Kimbell Foods, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1973

201 N.L.R.B. 933 (N.L.R.B. 1973)

FOODWAY OF EL PASO 933
Foodway of El Paso, a Division of Kimbell Foods,
Inc. and Retail Clerks International Association,
Local 663, AFL-CIO. Case 28-CA-2462
February 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
On October 12, 1972, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel and the Charging Party filed answering
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
two nonunion stores but refused to hire any of the rank-
and-file employees of the third store because they were
represented by the Union and covered by a contract
between the Union and Allied; that Foodway rejected the
Union's request for recognition and bargaining as the
representative of the employees of the third store; and that
by so doing, Foodway violated Section 8(aX1), (3), and (5)
of the National Labor Relations Act, as amended
(hereafter called the Act).
Foodway denied the material allegations of the com-
plaint and the commission of any unfair labor practices.
The issues joined by the parties and litigated at the
hearing were: (1) Whether Foodway was a successor-
employer vis-a-vis the third store; (2) whether Foodway
refused to recognize and bargain with the Union as the
exclusive collective-bargaining agent of a majority of its
employees within an appropriate unit at the third store; (3)
whether Foodway refused to hire any of Allied's rank-and-
file employees because of their membership in and/or
representation by the Union and coverage by the Allied-
Union contract; and (4) whether by any of the above acts,
if found to have been committed by Foodway, Foodway
violated the Act.
The parties appeared by counsel at the hearing and were
afforded full opportunity to adduce evidence, examine and
cross-examine witnesses, argue, and file briefs. Briefs have
been received from the General Counsel and Foodway.
Based on my review of the entire record,3 observation of
the witnesses, perusal of the briefs and research, I enter the
following:
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 Administrative Law Judge and
hereby orders that the Respondent, Foodway of El
Paso, a Division of Kimbell Foods, Inc., El Paso,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
May 16 and 17, 1972, I presided over a hearing at El Paso,
Texas, to try issues raised by a complaint issued on March
8, 1972, on the basis of a charge filed by the Union I on
November 11, 1971.2 The complaint 3 alleges that when
Foodway4 purchased three grocery stores at El Paso from
Allied in August of 1971, it hired all the employees of the
' Retail Clerks International Association , Local 663 , AFL-CIO.
2 Read 1971 after all subsequent date references omitting the year.
3 During the course of the hearing, I granted the General Counsel's
motion to amend the third line of par. 9 of the complaint to read: "Names
and style of Globe Foods and K-Mart Food Market." I reserved ruling on
the General Counsel 's motion to add Isela Yanez and to delete Rosa Munoz
and Ruben Saucedo in par. 16 of the complaint . I hereby grant that motion,
inasmuch as the evidence establishes and I find that Isela Yanez was
working for Allied Discount Foods , a division of Allied Supermarkets, Inc.
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Foodway at all times material was an employer engaged in
commerce in a business affecting commerce and the Union
was a labor organization, as those terms are defined in
Section 2(2), (5), (6), and (7) of the Act.
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In August 1971 Allied operated three retail grocery
stores under various names in El Paso, Texas-one on
Montana Avenue, a second on Dyer Street, and a third on
McRae Street. All three were located within discount
shopping centers . Employees at the latter two stores were
nonunion.
Employees at the Montana Avenue store were represent-
ed by the Union and covered by a 4-year contracts
extending from April 10, 1969, through April 8, 1973.
(hereafter called Allied ), at the time Allied ceased to operate the Montana
Avenue store , while Rosa Munoz and Ruben Saucedo were not. Ample
opportunity was afforded all parties during the course of the hearing to
litigate these matters.
4 Foodway of El Paso, a Division of Kimbell Foods, Inc.
5 The record is hereby ordered corrected in the manner set out in
Appendix I to this Decision. [Omitted from publication.]
B There was one preceding contract between Allied and the Union, for a
term extending from 1967 to 1969.
201 NLRB No. 140
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Unit
In section 1(a) of the 1969-73 contract between Allied
and the Union, Allied recognized the Union as the
exclusive collective-bargaining representative of "all of the
employer's regular full-time and regular part- time employ-
ees, who are employed in the employer' s retail store at 6373
Montana Avenue in El Paso County, Texas, excluding co-
manager , manager in training, store accounting adminis-
trator, meat department employees, guards, watchman and
supervisors as defined in the Act, as amended."
