Mooresville Iga Foodliner

National Labor Relations Board - Board Decisions

Jul 17, 1987

284 N.L.R.B. 1055 (N.L.R.B. 1987)

MOORESVILLE IGA FOODLINER 1055
Schwab Foods, Inc., d/b/a Mooresville IGA Food-
liner and Local 725, Retail Clerks International
Association, AFL-CIO. Cases 25-CA-9465-2,
25-CA-9648, and 25-CA-9762
17 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 September 1979 Administrative Law
Judge Joel A. Harmatz issued the attached deci-
sion. The Respondent and the General Counsel
filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 1 and
conclusions as modified, and to adopt his recom-
mended Order as modified.2
We adopt the judge's fmding, for the reasons set
forth by him, that the Respondent violated Section
8(a)(2) of the Act by unlawfully assisting the
"Store Representative—Management Conference
Committee."
We also agree with the judge that the Respond-
ent failed to satisfy its statutory obligation to bar-
gain in good faith with the Union, the collective-
bargaining representative of a unit of employees at
its Mooresville store. As the judge's extensive and
complete discussion of the facts establishes, during
negotiations the Respondent demonstrated an intent
to avoid any agreement with the Union. This intent
was manifested by the Respondent's unlawful deal-
ings with the Committee, its take-it-or-leave-it bar-
gaining tactics, and its pervasive and serious 8(a)(1)
and (3) violations, which led to a Gissel bargaining
order covering the Mooresville unit. At the same
time that the Respondent was adhering to bargain-
ing proposals which retained the status quo or re-
duced the benefits already enjoyed by employees
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy n not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cu-. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 The General Counsel excepts to the failure of the judge to provide a
broad order rather than a narrow order as part of his remedy. We con-
clude, in light of Respondent's history of unlawful conduct (see Schwab
Foods, 197 NLRB 1068 (1972), and Schwab Foods, 233 NLRB 394 (1976)),
together with the unfair labor practices found herein, that Respondent
has "demonstrated a proclivity to violate the Act and unlawfully frus-
trate the organizational desires of its employees." Hickmott Foods, 242
NLRB 1357 (1979). We shall therefore substitute a broad order for the
narrow order recommended by the judge.
prior to unionization, the Respondent was dealing
with the unlawfully assisted Committee, which it
repeatedly held out to employees as an alternative
to union representation. The Respondent's bargain-
ing tactics delivered the clear message to employ-
ees that they would be penalized for selecting a
union as bargaining representative, while at the
same time the Respondent's away-from-the-table
communications with employees emphasized that
any improvements in terms and conditions of em-
ployment would be obtained exclusively through
the Committee.
Given the totality of the Respondent's conduct
here, including its bargaining tactics, we find it un-
necessary to speculate concerning the motivation
behind every proposal offered by the Respondent.
Nevertheless, we cannot ignore the Respondent's
pattern during negotiations of unilaterally deciding
the amount of wage increases it would give em-
ployees, presenting the Union with such decisions,
and threatening that if not approved by the Union
that the increases would be implemented anyway.
As the judge accurately stated:
Aside from the terms of the [wage] offers, Re-
spondent's tactic of confronting the Union
with them on an eleventh hour basis, with the
characterization of "last offer," under self-
serving declarations of impasse, and threats of
implementation, was calculated to remove ef-
fectively from bargaining the wage issue. The
Union was forced to either accept implementa-
tion, and thereby to acknowledge Respond-
ent's right to unilaterally determine wage rates
on a take it or leave it basis, or to accept the
consequences of full or partial implementation.
Indeed, Respondent's action, in having imple-
mented its last minute December offer at the
nonunion stores, and thereafter steadfastly op-
posing full retroactivity at Mooresville with
respect to the very benefits grant [sic] else-
where, strongly suggested an intent to subvert
bargaining to ends inimical to statutory obliga-
tions.
Beginning with the Union's organizational cam-
paign and continuing throughout the negotiations,
the Respondent repeated statements indicating the
futility of having the Union as the employees' bar-
gaining representative. Viewing these statements
and the Respondent's course of bargaining in con-
junction with its other unfair labor practices, we
are satisfied that there are sufficient objective fac-
tors to establish that the Respondent bargained in
bad faith. Accordingly, we adopt the judge's find-
ing that the Respondent engaged in surface bar-
284 NLRB. No. 120
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gaining in violation of Section 8(a)(5) and (1) of the
Act.3
In addition, we fmd that the Respondent violated
Section 8(a)(1) by prohibiting certain employees
and nonemployee handbilling and picketing at its
struck Mooresville store on 1 December 1977 and
17 February 19784 and by prohibiting similar activ-
ity at its Martinsville store on 15 December. 3 Bal-
ancing the Section 7 rights involved here against
the property rights at stake, as Fairmont Hote1, 6 re-
quires, we find in all three instances that the Sec-
tion 7 rights prevail and that restrictions imposed
by the Respondent were therefore unlawful.
On 17 November, after a breakdown in negotia-
tions for a contract covering the Mooresville em-
ployees, the Union voted to strike. Strike activity
occurred at all four of the Respondent's retail gro-
cery stores, but only conduct at Mooresville and
Martinsville is involved here.
The Respondent's Mooresville store, an adjoin-
ing, separately owned drug store, and their shared
parking lot are rented from a disinterested third
party. The Respondent's store occupies about
15,000 square feet and is open 24 hours a day. Cus-
tomers and employees enter both stores from a
common vestibule, a 20-by-20 foot square, indented
area at the building's front. Abutting the vestibule
is a canopy covered walkway which runs in front
of the stores. Several vending machines are located
along the walkway. Also, the Respondent's extra
basket carts and various bulky seasonal merchan-
dise, including bedding plants, shrubbery, peat
moss, snow shovels, salt, and Christmas trees are
stored and merchandised on the walkway. 7 Abut-
ting the walkway is a parking lot. The parking lot
area directly in front of the walkway is classified as
a fire lane. The parking lot extends about 150 feet
from the vestibule to the street.° It has two open-
The instant consolidated complaint, including Case 25-CA-9465-2,
alleges that the Respondent has unlawfully refused to bargain with the
Union since 24 February 1978. An informal settlement signed February
1978, involving other unfair labor practice charges including refusal-to-
bargain allegations, specifically states that the settlement "does not bar
the introduction of evidence as to matters settled herein in further litiga-
tion concerning alleged violations of the National Labor Relations Act,
including but without limitation, any litigation involving Case 25-CA-
9465-2." We therefore find entirely proper the judge's reliance on events
predating 24 February 1978 as background evidence in support of his
finding that the Respondent failed to bargain in good faith since 24 Feb-
ruary 1978.
All events are in late 1977 or early 1978 unless otherwise indicated.
'All allegations of unlawful denial of access are limited by the consoli-
dated complaint to actions involving "employees."
6 282 NLRB 139 (1986).
7 The record is not clear that any such merchandise was on the walk-
way at the time the alleged unlawful conduct occurred.
Pursuant to the lease agreement the Respondent and drug store are
jointly responsible for maintenance and security of the property and
maintenance of the parking lot.
ings to the street for ingress and egress by custom-
ers, employees, and suppliers, and is also accessible
from the contiguous parking lot of a separate sport
and hobby shop. Between the street openings to
the parking lot are strips of grass, wide enough for
two cars and about 60-feet long.
