Dodson IGA Foodliner

National Labor Relations Board - Board Decisions

Nov 16, 1971

194 N.L.R.B. 192 (N.L.R.B. 1971)

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dodson's Market, Inc. d/b/a Dodson IGA Foodliner
and Retail Clerks International Association, Local
Union No. 240 . Case 19-CA-4920
November 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 29, 1971, Trial Examiner Allen Sinsheim-
er, Jr., issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that Respon-
dent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended
that such allegations be dismissed. Thereafter, the
General Counsel and the Respondent filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this proceeding and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner as modified herein.
We agree with the Trial Examiner that the Respon-
dent's change of its operations in the contracting for
nongrocery items was motivated in part by the
Union's demand letter of August 14, 1970, and was
violative of Section 8(a)(1). We also agree with the
Trial Examiner that as a result of this 8(a)(1) violation
by the Respondent a pattern was established and
followed by the Respondent which resulted in (1) the
reassignment of employee Van Etten in violation of
Section 8(a)(1); (2) the discharge of employees Gerber
and Kremer in violation of Section 8(a)(3); and (3) the
reduction in the hours of work of the women
employees in violation of Section 8(a)(1) and (3) of the
Act. We find further that the change in the Respon-
dent's nongrocery suppliers caused changes in the
employees' terms and conditions of employment; by
their changing suppliers without bargaining with the
Union about the effect of the changes on employees,
Respondent violated Section 8(a)(5) of the Act. We,
however, do not agree fully with the Trial Examiner
that the sole cause of the reduction of hours for the
women employees (checkers) was Respondent's
receipt of the Union's letter of August 14. As set forth
below, we find that employee Vander Yacht was
removed from her position as produce clerk and
assigned as a checker in retaliation for her union
activities.
The reassignment of Vander Yacht because of her
union activities and the reassignment of Van Etten
because of Respondent's change in its nongrocery
contracting operation led to an excess of employees
employed in the position of checker which resulted in
the reduction of their hours. Both of these factors, in
our opinion, contributed to the illegal reduction of
hours and the discharges of employees Gerber and
Kremer, all of which were part of Respondent's
campaign to destroy the Union's organizational
efforts and to adversely interfere with the employees'
rights under the Act.
The Trial Examiner found, and we agree, that the
Respondent violated Section 8(a)(1) of the Act by
removing employee Vander Yacht from her position
in charge of its produce department following the
Union's demand letter to Respondent.' We find
further that Respondent's reassignment of Vander
Yacht from produce clerk to the position of checker
was also motivated by its knowledge of Vander
Yacht's union activities and was in retaliation for her
union activities, all in violation of Section 8(a)(1).
We agree with the Trial Examiner that the initial
discharges of employees Gerber and Kremer were
violative of Section 8(a)(3) and (1) of the Act, but our
agreement is based on the reason given by him as
modified above.
We agree with the Trial Examiner, and for the
reasons stated by him, that the Respondent's stated
reason to the employees that he could not grant any
wage increases because "his hands were tied, by the
Union" was in violation of Section 8(a)(1).
Though, as stated above, we agree with the Trial
Examiner's finding that the reduction in the hours of
work of the women employees constituted a violation
of Section 8(a)(1) and (3) of the Act, we do not agree
with his reasons for not recommending a backpay
order. While the record discloses that the Respondent
possibly made a small economic gain as a result of his
change in the method of contracting for nongrocery
items, we have found further that the reduction in the
hours of work of the employees was motivated by and
was a part of the Respondent's overall campaign to
defeat the union organizational efforts of its employ-
1 The evidence shows that on August 14, the date the Respondent at her home in which five of Dodson 's employees and union
received the Union's letter demanding recognition, the Respondent was representatives had participated . At this meeting five employees signed
aware of the fact that Vander Yacht had had a meeting, prior to August 14, union authorization cards.
194 NLRB No. 22
DODSON IGA FOODLINER 193
ees. And, in any event, even under the Trial
Examiner's reasoning, a violation of the Act occurred
and a remedy is necessary. Accordingly, we shall
order backpay for these employees.
The General Counsel excepts to the Trial Examin-
er's failure to find an 8(a)(1) violation by Dodson's
statement to boxboys Sanderson and Leibrant on
August 16. We find merit in this exception. Dodson,
on August 16, after informing the two boxboys that
their wages had been previously increased and that in
fact they were now being paid higher than union
wages, concluded the conversation by telling them
that "if the store went into the Union or became a
union shop their wages would be frozen at $1.65" and
to "think it over." Dodson did not deny making this
statement. Contrary to the Trial Examiner, we
conclude that this statement by Dodson, which was
made subsequent to the Union's demand, clearly was
coercive in that Dodson implied that selection of the
Union would adversely affect their earnings. Accord-
ingly, we find this statement of Dodson to be a
violation of Section 8(a)(1) of the Act.
The General Counsel further excepts to the Trial
Examiner's failure to find that employee Vander
Yacht was constructively discharged within the
meaning of Section 8(a)(3) and (1) of the Act. We also
find merit in this exception.
The Trial Examiner, after relating the facts concern-
ing the employer-employee relationship that existed
between Dodson and Vander Yacht both before and
subsequent to Dodson's knowledge that Vander
Yacht was the leading union activist, concluded on
the basis of the record evidence that the General
Counsel had failed to establish a constructive dis-
charge of Vander Yacht by Respondent. We disagree.
For the reasons set forth below, we find that Vander
Yacht was constructively discharged by the Respon-
dent in violation of Section 8(a)(3) and (1) of the Act.
The record discloses that Vander Yacht, prior to
August 14, was a valued and trusted employee. After
August 14, at which time Dodson became aware of
Vander Yacht's role in seeking union representation,2
there occurred a series of acts by Dodson that can
only be construed as an effort to force Vander Yacht
to resign her position. In this respect, following
Vander Yacht's reduction from produce clerk to
checker, Dodson began close surveillance of her
activities, to the extent of openly following her about
the store, timing her with a clock on the performance
of inconsequential tasks, and making entries in a
2 Dodson contended that he had never formed an opinion after
receiving the union letter as to which employees were behind the Union's
attempt to organize his employees . This contention is refuted by the
credited testimony of Respondent's witness Kern, whom Dodson visited on
the afternoon of August 14. Kern testified that on that date Dodson told
him that the employees had signed cards at Vander Yacht's house.
Employee Sanderson credibly -testified that on the evening of August 14
notebook purporting to document her failure to
observe the rules of "proper behavior." During this
period, Dodson also abandoned his former practice of
personally delivering to Vander Yacht her weekly
paychecks and, after withholding them, belatedly
affixed two such checks to a bulletin board behind a
hallway door in the store. Further, Dodson intensified
his harassment of Vander Yacht by denying her
request to trade 'shifts with another employee,
although he had freely allowed such trades in the past,
and by scolding her in the presence of outsiders for
purported infractions of company rules.
Significant, moreover, is the thinly veiled threat to
get rid of Vander Yacht which was made by Dodson
to another employee. Thus, Dodson told Van Etten
that he "should have gotten rid of" Vander Yacht the
previous summer and further, looking to the future,
that "one of us has to go."- These remarks were
immediately passed along to Vander Yacht.
Dodson's effort to compel Vander Yacht's depar-
ture bore fruit. According to her uncontroverted
testimony, Vander Yacht, who had never suffered a
nervous condition in the 5-year history of her
employment with the Respondent, was compelled to
seek medical treatment for a "bad case of the
shingles." Her doctor attributed the condition to
Dodson's harassment and advised her to quit. Finally,
on November 2, 1970, less than 3 months after Vander
Yacht's union activities became known to Dodson
and after the latter began harassing her, Vander
Yacht turned in her store coat and marking pencils
and announced that she was through.
Based upon the foregoing we find that Respondent
constructively discharged employee Carol Vander
Yacht in violation of Section 8(a)(3) and (1) of the Act
in reprisal for her union activities.3 We have previous-
ly found, in agreement with the Trial Examiner, that
the reassignment of Carol Vander Yacht from her
duties as produce clerk to that of checker was in
violation of Section 8(a)(1). Accordingly, we shall
order the Respondent to reinstate Carol Vander
Yacht to her former job of produce clerk or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to any seniority or other rights and
privileges previously enjoyed. In addition, the Res-
pondent shall make her whole for any loss of pay she
may have suffered by reason of the discrimination
against her, by paying to her a sum of money equal to
that she normally would have earned from the date of
her discharge to the date on which she is offered
Dodson mentioned Vander Yacht's name in connection with the receipt of
the Union's letter. Another witness, Janice Hetterley, a customer, testified
that Dodson told her he resented Vander Yacht as the person who had
forced people to sign union cards.
3 Holly Bra of California, Inc., 164 NLRB 1112, 1123, Tennessee
Packers, Inc., 143 NLRB 494, enfd. 339 F.2d 203 (C.A. 6).
194 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
reinstatement, as aforesaid, less her net earnings
during said period; the loss of pay may be computed
in accordance with the formula and method pre-
scribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and include interest at the rate of 6
percent per annum, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716. Respondent shall
similarly make whole those employees who suffered
losses as a result of Respondent's discriminatory
reduction of their hours.
We amend the Trial Examiner's Conclusions of
Law by adding thereto the following to be numbered
as Conclusion 9 and by renumbering the Trial
Examiner's Conclusion 9 as 10:
9. By discriminatorily terminating the employ-
ment of Carol Vander Yacht by constructively
discharging her on November 2, 1970, Respondent
has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that Respondent, Dodson's Market,
Inc. d/b/a Dodson IGA Foodliner, Everson, Wash-
ington , its officers , agents, successors , and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order, as modified below.
1. We amend the Trial Examiner 's recommended
Order by inserting the following as paragraphs 2(a)
and (b) and by relettering the subsequent paragraphs
accordingly:
"(a) Offer to employee Carol Vander Yacht imme-
diate and full reinstatement to her former job or, if
that job no longer exists , to a substantially equivalent
position, without prejudice to her seniority or other
rights and privileges and make her whole for any
losses suffered by reason of the discrimination against
her.
"(b) Make whole those employees whose hours were
discriminatorily reduced for any loss of earnings they
may have sustained as a result of the discrimination
practiced against them."
2. Substitute the attached notice for the Trial
Examiner's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL upon request bargain collectively in
good faith with the Retail Clerks International
Association , Local Union No. 240 , as the exclusive
representative of all of the employees in the
bargaining unit described below , with respect to
rates of pay, wages , hours of employment, and
other terms or conditions of employment and, if an
understanding is ' reached , embody such under-
standing in a signed agreement . The bargaining
unit is:
All the Respondent 's grocery employees,
excluding meat department employees , office
clerical employees , confidential employees,
guards, and supervisors as defined in the Act.
WE WILL make whole those employees who
suffered losses as a result of our reduction of their
hours.
WE WILL offer to Carol Vander Yacht immedi-
ate and full reinstatement to the job she held prior
to her discriminatory transfer or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of earnings she may have suffered as a result
of her termination on November 2, 1970.
WE WILL NOT change the working assignments,
schedules, or hours of our employees without
notifying Retail Clerks International Association,
Local Union No. 240, and giving it an opportunity
to bargain collectively about such proposed
changes.
WE WILL NOT inform employees that no wage
increases can be granted while a union matter is
pending.
WE WILL NOT discourage membership in Retail
Clerks International Association , Local Union
No. 240 , or in any other labor organization of our
employees by discriminating in regard to their hire
or tenure of employment or any term or condition
of employment.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce our employees in
the exercise of their right to self-organization, to
form, join, or assist the above -named or any other
labor organization of our employees , to bargain
collectively , through representatives of their own
choosing, or to engage in other concerted activities
for the purpose of mutual aid , or to refrain from
any or all such activities , except to the extent such
DODSON IGA FOODLINER 195
right may be affected by an agreement requiring
membership in a labor organization as a condition
of employment as authorized in Section 8(a)(3) of
the Act.