I find the above-described unit appropriate for purposes
of collective bargaining within the meaning of Section 9 of
the Act.
C. The Union Majority
Allied ceased operating the Montana Avenue store on
August 28. On that date there were 17 employees within
the unit. They were: Baldwin, Candelaria, Christakis,
Fulwider, Hanratty, Hawkins, Mayr, Robles, Vega, Zarate,
Alvara, Bowling, Espinoza, Frey,7 Gibson, Morales, and
Yanez. The first 10 employeesjust named were members of
the Union when the store closed .8
Based on the foregoing, I find that on August 28 the
Union represented a majority of the employees within the
unit.9
D. The Sales Agreements
Allied and Foodway executed a sales agreement on
August 19 covering the Dyer and McRae Street stores.
Under the terms of that agreement, Foodway purchased
from Allied the existing leaseholds at the two locations as
well as the fixtures, equipment, inventory, supplies, and
business there located. The agreement also contained a
clause requiring Foodway to hire all of the former Allied
employees at the Dyer Street and McRae Street stores,
including both managerial and rank-and-file employees.
A sales agreement covering the Montana Avenue store
was executed on August 31. Foodway again purchased the
leasehold, fixtures, equipment, inventory, supplies, and
business formerly owned and conducted by Allied. This
agreement, however, did not require that Foodway hire
Allied's employees at the Montana Avenue store.
E. The Changeover at the Dyer and McRae Street
Stores
Pursuant to the August 19 agreement, on Saturday,
August 28, Allied ceased to operate the Dyer and McRae
Street stores. The following Monday, August 30, Foodway
I While Villalobos, the store manager , was doubtful that Frey was
working for Allied on August 28, he was not positive in his testimony. A
fellow employee, Hanratty, testified unequivocally that Frey was at work on
August 28. Her testimony is credited.
8 The membership status of the 10 was established either by the union
dues billings for August and/or the August dues-checkoff records of Allied
9 In any event, there is an unrebutted resumption, by virtue of the
existence of a currently effective contract between Allied and the Union,
that the Union had continued majority status on August 28 Barrington
assumed operation of the two stores with no change either
in operations or personnel.
F. The Changeover at the Montana A venue Store
1. Allied's notice to the employees and the
unions
Some time between August 16 and 21, Paul Kozacik,
personnel director for Allied, telephoned Tommy Blair,
business representative for the Union, and stated he was
coming to El Paso and wished to arrange a meeting with
representatives of the Union and the Meatcutters' Union.
They agreed to meet on Thursday, August 27.
Kozacik also called a meeting of the employees at the
Montana Avenue store, without prior notice , on August
27.10 Kozacik and John Wrenchler, another representative
of Allied's higher management , addressed the assembled
employees at the store, and informed them that Allied
would cease to operate the Montana Avenue store the
following day (Saturday, August 28) and that each
employee would receive severance pay equal to wages for I
week in lieu of notice.
That same day (August 27), Kozacik and Wrenchler met
with Blair and a representative of the Meatcutters ' Union.
Kozacik told the union representatives that Allied was
closing the Montana Avenue store the following day
because it was losing money. Blair asked if Allied had a
buyer for the store. Kozacik replied that the Company did
not have a "firm commitment." Kozacik handed the two
union representatives formal, written notices that the
Montana Avenue store was closing on August 28, and that
Allied was paying each employee represented by the two
unions I week's pay in lieu of further notice. August 28 was
the last day worked for the 17 employees in the unit.
2. Foodway's changes and hire of local managers
Three local managerial employees of Allied at the
Montana Avenue store, however, namely Villalobos, the
manager, Ladd, the comanager, and Garcia, the manager
trainee, continued in Allied's employ until Saturday,
September 4. On that date, the three went on Foodway's
payroll-Villalobos as manager, Ladd and Garcia as
assistant managers .ii There is no hiatus in their employ-
ment.
