Employees
Union , Local 40 , Retail Clerks International Association,
AFL-CIO, as the exclusive representative of the employees
in I he appropriate bargaining unit by unilaterally transferring
the work performed by such employees to other categories of
employees not covered by the collective-bargaining agree-
ment and by laying off such employees without giving prior
not ice and reasonable opportunity to Local 40 to bargain with
respect thereto.
(b) In any like or related manner interfering with , restrain-
ing, or coercing employees in their exercise of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Offer to all unit employees laid off on July 8, 1974, in
the Flint area and covered by the collective -bargaining agree-
ment of Local 40, immediate and full reinstatement to their
former or substantially equivalent positions without preju-
diae to their seniority and other rights and privileges pre-
viously enjoyed.
(b) Make whole all such employees for any loss of earnings
suffered by reason of the unilateral transfer of their work to
6 In the event-no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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 having found after a
hearing that we violated the Federal law by unlawfully refus-
ing to bargain with the Union selected by our employees:
WE WILL offer to all employees employed by us in the
Flint area in June 1974 and covered by our then contract
with Retail Store Employees Union, Local 40, Retail
Clerks International Association, AFL-CIO, immediate
and full reinstatement to their former or equivalent posi-
tions, without prejudice to their seniority and other
rights and privileges previously enjoyed.
WE WILL make whole all such employees for any loss
of earnings suffered by reason of the unilateral transfer
of their work to other workmen and their discharge on
July 8, 1974, with interest at 6 percent per annum.
WE WILL bargain, upon request, with the above-
named Union as the exclusive representative of all em-
ployees in the Flint area previously covered by our con-
tract with that Union, and, if an agreement is reached,
embody it in a signed agreement. The bargaining unit is:
All employees in retail outlets maintained by the
Company in the Flint area in the State of Michigan,
excluding store managers and all supervisors as de-
fined in the Act.
AWREY BAKERIES, INC