DODSON'S MARKET, INC.
D/B/A DODSON IGA
FOODLINER
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Republic Building, 10th Floor, 1511 Third
Avenue, Seattle, Washington 98101, Telephone 206-
583-7473.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR., Trial Examiner: This proceeding
was heard at Bellingham, Washington on January 19, 20,
and 21, 1971 and reopened for limited additional hearing at
Seattle, Washington, on March 24, 1971. The complaint
issued October 15, 1970,1 alleges violations of Section
8(a)(1), (3), and (5) of the Act.2 A timely answer to said
complaint was filed by Dodson's Market, Inc., d/b/a
Dodson IGA Foodliner, herein called Respondent. The
questions presented are (1) whether Respondent violated
Section 8(a)(1) of the Act in a number of claimed respects;
(2) whether Respondent violated Section 8(a)(3) of the Act
by terminating Iris Gerber and Irene Kremen, reducing the
hours of work of employees and constructively discharging
Carol Vander Yacht; and (3) whether Respondent violated
Section 8(a)(5) of the Act by failing to bargain with the
Union as representative of its employees in an appropriate
unit-which includes the issue of whether the Union
represented a majority of employees; finally (4) whether
Respondent's conduct was such as to require the issuance
of a bargaining order even in the absence of a violation of
Section 8(a)(5).
Upon the entire record including my observation of the
witnesses and after due consideration of the briefs of the
General Counsel and Respondent-Employer, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Washington corporation engaged in the
1 The original charge was filed August 20, 1970, an amended charge on
August 26 , 1970, and a second amended charge on September 4, 1970.
2 Amendments to the complaint were made and granted at the hearing.
retail sale of grocery items at its store in Everson,
Washington. During the past fiscal year which included a 4-
month shutdown caused by a major fire, Respondent's
gross business volume was approximately $348,000. Based
on a projection of representative monthly volume, its
business volume for the 1970-71 fiscal year will exceed
$500,000. Respondent annually purchases goods valued in
excess of $50,000 from businesses located within the State
of Washington which in turn purchase said goods from
outside the State of Washington. I find that Respondent is
an employer engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits and I find that Retail Clerks
International Association, Local Union No. 240 , herein
called the Union, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Initial union organization and request for
recognition
Except for a meatcutter employed by Respondent after
Labor Day 1970, which resulted in an agreement with a
local of the Meatcutters Union, the Respondent has not
been represented by a labor organization. In the beginning
of August, employee Carol Vander Yacht, who had bebome
dissatisfied with working conditions, contacted union
Secretary-Treasurer William Lewis. Following this Vander
Yacht canvassed employees and arranged for' a meeting
with Lewis at her home on the evening of August 12, which
was attended by employees Jean Van Etten, Iris Gerber,
Irene Kremen, and Mary Wortley. These five constituted a
majority of Dodson's employees who according to the
General Counsel would number seven and according to
Respondent would number nine .3 After discussing possible
benefits of unionization, Lewis passed out authorization
cards which the five employees signed after reading.4 The
next day Lewis sent a letter by registered mail to
Respondent in which he stated that the Union had received
authorizations from a majority and requested recognition
of the Union and an early meeting to discuss signing a
contract. The letter was received by Leland Dodson, the
owner of Respondent, sometime between noon and 2:00 on
Friday August 14.
2. Time of Respondent's change on August 14 in
its contracting for drugs and hardware
According to Leland Dodson, the owner of Respondent,
he had contemplated for some time changing his supplier of
certain drug and hardware items called nonfood items from
a firm called American Wholesale Grocery to Merchants
Supply Company. Prior to a fire at the store in 1969, these
items had been furnished by Merchants Supply Company.
3 The number in the unit will be considered in detail hereafter.
4 Contentions as to their validity will be considered post.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the fire, American Wholesale Company became the
supplier and offered a 5 percent discount provided
Respondent would take care of the ordering and stocking
of such products. Accordingly from November 1969 to
August 14, 1970, these were furnished by American
Wholesale. Employee Jean Van Etten did the ordering and
along with other employees the stocking of items when
furnished by American Wholesale. Dodson testified that he
had been dissatisfied with American Wholesale Service for
at'least the preceding 4 months. Other witnesses including
Leo Kern, the Bellingham manager of American Whole-
sale, suggested the principal source of dissatisfaction with it
had come about from a recent move of American's
warehouse from Bellevue to Kent, Washington, which had
created problems in effecting deliveries to Respondent's
store. Dodson testified that 2 or 3 weeks before August 14
he had talked to Henry Hawkins, a representative of
Merchants Supply who was at his store, and told Hawkins
that it was costing Respondent too much money in labor to
have the orders written out and put on the shelves, that they
were getting entirely too much buildup of inventory and
having to return too many goods. Dodson testified, "I felt
that I would be better off to go back with them." Dodson
then said that Hawkins reaction was that they would be
glad to have us back and they always wanted us back but
that Hawkins said, "Leland you have caught me right when
we have a bunch of people on vacation." According to
Dodson, Hawkins then said, "If you demand it well come
in now." Hawkins then said, "It would be an accommoda-
tion if you would let this go a few weeks until we can get our
force straightened out." Dodson said, "That I agree to."
Dodson stated it was his custom to go to Bellingham on
Friday and pay American Wholesale for the week's
supplies, that he usually picked up some fish and chickens
and occasionally went out to Merchants Supply, who at the
time was supplying him with other merchandise. According
to Dodson on Friday morning, August 14, he went to town
in his usual manner, stopped at American Wholesale, paid
them their check, and went down to Merchants Supply. He
didn't remember what he got, he thought he picked up
something and he went down to see "if I could get it" and
while in there, according to Dodson, "they told me they
were ready to service me." Dodson testified he then said,
"Fine, have Don pick up our order next week." Dodson
said that he (Don Peterson) then came in on the following
Tuesday and picked up the order. According to Dodson,
"We have been getting our supplies that way ever since."
Dodson further stated that on the morning of August 14,
when he happened to go into Merchants Supply, he spoke
with Mr. Sandvig and Mr. Zabel. He placed the time as a
little before noon, "very close to the noon hour." Dodson
testified he returned from town between 1 and 2 p.m.
The foregoing would place the order and change from
American to Merchants Supply on the morning of Friday,
August 14 prior to the receipt of the letter from the Union.
However, there is in the record no specific or definite
corroboration of Dodson's testimony that he went to
American and Merchants on the morning of August 14.5
On the contrary there is testimony from Respondent
witness Kern that Dodson normally came to American in
the afternoons on Friday. Kern finally testified as set forth
hereafter that he thought Dodson was there in the
afternoon on August 14. Sandvig and Zabel were unable to
place the time on August 14. In addition, there is testimony
from General Counsel's witnesses that Dodson was away
from his office for a lengthy period on the afternoon of
August 14 after receiving the letter. Dodson admits being
away from the office but said he went to visit and talk with
his son and then had his dinner. There are also substantial
variances or conflicts between the testimony of Merchants
Supply personnel or officials and Dodson's testimony that
he had asked Merchants Supply to take over some weeks
before August 14 from American and that Merchants
Supply had told him on the 14th that they "were ready" to
take over.
As to the time of Dodson's visits to American and
Merchants on August 14, as to his whereabouts throughout
the day, and as to who initiated the return to Merchants,
the record reflects the following additional evidence: Henry
Hawkins was called by Respondent and testified that he
had made a number of attempts as salesman during the
summer to persuade Dodson to assume full service with
Merchants Supply. He did not confirm Dodson's statement
that he and Dodson had made a commitment to resume
service well in advance of August 14. On the contrary
Hawkins said he learned of Respondent's resumption of
business through other persons at Merchants Supply and
did not make such arrangements himself.
According to Respondent witness Edward Sandvig, the
coowner and president of Merchants Supply, Dodson came
to his office on the 14th. Sandvig could not recall whether it
was before or after lunch. Sandvig testified "Leland said he
wanted to resume full line service with us. That he was not
satisfied with his nonfoods operation, that he had been
getting through American Wholesale Grocery. I assured
him we would be most happy to do it." This latter indicates
Dodson initiated the request to Merchants on August 14,
rather than Merchants stating they "were ready" to handle
Dodson's business. Sandvig said- that he had needled
Dodson "at every opportunity" to get his business back but
did not state that any formal arrangement had been made
prior to August 14.
Leo Kern of American Wholesale testified that Dodson
customarily came to his office on Fridays from 3 to 3:30
p.m. Kern said that on one of the days that he (Dodson)
was in my office, Dodson told him about the union letter
and "he said that he was a little upset that no one had
brought anything up to him and talked to him about it. It
was a shock to him, this is how I took it." Kern was asked
by the General Counsel:
Q. Did he bring up Carol Vander Yacht's name on
the day he brought up this letter that he received from
the Union?
A. It's very possible he did.
Q. What, if anything, can you recall him saying
about Carol Vander Yacht?
5 I note General Counsel witness Carol Vander Yacht testified Dodson he was at American and Merchants shortly before noon and returned
had been out of the store in the morning and returned before noon . This between I and 2,p.m.
does not indicate where Dodson was and conflicts with his testimony that
DODSON IGA FOODLINER 197
A. I believe the meeting was at her house.
Q. He told you there had been a meeting at her
house?
A. Yes.
Kern was asked by the General Counsel whether at the
time Dodson told him he received the Umon's letter
Dodson said when he had received it. Kern first answered
that he didn't remember Dodson telling him when he got it.
Kern testified, "I believed he said he got the letter. I don't
remember him saying that he got it this morning, this
afternoon or when." Kern was then asked whether he had
any reason to believe Dodson had received the letter the
day "he brought it up." Kern answered, "It's possible that
he got it that day, he brought it up. I am fairly sure that he
probably did come in the day that he got the letter." Kern
was asked:
Q. Was it on that day he told you he wanted to quit
your service?
A. No, I don't believe so.
Kern then said, ". . . Well, it was sometime in there I think
he wanted to, I think he wanted to quit before that anyway
but he. ." Kern was then asked: '
Q. (Interrupting) He gave you his formal notice he
was quitting on the day he came in and told you about
getting the union letter. Is that correct?
A. I can't, I really can't understand that. I'm sure
that he told me now that he was quitting, he was
dissatisfied. Now, as I stated before, I don't know if it
was the day he got the letter or not. I don't know. I don't
get his mail, sir.
Q. I understand that. I'm asking you whether or
not, on the same day that he came in and told you, "I
got a letter from the union," and told you about the
meeting at Carol Vander Yacht's house, where they
signed cards. Was that the same day that he formally
notified you that he was quitting?
A. I believe so. I think it was.
Dodson, testifying later in the hearing on examination by
Respondent counsel, stated that he had told a Merchant
Supply salesman, Don Peterson "at different times the fact
that it looked like we would be back with them. American
wasn't getting our deliveries straightened out. Too often
they were long in getting there and they were short too
many items." Dodson added that he and his son Orran on
the night of August 13 had discussed the matter and agreed,
6
7
Orran was a witness but did not testify as to this subject.
On examination under 43(b) Dodson testified
Q After you read the union's letter, what was the first thing you
can recall doing?
A. Well, I went down and mentioned it to Miss Kremen, and
went out and got in the car and went down and gave the letter to my
boy and went and had dinner, that was something like 2, 2:30 in the
afternoon. I am not very punctual as to what time I eat. [Emphasis
supplied.]
Q What did you do after you finished eating lunch?
A. I went back to the store
Subsequently when called as a witness by Respondent, Dodson testified on
examination by the Trial Examiner he left the store and went to his son's
home a block away to discuss the letter. Dodson said: " . . He'd been down
having his lunch or droner, and I went in the house and we sat there and
talked and discussed it for some time, and he come on up to the store and I
stopped off at the restaurant to eat." Dodson was then asked:
TRIAL EXAMINER: Just a minute , about what time did you
leave the store to go to your son's house?