With the exception of the alleged unlawful inci-
dent at the Mooresville store on 1 December 1977
and 17 February 1978, the picketing and handbill-
ing at Mooresville was limited to the entrances of
the parking lot. On 1 December Union Representa-
tive Ed Stahl, employee Sandy Kingham, and ion-
employee Clara Rogers° began to picket and hand-
bill in the vestibule/walkway area. After about 10
minutes, Respondent's vice president, Leisen, ad-
vised Stahl that "you are not supposed to be pick-
eting in front of this IGA store." Subsequently,
after employee Kingham had departed, Leisen
reappeared and told the pickets he would call the
police if they did not leave. Stahl and Union Rep-
resentative Al Sanford stayed in front of the store
until a police cruiser arrived whereupon the two
men moved to the parking lot entrance.
On 17 February 1978 1 ° Sanford and striking
Mooresville employees Lloyd Bales and Jeff Smith
picketed and handbilled the vestibule/walkway
area. An individual Sanford thought to be the as-
sistant store manager emerged from the Respond-
ent's store and stated that police were on the way
and the pickets would have to leave. The pickets
refused to move, whereupon Vice President Leisen
was summoned to the scene. Leisen asked the pick-
ets whether a new city ordinance had been passed
allowing them to picket the vestibule, and threat-
ened to have the pickets arrested if they did not
leave. The group refused to move from the area
until a police officer arrived shortly thereafter and
threatened to arrest them if they did not remove
themselves to the parking lot entrance. The pickets
complied.
The Martinsville store and adjacent 45-foot-wide
parking lot is owned by the Respondent. The facili-
ty is located at the intersection of two streets; the
parking lot has an entrance on one street and exit
on the other. The only nearby sidewalk runs along
the farside of the street from the parking lot. On 15
December Union Representative Ed Stahl, three
striking Mooresville employees, and several nonem-
ployees picketed the parking lot openings and the
space between them for a little more than an hour
before being cautioned by police in a patrol car not
9 Rogers was an employee of a different supermarket and a member of
the Union.
10 The judge inadvertently erred when he found that this incident oc-
curred on "15 February" rather than 17 February, and that "Union Rep-
resentative Stahl" rather than Sanford was present.
MOORESVILLE IGA FOODLINER

1057
to obstruct traffic. About 10 minutes later they
were approached by a person identifying himself as
the chief of police. The alleged chief informed
them that they had been expected, that there had
been a town council meeting, and that they were
not going to be able to walk on city property, but
if they were peaceful, they could walk on the side-
walks. Stahl apologized for being on city property
and moved a couple of spaces. The chief said,
"Well, you are on private property now and I
don't believe the owner wants you to be on private
property." Turning to the Respondent's owner, Bill
Schwab, the chief asked, "isn't that right Bill?"
Schwab agreed. Stahl said he believed there was an
easement between the city and private property.
The chief denied any knowledge of any easement
and said if the pickets did not move to the sidewalk
across the street, they would be arrested. The pick-
ets then retreated to the sidewalk, but found "there
wasn't anybody walking down the street" and they
just were not effective at all and left."
In Fairmont, supra, the Board reviewed NLRB v.
Babcock & Wilcox Co., 12 and its progeny and de-
termined that in such cases involving conflicts be-
tween Section 7 rights and property rights, its task
is "first to weigh the relative strength of each
party's claim." 13 The Board found:
If the property owner's claim is a strong one,
while the Section 7 right at issue is clearly a
less compelling one, the property right will
prevail. If the property claim is a tenuous one,
and the Section 7 right is clearly more compel-
ling, then the Section 7 right will prevail. Only
in those cases where the respective claims are
relatively equal in strength will effective alter-
native means of communication become deter-
minative.14
Among the factors to be considered in, determining
the relative strength or weakness of a property
right are: the use to which the property in question
is put, any restrictions placed on public access to
the property or facility, and the size and location
of the facility. 15 By way of example, the Board
noted that a "single store surrounded by its own
parking lot provided exclusively for the conven-
ience of customers will have a significantly more
compelling property claim" than "the owner of a
large shopping mall who allows the general public
" The parties stipulated that between 15 and 27 December, counsel
for the Univm and the city attorney entered into an agreement, permitting
the Union to picket at the Martinsville store on the "area defined as to
[sic] easement" running along the lower edge of the parking lot.
12 351 U.S. 105 (1956).
13 Fairmont Hotel, supra at 142.
14 Ibid.
" Ibid.
to utilize his property without substantial limita-
tion." Concerning the Section 7 right, among the
factors to be considered in assessing its relative
strengths and weaknesses are: the nature of the
right asserted, the purpose for which it is being as-
serted, the employer that is the target of the activi-
ty, the situs of the activity, the relationship of the
situs to the target, the intended audience of the ac-
tivity, and, possibly, the manner in which the right
is being asserted." By way of example, the Board
noted that "organizational rights and the right to
engage in primary economic activity at the situs of
a dispute may be viewed as more compelling than
handbilling and other informational activity at loca-
tions other than the primary situs."19
At the Mooresville store, the property in ques-
tion is the vestibule/walkway area. Access to this
area is obtained from the parking lot which is
maintained jointly by the Respondent and the ad-
joining drugstore. There is no evidence that the
vestibule/walkway area is limited to customers of
the Respondent, or that access to the parking lot is
restricted in any way. In fact, the Respondent has
invited the general public to patronize its store and
the vestibule/walkway area is open to virtually
anyone. The record shows that the pickets did not
pose a significant impediment to persons seeking to
enter and leave the stores. In view of the substan-
tially unrestricted access to the vestibule/walkway
area and the dilution of the Respondent's property
rights caused by the presence of the adjoining busi-
ness, we find that the Respondent's property claim
is a relatively weak one.
The Section 7 right asserted at Mooresville is
stronger than the one involved in Fairmont, supra.
In that case, the nonemployees engaged in area-
standards handbilling at the entrance to the Fair-
mont Hotel urging the public not to patronize the
hotel in furtherance of the union's labor dispute
with Bakers of Paris, which supplied bakery prod-
ucts to the hotel. The Board found that the Union's
handbilling activity at the hotel had "no. . . vital
link to the employees located on the [targeted] em-
ployer's property" and was not at the "core of the
purpose for which the NLRA was enacted." 19 In
contrast, here the striking Mooresville employees
engaged in picketing and handbilling at the situs of
their dispute with their employer, urging customers
of the Mooresville store not to patronize the Re-
spondent in support of their strike brought on by
faultering contract negotiations. This lawful and
peaceful primary economic activity is the kind of
16 Ibid.
11 Ibid.
12 Ibid.
19 Id. at 143.
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conduct which the Board in Fairmont suggested
would be viewed as a compelling Section 7 inter-
est. Balancing the respective claims of the parties
here, we fmd that the fundamental Section 7 right
exercised by the employees and their Union out-
weighs the attenuated property rights asserted by
the Respondent at Mooresville. Accordingly, we
conclude that the Respondent violated Section
8(a)(1) of the Act when it barred the Union from
picketing and handbilling in the vestibule/walkway
area at Mooresville,2°
At Martinsville, the pickets were precluded by
the Respondent from patrolling on the private
property which joins the entrance and exit to the
store's parking lot. As noted above, in Fairmont the
Board found a single store surrounded by its pri-
vate parking lot has a more compelling property
right claim than the owner of a large shopping
mall. Nevertheless, we find, on balance, that the
Respondent's property claim at Martinsville is not
stronger than the significant Section 7 right exer-
cised by the striking employees in picketing at
Martinsville. Like at Mooresville, the Respondent
at Martinsville issued a general invitation to the
public to enter its parking lot and patronize its
store, and no restrictions were placed on public
access to the property. Further, the Respondent's
property claim at Martinsville concerns an area far
removed from the store entrance, and there is no
evidence of safety or other problems associated
with the Union's activity at the entrance to the
parking lot. That the striking employees were not
employed at Martinsville does not substantially di-
minish the relative strength of the Section 7 claim,
since the strikers' employer was on that site. Under
these circumstances, we find that the Section 7 in-
terest asserted by the Mooresville strikers at Mar-
tinsville is paramount to the relatively limited prop-
2° Because the rights asserted by the Union and the Respondent are
not relatively equal, Member Babson finds it unnecessary to consider the
availability of reasonable alternative means by which the Union could
have communicated its message to its intended audience. Member Johan-
sen considers the significant factor of reasonable alternative means of
communication as he assesses the nature and strength of the Union's Sec.