Between September 4-21, Foodway remodeled and
repainted portions of the store; changed the store name
and sign ; made some changes in shelving; shifted some
merchandise to new locations ; installed a different loading
and unloading system ; installed some new equipment
(meat saw, shopping carts); added some private label
Plaza and Tragnew, Inc., 185 NLRB No 132 , plus cases cited therein
29 Villalobos, Mayr , and Chnstakis all testified the meeting occurred on
August 27 . Their testimony is credited.
ii The parties stipulated that at all pertinent times Villalobos, Ladd, and
Garcia were supervisors and agents of Foodway acting on its behalf within
the meaning of Sec 2(2) and (11) of the Act
FOODWAY OF EL PASO 935
merchandise; and increased the hours the store was open
to the public.12
3. The efforts of the Montana Avenue unit
employees to secure employment
Between their August 28 cessation of employment and
the September 21 reopening of the Montana Avenue store,
13 of the Montana Avenue employees within the unit set
out above, applied either to Villalobos or Joe Ornelas,13 the
Foodway divisional manager for its El Paso division, for
employment. These 13 employees were Alvara, Baldwin,
Bowling, Christakis, Fulwider, Frey, Hawkins, Mayr,
Morales, Robles, Vega, Yanez, and Zarate. Two employees
(Hanratty and Candelaria) did not apply when advised by
Mayr and Christakis respectively that it was useless to do
so.14 The remaining two employees-Espinoza and Gib-
son-did not file applications. Eight of the thirteen
employees who applied for reemployment were members
of the Union (Baldwin, Christakis, Fulwider, Hawkins,
Mayr, Robles, Vega, and Zarate), as were the two
employees who did not apply because they were advised it
was useless to do so (Hanratty and Candelaria).
4. The futility of their efforts
Mayr was a checker for Allied at the Montana Avenue
location for 6 years prior to August 28. She was a checker
and a union member. On approximately August 31, she
went to the McRae Avenue store and saw Gordon
Humble, the manager at that store for Foodway.15 She
asked for an application in order to secure reemployment
when the Montana Avenue store reopened. Humble
informed her that Ornelas was handling all hiring and that
he was in and out and not available at that time. The next
day Mayr called the McRae Avenue store and learned that
Ornelas was in . She came to the store and asked Ornelas'
secretary for an application. She was informed that none
were available. She went home and telephoned Don
Miller,16 the manager at the Dyer Street Foodway store,
and asked if he had any applications. Miller replied that he
did. Mayr went to the Dyer Street store, secured an
application from Miller, filled it out, went back to the
McRae Street store, saw Ornelas, and handed him the
application. Ornelas commented that the application
looked good, and further commented that Germans were
good workers.17 Ornelas further stated he had the names of
all the Allied employees at Montana Avenue anyway. He
told Mayr he would call her in a few days. He then turned
to his secretary and instructed her to have Mayr fill out a
W-4 form with the application. After Ornelas left the area,
Mayr asked the secretary what she thought; she replied
that she thought Mayr had the job.
After several days passed and Mayr heard nothing from
Ornelas, she began going to the Montana Avenue store
12 Joe H . Berman, a Foodway vice president , explained that the sales
agreement between Foodway and Allied covering the Montana Avenue
location was delayed while Foodway secured the consent of the owner of
the discount center, Walgreen , to longer hours for the operation of the store
unit than Allied had operated it and to a change in the name of the store
(from Globe to Foodway).
13 The parties entered into the stipulation set out in fn. II with regard to
Ornelas.
every other day or so to talk either with Villalobos or
Garcia regarding her chances for rehire . They uniformly
told her it was up to Ornelas . On a September 15 visit to
the Montana Avenue store , Mayr, as usual, asked
Villalobos what her chances for rehire were . Villalobos said
he talked to Ornelas about her , but Ornelas was noncom-
mittal . Mayr asked him if it would be wise for her to go
and see Ornelas again . Villalobos replied it couldn't do any
harm. Mayr went to the McRae Street office , saw Ornelas,
and asked him what her chances for rehire were . Ornelas
replied that he didn't know yet, someone above him had to
decide. Mayr asked if the reason she was not offered rehire
was because of the Union, further stating that she had only
been in the Union because others were in , that she
wouldn't attempt to reorganize the employees if she were
hired, and that she would accept a wage cut. Ornelas
paused a moment , replied it was not because of the Union
that he had not offered her reemployment , and stated that
in any event part-time employees at the McRae Street store
had priority over Mayr for filling vacancies for any full-
time work at the Montana Avenue store . Mayr stated that
she was experienced and suggested that Ornelas talk to
Villalobos about her efficiency . Ornelas replied that he had
talked to Villalobos and Villalobos had told him Mayr was
a good worker. Mayr again asked Ornelas whether she had
a chance . Ornelas' final reply was not to expect anything.