THE WITNESS: I would say about probably 2:15, 2:30,
. . We would have to discontinue with American ..."
Dodson said they reached a final decision, "That we were
definitely going to change and we were going to change
right away" to Merchants .6 On examination by Respon-
dent, Dodson testified as to the conversation at Sandvig's
office, "Mr. Sandvig told me `we have wanted your account
back since we lost it.' " According to Dodson, Sandvig
said, "we will service that and get out there and give you
service if I have to come but there myself. He said, `I'm just
not going to wait any longer.' "
When the foregoing is coupled with the testimony (in
detail) hereafter as to changing Carol Vander Yacht's
duties so that she no longer performed produce work, it
becomes apparent that, of all the witnesses called by the
Respondent and the General Counsel, only Dodson
supports his version as to the time of effecting the change
from American to Merchants on August 14. The witnesses
not only include those witnesses of the General Counsel,
Vander Yacht and Gerber, who saw Dodson absent a
substantial time during the afternoon, (which Dodson
admitted) 7 but they include as set forth several witnesses
for the Respondent, namely, Hawkins, Sandvig, and
particularly Kern. In connection with the Vander Yacht
incident as will appear, they include not only Vander Yacht
but also Respondent's witness, Christiansen, whose testi-
mony was indefinite.
It appears unlikely that the receipt of the Union's letter
and the change from American to Merchants on August 14
(as well as the change in Vander Yacht's duties) would be
coincidental. When this is coupled with the inability of
Respondent to adduce corroboration from any of its
witnesses of either the time of change or who initiated the
change at the time it occurred or of certain other significant
parts of Dodson's testimony (supra) concerning conversa-
tions with American and Merchants officials and represent-
atives, I conclude and find that Dodson's testimony as to
the time of effectuation of the change is not to be credited
and that the change occurred after the receipt of the letter
on August 14. In so doing I am not making any finding that
there was no economic basis or warrant for the change. The
record as a whole, which will be analyzed hereafter, might
possibly support such a change as effected by the
Respondent on the basis of business operations. However,
it is clear that, although this change was evidently a matter
in contemplation, no definite decision to make the change
somewhere in there.
TRIAL EXAMINER. What tune did you leave his house to go to
eat?
THE WITNESS : Well, time goes by pretty fast. I don't know, we
was there about 15, 25, 30 minutes. I didn't time it. We talked about
that, talked about other things. It was quite a shock to me. I have
always felt that our group was very close together, and I have taken
quite an interest in the help to explain to them how the business is run,
also things would cost more if it's run this way than another, and
when this came this way without saying anything to me about it, it was
a shock. It really was.
TRIAL EXAMINER: All right, now about what time did you eat
your dinner or lunch as you call it at the restaurant?
THE WITNESS: I'd say somewhere close to 4 o'clock. I visit with
the folks over there at the restaurant . I'm hardly over there less than
an hour and a half. [Emphasis supplied.]
TRIAL EXAMINER: You returned to the store about what time?
THE WITNESS: I'm guessing at this for I don't know, but I would
say somewhere in the neighborhood of 4:30 to 5.00.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was made until the arrival of the Union, and the Union's
letter in effect accelerated or precipitated the change from
American to Merchants as to the drug and hardware items.
What the effects of such conduct may be herein will be
considered furtherpost.8
Evidence was adduced by Respondent with respect to the
economic necessity to change operations in order to reduce
costs. This consisted principally of an analysis of labor cost
as a percentage of sales. A compilation prepared by Orran
Dodson who testified with respect thereto reflected the
following rates of labor costs to sales for months of July
through December 1970:
July - 5.3%
August - 7.5%
September - 6.4%
October - 7.5%
November - 7.9%
December - 5.6%
Orran Dodson also testified that the changeover to
Merchants and subsequent layoffs or reductions in hours
were intended to bring labor costs within an "acceptance"
range stated by him to be 6 percent. The General Counsel
contends that these figures may not prove the matters set
forth without producing all of the pertinent business books
and records of the Respondent, citing Welcome - American
Fertilizer Co., 169 NLRB 862, 870. The General Counsel
also 'argues that the foregoing are "inconclusive of
anything." With respect to the General Counsel's conten-
tion that as evidentiary matter the data may not be con-
sidered, the Board has held otherwise. See Roman Cleanser
Company, 188 NLRB No. 136, citing cases: However,
the argument of the General Counsel with respect to the
inconclusiveness of the figures is pertinent. These figures
reflect an up-and-down pattern in labor costs as against
sales at the times set forth. They do not reflect comparable
costs for other periods or years, nor do they show the total
sales figures involved during the specified months or any
time which would bear on the ultimate matter of profit or
loss. Finally they cannot be viewed in isolation without
regard to business and employment conditions throughout
the area. Even assuming the data may be arguably of some
evidentiary value, I do not consider such to be decisive on
the issue of the cost-sales-profit relationship. On the other
hand I do not consider the data meaningless. Evidence was
also induced that upon the return of Mrs. Dodson (who had
been off work) there was less need for nonfamily
employees. Further the record does reflect that upon
reduction in total working hours after August 14,
Respondent was still able to conduct its business. This
latter will be considered more fully hereafter. However, the
foregoing economic aspects do not change the finding and
conclusion as to the time that Respondent in fact decided
to and did change from American to Merchants, nor that
such was precipitated or accelerated by the Union's advent
and its letter.
The complaint alleges that Respondent commencing on
August 15 made the following unilateral change in working
conditions: "(a) rearranged its employees working sched-
ules without first consulting with employees as had been the
traditional practice."
While I find no evidence in support of any traditional
practice of consulting employees prior to a change, the
matter of when and how the changes in assignment and/or
schedules occurred was thoroughly litigated during the
hearing both in connection with the aforesaid allegation
and also in connection with the allegations of violations of
Section 8(a)(5) and derivative 8(a)(1). Accordingly, I find
that the changes in operations which occurred as a result of
the Union's letter and which brought about changes in Van
Etten's assignments and other persons' assignments and
schedules (and also the terminations of Gerber and Kremen
post) were violative of Section 8(a)(1) of the Act .9
3. Replacement of Vander Yacht as produce clerk
For almost 5 years Carol Vander Yacht had the
responsibility at Respondent's store of ordering, unloading,
pricing, and displaying produce. According to Leland
Dodson, about the middle of July 1970 Arnie Christiansen
was hired with the thought that he could assist Vander
Yacht in that department and give her advice as to display,
pricing, and other aspects since he had extensive produce
experience. Dodson said when Christiansen was hired, it
was with the understanding that he would be taking part-
time work as he couldn't stay too long, since he planned to
go on a missionary or evangelistic trip. It is clear that until
Vander Yacht took her vacation from the end of July until
the beginning of August she was in charge of the produce
department. On July 25, she filled out the order list, on July
28 she gave the produce man the order, and on July 29 she
prepared another order. During the week ending August 8
while Vander Yacht was on vacation, Christiansen ordered
the produce. According to Vander Yacht when she returned
to work the next week, she was primarily responsible for
preparing the orders although she consulted with Christian-
sen as to sale items. As she had done before, Vander Yacht
gave an order to the produce man on Tuesday, August 11,
and prepared one on Wednesday, August 12. Vander Yacht
was scheduled to be off on the 13th. Dodson testified that
"about August 11" he told Vander Yacht that Christiansen
was "in charge of the produce and that would take the
heavy work off her, that she was not physically able to do
the heavy work that was to be done, it is really not a
woman's job." Vander Yacht denied that any such
conversation had ever taken place but said that when
Christiansen was hired it was with the understanding that
he would help her in the produce department.
Dodson was asked by the Trial Examiner and testified:
THE WITNESS: And if I remember right, it was
while she was still on vacation that I told him that he
would take over and have complete control of the
produce from then on.
8 One immediate effect was to change the duties of Jean Van Etten who 9 Subsequently I am finding that by effecting these changes Respondent
had handled the ordering and some stocking from American After the also violated Section 8(a)(5) of the Act I am also finding certain specified
change she worked more as a checker violations of Section 8(a)(3) were a consequence thereof.
DODSON IGA FOODLINER 199
TRIAL EXAMINER: Who ordered it after she came
back from her vacation?
THE WITNESS: Now, that I don't know. I'm not
back there when the produce is being ordered.
TRIAL EXAMINER: Did you tell Mrs. Vander
Yacht that Mr. Christiansen would have complete
charge?
THE WITNESS: I told her after she got back from
her vacation, but I don't know what day it was.
TRIAL EXAMINER: What did you tell her?
THE WITNESS: I told her that Arnie was going to
be, going to have control of the produce, and that she
would not have to do the heavy work for produce no
more.
TRIAL EXAMINER: Did you tell her who would
handle the orders?
THE WITNESS: No. I presumed that that was
enough, but I did not just come out and say don't you
order anything else, for honestly, our relationships there
in the store had been the most friendly and agreeable to
one another and to have to spell out every little thing, I
just haven't done it.
Arnie Christiansen called as a witness by Respondent
testified that Vander Yacht either did the ordering the week
ending August 14 or worked with him on the ordering
during this period. It is evident from his testimony that he
had not been told at that point that he was supposed to take
over, nor did he testify specifically that he was so told to
take over or when.10 However, it is evident that as of the
following week Christiansen performed all the functions of
the produce department including the ordering and that
Vander Yacht was out entirely. Vander Yacht testified that
when she came to perform the produce order preparation
on Saturday August 15, she saw Christiansen preparing the
order and that Christiansen thereafter took over all
ordering except for occasions when he called on Vander
Yacht to assist in some particular task.
The General Counsel contends that further proof that
Dodson had no intention prior to August 14 of removing
Vander Yacht from the produce department was evidenced
by two factors: First that he did not give Christiansen a
raise until sometime in the week following the letter, which
ended August 22. During that week Christiansen received a
50-cent-per-hour increase. The General Counsel argues that
the only plausible basis for giving the increase was
recognition of Christiansen's having taken over the produce
department completely and that this supports Vander
Yacht's account rather than Dodson's of when Christiansen
took complete charge. The contention evidently is that the
raise would have been granted the week in which
Christiansen, took over, rather than delay a week. Second
the General Counsel also referred to Dodson's conversation
(post) with Iris Gerber about 6:30 p.m. on August 14 in
which, according to Gerber, whose testimony I credit,
Dodson said "there were going to be some changes made"
to Christiansen testified in response to a question by the Trial Examiner
as to "who ordered after Carol's vacation?"
THE WITNESS' I'm quite sure that I started to order, and if I
recall right, I wouldn't be positive, but I felt that Carol was a little hurt
over this, and I don't recall for sure if I completely stopped or I Just
helped her, but I didn't want to cause any problems, but as far as I
remember, I ordered after Carol came back, or we ordered together,
in the produce and drug ordering and "that he would pull
Jean and Carol up front to check." The General Counsel
argues that by the use of future tense" Dodson, as of 6:30
p.m., August 14, still considered Vander Yacht to be the
produce clerk. I note also the testimony of Respondent
witness Kern set forth, supra, which I credit that Dodson
apparently indicated to Kern on August 14 that he knew
the union meeting had been at Carol Vander Yacht's
house.12 There is also the testimony of employee Gerald
Sanderson, discussed more fully hereafter, that on the
evening of August 14 Dodson mentioned Vander Yacht's
name saying she had been "working too hard and that she
was dust overdoing herself." Sanderson said at that time or
on Sunday, August 16, Dodson told him he thought
"Vander Yacht had taken drastic steps in this" (evidently
referring to the Union) "without knowing what would
come out of it." Dodson did not deny this and I credit
Sanderson's testimony. Further supporting the conclusion,
that Vander Yacht's work was changed after the union
meeting at her house and after the letter was received is the
finding above that the change from American to Mer-
chants occurred after the receipt of the union letter. Here
again I am not finding that there was no warrant for a
change. There is testimony by Dodson and Kern that the
operation of the produce department needed improvement.