7 claim. Fairmont Hotel, supra at 143. In the case of the Mooresville
store, Member Johansen finds that the judge erroneously sustained an ob-
jection to questioning by the General Counsel seeking to establish the
Union's lack of success in reaching its target audience from the public
entrance to the parking lot. The exclusion of this evidence notwithstand-
mg, Member Johansen finds that, in view of all the circumstances, includ-
ing limitations imposed on alternate site picketing and handbilling by the
physical arrangement of points of ingress to egress to and from the store,
the Sec. 7 interest clearly predominates.
The judge dismissed the allegation concerning the 1 December incident
on the grounds that the complaint alleged interference with "employee"
pickets on that date and no employees were present when Leisen threat-
ened to call the police. Contrary to the judge, we find that Leisen's state-
ment to the pickets, including employee Kingham, that they were not
supposed to picket in front of the store constituted interference with their
right to engage in protected activity. In any event, we find that the issue
of whether Leisen's subsequent threat to call the police interfered with
Sec. 7 activity was fully and fairly litigated
erty interest the Respondent retained in the area
between the portals of its parking lot, and that the
Respondent's conduct at Martinsville violated Sec-
tion 8(a)(1) of the Act"-
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Schwab Foods, Inc., d/b/a Mooresville
IGA Foodliner, Mooresville, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
"(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, concurring in part and dis-
senting in part.
I agree with the judge, for the reasons discussed
below, that the Respondent violated Section 8(a)(2)
of the Act by recognizing, negotiating with, and
otherwise assisting the "Store Representative-Man-
agement Committee" at the time it was under a
statutory duty to bargain with the Union regarding
the employment terms of its Mooresville employ-
ees. I would, however, only find a violation with
respect to the Committee's activities at the Moores-
ville store.
Unlike my colleagues, I would reverse the
judge's finding that the Respondent engaged in
"surface bargaining" with no intention of reaching
agreement. The judge acknowledged that here the
"bad faith allegations are unaccompanied by cer-
tain traditional indicia of bad faith such as unilater-
al action; refusal to furnish requested, relevant in-
formation; or a refusal to meet on a regular basis."
Yet he found that the Respondent's hard bargain-
ing to obtain the contract it wanted, including
terms which did not improve the employees' lot or
give them benefits greater than those received by
their nonunion counterparts, violated Section
8(a)(5) and (1) of the Act. The record does not
support this finding.
21 Given the paramountcy of the Sec. 7 interest at Martinsville,
Member Babson finds it unnecessary to evaluate what reasonable alterna-
tive means the strikers had to communicate their dispute. Member Johan-
sen, as noted at fn. 20, supra, considers the reasonable alternative means
of communication in addressing the nature and strength of a Sec. 7 right.
At Martinsville Member Johansen finds that the record establishes the
Union lacked reasonable alternative means of conveying its message and
that the balance tilts decidedly in favor of the Sec. 7 interest.
MOORESVILLE IGA FOODLINER 1059
I would also reverse the judge's finding that the
Respondent violated Section 8(a)(1) by prohibiting
certain employee handbilling and picketing at its
struck Mooresville store on 17 February 1977 1 and
by prohibiting similar activity at its Martinsville
store on 15 December. 2 Balancing the Section 7
rights involved here against the property rights at
stake, as Fairmont Hotel, s requires, I would find
that the property rights prevail and that restrictions
imposed by the Respondent were therefore not un-
lawful.
1. With respect to the Committee, the facts are
briefly as follows: The Committee, created by the
Respondent, first met in June 1976, a few months
after the Board's decision ordering the Respondent
to recognize and bargain with the Union as repre-
sentative of its Mooresville employees. The Com-
mittee consisted of two elected employee repre-
sentatives from each of the Respondent's four
stores, including Mooresville, serving 1- or 2-year
terms. The Committee customarily met on a
monthly basis with the Respondent's owner and
president, Bill Schwab, and its corporate vice presi-
dent, Don Leisen. All meetings were held at a fa-
cility owned by the Respondent, on company time,
during working hours. The employee representa-
tives were paid for their time in attendance.
Minutes of the committee meetings were pre-
pared by Leisen and distributed to employees by
the Respondent as attachments to "Crax and Fax,"
the Respondent's newsletter to employees also pre-
pared by Leisen. As defmed by Leisen in the min-
utes of the first meeting, the purpose of the Com-
mittee was:
to establish effective means of communication
with store employees and management. In so
doing, we hope to create better working con-
ditions, and improve our store image, discover
new ideas, and knit together effective store
teams. All store employees are urged to use
their representatives as their voice in Company
affairs. Express your concerns, hopes and sug-
gestions without fear of reprisal or hurting
someones' feelings. Names are not used at the
conferences.
The minutes of committee meetings show that the
Committee raised and considered employee re-
quests and proposals concerning such matters as
health and pension benefits coverage; sick pay; the
length of shifts, breaks, and lunches; the adequacy
of break and parking facilities; a credit union; pay-
1 All events are in late 1977 or early 1978 unless otherwise indicated
2 All allegations of unlawful denial of access are limited by the consoli-
dated complaint to actions mvolving "employees."
3 282 NLRB 139 (1986).
roll deduction; savings plans; layoff policies; mer-
chandise discounts; merit pay incentives; night shift
differentials; uniforms' and a dress code; seniority
bidding for Sunday work; and vacation eligibility.
The Respondent's officials participated in discus-
sions of these matters and frequently granted the
Committee's requests or at least agreed to explore
changes in existing policy consistent with employee
concerns. In some instances, where the Respondent
was unwilling to give or could not afford all the
benefits sought by the Committee, the Respondent
offered alternatives. Thus, the Respondent said it
would give "sick days (7 days) in lieu of sick pay
[insurance covering payment of wages] (up to 26
weeks after the first 7 days)" if employees pre-
ferred. The Respondent also offered prescription
coverage if employees were willing to give up
their current dental-insurance plan.4
A "Special Note" printed at the conclusion of
the Committee's minutes of 10 November 1977
states:
We encourage each and every employee to
make use of the employee representative pro-
gram. They are your voice and many success-
ful ideas are the result of these meetings. Many
employee fringe benefits have been brought
about by requests made at the monthly meet-
ings. Together, management and employees
can make our stores better places to work.
Know who your rep is and give them your
thoughts and suggestions. It works for YOU.
Another "Special Note" at the conclusion of the
January 1978 committee minutes, distributed during
the Mooresville strike with the February 1978 Crax
and Fax stated:
We encourage each and every employee to
make use of the employee-management repre-
sentative program. This way you have a voice
in what your company does. Many accom-
plishments have resulted from our meetings.
More will happen again this year. YOU are
the company. . . . management is only the
steering wheel.