Shortly after her September 15 conversation with Ornelas,
Mayr saw Hanratty, told Hanratty about the conversation,
and advised Hanratty there was no hope for rehire.
Christakis was employed by Allied as a stocker at the
Montana Avenue location for 15 months prior to August
28. He was a union member . When he was told on August
27 that he and the other employees would be out of work
the following day, he and Candelaria went to the Dyer
Street store to speak to the manager there , Don Miller.
Miller previously advised Christakis that if he ever wanted
to leave the Montana Avenue store, Miller would like to
have him come to work for him at the Dyer Street store.
Christakis asked Miller if he had any openings for himself
and Candelaria . Miller replied that he had been instructed
not to hire anyone from the Montana Avenue store. On
September 6, Christakis went to the Montana Avenue store
and spoke to Garcia. Garcia gave Christakis an applica-
tion. Christakis went home and filled it out . The next day,
September 7, Christakis went back to the Montana Avenue
store and this time spoke to Villalobos . He asked
Villalobos for a job. Villalobos stated that Ornelas was
doing all the hiring and gave Christakis a second
application which Christakis filled out and gave back to
Villalobos. Villalobos promised to give the application to
Ornelas and said he wanted Christakis back in the store.
On September 9, Christakis again saw Villalobos at the
Montana Avenue store and asked Villalobos if he had a
job. Villalobos replied that he had asked Ornelas about
14 See findings below sustaining the accuracy of that advice.
15 The parties entered the stipulation set out in fn . II with regard to
Humble.
is The parties entered into the stipulation set out in fn . I I with regard to
Miller.
17 Mayr was a German immigrant and speaks English with a German
accent.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hiring Christakis and that Ornelas had replied he was
doing all the hiring. Villalobos stated that he would talk to
Ornelas again , and suggested that Christakis check back
with him. The next week Christakis again saw Villalobos at
the Montana Avenue store. Villalobos told him Ornelas
repeated his statement that he would do all the hiring and
further stated that he was not going to hire any of the
previous employees at the Montana Avenue store. Cande-
laria came to the store while Christakis was there.
Christakis told Candelaria of Villalobos' statement that
none of the former employees were going to be rehired.
Both Ornelas and Villalobos testified. Neither denied or
refuted the testimony of Mayr or Christakis set out above
in any way. Ornelas conceded that he knew the Montana
Avenue nonmanagerial Allied employees within the unit
hereinabove described were covered by a contract between
Allied and the Union before he assumed his duties as the
El Paso divisional manager for Foodway; that he came to
El Paso on August 22 to assume his duties and knew of the
contract coverage by August 27. Neither Humble nor
Miller testified. Villalobos, of course, knew of the contract
coverage. Ornelas further confirmed that he did all hiring
for the Montana Avenue store and deliberately refrained
from hiring any former employees at the Montana Avenue
location (other than the managerial employees). He gave
only one reason for not hiring them-because the Montana
Avenue store had been losing money.18
5. The reopening
Foodway reopened the Montana Avenue store on
September 21 with the same type of work force performing
the same types of work the employees covered by the
Allied-Union contract had performed , though utilizing
different job titles (stocker, checker, and boxboy ). 19 All
were new employees , and most were inexperienced.
Foodway paid the newly hired checkers $2.55 per hour;
the stockers , varying rates from a low of $2.50 per hour;
and the boxboys , $ 1.60 per hour . The Allied-Union 1971
contract rates for those jobs were : stockers, from a starting
rate of $2.625 per hour to $3.075 per hour after 2 years'
experience ; checkers, from a starting rate of $2.525 per
hour to $2.61 per hour after 2 years' experience, effective
April 11, 1971, and a starting rate of $2.575 per hour to
$2.66 per hour after 2 years' service , effective October 10,
1971; and boxboys , from a starting rate of $1.65 per hour
to $1.75 per hour after 1 year of service . 20 Villalobos
testified the new employees ' average rates ran approxi-
mately 21 cents per hour lower than the average rates
under Allied (many of the Allied employees were at the top
of the rate ranges).
When Foodway reopened the store , it conducted the
18 Villalobos confirmed Ornelas' statement that the Montana Avenue
store had been losing money under Allied.