Kern testified he had commented upon the inadequacies of
the produce department a number of times. However, this
does not negate the fact that although there may have been
a desire to improve the produce department the change
with respect thereto did not come about until the
Respondent received the letter from the Union and that
this precipitated or accelerated any change that might
otherwise have occurred.13 I accordingly find that Vander
Yacht was removed from the charge of the produce
department following and because of the union letter and
that Respondent thereby violated Section 8(a)(1) of the
Act.14 However, at this point I am not making any finding
concerning the allegations with respect to a constructive
discharge as to Carol Vander Yacht, which will be
considered hereafter.
4. The termination of Iris Gerber
According to employee Iris Gerber, about 6:30 p.m. on
August 14, Dodson after returning to the store told her:
A. He said, "You asked for tomorrow off, didn't
you?" and I said "Yes," as we were walking back and
when we got back there he said there were going to be
some changes made and he went on to tell me that he
was changing produce and drug situations in the store, I
really don't remember what, and that he would pull
Jean and Carol up front to check and that he wouldn't
be needing me anymore because business had dropped
off and that if he did need me he would call.
Gerber then was asked if Dodson said anything about
receiving a letter from the Union and testified:
I'm not positive.
11 Dodson does not appear to have denied this
12 Dodson did deny this.
13 I have previously found that the matter of changes in assignments
and schedules was thoroughly litigated at the hearing as to alleged
violations of Sections 8(a)(1) and (5) of the Act
14 1 am finding post that this also violated Section 8(a)(5) of the Act.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, he said he had gotten a letter from the
union and he understood that three employees were
unhappy with the situations as they were and he had
wished that the employees had come to him first.
According to Dodson during his discussion with his son
the night before (August 14) they had considered operating
costs when they decided to switch back to Merchants
Supply. Dodson said this would result in a savings of 26 to
40 hours work per week, as Merchants did its own
supplying and racking, or about one less employee. Dodson
also said Mrs. Dodson was then returning from a vacation
and was available for work. Dodson further testified that
although employee Mary Wortley was junior in employ-
ment to Gerber he decided to retain Wortley because she
was available nights and full time while Gerber insisted
upon working only part time.
Gerber- said that before this conversation no one had
given her any reason to believe that she was not performing
satisfactorily or that any changes were in contemplation.
On August 20, as will be discussed more fully hereafter,
union representative Lewis and another union representa-
tive, Clark, met with Dodson concerning recognition. At
that time Clark also raised the subject of Gerber's
termination. Dodson stated, according to Clark, that he had
been dissatisfied with Gerber's work for some time and that
her services weren't needed because of Dodson's decision
to hire an outside vendor to perform certain stocking and
merchandising functions. Clark said that it was odd that
Gerber had been terminated on the same day Respondent
had received the Union's letter. According to Clark,
Dodson replied that the receipt of the letter was "the straw
that broke the camel's back." " I note in this connection that
Lewis did not specifically corroborate Clark's account in
this regard. Lewis said that it was Clark who did the talking.
While the General Counsel argues that it is to be expected
that Clark's recollection would be the more precise, it might
also be expected that Lewis would recall such statement if
made. I do not find it necessary to resolve this in order to
determine the matter of Gerber's termination.
With respect to Gerber's termination there is no question
that it was in part if not in whole brought about by the
change from American to Merchants. As I have concluded
that this change was precipitated or accelerated by the
union letter seeking recognition, in violation of Section
8(a)(1) of the Act, it is evident that as a part of the
consequences of an illegally effected change that Gerber's
termination was discriminatorily motivated. The termina-
tion of Gerber would accordingly be a violation of Section
8(a)(3) and (1) of the Act and I so find. Gerber was
subsequently reemployed by Respondent about October
14, 1970. She testified that Dodson told her "when he could
he would give me a substantial raise." She said he told her
something to the effect that he would like to give her a raise
now but his hands were tied by the Union.
5. The termination and reemployment of Irene
Kremen
On August 14 immediately after receiving the Union's
15 The discussion as to Kremen is predicated on Dodson s testimony
since Kremen, who was in Canada, did not testify.
letter, according to Dodson, the first employee to whom he
spoke was Irene Kremen, a checker. Dodson testified 15 that
Kremen admitted having signed a card by stating "we've all
signed cards." This would indicate to Dodson that others
had likewise supported the Union.
Kremen was senior at least to checkers Wortley and
Gerber. She took a vacation between August 15 and 22 and
on returning on August 24 called Dodson to ask when she
should come into work the next day following a change in
the schedules during her vacation. Dodson told Kremen she
"wasn't needed anymore." The next day she talked to
Dodson at the store and objected to the fact that he had
terminated her rather than Wortley. Dodson said Wortley
would be there the following spring, but Kremen was
scheduled to leave the area to go to British Columbia. The
following day, pursuant to legal advice,16 Dodson reversed
his decision and called Kremen back to work where she
continued on a reduced schedule (as did most of the other
employees) until she quit to go to Canada on October 8.
With respect to Dodson's explanation for Kremen's
termination the General Counsel points out: That Dodson
had earlier stated that he had "hired Mary (Wortley) so we
could have help while we went on vacation. Mary was what
you call a summer job . . ." Dodson had then added he
"anticipated keeping her on as full-time in the place of Iris
during the winter time . . ." The General Counsel argues
that this only served to show that Dodson was grabbing at
excuses as fast as they came to mind. The General Counsel
argues further that even if Wortley at some point became a
permanent employee, as far as Dodson was concerned, it
was implausible that she would have obtained such status
so soon after she started employment. This could be the
case but is not necessarily so, since apparently Dodson was
impressed by Wortley's work and she was one of the two
persons who did receive a substantial increase in Decem-
ber, to be discussed hereafter. While the General Counsel
takes the view that Kremen was scheduled to leave in the
spring, Dodson testified that Kremen's husband had said
they could go anytime and earlier. Kremen actually did quit
about October 8 and left for Canada.
In any event I do not consider that this question of
selection is necessarily dispositive of the matter as far as
Kremen is concerned. It, of course, can be argued that she
was selected instead of others because of her stating that
she had signed a union card. However, by August 22, after
meeting with Clark and Lewis, referred to supra andpost, it
is probable that Dodson had a fairly good approximation as
to who would make up the majority who purportedly had
signed cards, which would appear to have included Wortley
as well. Without regard to the question of selection, in my
judgment the termination of Kremen, occurring at the time
it did and as a proximate result of Respondent's
precipitating or accelerating the change in operations when
it did because of the Union's letter, was discriminatorily
motivated. The termination of Kremen for 1 day according-
ly would be a violation of Section 8(a)(1) and (3) of the Act
and I so find.
The foregoing resolution as to Kremen and Gerber still
leaves the question of the reduced hours for the women
16 Dodson said he received legal advice that it would make it less likely
that unfair labor practices would be charged if he took Kremen back.
DODSON IGA FOODLINER 201
employees which occurred, according to the records, during
the week of September 12 following advice by a lawyer to
Dodson and which will be discussed post.
6. Alleged 8(a)(1) activities
a. Allegations concerning wages of Sanderson and
Leibrant
The General Counsel had initially alleged that on August
16 the Respondent "increased the wages of its box boys
above the area union scale." He moved to delete this
allegation and substitute an amendment that on or about
August 16, 1970, the Respondent, through Dodson,
"informed its box boys that they were now receiving wages
in excess of those called for in the area union contract and
that they should keep this fact in mind if the union matter
came to a vote."
According to box boy Gerald Sanderson, about 8 o'clock
on the evening of August 14 Leland Dodson told him he
had "received a letter and that some of the employees had
asked to go union. He said he didn't know who they were
but he could probably find out." Dodson then went on and
mentioned Carol Vander Yacht's name saying she had been
"working too hard and that she was just overdoing herself."
Sometime either in this conversation or the following
Sunday according to Sanderson, Dodson told him he
thought Vander Yacht had taken "drastic steps in this"
(apparently referring to union activity) "without knowing
what would come out of it." On Sunday, the 16th, Dodson
spoke to Sanderson and Robert Leibrant, another box boy,
about the Union. According to Sanderson he told them that
Bob is not earning $1.65 an hour now, but $1.75 and "you
Jerry (Sanderson) are not earning $1.75 an hour but $1.85"
and that if the store went "in the Union or became a union
shop" their wages would be "frozen at $1.65." Sanderson
said Dodson closed the conversation by telling them "to
think it over carefully." Dodson did not deny Sanderson's
account. Leibrant was called by Respondent but was not
asked to deny, contradict, or verify Sanderson's account.
It is clear through testimony and records which I credit
that these increases effective the week ending August 15
had been granted prior to the union organization, so that
their grant was not violative of the Act. It is also clear and I
find that both Sanderson and Leibrant were aware of the
increases prior to the receipt of the Union's letter requesting
recognition. Sanderson testified that he' learned before
August 14 from Leibrant and from checking his card that
he had been given a 10-cent raise. This indicates that
Leibrant himself had learned of the wage increase before
August 14 and it corroborates Dodson's testimony that he
told Leibrant and Sanderson of their wage increases before
August 14. I conclude and find that the wage increases
themselves were given to Sanderson and Leibrant before
August 14 and that they were told of these increases prior to
August 14.
With respect to the rest of the statements made on August
16, set forth above, the proposed contract submitted by the
Union indicates a rate of $1.70 initially for the helpers.
Whether the prior contract paid $1 .65 or not is unclear.
This latter statement by Dodson appears to be in the nature
of argument and, on the basis of the record herein, in my
judgment such does not constitute a violation . Since the
wage increases were granted before the union letter was
sent and appear to have been known to both Sanderson and
Leibrant, I do not find such to be a violation . I conclude
there is no violation as to the matters alleged with respect to
the allegation set forth supra.
b. Allegation concerning change in coffee and
pastry policy
After receiving the letter from the Union the Respondent
changed its coffee and pastry policy. Coffee had been
supplied from a coffeepot in the meat department with
some pastry or cookies provided . The new policy was to
provide coffee without charge at a restaurant across the
street. Dodson testified the move was based on two
considerations : (1) the unsightliness of the coffeepot17 in
the meat department and (2 ) his wish that employees could
enjoy their breaks without being called upon to go to the
checkstand or do other work while on a break . Kern, the
manager of American Wholesale , testified he had several
times suggested to Dodson that the coffeepot be removed
from the meat area . The employees on the morning of
August 15 and thereafter were advised individually they
would be permitted to have coffee in a cafe across the street
from the store but that pastry which had been given to them
free would not be paid for. Dodson testified that there was
some practice about providing cookies or sweets in various
ways. He said the girls often brought little pastries or cake,
the Orowheat driver often gave them packages of sweet
rolls that were getting old on the shelves and also the
Sunshine and National Biscuit salesmen set out packages of
broken cookies . When there was nothing else Respondent
"furnished them." Dodson , his wife, and four grandchil-
dren ate some . Dodson testified the actual cost if he had
provided all would have been 50 or 60 cents a day and that
Respondent furnished probably half. Obviously the cost
would have been low while provision at the restaurant
would have been substantially more . Also it is a fair
conclusion that coffee at the restaurant would entail more
cost than out of a coffeepot . Some effort was made by
Dodson to indicate that the change had been under
discussion for quite a while, but Dodson did admit that at
one point that the decision to change occurred after
notification by the Union. Dodson said "we made our
decision after we were notified the Union would be out
there bargaining . Orran and I talked it over and thought it
would cause extra tension to the store . He was putting in a
meatcutter and if the health men came out to look things
over and criticized us that was all right , but we didn't want
them to criticize the meatcutter who didn't have anything to
do with it. We decided we should do something about that
before we got unduly criticized and got our help criticized
when they shouldn't be."