These facts establish that the Committee routine-
ly considered and frequently resolved matters of
concern to employees, including those at Moores-
ville, covering nearly the whole scope of the em-
ployment relationship. Such matters are commonly
considered and dealt with in collective bargaining.
4 According to the Respondent's minutes of the parties' 11 November
1977 bargaining session Frank Hahn, representing the Respondent, said
that the Respondent "could not deal with a 'representative' and by-pass
the Union," and acknowledged that what currently went on at committee
meetings was "adjustment of grievances."
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In fact, many of them were the subject of the con-
current negotiations between the Respondent and
the Union concerning the Mooresville store. The
Respondent's recurring message to employees was
that the Committee was the employees' representa-
tive and that the proposals and questions raised by
the Committee concerning the employment rela-
tionship had brought about, and would continue to
accomplish, employee-desired change in "[m]any
employee fringe benefits." There can be no doubt
on these facts that the Committee was "dealing
with" the Respondent within the meaning of Sec-
tion 2(5) of the Act.5
The consolidated complaint alleges, inter alia,
that the Respondent unlawfully prohibited striking
Mooresville employees from engaging in picketing
and handbilling activities on its property in further-
ance of the Mooresville strike, and that the Re-
spondent failed to bargain with the Union in good
faith regarding the employment terms and condi-
tions of these same employees. The essence of
these allegations is that the statutory rights of the
Mooresville employees have been violated by the
Respondent. Given this, and the fact that none of
the employees at the Respondent's other three
stores are represented by the Union or any other
labor organization, the only reasonable interpreta-
tion of the General Counsel's amendment alleging
an 8(a)(2) violation is that the Respondent's "deal-
ings with" the Committee were unlawful to the
extent that they involved the Mooresville employ-
ees. There is no clear allegation with respect to any
activities involving the employees at any other
store. 6 As to the Mooresville employees, the Re-
spondent was, at all times pertinent to this case, ob-
ligated to bargain with the Union as the Moores-
ville employees' statutory representative. Despite
this outstanding obligation, the Respondent encour-
aged the Mooresville employees to look to the
Committee as their representative, and bargained
with the Committee concerning the employment
terms of the Mooresville employees. On these facts
I find that the Respondent's dealings with the
Committee concerning the employment terms and
conditions of the Mooresville employees violated
Section 8(a)(2) and (1) of the Act. I would there-
fore order the Respondent to cease and desist from
such dealings.
2. Concerning the Respondent's alleged failure to
bargain in good faith, before the advent of the
Union the Respondent maintained a progressive
pay system with annual wage reviews on employ-
'NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959).
6 Smce there is no clear allegation in the complaint with respect to the
other three stores, I make no finding as to the propriety of Committee
activities with respect to these stores.
ees' anniversary dates. In addition, each May the
Respondent reviewed its wage structure and grant-
ed an additional cost-of-living increase effective 1
May. In early May 1977, before negotiations began,
the Respondent sought and received the Union's
approval to grant unit employees the 6-percent
cost-of-living increase planned for all of its stores 1
May 1977. The parties first met 4 August 1977.
During the ensuing 10 months they held a total of
19 negotiating sessions before negotiations broke
off 5 June 1978.
In general the Union's initial proposals represent-
ed improvements to employees' terms and condi-
tions of employment. The Respondent countered
with provisions which preserved the status quo,
and in a few areas proposed terms which were dif-
ferent or less favorable than those employees cur-
rently enjoyed. In this regard, as highlighted by
the judge, the Respondent insisted on maintaining
the current number of holidays, health; welfare and
pension benefits, night-shift premium policy, and
vacation eligibility formula. The Union proposed
maintenance of the existing lunch-break policy,
which permitted employees to elect to take either
one-half hour or an hour. The Respondent counter
offered a uniform 1-hour lunch period, with 30
minutes permitted only with management approval.
The Union eventually accepted the Respondent's
proposal. The Union's initial proposed leave policy
allowed employees to take 90 days' approved leave
of absence before forfeiting any vacation pay. The
Respondent, which in the past had permitted one
employee to take 6 weeks' leave of absence with-
out forfeiting her vacation, countered with a pro-
posal for forfeiture of leave after any authorized
leave of absence in excess of 30 days. In a later
modification, the Respondent proposed forfeiture
of vacation pay in any given year only if author-
ized personal leave exceeded 30 days or sick leave
exceeded 60 days. The Union rejected the Re-
spondent's leave forfeiture proposal to the end.
The Respondent sought a provision making poly-
graph tests mandatory, arguing that it had "judi-
ciously, discretly and effectively" used such tests in
the past. The Union initially opposed this provi-
sion, but acceded to its inclusion late in negotia-
tions.
The parties gave extensive consideration to the
Union's dispute resolution procedure proposal at
their second meeting of 5 August. The parties dis-
agreed as to the time limit for filing and whether
referral to arbitration could be unilateral or re-
quired a joint determination. In subsequent meet-
ings the parties considered at what point each
side's grievance position had to be put in writing
and whether different time requirements for filing
MOORESVILLE IGA FOODLINER

1061
should apply depending on the subject matter of a
grievance. After concessions by both sides, agree-
ment on all provisions of the dispute procedure
was reached at the seventh meeting of 13 Septem-
ber 1977.
The Respondent consistently opposed a union-se-
curity clause, repeating many times that it felt
strongly that employees should not be forced to
choose between their job and the Union and that it
was up to the Union to make its organization at-
tractive to employees. At the final bargaining ses-
sion of 5 June 1978 the Union deleted the union-
security provision from its "package proposal."
The Respondent initially rejected outright the
Union's proposed dues-checkoff provisions. Later,
the Respondent agreed to allow a union steward or
business agent 2 hours a month to collect union
dues on company premises and company time. Ulti-
mately, the Union agreed to the Respondent's com-
promise proposal.
The Respondent rejected the Union's no-strike!-
no-lockout provision and proposed alternative lan-
guage which held the Union and its members liable
for damages resulting from breach of this provi-
sion. The Union adhered to its proposal through-
out, and rejected the Respondent's later offer to
delete the liability clause.
The Respondent countered the Union's general
management-rights clause with a broad clause
which retained in management control of all rights
not abridged by the agreement and reserved for
management sole discretion in a comprehensive list
of terms of employment. The Union proposed a
second general clause, also rejected by the Re-
spondent, and in the end agreed to a revised ver-
sion of the Respondent's proposal.
Concerning wages, the Union in its initial pro-
posal of 4 August 1977 sought three 50-cent-per-
hour increases scheduled for 1 May 1977, 1978, and
1979. The Respondent in its first counterproposal
of 11 November offered wage increases on 1 Janu-
ary 1978, consistent with Federal minimum wage
requirements, and for 1 May 1978, consistent with
the Respondent's past practice of giving an annual
6-percent increase. The Respondent rejected the
Union's request for a guarantee that all employees
would receive an increase on execution of the con-
tract, but agreed to preserve or "red circle" the
present pay rates of any employees whose rates
under the Respondent's proposal would otherwise
have decreased.
Following the beginning of the strike, on 17 No-
vember 1977, negotiations broke off until resumed
with the Respondent's revised wage proposal of 23
December 1977. These revisions, as corrected at
the 29 December bargaining session, included a 15-
cent increase effective 1 January 1978 and held
constant the increase proposed for 1 May 1978.