19 Stockers were called "heavy duty clerks", checkers were called "light
duty clerks" and boxboys were called "courtesy clerks" in the Allied-Union
contract . Villalobos testified , however, that employees in the three
classifications were referred to as stockers , checkers, and boxboys under
both Allied and Foodway management , and performed the same duties
20 Plus health and welfare , vacation , holiday and other benefits, and a
wage increase scheduled for April 9, 1972.
21 Including the recognition provision, set out heretofore
22 In the course of the proceeding , a February 15, 1972 , telegram and
same business as Allied-the retail sale of produce, meat,
dairy, and other food products and beverages , on the same
premises , utilizing generally the same equipment (refrigera-
tors, cash registers, counters, gondolas , bins, shelves, and
the food inventory purchased from Allied-approximately
$80,000 worth).
G. The Union Efforts to Secure Recognition,
Bargaining', and Rehire
On September 24, Tommy Blair, the union business
representative, sent a letter to Foodway requesting that
Foodway employ the former unit employees and honor the
Allied-Union contract 21
On September 26, Blair received a telephone can from
Ornelas, who identified himself as a representative for
Foodway and stated that Joe Berman , Foodway's vice
president, wanted to meet with representatives of the
Union and the Meatcutters Union. A meeting was agreed
to for October 12.
Representatives of the two unions and Foodway met as
scheduled . Blair repeated the requests made in his
September 24 letter . Foodway offered to pay the Union an
amount equivalent to dues the Union would collect over
the balance of the terms of the contract , first offering
$1,200 and later raising that offer to $2,500 to drop its
demands . Blair refused the offer, stating the Union was in
the business of representing people and wanted the former
employees rehired and the contract honored , not the
payment of any money. The meeting broke up without
agreement.
On October 14, Ornelas telephoned Blair and requested
that Blair send another letter to Foodway stating what the
Union's settlement terms were . Blair complied with this
request by dispatching a letter to Foodway on October 18,
reiterating the requests contained in his September 24 letter
but with an additional statement, wherein the Union
expressed its willingness to bargain over any changes which
Foodway might desire in the contract . Foodway did not
reply to this letter.22
H. Analysis and Conclusions
1. The successorship issue
Foodway contends that upon reopening the store on
September 21, it conducted a different business from that
conducted by Allied in that: (1) it employed different
classifications of employees at different rates and hours;
(2) it remodeled and repainted the store; (3) it changed the
store name and sign ; (4) it changed the shelving arrange-
ment ; (5) it shifted merchandise ; (6) it instituted a different
letter from the Union to Foodway were introduced wherein the Union
asserted that it represented a majority of Foodway 's employees in a unit
consisting of certain employees at all of Foodway's El Paso , Texas, stores
(there were four by this time) and requesting recognition. Foodway's
answer, dated February 16, stated that Foodway didn't understand the unit
request , questioned the assertion of majority status, and denied the request
for recognition . I do not consider this exchange particularly relevant,
inasmuch as these exchanges culminated in a representation proceeding
(Case 28-RC-2293) wherein the parties stipulated that the Montana Avenue
store was excluded from consideration or coverage.
FOODWAY OF EL PASO
system for loading and unloading merchandise; and (7) it
stocked "private label" merchandise.
On the other hand, the General Counsel contends that
the "employing industry" is the same because Foodway
conducted the same business Allied had conducted, the
retail sale of produce, meat, dairy, and other food products
and beverages; it occupied the same premises Allied had
occupied; it employed Allied's supervisory personnel; it
purchased and utilized the same fixtures, equipment, and
inventory Allied utilized; and its employees performed the
identical work that employees of Allied performed in
operating the business.
I agree with the General Counsel 's contentions and find
that the "employing industry" was the same, and therefore
Foodway was Allied's successor for purposes of the Act.
The factors supporting that conclusion are evident here,
namely , that "Respondent continued essentially the same
operation, with substantially the same employee unit,"23
and there was a "continuity of the original business
operation, use of the same plant and facilities , work force,
and similarity of products or service." 24 Foodway in this
instance continued essentially the same operation conduct
by Allied-the retail sale of produce, meats, and other
foods and beverages , on the same premises , with the same
facilities (including food inventories) with substantially the
same employee unit.