Dodson said that he went over to the restaurant across
the street and arranged to furnish the coffee and put it on
17 Dodson was asked when a customer would see the coffeepot when he they were either preparing it or had had it. There were dirty cups
approached the meat counter and he replied: sitting there. It was just rather unsightly.
The very first thing he would look right over to the place where
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his bill and that he then informed the help that they would
have coffee but didn't know whether he told everyone.
Carol Vander Yacht indicated she wasn't told and didn't
know about the new coffee policy for some time, which will
be referred to post. Dodson explained that he had looked
around the store to try to figure out where to put the coffee
and get it away from the meat room and that another
problem had been to have clerks repeatedly take their
coffee breaks all at one time which would take them out of
the meat room and leave a customer standing at the
checkstand. This according to Dodson would result in Van
Etten, who was prompt, going over and waiting on them.
Dodson said he felt that by moving to the restaurant they
would not be disturbed and be able to have a better break
and he didn't think anyone would object to it.
Although the changes in lunch facilities have been found
to be violations under certain circumstances,18 in this
instance I am not convinced that although the coffee
change occurred at the time of the union letter it was
designed to affect the union organizational activity or by
way of reprisal therefor. I believe that a reasonable
appraisal of this action should be taken and accordingly am
finding that the coffee change was not in violation of the
Act.
c. Threats to withhold wage increases
In late August or early September, Dodson approached
Van Etten and said that he could not give the girls wage
increases "until this was settled, and it would take about 10
or 11 months."
About October 13, in a conversation concerning Gerber's
return to work, Dodson told her, in effect, that he couldn't
give any wage increases at that time because "his hands
were tied by the union." Dodson added that "when he
could" he would give her a substantial raise. The defense
asserted by Respondent is that lawyers cautioned Dodson
not to give increases . While there are certain limitations
with respect to the granting of wage increases during the
period of a union's organizational or recognitional
activities, there is no absolute prohibition thereon. Dodson
was therefore accordingly incorrect in his statement. Such
statements were therefore violative of Section 8(a)(1) of the
Act and I so find.
d. Threat to close the store if the union came in
Some 3 or 4 weeks after August 14, Mary Wortley
happened to be nearby when Leland and Orran Dodson
went to the meatcase. According to her, they should have
seen her. According to Wortley, Dodson remarked "that if
the union came in, if worse came to worse, `they would be
forced to close.' " Dodson denied that, to his knowledge,
any employee was present in what he called a private
conversation, but he did not deny someone could have
been. In addition, Dodson explained that the "above was
taken out of context and that he was conversing with Orran
about the NLRB settlement proposal requiring him to hire
Gerber back and restore all employees to full hours."
Dodson said he had remarked that the effect of this would
be to force him into bankruptcy and he would rather close
the store and pay creditors than do that. Respondent points
out that General Counsel' s witness Van Etten had said that
Dodson had told her he had no objection to employees
joining the Union. While I don't consider that this
definitely disproves the foregoing, it is evidence of an
attitude contrary thereto.
First, I do not consider that the record clearly indicates
that the remarks of the Dodsons were directed toward
Wortley. Second, it appears that there was more to the
conversation and the context than Wortley heard and
reported. I am not satisfied that the General Counsel in this
instance has established that the remarks attributed by
Wortley to Dodson were made as set forth nor that they
were directed toward her. I am accordingly finding no
violation as in this respect.
e. Wage increases to Gerber and Wortley
In December, Gerber and Wortley were both given
substantial wage increases. Gerber had been receiving $1.90
an hour; she was increased to $2.35. Dodson told her that
since the hearing had been postponed to a date in January
"his, advisers had told him he could go ahead and grant the
increase." Wortley had been hired at the rate of $2.25 an
hour, was given a 5-cent increase in July to $2.30, and was
given an additional 25-cent raise in December. The record
reflects that Respondent had no regular schedule for wage
increases but granted them on a discretionary basis. In the
past it had generally granted a 5-cent or 10-cent increase
with the only large exception prior to December being the
50-cent increase given to Christiansen at the time he took
over Vander Yacht's produce duties. However, Respondent
points out 5-and 10-cent increases to an employee over a
period of time would add up to a substantial increase.
Dodson gave the instance of Irene Kremen who in 1970 was
raised from $2 to $2.10 the last week in January, to $2.15
the third week in March, to $2.25 April 4, and to $2.35 April
24. During the period of time from August to December
when no pay increases were given, had increases been given
such could have totaled the amount set forth in the amount
of 35 cents in the case of Gerber and 25 cents in the case of
Wortley. The record also reflects the following comparison
of Wortley and Gerber's pay and that of other employees:
Vander Yacht and Van Etten received $2.75 per hour from
July on-they had, of course, performed duties in addition
to checker prior to August 14. Kremen received $2.35 while
Gerber had been hired at $1.90 and received this until she
was raised 35 cents to $2.25 in December. Wortley had
started at $2.25, was raised to $2.30 in July, and then 25
cents to $2.55 in December. Certainly Gerber's increase to
the range Kremen had for apparently comparable work was
not unreasonable. As for Wortley who started at $2.25, she
had received a 5-cent raise in July within about 2 months of
hiring. Other increases thereafter might be anticipated.
Under all the circumstances I do not find the 25 cent
increase to Wortley in December to be inordinate or
inconsistent with Respondent's policy of giving increases
from time to time-which policy had been inhibited from
August to December.
I am also aware of the fact that this was a period in the
18 Cf . Baker Machinery, 184 NLRB No. 39, TXD.
DODSON IGA FOODLINER
economy in which more substantial increases may have
been necessary to retain good employees.
If the Respondent were failing to give increases it should
have given during the interval, it is difficult to conclude that
the granting of such subsequently would be illegal,
particularly where the rates as set forth were below other
employees and where it could be reasonably anticipated
that they would be raised. I conclude that under the
circumstances the granting of the increases in December
were not violative of the Act and so find.
7. The alleged constructive discharge of Carol
Vander Yacht
The question presented is whether or not Carol Vander
Yacht "quit" her employment on November 2, 1970 under
circumstances which would amount to a "constructive
discharge." From the credited testimony of Kremen, it is
evident Dodson knew Vander Yacht had signed a card,
from Kern's credited testimony he knew that the union
meeting was at Vander Yacht's house, from Sanderson's
credited testimony Dodson was quite annoyed at Vander
Yacht, and from Clark's credited testimony and Dodson's
actions the letter had both upset and annoyed Dodson.
There is also the testimony of Janice Hetterly, a customer,
that about October 28 Dodson told her that Vander Yacht
had been organizing for the Union and "forcing people to
sign the cards." I have also found that following the
Union's letter Dodson had taken and removed Vander
Yacht from her position as produce clerk and assigned her
duties primarily as checker. The latter resulted in a change
in her hours but apparently the hours of all other employees
except one were also changed.
Prior to the advent of the Union, Vander Yacht testified
that she had a close personal relationship with Dodson and
"I confided in him the same as he did in me, I think it was a
very friendly personal thing. I had a lot of respect for
Leland." She said that Dodson consulted her on a good
many questions concerning operating policy. However, she
did seek to bring in the Union, after Arnie Christiansen said
he was amazed at the heavy work she did and if the Union
was in she wouldn't be doing such. She thought about it and
"I hadn't been too happy with things so I went to the union
office."
Vander Yacht contended that although she had ordinari-
ly been handed her checks by Respondent, after receiving a
check on August 18 she did not receive one for 2 weeks. The
circumstances relating to distribution of checks during that
period are in dispute with some elements not entirely clear.
Dodson testified that prior to August 22 he had decided,
following a suggestion by his son Orran, to post the checks
on the wall adjacent to the bulletin board. This is a position
where the checks would be seen if the door were shut, but
19 The record reflects the following-
A. Well, I asked him if he had gotten his check that week and he
said yes, he had. I said, "I didn't." He said, "I saw your check on the
wall. I can go up and get it for you."
s x a s s
Q Did he specify where?
A. The only thing I thought he said was he would go up and get it
for me. I took it it was upstairs and I hadn't been upstairs.
Q. What, if anything, did you do after you spoke to Mr
Christiansen'?
203
not if the door were open since it would then obscure part
of the wall. Dodson admitted that this occurred after the
union letter. Dodson explained the reason for the change,
was that he had been in the habit of carrying checks to
distribute, but that he sometimes forgot them and on
occasion had dropped some on the floor. According to
employee Jean Van Etten, the first she was informed or
knew that checks were placed on the bulletin board behind
the door was about September 4, when she and Mary
Wortley were told by Dodson that from then on their
checks would be so placed. This meant the first check Van
Etten received on this bulletin board was on September 9.
Dodson admittedly distributed the checks for the preceding
2 weeks to some employees. There is an apparent conflict-
between Dodson's earlier testimony during the original
hearing and his testimony during the reopened hearing as to
whether or not he had personally given out all of the checks
or posted some on the board. At the initial hearing Dodson
was somewhat vague about the matter. In the reopened
hearing although not specific Dodson testified he had
posted at least three of the checks next to the bulletin
board. The only corroboration for posting during the
period from about August 22 to September 4 for the latter
location is Arnie Christiansen's testimony that he saw Carol
Vander Yacht's check at that location.
Christiansen testified that sometime (apparently during
the last of August) he had observed Vander Yacht's check
on the wall by the bulletin board, that he had said, "Carol,
it must be nice to have that kind of money that you don't
need your check." Christiansen said he saw tears were in
Vander Yacht's eyes and testified Vander Yacht said,
"Well, Arnie, Bill is not working and I do need that check,
but he will have to hand it to me. I am not going to ask him
for it." Christiansen said he just made the statement that
sometimes you have got to swallow your pride and do
things that you don't care about doing. Christiansen said he
did not recall telling Vander Yacht where the checks were.
Vander Yacht said she had always been given her checks
previously by Dodson and she was not going to ask him for
them. She said Christiansen had told her on August 29 that
he had seen her check on the wall and offered to get it but
she didn't want him to and had broken into tears, in essence
confirming his story except for the fact that Vander Yacht
testified that Christiansen had told her that her check was
on the wall. She indicated at this point that she thought it
was on the wall upstairs. However, she contacted union
representative Lewis who apparently also contacted Clark
and they suggested she get her camera and take a picture of
the check. Vander Yacht proceeded on the following
Monday at noon to look for the check on the wall behind
the door and did not find it. She said she was reluctant to go
upstairs to see if it was up there.19 The latter indicates some
question as to whether Vander Yacht understood the
A. I didn't do anything at the store that day I went home that
night and I called Mr. Lewis and I told him what Arnie had told me,
that there was a check that was posted somewhere and what should I
do about it. He said, "I am going to talk to Roger Clark today. I will
call you back and let you know." He called me back and he said
Roger told him to tell me to take a camera to work and take a picture
of the check. Don't take the check, this would be the best evidence we
could have. So on Monday morning I went to work and I took my
camera with me in a sack. At 12 o'clock they all went to lunch, Mrs.
Dodson, Orran and Leland were all gone and Jean was the only one in
(Continued)
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checks were downstairs or upstairs when Christiansen told
her it was on the wall. Although she said she thought, when
Christiansen told her it was on the wall, that this was
upstairs she commenced to look for the check on the walls
downstairs.
Also there is some question as to when Vander Yacht did
receive the checks from Dodson who showed her the board
which had two of her checks on it which she took off.
Vander Yacht said that this occurred on Friday, September
4, and she then went to Bellingham from Everson.