The Respondent denied the Union's accusation that
its proposed 1 January 1978 increase was based
solely on the new Federal minimum wage levels ef-
fective that date. The Respondent described its
offer as fair, and expressed hope that it would be
"attractive to the Union." When asked for the cost
basis of its offer, the Respondent said, "cost is only
one factor which the Company considered," and
when asked about its past practice to raise all
wages when the Federal minimum increased, said,
"the Company probably would have adjusted some
rates to keep approximately the same spread be-
tween rates." The Respondent sought the Union's
approval to implement the 1 January 1978 increase,
indicating "there would have to be some explana-
tion to employees as to why the raise was not
given at Mooresville" at the same time it was given
at its other stores. The Union withheld its approv-
al, and the Respondent indicated it intended to im-
plement its offer. Thereafter, by letter of 5 January
1978, the Respondent informed the Union that it
had "decided to honor the Union's request not to
implement its proposed wage increase at the
Mooresville store" and that the only increase to be
given at Mooresville were those required by the
new Federal minimum. The Respondent imple-
mented the proposed 1 January increase in full at
its unrepresented stores.
At the next bargaining session of 24 February
1978, the Respondent offered to give the increase
proposed 29 December at Mooresville and the raise
proposed for 1 May. The Union sought retroactiv-
ity which the Respondent rejected. The Respond-
ent adhered to the same wage proposal at the 30
March and 25 April bargaining sessions. At this
latter meeting the Respondent reminded the Union
of its policy to give a wage increase each 1 May
and stated that it had given part of the 6-percent
increase in January at its other stores, and wished
to give the balance at all four stores on 1 May. The
Union declined the Respondent's request to imple-
ment the 1 May increase at Mooresville and the
Respondent announced it intended to do so. Subse-
quently, by letter of 2 May, the Respondent in-
formed the Union it would delay implementation of
the 1 May increase at Mooresville for "a few days"
until after their next meeting scheduled for 8 May.
At this meeting the Respondent met the Union's
scaled down demands for the 1 May increase. At
the meeting's end the parties remained apart on the
increase for 1 January 1979—the Union sought a 10
to 20-cent-per-hour increase above the new Federal
minimum effective 1 January, 1979; the Respondent
proposed increases which mostly conformed with
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the 25-cent-per-hour increase required by the new
Federal minimum. Subsequently, the Respondent
sought the Union's permission to implement its
"last offer" at Mooresville. When the Union de-
clined, the Respondent, by letter of 13 May, in-
formed the Union that it could no longer withhold
the wage increases from the Mooresville employees
who had been paid less than other Company em-
ployees at the Union's insistence since 1 January
1978.
After the 1 May increase was implemented the
parties met again as scheduled on 5 June. The Re-
spondent made slight modifications to its wage pro-
posal and agreement was reached on many out-
standing issues. Negotiations broke off with the
parties' positions on a no-strike/no-lockout clause,
vacation leave policy, wages, and contract term at
a stalemate.
The judge, based in large measure on his sub-
stantive evaluation of the Respondent's proposals,
found that the Respondent attempted to manipulate
the bargaining process to convey to employees the
futility of union representation and to foreclose sur-
vival of the Union. The judge took particular of-
fense to the fact that many of the Respondent's
proposals did not improve, and in some cases made
more restrictive, the employees' terms and condi-
tions of employment. He found the degree of in-
flexibility the Respondent exhibited on union secu-
rity, dues checkoff, no strike/no lockout, dispute
resolution procedures, management rights, and
major economic matters, provisions which he
found "ordinarily combine to constitute the heart
of an agreement," contributed to an environment
not conducive to agreement. He also minimized
any agreements reached on these issues by attrib-
uting them largely to union concessions.
The Respondent's insistence on the provisions fo-
cused on by the judge does not demonstrate a fail-
ure by the Respondent to bargain in good faith.
First, the Supreme Court has held it is not a viola-
tion for an employer to bargain on such matters as
management-rights and no-strike clauses, provisions
the judge characterized as going to the heart of an
agreement, any more than it would be for an em-
ployer to bargain for provisions favorable to it.7
Further, Section 8(d) of the Act expressly provides
that the duty to bargain in good faith does not
"compel either party to agree to a proposal or re-
quire the making of concessions." Here, over the
course of 10 months the Respondent, as well as the
Union, engaged in hard bargaining. Because of
concession by both sides, agreement was reached
on all but four issues before negotiations broke
7 NLRB v. American National Insurance Co, 343 U.S. 395, 407-409
(1952). See also Rescar, Inc., 274 NLRB 1, 2 (1985).
down.8 The Respondent acted within the clear lan-
guage of the statute by standing firm on its final
offer which rejected the Union's union-security and
no-strike provisions and set terms and conditions at
the level it wanted. It is no more culpable for an
employer to strenuously oppose a union-security
clause or insisting on provisions maintaining the
status quo, than for a union to demand a union-se-
curity clause and improved benefits. By fmding
otherwise the judge improperly suggests that un-
lawful intent must be imputed to any employer that
does not agree to provisions which would obvious-
ly strengthen the union's hand. Finally, the Board
has repeatedly held that it will look to bargaining
tactics, and not the reasonableness of a party's pro-
posals, to determine whether that party has bar-
gained in good faith.° Accordingly, the Respond-
ent's press to maintain the status quo in some areas,
diminish benefits in others, and keep scheduled
wage increases for unit employees on a par with
their nonunion counterparts, is not evidence of a
desire to frustrate the collective-bargaining proc-
ess.1°
Consistent with its past practices of giving
annual 1 May cost-of-living adjustments of around
6 percent and adjusting its wage scale in compli-
ance with the Federal minimum, the Respondent
over the period in question gave three increases on
1 May 1977, 1 January 1978 and 1 May 1978. Each
time the Respondent notified the Union in advance
that these increases were scheduled and gave the
Union an opportunity to agree to the increases for
the employees it represented. The Union agreed to
the 1 May 1977 increase which took effect before
negotiations began," but withheld its approval of
8 A party's intent to satisfy its bargaining obligation cannot be assessed
by reviewing which side made the most or deepest concessions. Such
matters are far more a function of economic strength than intent to
reaching agreement.
9 Rescar, supra at 2; Reichhold Chemicals, 277 NLRB 639 at 640 (1985).
10 See Reichhold, supra at 640.
The judge's finding that the Respondent was less than candid at the
bargaining table is unsupported. To the contrary, the Respondent was
forthright in stating that its objective was to get the contract it wanted,
not just one it could live with. It provided the Union with all the rele-
vant information requested and in response to questions about its 29 De-
cember 1977 wage proposal candidly admitted that cost had not been the
only factor considered and that it probably would have adjusted some
wage rates in response to the Federal minimum wage levels in order to
keep approximately the same spread between rates. Further, I do not find
that the unfair labor practices of the Respondent which predated these
negotiations by more than 5 years provide any factual basis for question-
ing the veracity of the Respondent's stated concern for the interest of
employees as a basis for rejecting the Union's demand for union security,
checkoff; and, in early negotiations, access to the addresses of new em-
ployees. I find the judge erroneously cast .doubt on the Respondent's
good faith by mischaracterizing its bargaming table conduct.
" I find incredible the judge's gratuitous finding that the Union ap-
proved the 1 May increase, "unaware that assent would diminish Re-
spondent's flexibility at the bargaining table."