2. The refusal to rehire
The issue presented here is whether Foodway rejected
the employment applications of Allied's Montana Avenue
store employees within the unit covered by the Allied-
Union contract to avoid legal obligations under the
Board's successor doctrine.25
As so often occurs in these motivation cases, a
disposition of this issue turns on circumstantial evidence. A
careful weighing of such evidence in this case convinces me
that Foodway refused to employ any of the Allied
employees within the unit covered by the Allied-Union
contract to avoid the application of the Board's successor
doctrines at the Montana Avenue store; i.e., to avoid
assumption of the Allied-Union contract and recognition
of and bargaining with the Union, as well as the higher
rates of pay, wages, hours, and working conditions enjoyed
by the Montana Avenue unit employees vis-a-vis the
McCrae and Dyer Street store employees in the same
classification. The following factors lead me to that
conclusion:
a. Foodway decided on its policy to deny employment
to the Montana Avenue unit employees before it formally
purchased the Montana Avenue store and after it became
aware of the existence of the Allied-Union contract
covering the Montana Avenue unit employees (witness
Miller's August 27 refusal to accept an application from
Christakis and Candelaria because of orders so to act and
23 Maintenance, Inc, 148 NLRB 1299, 1301
24 Glendora Plumbing, 172 NLRB 197. 203
25 At the time of the transfer or ownership of the Montana Avenue store
from Allied to Foodway, it was Board doctrine that a successor was not
only under a duty to recognize and bargain with the union representing a
majority of the predecessor 's unit employees, he was also required to assume
the contract between the predecessor and the Union for the balance of its
937
Ornelas' admission he knew of the Allied-Union contract
after his August 22 arrival in El Paso and before August
27).
b. Foodway hired managerial and rank-and-file em-
ployees at the Dyer and McCrae Street stores but hired
only managerial employees at the Montana Avenue store.
c. Ornelas hired inexperienced checkers for the Mon-
tana Avenue store who had to be trained , despite his
admitted knowledge of Mayr's efficiency as a checker and
despite her offer to take a wage cut.
d. Ornelas' stated reason for not hiring any of the
former Allied unit employees-because Allied had been
losing money-appears unreasonable in view of the fact
Foodway retained management employees who would
bear heavy responsibility for failing to resolve whatever
problems were causing losses.
e. Ornelas ignored Villalobos' efforts to secure the
rehire of a valued employee Christakis.
f. Foodway at no time questioned the competence and
ability of the former Allied unit employees (rather, Ornelas
and Villalobos acknowledged their competence), but
nevertheless hired inexperienced employees requiring
varying periods of training.
g. Not only did Foodway bar the Montana Avenue
unit employees from its employ at the Montana Avenue
store location , its Dyer Street store manager denied them
employment there.
The Board, with court affirmance , has held in several
cases that refusal by the buyer of a business to hire the
employees of the former operator of that business because
of their membership in or representation by a Union, in
order to avoid the obligation of a successor-employer, is
violative of Section 8(a)(1) and (3) of the Act. K.B. & J.
Young's Supermarkets v. N.LR.B., 377 F.2d 463 (C.A. 9);
N. L R. B. v. New England Tank Industries, 302 F.2d 273
(C.A. 1); Piasecki Aircraft Corp. v. N.LR.B., 280 F.2d 575
(C.A. 3); Barrington Plaza, 185 NLRB No. 132.
It is apparent that Foodway not only wished to avoid the
contract, union recognition , and bargaining, and the higher
financial costs of the classic successorship situation by
denying employment to the employees covered by the
Allied-Union contract , it also sought to avoid the possible
organization of its McCrae and Dyer Street employees by
denying employment at those locations as well.
I find and conclude that by so acting Foodway violated
Section 8(a)(1) and (3) of the Act.
3. The 8(a)(5) issue
a. The unit
Findings have been entered above that a unit consisting
of all of the regular full-time and regular part-time
employees employed at the Montana Avenue store in El
term Burns International Detective Agency, 182 NLRB 348. This probably
explains Foodway 's offer of $2,500 to the Union to drop its demands that
Foodway honor the Allied-Union contract . That portion of the doctrine
requiring assumption of the predecessor's contract has since been overruled
by the U .S. Supreme Court N.LR.B. v . Burns International Security
Services, Inc., 406 U.S. 272.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paso County, excluding meat department employees,
guards , watchmen, and supervisors26 as the latter terms are
defined in the Act, constitutes a unit appropriate for
collective-bargaining purposes ; and that on August 28 the
Union represented a majority of the employees within that
unit.
b. The union request for recognition & Foodway's
denial
Findings have also been entered that on September 24
and again on October 18 the Union requested that
Foodway recognize it as the exclusive collective -bargaining
representative of its employees within that unit of employ-
ees and bargain with it concerning changes from the rates
of pay, wages , hours , and working conditions set out in the
Allied-Union contract, and that Foodway ignored both
these requests.