However, in the latter connection it appears that if she
worked a full day this would have been 5:30 in the
afternoon. The record does not establish whether or not the
banks were still open at that time or what date a night
depositary would stamp on deposited checks. Dodson
places the time as September 1 or 2 when Vander Yacht
obtained her two checks. The General Counsel asserts
Dodson deliberately withheld Vander Yacht's check
because of her union activities. The matter is arguable and
under some circumstances such inference could be drawn.
However, while suspicious, the circumstances herein are
not entirely clear and it is evident that Vander Yacht
reacted strongly to taking any action toward obtaining her
check. Vander Yacht stated that the reason she took this
position was she had been harassed by Dodson by taking
her off the produce job and changing her hours and that he
was no longer friendly. The change of hours evidently was
no different from that of other employees. The change from
the produce job has been previously noted and undoubted-
ly could evoke a response from Vander Yacht. As for the
lack of friendliness, it is not surprising under the
circumstances. Nor is it a violation for the owner to cease to
be friendly. See Southwestern Co., 111 NLRB 805 at 824.
The General Counsel contends that Dodson was seeking to
make a case against Vander Yacht. How this could be the
case with the checks is not clear. In the instance of Vander
Yacht's taking a camera to photograph a locale, it would
seem rather that the Union was seeking to establish a case
against Dodson.
With respect to the coffee break change, Vander Yacht
testified:
The coffee pot was removed from the store the next
day, and the cups, and I had no knowledge of where we
were to have coffee, just that there were no breaks. The
following week when the schedule was posted on the
wall, it said you work whatever time you come to work
and it would say a certain time for a break, it was 10
minutes, and when you come back and the next break
was 10 minutes and I never knew where it was. This was
never told to me until three weeks later in a
conversation. Leland told me that coffee had been
provided across the street. I had heard this from the
other girls but I had never been invited to go, so I never
had gone over for coffee.
Here again Vander Yacht's response was that she wouldn't
the store.
Q. Are we referring to Monday, August 31st"
A Yes Lee, the butcher was there, but there were no customers
in the store and I went inside the little hall and I shut the door and
took the camera out of the sack and looked around on the walls and
there was no check on that wall any place. I was going to go upstairs
to see if it was up there and I chickened out I hadn't been use to
playing cops and robbers and I just didn't go any further. There was
no check on the wall downstairs at that time
Q Did you specifically look in the area behind where the door
go until personally invited by Dodson. There is nothing to
indicate that the coffee break change, which I have found
was legal , was directed to her, nor does it appear that
everyone but Vander Yacht was told about it.
The timing of subsequent events is not entirely clear but
the following appears to have occurred. About 3 weeks
after the Union's letter, Vander Yacht was called to the
back of the store along with Van Etten and Kremen. After
they arrived, according to Vander Yacht, Dodson criticized
the employees' failure to call out numbers at the
checkstand. Van Etten and Kremen, according to Dodson,
said nothing. Vander Yacht protested that she had always
called out prices. According to Vander Yacht, Dodson
became somewhat angry and walked away stating that he
didn't want "to talk anymore about it." Dodson was asked
if he had admonished or warned Carol and answered:
A. Yes, I did, and not entirely Carol alone. It had
come to our attention at different times that none of us,
myself included, and I try not to do any checking if I
can get out of it, we were not calling out the prices of the
items as they were being rung up. I called them to the
back room in the presence of Orran and told them, if I
remember my words right, "I don't really think this
should have to be said."
Q. Before you tell us what you said, identify the
group that you called back there.
A. Irene Kremen, Jean Van Etten, Carol Vander
Yacht.
Q. Tell us now what you said and what anyone else
said.
A. I told them I didn't think it was necessary to tell
them this, but there was one in the bunch who had been
at the market long enough to know that it was definitely
a practice for the checkers to always call the amount of
the sales out as they rang them up. Irene and Jean did
not make any reply. Carol told me that she always had
done that. The girl was mistaken, she just didn't always
do it.
The General Counsel argues that Dodson had never made
an issue of calling out prices at the checkstand previously.
Assuming this were so, it does not follow that such may not
properly be raised since certainly customers are entitled to
know in some manner the charges per item.
On Sunday, October 18, late in the afternoon, Vander
Yacht called Dodson concerning her work schedule the
next week. She was told she was scheduled the next day,
Monday. She asked if he would mind if she traded with Van
Etten since she had a commitment to have a baby shower.
It appears that requests to exchange with other employees
had been granted by Respondent in the past. However, the
record does not show how much time had been involved
prior to making such requests, nor does it reflect what the
schedules had been previously. In this instance Dodson
refused to permit the change stating, according to Vander
Yacht, "He was sick and tired of you having things your
would have covered it if it were open?
A. Well, I had to shut the door I shut the door to take the
camera out of the sack and there was nothing on any wall downstairs
at that time
DODSON IGA FOODLINER
way." According to Jean Van Etten, on October 23, during
a conversation with Dodson, he told her:
Leland told me that, let's see, Carol worked the first
three days of the week, Mondays, Tuesdays, and
Wednesdays. the early shift. Iris worked Thursday,
Friday, and Saturday, and Mary worked Monday,
Tuesday, Wednesday evenings and I worked Thursday,
Friday, and Saturday evenings . That's the way he's had
it set up. He said he did not want to have to cut hours
from Mary to change the days so that I could work my
evenings because Iris [Gerber] refused to work with Carol.
[Emphasis supplied.]
Dodson testified as to his having set up teams to cover the
operation with Vander Yacht and Wortley on one of them.
He referred to Vander Yacht's wanting him to fire Ins
Gerber. Dodson then testified:
When Mrs. Vander Yacht called me up it was late,
just at closing time Sunday night. For me to make that
change that she was asking, it would have necessitated
me calling the other help and changing it. I told
her-she wanted to know if she could change, if I didn't
mind, and I said, "I mind." She said, "I have got a
shower planned for tomorrow and I have got to go to
it." I said, "Well you had better." She started giving me
a rough time about why it was that they couldn't change
their time of working hours as they had in the past. If I
remember, my reaction to her was, "There have been a
lot of things done to accommodate everybody else at
the store, but here of late everything seems to be done to
disrupt the store and this is not going to go through to
disrupt it at this time. My time schedule is going to
stand just as it is."
Vander Yacht was not reprimanded for taking the day
off. However, on October 20, according to Vander Yacht,
she was called to the back of the store by Dodson and
found there the recently assigned produce clerk, Mike
Young, and Don Peterson, a salesman from Merchants.
Dodson told her he wanted her to "stop criticizing store
policies to the customers while you are on the job." Vander
Yacht protested she only talked to them when they asked
her questions and Dodson repeated he wanted "her to stop
talking to the customers." When Vander Yacht said if this
meant "completely," according to her, Dodson slammed
his fist down and said, "I want you to stop talking to the
customers." Dodson then said with respect to calling prices
that she was not calling them "loud enough for the
customers to hear." Vander Yacht's response was that if she
stood behind Dodson she couldn't hear him either. Dodson
became angry at this point and, according to Vander Yacht,
said, "Are you trying to build a case against me?" Dodson
testified with respect to the foregoing:
A. I instructed Carol to stop criticizing the store and
its policies while she was on thejob and also instructed
her to pay more attention when she was a checker that the
customers did not have to wait and she would have to be
called to get to the checkstand to check them out, that
that had been happening. Also, that I had stood in the
alleyway behind her while she was checking out
customers and if she was calling out the prices she was
calling them out low enough that I didn't hear them and I
was sure the customers couldn't hear her and I would
205
appreciate it if she would speak a little louder when
calling them . Also while she was calling out the numbers
and prices to not talk, not talk while she was ringing up.
[Emphasis supplied]
Q. Did Carol say anything at that time?
A. Yes.
Q. What did she say?
A. She said, "Well, I have been working in the
checking stand next to you and I haven't heard you
calling them and I think you were calling them."
Dodson also testified he had not told Vander Yacht to stop
talking to customers completely . Dodson stated:
A. I told her while ringing up items not to talk, and
while talking, not to ring up, but at no time did I tell her
not to talk to the customers, Carol or anyone else.
A few days after this incident, Dodson had a conversa-
tion with Van Etten in which he said that he should have
gotten rid of "Vander Yacht the previous summer," that she
was "sick" and that she was ruining his business by
criticizing store policies and that "one of us has to go."
Dodson did not specify exactly what was referred to with
respect to criticism of store policies. There is no question
from the record that the atmosphere was no longer friendly
between him and Vander Yacht and it is also evident that
Vander Yacht was upset about the situation. As for
patronage of the store, Vander Yacht admitted that she and
her family, consisting of approximately 12 persons, ceased
purchasing at the store. The foregoing, of course, could
have resulted from criticism of the store. The fact that such
number of persons related to Vander Yacht would cease
buying at the store may have annoyed Dodson. The
foregoing conversation that Van Etten had with Dodson
was related by her to Vander Yacht which probably
disturbed Vander Yacht.
Apparently after Van Etten reported her conversation
with Dodson to Vander Yacht, Vander Yacht had a case of
shingles and went to see a doctor who suggested she quit.
Vander Yacht said she had never had the shingles before
and that the "harassment" had upset her.
Dodson testified that he had kept a record as to incidents
involving Vander Yacht on advice of an attorney and had
then given her the oral warning on October 20. On October
25, he handed her a letter confirming the contents of the
oral warning. Although there may be a contention that the
case of shingles followed the warning, I do not so find for
the reason that the written warning was issued October 25,
while Vander Yacht said she worked 2 or 3 weeks after she
had the shingles and she quit on November 2. This would
place her case of shingles at least a week prior to the written
warning. Accordingly, I conclude that the shingles
preceded both the written warning and apparently also the
oral warning on October 20 concerning her work.
The written warning from Dodson on October 25 is set
forth hereafter:
October 25, 1970
Everson, Washington
Mrs. Carol Vander Yacht
2547 Mt. Baker Hwy.
Bellingham, Washington
This is to confirm that on October 20, 1970, at 3:10
p.m., I did instruct you to discontinue critisizing (sic)
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store policies to customers-while you are on the job.
Also that on the same date and time I did instruct
you to be more alert in seeing that customers do not
have to wait for a checker.
Also that I did call to your attention the facts that
you are not calling out the prices loud enough for
customers to hear the amount and that you are not to
ring up sales while conversing with the customer.
I informed you that I had noticed you often fail to
call the prices at all to the customer.
(signed) W. E. Dodson
Dodson's IGA
According to Vander Yacht, there had been no previous
warnings given out by Dodson during the 5 years she
worked in the store. Dodson testified that he gave her the
letter because "he felt she was so mad back there that she
probably wouldn't remember half of what was said." The
reference in the letter about checking is set forth, supra, in
more detail in Dodson's testimony. According to Vander
Yacht:
... He said I was making customers wait at the
checkstand for service, which they only had to wait long
enough for me to walk down an aisle for me to get there.
We were instructed we were to work within the visibility
of our checkstand and this could be as far as the eggs
and butter in the back of the store you could still see the
checkstand. That is how long they had to wait ... .
Also on the same date,' October 20, Dodson told Mary
Wortley she was to be sure and "register only on one
register . They had been mixing them up and I needed to pin
it down because we had had considerable trouble in getting
our records to balance out each night."
The effect of the foregoing is that following the
introduction of the Union the relationship between Dodson
and Vander Yacht became strained. Dodson was no longer
friendly, nor was he legally required to be. Vander Yacht
was upset first by the change in the produce department
and then evidently by numerous matters which occurred.
The checks were one, the coffee another. The matter of the
trading of a day another. So also the other items of
criticism, whether directed to her or a number of persons as
set forth, supra. While the issue is not free from doubt, the
burden of proof is on the General Counsel. The employer is
entitled to operate the store and to do so in an orderly and
reasonably efficient manner. The circumstances herein are
such that, while they may be viewed with suspicion, in my
judgment they do not clearly establish such action directed
to Vander Yacht as to amount to a constructive discharge.