MOORE§VII,LE IGA FCCTILINER 1063
the next two increases to unit employees. In these
instances the Respondent, which had planned the
increases for all stores, honored the Union's re-
quest, implemented the increases only at its unrep-
resented facilities, and continued to bargain about
the wages of unit employees. As a result, after 1
January 1978 unit employees' wages fell behind
those at the nonunion stores. Finally, when the
Union failed to accept the Respondent's fmal offer
on 28 May 1978, which brought wages at Moores-
ville in line with those at the nonunion stores, the
Respondent implemented the 1 May 1978 increase
at Mooresville. These facts belie the judge's finding
that the Respondent manipulated negotiations to
undermine employee support for the Union. There
is no evidence, and no contention, that the Re-
spondent's decision to grant increases at its non-
union stores was motivated by other than legiti-
mate business considerations. The Respondent's
proposal to implement the three increases at
Mooresville simultaneous with implementation at
its nonunion stores comports with its apparent past
practice of maintaining a uniform wage scale
throughout its stores. The fact that unit employees'
wages fell behind those of their nonunion counter-
parts while the Union held out for more money
through negotiations cannot reasonably be inter-
preted as evidence that the Respondent unlawfully
attempted to frustrate agreement.
Finally, I disagree with the judge that materials
printed in Crax and Fax, a leaflet written and dis-
tributed by the Respondent for employees, and the
Respondent's dealings with the Committee while
union negotiations were underway, further exhibit
the Respondent's unlawful state of mind at the bar-
gaining table. To begin with, there is no conten-
tion, and the judge does not find, that any of the
materials printed in "Crax and Fax" were violative
of Section 8(a)(1) of the Act. To the contrary the
propaganda recited by the judge as tainting the Re-
spondent's bargaining conduct because it was "cal-
culated to dissuade employees from continuing sup-
port of the union," i.e., apparently accurate factual
reports of store closings after unionization, rumors
of union-dues increases, and Board-reported decer-
tification statistics, is precisely the type of material
this Board has routinely found protected by Sec-
tion 8(c) of the Act. Concerning the Respondent's
ongoing meetings with the Committee, there is no
evidence linking the lack of progress in union ne-
gotiations with the Respondent's unlawful conduct
away from the bargaining table. Further, the Union
knew about the Committee and did not object to
or demand that the Respondent cease its support of
the Committee." Accordingly, I disagree with the
judge that the Respondent's away-from-the-table
conduct provides sufficient additional evidence to
warrant a finding that the Respondent failed to bar-
gain in good faith.
In sum, I find that the totality of the circum-
stances establishes that the Respondent acted
within the clear language of Section 8(a)(5) by en-
gaging in hard bargaining and refusing to make
concessions to union demands. I would therefore
reverse the judge and dismiss that portion of the
complaint alleging that the Respondent refused to
bargain in good faith.
3. Finally, concerning the access question, the
facts show that on 17 November, after a break-
down in negotiations for a contract covering the
Mooresville employees, the Union voted to strike.
Strike activity occurred at all four of the Respond-
ent's retail grocery stores, but only conduct at
Mooresville and Martinsville is involved here.
The Respondent's Mooresville store, an adjoin-
ing separately owned drugstore, and their shared
parking lot are rented from a disinterested third
party. The Respondent's store occupies about
15,000 square feet and is open 24 hours a day. Cus-
tomers and employees enter both stores from a
common vestibule, a 20-by-20 foot square, indented
area at the building's front. Abutting the vestibule
is a canopy covered walkway which runs in front
of the stores. Several vending machines are located
along the walkway. Also, the Respondent's extra
basket carts and various bulky seasonal merchan-
dise, including bedding plants, shrubbery, peat
moss, snow shovels, salt, and Christmas trees are
stored and merchandised on the walkway." Abut-
ting the walkway is a parking lot. The parking lot
area directly in front of the walkway is classified as
a fire lane. The parking lot extends about 150 feet
from the vestibule to the street." It has two open-
ings to the street for ingress and egress by custom-
ers, employees, and suppliers, and is also accessible
from the contiguous parking lot of a separate sport
12 The subject of the Committee was raised by the Respondent at the
patties' 11 November 1977 bargaining session. The Respondent sought to
clarify how the Union's proposed article 24, "Other Agreements," would
impart on its practice of meeting with the Committee. According to the
Respondent's minutes of this meeting, the Union, following a caucus by
both sides, indicated it would be satisfied to let the union steward be the
employee representative, "[sluice the employees elect the employee rep-
resentative now, and will elect the steward as well, this would avoid the
problems of by-passing the Union." The Respondent saw this proposal
fraught with problems, and it was agreed instead that once a contract
was reached, Mooresville employees would no longer be included in
Committee meetings.
13 The record is not clear that any such merchandise was on the walk-
way at the time the alleged unlawful conduct occurred.
Pursuant to the lease agreement the Respondent and drugstore are
jointly responsible for maintenance and security of the property and
maintenance of the parking lot.
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and hobby shop. Between the street openings to
the parking lot are strips of grass, wide enough for
two cars and about 60-feet long.
With the exception of an alleged unlawful inci-
dent at the Mooresville store on 1 December, dis-
cussed below, the picketing and handbilling at
Mooresville was limited to the entrances of the
parking lot and went uninterrupted until 17 Febru-
ary. On that date, Union Representative Al San-
ford and striking Mooresville employees Lloyd
Bales and Jeff Smith picketed and handbilled the
vestibule/walkway area. An individual Sanford
thought to be the assistant store manager emerged
from the Respondent's store and stated that police
were on the way and the pickets would have to
leave. The pickets refused to move, whereupon
Vice President Leisen was summoned to the scene.
Leisen, who heard customer complaints about the
picketing on his arrival, asked the pickets whether
a new city ordinance had been passed allowing
them to picket the vestibule, and threatened to
have the pickets arrested if they did not leave. The
group refused to move from the area until a police
officer arrived shortly thereafter and threatened to
arrest them if they did not remove themselves to
the parking lot entrance. The pickets complied.
The Martinsville store and adjacent 45-foot-wide
parking lot is owned by the Respondent. The facili-
ty is located at the intersection of two streets; the
parking lot has an entrance on one street and exit
on the other. The only nearby sidewalk runs along
the farside of the street from the parking lot. On 15
December Union Representative Ed Stahl, three
striking Mooresville employees, and several nonem-
ployees picketed the parking lot openings and the
space between them for a little more than an hour
before being cautioned by police in a patrol car not
to obstruct traffic. About 10 minutes later they
were approached by a person identifying himself as
the chief of police. The alleged chief informed
them that they had been expected, that there had
been a town council meeting, and they were not
going to be able to walk on city property, but if
they were peaceful, they could walk on the side-
walks. Stahl apologized for being on city property
and moved a couple of spaces. The chief said,
"Well, you are on private property now and I
don't believe the owner wants you to be on private
property." Turning to the Respondent's owner, Bill
Schwab, the chief asked, "Isn't that right Bill?"
Schwab agreed. Stahl said he believed there was an
easement between the city and private property.
The chief denied any knowledge of any easement
and said if the pickets did not move to the sidewalk
across the street, they would be arrested. The pick-
ets then retreated to the sidewalk, but found "there
wasn't anybody walking down the street" and they
just were not effective at all and left.15
In Fairmont, supra, the Board reviewed NLRB v.
Babcock & Wilcox Co., 16 and its progeny and de-
termined that in such cases involving conflicts be-
tween Section 7 rights and property rights, its task
is "first to weigh the relative strength of each
party's claim." 17 The Board found:
If the property owner's claim is a strong one,
while the Section 7 right at issue is clearly a
less compelling one, the property right will
prevail. If the property claim is a tenuous one,
and the Section 7 right is clearly more compel-
ling, then the Section 7 right will prevail. Only
in those cases where the respective claims are
relatively equal in strength will effective alter-
native means of communication become deter-
minative."