The underlying question is essentially one of law
-whether Foodway was under any duty or obligation to
recognize and bargain with the Union concerning the rates
of pay, wages, hours, and working conditions of the unit
employees . A normal condition precedent to such a duty is
a finding that the union in gliestion either actually
represented a majority of the employees within the unit or
is entitled to a legal presumption of such status.
Clearly the Union did not represent a majority of
Foodway's new hires when it served on Foodway its
September 24 and October 18 requests for recognition and
collective bargaining ; may such a majority then be
presumed as a matter of law?
Several cases so hold, on the theory that, but for the
successor-employer's discriminatory refusal to offer em-
ployment to the predecessor's unit employees , the Union
would have continued to enjoy majority representative
status within the unit, or that a bargaining order is
necessary to provide an adequate remedy for the 8(aX3)
violation.27
Certainly it was Foodway's discriminatory refusal to
employ any of the unit employees which renders it
impossible at this time to determine whether, but for such
discrimination , the Union would have represented a
majority of Foodway's employees within the unit upon the
September 21 reopening of the Montana Avenue store.
A wrongdoer ordinarily should not be permitted to rely
on its own wrongdoing to avoid the consequences therefor;
i.e., Foodway should not be permitted to avoid a
bargaining order by preventing the Union from securing
majority representative status among its unit employees by
refusing to hire applicants for employment within the unit
because of their membership in or representation by the
Union and coverage by the Allied-Union contract.
I therefore find and conclude that Foodway violated
Section 8(a)(5) and (1) of the Act when it failed or refused
to accede to the Union's September 24 and October 18
requests to recognize and bargain with the Union concern-
ing the rates of pay, wages , hours, and working conditions
of the unit employees.
CONCLUSIONS OF LAW
1. At all times material, Foodway was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. For purposes of the Act, Foodway is a successor-
employer to Allied with respect to the store located at 6373
Montana Avenue , El Paso, Texas.
3. At all times pertinent, a unit consisting of all regular
full-time and regular part-time employees employed at the
food store located at 6373 Montana Avenue in El Paso,
Texas, excluding supervisors , meat department employees,
guards and watchmen as defined in the Act constituted an
appropriate unit for purposes of collective bargaining
within the meaning of Section 9 of the Act.
4. At all times pertinent , the Union has been the duly
designated collective-bargaining representative of a majori-
ty of the employees within that unit.
5. By failing and refusing to accede to the Union's
September 24 and October 18 requests for recognition and
bargaining as the exclusive bargaining representative of a
majority of the employees in the unit, Foodway engaged in
unfair labor practices in violation of Section 8(ax5) and (1)
of the Act.
6. By adopting the policy of refusing employment to all
the unit employees employed by Allied on the last day it
operated the Montana Avenue store because of their
membership in or representation by the Union and their
coverage by a contract between Allied and the Union,
Foodway engaged in unfair labor practices in violation of
Section 8(aX3) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Foodway has engaged in
unfair labor practices in violation of Section 8(axl), (3),
and (5) of the Act , I recommend that Respondent be
directed to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
In view of Foodway's adoption of a discriminatory
policy of refusing to hire any of Allied 's employees within
the unit, I recommend that Foodway be directed to offer
immediate employment to each of the employees within
the unit to positions they held on August 28, without
prejudice to their seniority and other rights and privileges,
dismissing, if necessary , all employees in the unit hired by
Foodway since it commenced operation of the Montana
Avenue store, and make them whole for any losses they
may have suffered as a result of the discrimination against
them by paying to each a sum of money equal to that
which they would have earned in Foodway's employ from
the date Foodway commenced to operate the Montana
Avenue store less their net earnings, if any, during the
backpay period, computed in accordance with the formula
set forth in F. W: Woolworth Company, 90 NLRB 289,
26 The manager , comanager, manager trainee under Allied, and their NLRB 348, enfd 280 F.2d 575 (C.A. 3), cert . denied 364 U.S 933. and 375
substitute designees under Foodway are classified as supervisors . U S. 827; Barrington Plaza, supra
27 K. B and J. Young's Supermarkets, supra, Paseck, Aircraft Corp, 123
FOODWAY OF EL PASO 939
together with interest at the rate of 6 percent per annum on
the resultant backpay, in accordance with the principle set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
In view of Foodway's refusal to bargain with the Union
at its request in violation of Section 8(aX5) and (1) of the
Act, I recommend that Foodway be directed to bargain
with the Union at its request concerning the wages, rates of
pay, and hours and conditions of employment of the unit
employees and, if an agreement is reached concerning
those subjects, to reduce such agreement to writing and
sign it.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I issue the following recommended:28
ORDER
Foodway, its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the Union as
the exclusive representative of the employees in the
previously described appropriate unit with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment of the unit employees.