The change from produce clerk to checker in its inception
might have been viewed as such, although the pay remained
the same and with respect to lifting was less onerous.
However, Vander Yacht continued to work, but while
working an unfriendly relationship developed between her
and Dodson which may have been magnified by mutual
sensitivity and stubborness.
In conclusion I do not consider that the General Counsel
has established by a preponderance of the evidence a
constructive discharge in the case of Carol Vander Yacht
and I shall recommend that the complaint be, dismissed
with respect to this allegation.
8. The reduction in hours
I have previously indicated that the reduction in hours of
work of the women, which occurred during the week of
September 12 and which was a result of the change from
American to Merchants, initially constituted a violation of
the Act since it emanated from and was precipitated by the
union letter. I find such would constitute a violation of
Section 8(a)(1) and (3) of the Act. However, as previously
set forth, it does appear that Respondent had a basis for
reducing the amount of help in terms of its increased costs
and the unsatisfactory nature of American Supply's
services. Further, the fact that Respondent could operate
with less employee hours was a further manifestation that
more were not needed. For these and other reasons I am in
the section headed "Remedy," post, not recommending any
backpay order with respect to the reduction in hours.
9. The issue as to majority
The complaint alleged, the answer admits, and I find the
following unit is appropriate:
All the Respondent's grocery employees, excluding
meat department employees, office clerical employees,
confidential employees , guards, and supervisors as
defined in the Act.
The General Counsel contends that the Union had a
majority of the employees in the unit as of the time its letter
was sent and received by Respondent, and also a week later
when Lewis and Clark discussed the matter with Dodson,
since by the latter time another employee had signed a card.
Respondent contends that when all the employees it claims
are in the unit are counted, Gerber found to be properly
terminated, and certain cards found to be invalid, the
Union did not have a majority.
The facts with respect to the following are that there are
in question nine named employees, Mary Wortley, Irene
Kremen, Carol Vander Yacht, Gerald Sanderson, Iris
Gerber, Jean Van Etten, Lisa Hougen, Arnie Christiansen,
and Robert Leibrant. This would total nine employees.
Five of these, Vander Yacht, Van Etten, Wortley, Kremen,
and Gerber, signed authorization cards on August 12.
Sanderson signed a card on August 19 before the second
meeting between Clark and Lewis and Dodson.' The
General Counsel contends that Hougen and Christiansen
are temporary employees and should not be counted.
Respondent claims that both of these should be included
and that Irene Gerber was properly terminated on August
14 and should not be included. Since Gerber's card had
been signed prior to the time recognition was requested,
even if the discharge were proper, the card would be
countable if determined valid. Further I have found, supra,
that the discharge was not proper. Respondent does not
attack the cards signed by Van Etten, Vander Yacht, or
Kremen. It does attack the validity of cards signed by
Gerber, Wortley, and Sanderson, and also one by Leibrant
which was not offered by the General Counsel but by
Respondent.
Respondent contends that in the case of Gerber's card
she signed after it was represented to her that establishment
of the Union was to be upon majority vote and there would
be no obligation to pay dues until that was accomplished.
DODSON IGA FOODLINER
In order to properly evaluate this contention , I am setting
forth Gerber's testimony in some detail so it can be
compared with the testimony of union representatives as to
what was said.
Q. Didn't he tell you that you would have an
opportunity to change your mind or that this card was
tentative or anything like that that you might have a
vote later on and change your mind?
A. There was something said about a vote but I don't
recalljust exactly what.
Q. And was that said before you signed the card?
A. I do not recall.
*
Q. Did they tell you that you wouldn't have to pay
an initiation fee or union dues until the union was
established at Dodson's?
A. That's right.
Q. And that that establishment had to do with the
vote of the majority of the employees?
A. Yes.
* * * * *
TRIAL EXAMINER: Was anything said about
what going union meant , a vote by a majority of
employees?
THE WITNESS: That was discussed.
* * * *
THE WITNESS: Was said, brought up.
TRIAL EXAMINER: By whom?
THE WITNESS: I don't know, it was at the meeting
at Carol's home.
TRIAL EXAMINER: What was said about a vote of
employees?
THE WITNESS: I really can't remember what was
said. I had forgotten all about it until they had jogged
my memory. It was though, if the majority of the
employees wanted to go union, I got the impression,
then, it was going to. The store would go union is what I
mean.
TRIAL EXAMINER: That was discussed in the
meeting?
THE WITNESS: Yes.
TRIAL EXAMINER: Now, how was the majority to
be determined, by card, by vote, by show of hands?
THE WITNESS: I believe it was by vote. It was up to
each individual's vote.
TRIAL EXAMINER: In what way?
THE WITNESS: Well, that I don't know. I don't
know how we were to vote.
TRIAL EXAMINER: Do you know who brought up
the subject of voting?
THE WITNESS: I don't remember.
* * * * *
Q. (By Mr. Nelson) Mrs. Gerber, at that meeting
you say you do recall the subject of the election or vote?
A. I recall.
Q. That election isn't familiar to you?
207
A. I can't say yes or no.
Q. On the subject of a vote, did anyone tell you at
the time you signed the card-
MR. NIELSON (interrupting) Objected to as
leading.
TRIAL EXAMINER: IT overrule in this instance,
proceed.
Q. (By Mr. Nelson) Did anyone tell you at the time
you signed the card, before it, long before it, that the
purpose of that card was to get a vote?
A. I don't remember. I do remember-well-
TRIAL EXAMINER: (interrupting) You do remem-
ber what.
THE WITNESS: I do remember saying that I would
rather talk to Mr. Dodson before I signed the card and
they-I was told that that was not the way it was done.
Q. (By Mr. Nelson) Did anyone tell you before you
signed the card or at the time you were filling it out and
signing it that the only way to get a union in the store
would be an election or vote?
A. I don't remember. [Emphasis supplied.]
Union representative William Lewis testified with respect
to the cards:
I passed out the application cards which were shown
here earlier in the trial. I went right down the line with it
and they filled them out. When they were through, why
I went around and collected them and put them in my
briefcase. They asked what the next step would be and I
told them that we would send Mr. Dodson a letter stating
that we had a majority of the employees in his
establishment and with this I would send an industry
contract so he could see what the people were asking
for.
Then, of course, you know how the chatter goes.
They wanted to know supposing he doesn't go for the
union contract. I said "Well, there are only three steps you
can take. Either he accepts it or we may have to go to an
NLRB election. The last resort would be to put a picket
line on." Well, this was all right. I did tell them that if he
accepted the contract and if there were to be any
changes in the contract outside of what we had agreed to
there, that we wanted our industry contract, that if there
were any changes the employees would have the right to
vote on those changes whether they wanted them or not.
We would not accept anything except the contract as it
was unless they agreed to the changes. [Emphasis
supplied.]
We visited for a while and then I went home.
Q. To the best of your recollection, was there any
discussion on the subject of a vote or an election before
the employees signed the cards.
A. No.
According to Respondent, Wortley testified, with respect
to the signing at Vander Yacht's house, that she would have
an opportunity to change her mind on being represented by
the Union and that despite the signing a vote would be
taken, a majority vote would have to be established. In
order to properly evaluate this testimony, I am setting forth
the following from the record:
Q. (By Mr. Nelson) Did he say anything about any
other employees having an opportunity, that is, employ-
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees that weren't at Carol's house that night, that they
would have an opportunity to have a voice in whether the
union came in?
A. I don't know.
Q. (By Mr. Nielson) Did,Mr. Lewis, or anyone else
at Carol's house that night, say these cards would be
used so the employees would ultimately have a chance
to decide-the majority of employees could decide
whether they wanted a union?
A. Well, it seems like something was mentioned about
a vote being taken and there would have to be a majority
vote.
Q.
A.
There had to be a majority vote?
To get in, yes.
Q. (By Mr. Nielson) Well, was something said about
getting another chance before the decision was final?
A. It seems like there was but I can't remember.
Q. You don't remember the exact words?
A. Exact words, no.
Q. But you know something like that was said?
A. I think so.
*
Q. (By Mr. Nelson) Mrs. Wortley, in connection
with this reference to an election or vote being held that
you said was made during the meeting on August 4 at
Carol's house, first of all, do you recall whether this was
said before or after you signed the card?
A. I can't remember if it was before or after.
Q. Did anyone tell you at that time that the only way
the union could get into the store was through an election?
MR. NIELSON: I object to that as leading.
TRIAL EXAMINER: Overruled.
A. I don't know for sure but I figured that we had a
chance.
MR. NIELSON: I move to strike that.
TRIAL EXAMINER: Yes. What are you moving to
strike?
MR. NIELSON: The answer. She said, I believe, I
took it, I figured or-
TRIAL EXAMINER: (interrupting) All right, I'll
strike that part of the answer.
Q. (By Mr. Nelson)- You testified before that you do
recall being discussed three ways of getting the union in, is
that a fair statement?
A. Yes.
Q. Do you recall any other-was the election one of
those ways?
A. It seems like it was.
Q. Do you recall any other ways that it was discussed?
A. Not words for word. I couldn't tell you.
Q. Was reference made to sending the letter?
A. Yes.
Q. Was that one of the ways that was discussed?
A. Yes.
TRIAL EXAMINER: Is the answer yes?
THE WITNESS: Yes.
Q. (By Mr. Nelson) Did you know the letter was
going to be sent to Mr. Dodson?
A. Yes.
Q. Was reference made to the possibility of going on
strike?
A. Yes.
Q. Was that the third way?
A. Yes.
MR. NELSON: I have no further questions.
(Recross)
Q. (By Mr. Nielson) Mrs. Wortley, were you told or
were you not told at Carol's that despite the fact the
letter would be sent or that they might strike or
whatever that there would still be an election or vote
before the union got in, is that correct, or not?
A. The way I understood it-
MR. NELSON (interrupting): I object once again.
Q. (By Mr. Nielson) Tell us how you recall, what is
your understanding?
A. I can't remember word for word, but I think it was
talked about having an election before it came in.
Q. Before the union would go in?
A. Yes.
* * *
TRIAL EXAMINER: What was said about a
majority of votes?
THE WITNESS: It would have to be a majority of
votes to get in the store.
TRIAL EXAMINER: What was said about having a
majority of votesto get it into the store, as you recall.
THE WITNESS: I can't remember word for word what
was said about it except that there would have to be a
majority.
TRIAL EXAMINER: You would have to have a
majority vote before you had a union or majority vote if
you had a vote, or what.
THE WITNESS: You would have to have a majority
vote.
TRIAL EXAMINER: For what?
THE WITNESS: To bring the union in.
TRIAL EXAMINER: Now, you said a letter was to be
sent the day after you signed the card?
THE WITNESS: Yes.
TRIAL EXAMINER: What was said to be the
reason for the letter or the purpose of the letter?
THE WITNESS: This was one way to let Mr. Dodson
know about the union.
TRIAL EXAMINER: What was to be in the letter?
THE WITNESS: I don't know what all was written
in the letter.
TRIAL EXAMINER: Do you know what was to be
said in the letter, to be told?
THE WITNESS: He just said there would be a letter
notifying him of the meeting and that we had signed cards.
TRIAL EXAMINER: Anything else about what the
letter was to say?
THE WITNESS: That's all I can remember.
[Emphasis supplied.]
The foregoing in essence indicates the testimony from
DODSON IGA FOODLINER 209
witnesses Gerber and Wortley whose recollection of the
precise statements made to them is somewhat dubious.