At the Mooresville store, the property in ques-
tion is the vestibule/walking area. The only access
to this area is through the parking lot which is
maintained jointly by the Respondent and the ad-
joining drugstore, for the benefit of their respective
customers and employees, not the public at large.
The vestibule/walkway area is relatively small
given the size of the Respondent's store, and the
fact that it is adjoined by a drugstore. The
vestibule/walkway area serves around the clock as
the sole entry and exit point for customers and em-
ployees of the Respondent. It also serves as the
entry and exit point for customers and employees
of the drugstore. The canopy over the walkway
serves to protect these pedestrians from the ele-
ments as they enter and leave the stores. Space for
customer and employee passage through the
vestibule/walkway area is limited by the presence
of vending machines and the Respondent's practice
of storing extra basket carts on the walkway. The
Respondent has a valid interest in minimizing con-
gestion in this area to accommodate unimpeded
access. The presence of individuals picketing and
distributing literature in this area is inconsistent
with this interest and would tend to interfere with
the atmosphere normally maintained by the Re-
spondent. When customers complained to manage-
ment about the picketing and handbilling activities,
the Respondent had reason to believe that normal
traffic flow was impaired and to intervene. Under
these circumstances, I find that by excluding the
15 The parties stipulated that between 15 and 27 December, counsel
for the Union and the city attorney entered into an agreement, permitting
the Union to picket at the Martinsville store on the "area defined as to
[sic] easement" running along the lower edge of the parking lot.
16 351 U.S. 105 (1956).
17 Fairmont Hotel, supra at 142.
18 Id. at 142 (fn. omitted).
MOORESVILLE IGA FOODLINER 1065
striking employees engaged in the picketing and
handbilling from the privately owned vestibule!-
walkway area connecting the Respondent's store to
the private parking lot, the Respondent was assert-
ing a compelling private property right in limiting
the use to which its property was put."
The Section 7 right asserted at Mooresville is
stronger than the one involved in Fairmont, supra.
In that case, the nonemployees engaged in area-
standards handbilling at the entrance to the Fair-
mont Hotel urging the public not to patronize the
hotel in furtherance of the union's labor dispute
with Bakers of Paris, which supplied bakery prod-
ucts to the hotel. The Board found that the Union's
handbilling activity at the hotel had "no . . . vital
link to the employees located on the [targeted] em-
ployer's property" and was not at the "core of the
purpose for which the NLRA was enacted." 2 ° In
contrast, here the striking Mooresville employees
engaged in picketing and handbilling at the situs of
their dispute with their employer, urging customers
of the Mooresville store not to patronize the Re-
spondent in support of their strike brought on by
faltering contract negotiations. The lawful and
peaceful conduct by striking employees at the pri-
mary situs of the dispute, while more compelling
than the Section 7 activity in Fairmont, does not
match the strength of the compelling property
right, detailed above, that the Respondent was as-
serting in an effort to keep the entrance of its store
clear of congestion to guarantee free access to its
customers to the store. I therefore conclude that
the Respondent at Mooresville did not violate the
Act when it barred the striking employees from
picketing and handbilling in the vestibule/walkway
entrance to its store. Because the rights asserted at
Mooresville by the Respondent and the Union are
not relatively equal, I deem it unnecessary to con-
sider whether reasonable alternative means by
which the Union could have communicated its
message were available and would dismiss the com-
plaint allegation that the Respondent's conduct at
Mooresville violated Section 8(a)(1) of the Act.21
Fairmont Hotel, supra at 142.
20 Id. at 143.
21 My colleagues reverse the judge's dismissal of the allegation that the
Respondent violated Sec. 8(aX1) when on 1 December Vice President
Leisen informed Union Representative Stahl personally, m the presence
of striking Mooresville employee Sandy Kingham, "you are not supposed
to be picketing in front of this IGA store," referring to the
vestibule/walkway area at Mooresville. They find that Leisen's statement
constitutes a demand to leave the area and falls within the ambit of un-
lawful interference. I find no demand was made in the presence of an em-
ployee and adopt the judge's finding that the evidence fails to substanti-
ate the complaint allegation that the Respondent unlawfully interfered
with "employee" pickets. Moreover, I find for the reasons set forth
above, that given the comparative strength of the Respondent's property
right as compared with the Sec. 7 right, no violation occurred even if
Leisen's remark could be construed as a demand and was overheard by
At Martinsville, the employee pickets were pre-
cluded by the Respondent from patrolling on the
private property which joins the entrance and exit
to the store's private parking lot. As noted above,
in Fairmont, supra, the Board found a single store
surrounded by its private parking lot presents a
particularly strong property right. The property
right in question at Martinsville is just the type re-
ferred to in Fairmont. I therefore fmd the Respond-
ent was attempting to preserve a substantial private
property right when it prohibited patrolling by the
pickets at Martinsville.
The Section 7 interest exercised by employees at
Martinsville is attenuated by virtue of the fact that
Martinsville is not the primary situs of the dispute;
the disputed issue concerns only the employment
terms and conditions of the Respondent's Moores-
ville employees, not those at Martinsville; and the
individuals exercising these rights were striking em-
ployees from Mooresville, not employees of the
Martinsville store.
Under these circumstances, I find the property
right asserted by the Respondent at its Martinsville
store, by removing striking Mooresville employees
from the private property between the portals of its
parking lot, stronger than the Section 7 interests as-
serted by the Mooresville strikers. Accordingly, I
find it unnecessary to evaluate what reasonable al-
ternative means the strikers had to communicate
their dispute, and would dismiss the allegation that
the Respondent's conduct at Martinsville violated
Section 8(a)(1) of the Act.22
Kingham. Accordingly, I agree with the judge's finding that this com-
plaint allegation should be dismissed.
22 I would not issue a broad order in this case.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain collectively and
in good faith concerning rates of pay, wages,
hours, and other terms and conditions of employ-
ment with Local 725, Retail Clerks International
Association, AFL-CIO as the exclusive bargaining
representative of the employees in the bargaining
unit described below.
WE WILL NOT coerce or restrain our employees
from engaging in picketing or handbilling where
conducted on our premises under condition pro-
tected by the Act.
WE WILL NOT assist or support the Employee
Representative-Management Conference Commit-
tee, or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with Local 725,
Retail Clerks International Association, AFL-CIO,
as the exclusive representative of all employees in
the bargaining unit described below, with respect
to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time employees
of the Respondent employed at its Mooresville
facility exclusive of all meat department em-
ployees, professional employees, guards, the
store manager, the assistant store manager, and
all other supervisors as defmed in the Act.
WE WILL withdraw recognition from the Em-
ployee Representative-Management Conference
Committee unless and until certified in an election
conducted by the National Labor Relations Board.
SCHWAB FOODS, INC, D/B/A
MOORESVILLE IGA FOODLINER
J. Frederick Gatzke, Esq., for the General Counsel.
Thomas 0. Magan, Esq. and Larry R. Downs, Esq. (Kahn,
Dees Donovan & Kahn), of Evansville, Indiana, for the
Respondent.
Charles E Mercer, of Indianapolis, Indiana, on behalf of
the Charging Party.