(b) Refusing to employ employees of its predecessor,
Allied, within the unit previously described because of
their membership in or representation by the Union and
their coverage by a contract between Allied and the Union.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Upon request, recognize and bargain with the Union
in good faith as the exclusive representative of the
employees in the previously described unit with respect to
the rates of pay, wages, hours, and other working
conditions of the employees therein and, if an understand-
ing is reached, embody that understanding in a signed
agreement.
(b) Offer immediate employment to each of the employ-
ees within the previously described unit on August 28.
(c) Make whole each of the employees described in "b"
above in the manner set forth in the section entitled "The
Remedy."
(d) Notify the above employees, if presently serving in
the Armed Forces of the United States, of their right to full
reinstatement, upon application, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after their discharge from the
Armed Forces.
(e) Preserve and, upon request, make available to
authorized agents of the Board, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary or useful in computing the amount
of backpay due or determining compliance with any
provision hereof.
(f) Post at its Montana Avenue store in El Paso, Texas,
copies of the attached notice marked Appendix "B."29
copies of such notice, on forms provided by the Regional
Director for Region 28, after being duly signed by
Foodway's authorized representative , 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
Foodway to ensure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 28, in
writing, within 20 days from the receipt of this Decision,
what steps shall be taken to comply herewith 30
28 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
29 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
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board,"
30 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 28, in writing , within 20 days
from the date of this Order , what steps Foodway has taken to comply
herewith."
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL cease our practice and policy of refusing to
employ former employees of Allied Discount Foods, a
division of Allied Supermarkets , Inc., because of their
membership in or representation by Retail Clerks
International Association , Local 663, or because of
their coverage by a contract between Allied Discount
Foods and Retail Clerks Local 663.
WE WILL desist from our refusal to bargain with
Retail Clerks Local 663 concerning the rates of pay,
wages, hours, and other working conditions of our
employees at our Montana Avenue store.
WE WILL, upon request , recognize and bargain in
good faith with Retail Clerks Local 663 concerning the
rates of pay , wages, hours of work and other working
conditions of our employees at our Montana Avenue
store in the appropriate unit described below.
WE WILL offer employment to all the employees
within that unit who were represented by Retail Clerks
Local 663 and covered by a contract between Retail
Clerks Local 663 and Allied Discount Foods as of its
August 28 closure of the Montana Avenue store.
WE WILL reimburse the above employees for any
losses they may have suffered by reason of our refusal
to employ them upon our reopening of the Montana
Avenue store on September 21, 1971, with interest on
any amount due them at 6 percent.
The appropriate bargaining unit is:
All the regular full-time and regular part-time
employees employed by us at our retail store
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located at 6373 Montana Avenue, El Paso, Texas, This is an official notice and must not be defaced by
excluding supervisors, meat department employ- anyone.
ees, guards and watchmen, as defined in the Act. This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
FOODWAY OF EL PASO, A or covered by any other material . Any questions concern-
DIVISION OF KIMBELL ing this notice or compliance with its provisions may be
FooDS, INC. directed to the Board's Office , 7011 Federal Building &
(Employer) U.S. Courthouse, 500 Gold Avenue, SW, Albuquerque,
New Mexico 87101, Telephone 505-843-2555.
Dated By
(Representative) (Title)