Lewis' testimony was clear and what he testified he stated
clearly would be proper. The testimony of Wortley in part
confirms what Lewis said including the reference to the
different ways of achieving recognition, including signing
of cards. Also it cannot be ascertained whether, if there
were reference to a vote, such occurred before or after the
cards were signed. Further I think it is evident that Lewis'
version of what he said is accurate. A difficulty from an
employee witness' standpoint is at what point and in what
context the matter of a vote was mentioned when this
question is propounded at a hearing months later. Based on
my observation of Lewis, the fact that his statement of
procedure is one often followed, the partial corroboration
of this statement by Wortley and the (not surprising)
indefiniteness or lack of recollection of Wortley and
Gerber, I am crediting Lewis' testimony as to the card
signing by Gerber and Wortley. I accordingly find that the
cards of Gerber and Wortley were signed with no improper
representations made with respect thereto and accordingly
are valid authorization cards.20 Sanderson's card was
signed at Vander Yacht's home on August 19.
The Respondent contends that Sanderson's testimony
indicates that he was told that signing a card did not mean
that he could not later change his mind. However, a reading
of the transcript will in my judgment lead to a different
conclusion.
Q. At the meeting at Carol's house, when Mr. Clark
talked to you, did he tell you that the card would be used
for a vote?
A. No, he did not.
Q. No mention of that at all?
A. Not that the cards would be used for a vote, no.
Q. There was no mention of an election, or a vote of
employees, by Mr. Clark or anyone at the meeting?
A. Yes, there was.
Q. Who mentioned it?
A. I suppose it was Mr. Clark.
Q. What did he say about it?
A. It was one of the steps that could be used to create a
union shop.
Q. Did he tell you, you could vote yes or no, or get out
of signing the card if you wanted to?
A. I can't recall.
Q. Well, did anyone there indicate, even though you
signed the card that you would later have an opportunity to
change your mind, by vote. You could vote another way if
you wanted to.
A. I believe there was something said to that effect.
Q. (By Mr. Nielson) Was that said to you before you
signed the card?
A. I can't recall.
*
about either having the right to vote or getting out of
signing a card?
THE WITNESS: Do I recall that?
TRIAL EXAMINER: What was said about that?
THE WITNESS: I can't remember. [Emphasis
supplied.]
It is evident that the foregoing does not nullify the
validity of Sanderson's card. In addition, Clark testified
with respect to this meeting that Sanderson said he would
like to sign a card and he gave it to him. Clark later said he
asked Sanderson to sign a card which he obtained from
Lewis. Clark also said that:
A. As I had earlier asked that it be read back, and I
certainly, if you would have let me go into it further,
would have finished only to advise you that we in every
meeting state every step of trying to bring about
bargaining with an employer, which I am sure through
the steps was in starting out with the signing of the
authorization cards, requesting recognition, and only
then if recognition were not granted to the union would
the union utilize the cards for the filing of a petition, but
only after we had demanded recognition and if the
employer had denied the same.
Based on the foregoing, I find Sanderson's card is valid.
The General Counsel claims that Lisa Hougen should not
be counted as an employee. Hougen was hired evidently on
a temporary basis to do some cleanup work during the
summer. She worked the following hours: 12 in week
ending 7-18-70; 8 in week ending 7-25-70; 6 in week
ending 8-1-70; 9-1/2 in week ending 8-8-70; 6 in week
ending 8-15-70. According to Dodson, after checking the
records, Hougen's last day of employment was August 13,
1970. Accordingly, I do not consider her to either be a full-
time employee or employed at the time the 'demand was
received on August 14 and I do not count her as an
employee. Arnie Christiansen was originally employed in
July to work until sometime in September, when he was to
go on an evangelistic mission and possibly to return
thereafter. In fact Christiansen worked steadily until he left
about September 19 on an evangelistic trip overseas. While
Respondent would not guarantee him a job on return it
definitely wanted to employ him if it could when he
returned. Accordingly Respondent did take Christiansen
back about Christmas time in December 1970. Thereafter
Christiansen continued to be and still is in the employ of
Respondent. I consider that he was a regular employee as of
August 14 and continued to be until he left about
September 19. Accordingly I conclude that there were eight
employees in the unit as of August 14 and that at that time
the Union represented five of the eight in the unit. As of
August 19 it represented six (including Sanderson) in view
of my finding that Gerber was improperly laid off on
August 14. It is evident and I find that the Union had a
majority at the time the demand was made and, at all
material times thereafter.
The next question is whether Respondent violated the
Act by failing to bargain with the Union.
On August 14, Respondent received the union letter
TRIAL EXAMINER: Do you recall what was said requesting recognition. As found above, it immediately
20 Leibrant's card was not offered by the General Counsel but was may or may not have said to him could not affect the validity of the other
offered by Respondent. Whatever Vander Yacht, who solicited the card, cards which were obtained by Lewis.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeded to unilaterally change its operations as a result
thereof so as to then affect the work of employees Van
Etten and Vander Yacht and the employment of Gerber
and a week later Kremen. This also subsequently resulted
in a reduction in hours. I have found that by all of these
acts, Respondent violated Section 8(a)(1) of the Act and by
certain -of these acts violated Section 8(a)(3) of the Act.
Respondent also advised employees it could not grant any
wage increases until the union matter was settled. I have
found it thereby violated Section 8(a)(1) of the Act.
By these acts Respondent has engaged in a course of
serious misconduct in violation of the Act which made a
fair and open election impossible and denied to the
employees their statutory right to self-organization and
representation regardless of the employees' desires and
regardless of the Union's numerical strength. Respondent's
refusal to recognize and bargain with the Union under the
foregoing circumstances was violative of Section 8(a)(5). I
accordingly find that Respondent violated Section 8(aX5)
of the Act by refusing to bargain with the Union on and
after August 14, 1970.21
Further, Respondent's unfair labor practices were such in
nature as to require, even in the absence of a Section 8(a)(5)
violation, a bargaining order to repair their effect. I find, in
any event, that Respondent's unfair labor practices were of
such a pervasive character as to make it unlikely that their
illegal and coercive effects would be neutralized by
conventional remedies so as to produce a fair election. In
these circumstances it appears that employee sentiment as
expressed through the authorization cards is a more reliable
measure of their desires on the issue of representation than,
an election would be.22 I therefore find that by refusing to
bargain with the Union and by engaging in extensive unfair
labor practices, Respondent violated Section 8(a)(5) and
(1) 23 and that to effectuate the policies of the Act, a
bargaining order is required to remedy its refusal to bargain
as well as its other unfair labor practices.24
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section 1, above, 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 the free flow
thereof.
v. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act, I will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act by terminating Irene Kremen and Iris
Gerber who were subsequently reinstated, I shall recom-
21 N L.R.B. v ,Gissel, 395 U.S 575
22 See (and compare) Medley Distilling Co, 187 NLRB No. 12.
23 1 accordingly also find that in addition to violating Section 8(a)(1) of
mend that they be made whole for any loss of earnings they
may have suffered therefrom, in the case of Kremen, by
payment to her of a sum of money she would normally have
earned as wages for the one day she was separated, and, in
the case of Gerber, by payment to her of a sum of money
equal to the amount she normally would have earned as
wages from August 14, 1970, until she returned to work
about October 14, 1970, less their respective earnings
during said periods. Loss of earnings shall be computed in
accordance with the formula prescribed in F. W. Woolworth
Company, 90 NLRB 189, and interest at the rate of 6
percent per annum shall be added to the backpay, to be
computed in the manner set forth in Isis Plumbing and
Heating Co., 138 NLRB 716.
It will also be recommended that Respondent preserve
and make available to the Board, upon request, payroll and
other records to facilitate computation of backpay.
Having found that the Respondent had a majority in an
appropriate unit, that it requested recognition therefor, and
that the Respondent refused recognition and thereafter
engaged in conduct making a fair election unlikely and
which by its nature would tend to thwart and discourage
collective bargaining, I have found that the Respondent
violated Section 8(a)(5) and (1) of the Act. I have further
found and am recommending that this conduct should be
remedied by an affirmative order requiring Respondent to
bargain with the Union, upon request, in the appropriate
unit.
With respect to the matter of reduction in hours which I
have found violative of the Act for reasons set forth supra, I
am recommending that the Board, although recognizing
what precipitated the reduction, should in its discretion
take into account the facts that there was indicated a
business need for a lesser number of employee hours and
that the store in fact is operated with less hours. See and cf.
Carolina Mills, 92 NLRB 1141, enfd. 190 F.2d 675 (C.A. 4)
and Hod Carriers, Laborers Union Local No. 300, 159
NLRB 1128 at 1135, 1136, citing and discussing cases. I
also note that my recommended order provides that
Respondent shall bargain with the Union. I am accordingly
not recommending any make-whole remedy with respect to
the reduction in hours.
Because of the nature and extent of the unfair labor
practices engaged in by Respondent, as found above, it will
further be recommended that Respondent be ordered to
cease and desist from in any other, manner infringing upon
the rights of the employees guaranteed in Section 7 of the
Act. Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent, Dodson's Market, Inc., d/b/a Dodson
IGA Foodliner is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Clerks International Association, Local Union
No. 240, is a labor organization within the meaning of
Section 2(5) of the Act.
the Act by unilaterally changing its operations after and as a result of the
union letter, Respondent thereby also violated Section 8(a)(5) of the Act.
24 See Gissel, supra
DODSON IGA FOODLINER
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed by Section
7 of the Act in the manner found herein, the Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The following constitutes an appropriate unit within
the meaning of Section 9(b) of the Act:
All the Respondent's grocery employees, excluding meat
department employees, office clerical employees, confiden-
tial employees, guards, and supervisors as defined in the
Act.
5. At all times material herein, Retail Clerks Interna-
tional Association, Local Union No. 240 has been the
exclusive bargaining representative of the employees in the
aforesaid unit within the meaning of Section 9(a) of the Act.
6. By failing and refusing to bargain with the Union as
the exclusive collective-bargaining representative of the
employees in the unit above, on and after August 14, 1970,
the Respondent has refused to bargain and engaged in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. By unilaterally changing assignments and scheduling
of work and hours of employees on and after August 14, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
8. By discriminating in regard to the hire and tenure of
employment of Irene Kremen and Iris Gerber and reducing
hours of employees to discourage membership in a labor
organization, Respondent has engaged in, and is engaging
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 25
ORDER
Respondent, Dodson's Market, Inc., d/b/a Dodson ][GA
Foodliner, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with
Retail Clerks International Association, Local Union No.
240 as the exclusive collective-bargaining representative of
its employees in a unit composed of:
All the Respondent's grocery employees, excluding meat
department employees, office clerical employees, confiden-
tial employees, guards, and supervisors as defined in the
Act.
(b) Failing and refusing to bargain in good faith with the
Union by unilaterally changing assignments and schedules
and hours of employees in the appropriate unit.
26 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
211
(c) Informing employees that no wage increases can be
granted while a union matter is,pending.
(d) Discouraging membership in Retail Clerks Interna-
tional Association, Local Union No. 240, or in any other
labor organization of its employees by discriminating in
regard to their hire or tenure of employment or any term or
conditions of employment.
(e) In any like or related manner interfering with the right
of employees to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain from any or
all such activities, except to the extent such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act,
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Make Irene Kremen and Iris Gerber whole for any
loss of earnings they may have sustained as a result of the
discrimination against them in the manner prescribed in
section V of this Decision entitled the "Remedy."
(b) Upon request bargain collectively with Retail Clerks
International Association, Local Union No. 240, as the
exclusive bargaining representative of all employees in the
above-described unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment and, if understandings are reached, embody
such understandings in signed agreements.
(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,
personnel records and reports, and all other records
necessary or useful to an analysis of the amounts of
backpay due under the terms of this recommended Order.
(d) Post at its premises in Everson, Washington, copies of
the attached notice marked "Appendix."26 Copies of the
notice, on forms provided by the Regional Director for
Region '19, after being duly signed by an authorized
representative of the Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.27
It is further recommended that the complaint be
dismissed in all other respects.
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
27 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 19, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.