Robert Karmel, Esq. (Biro, Karmel & Rosenfeld), of Chi-
cago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
consolidated proceeding' was heard by me on January
15, 16, 17, and 18, 1979, in Indianapolis, Indiana, on an
initial unfair labor practice charge filed on December 20,
1977, and a consolidated complaint issued on May 31,
1978, which, as amended, alleged that Respondent inde-
pendently violated Section 8(a)(1) of the National Labor
Relations Act by restricting employees in their rights to
engage in lawful picketing; violated Section 8(a)(2) of the
Act by dominating, assisting, and rendering unlawful as-
sistance to an employee committee; and violated Section
8(a)(5) of the Act by engaging in collective bargaining in
bad faith and with no intention of reaching agreement. In
its duly filed answer, Respondent denied that any unfair
labor practices were committed. After the close of hear-
ing, briefs were filed on behalf of the General Counsel
and the Respondent.
On the entire record in this proceeding, and from my
direct observation of the demeanor of the witnesses
while testifying and having considered the posthearing
briefs, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an Indiana corporation engaged in the
retail sale of groceries and related products from its fa-
cilities located at Mooresville and Martinsville, Indiana.
During the 12-month period preceding issuance of the
complaint, a representative period, Respondent sold and
distributed products, the gross value of which exceeded
$500,000, and purchased goods and materials valued in
excess of $50,000 from Wetterau Foods, Inc., a wholesal-
er, which had received such goods and materials from
States other than the State of Indiana.
The complaint alleges, the answer admits, and I find
that, at all times material, Respondent is and has been an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find
that Local 725, Retail Clerks International Association,
AFL-CIO is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the
Act.
The complaint was amended at the hearing to include
additional allegations that the "Store Representative-
1 The complaint in the instant proceeding had been consolidated with
Cases 25-CA-10016, 25-CA-10016-2, and 25-CA-10016-3; the latter
covered by a separate complaint issued by the Regional Director for
Region 25 on August 21, 1978. By Order dated October 11, 1978, those
cases were consolidated with the instant proceeding but during the
course of the hearing on January 18, 1978, a settlement agreement resolv-
ing the issues presented therein was executed. See „It. Exh. I. Pursuant
thereto the cases were severed and the hearing with respect to the issues
raised therein adjourned sine die pending compliance with the settlement
agreement.
MOORESVILLE IGA FOODLINER 1067
Management Conference Committee (Conference Com-
mittee) constitutes a labor organization within the mean-
ing of the Act. The Conference Committee is constituted
by elected representatives from each of Respondent's
four stores who normally meet on a monthly basis with
William Schwab, Respondent's owner and president, and
Don Leisen, Respondent's vice president. In the course
of these meetings, the employee representatives are en-
courage to communicate complaints and suggestions rela-
tive to their working conditions. These comments are
considered by management and according to claims
made by the latter "many successful ideas are the result
of these meeting [sic]. Many employee fringe benefits
have been brought about by requests made at the month-
ly meetings." Thus, the Committee constitutes an "em-
ployee representation committee . . . in which employ-
ees participate and which exists for the purpose, in
whole and in part, of' dealing with . . . [the Employer]
concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work." Ac-
cordingly, I find that the Conference Committee is a
labor organization within the intendment of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1.Whether Respondent independently violated Section
8(a)(1) of the Act by alleged interference with picketing
of its premises by its employees in furtherance of an eco-
nomic strike.
2. Whether Respondent violated Section 8(a)(2) and
(1) of the Act by dominating and rendering proscribed
assistance to the Conference Committee, referred to
above.
3. Whether Respondent violated Section 8(a)(5) and
(1) of the Act by a course of conduct during collective-
bargaining negotiations, through which it manifested bad
faith, engaged in surface bargaining, and demonstrated
an unwillingness to reach agreement on a contract.
B. Preliminary Statement
By way of background, it is noted that Respondent's
Mooresville store is one of four separate grocery oper-
ations maintained in the State of Indiana by the Respond-
ent, with the most distant stores only 25 miles apart. 3 To
date, there is no history of collective bargaining for em-
ployees at Respondent's Morgantown store or its two
stores located in Martinsville.
It was in 1974 that the Union commenced an organiza-
tional campaign at Mooresville. Respondent's unlawful
interference with that campaign led to the filing of unfair
labor practice charges, and a decision by the National
Labor Relations Board on March 29, 1976, wherein Re-
spondent was directed to "recognize and bargain with
Local 725, Retail Clerks International Association, AFL-
CIO, as the exclusive collective bargaining representative
of. . . all full-time and regular part-time employees em-
2 See G.C. Exh. 124.
3 Martinsville is approximately 17 miles distant from Mooresville and
Morgantown is 7 miles from Martinsville.
ployed by Respondent at its Mooresville, Indiana, facili-
ty, excluding all meat department employees, guards, and
supervisors as defined in the Act." 4 Thereafter, on
March 25, 1977, the United States Court of Appeals for
the Seventh Circuit issued a judgment enforcing the
Order of the Board.3
In the interim shortly after issuance of the Board's
Order, on June 3, 1976, the Conference Committee, a
concept originating with Don Leisen, Respondent's vice
president, met for the first time. The committee was
composed of two employees elected from each of Re-
spondent's four stores. The purpose thereof was defined
by Leisen in the minutes of that meeting as follows:
The purpose of these regularly scheduled monthly
meetings is to establish effective means of comnumi-
cation with store employees and management. In so
doing, we hope to create better working conditions,
and improve our store image, discover new ideas,
and knit together effective store teams. All store
employees are urged to use their representatives as
their voice in Company affairs. Express your con-
cerns, hopes, and suggestions without fear of repris-
al or hurting someones feelings. Names are not used
at the conferences.
Thereafter, following the courts enforcement of the
Board's bargaining order, negotiations opened on August
4, 1977. The parties met at some 13 negotiating sessions
before bargaining was broken off on November 15, 1977.
Two days later, on November 17, 1977, the union mem-
bership voted to strike Respondent. In addition, unfair
labor practice charges alleging that Respondent refused
to bargain in good faith were filed on behalf of the
Union in Case 25-CA-9465.
Subsequently, the parties again met on December 29,
1977, while the charges were pending, and again on Feb-
ruary 24, 1979, pursuant to a settlement of those
charges.3
The parties met on four additional occasions, March
30, April 28, May 8, and June 5, 1978, before negotia-
tions broke off completely, with the parties failing to
achieve agreement on a contract. Nonetheless, the strike
ended on June 9, 1978, when strikers made an uncondi-
tional offer to return to work.
C. Concluding Findings
1. The committee
As heretofore indicated, the Conference Committee
consisted of two representatives elected by employees at
each of Respondent's four stores. These representatives
met customarily on a monthly basis, with no less than
Respondent's president and owner, Bill Schwab, and Re-
spondent's corporative vice president, Don Leisen. All
meetings were held at a facility in Martinsville, Indiana,
owned by the Respondent, and were conducted on com-
pany time, during working hours, with the representa-
4 223 NLRB 394.
5 See G.C. Exh. 120.
6 See G.C. Eidi. 113.
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tives paid for their attendance. Minutes thereof were pre-
pared by Leisen and distributed by Respondent to all
employees at each store. As heretofore found, the Com-
mittee affords more than a mere communication link be-
tween Respondent and its employee because it consti-
tutes a forum whereby complaints, grievances, and sug-
gestions relative, at least in part, to terms and conditions
of employment are raised, considered, and acted on by
the highest level of management.
Establishment of the Committee was foreshadowed by
organizational efforts at two of Respondent's four
stores. 7 In the course of those campaigns, Respondent
was found to have engaged in pervasive and flagrant in-
cursions upon the statutory organizational rights of its
employees. While combatting in the courts the remedies
invoked by the Board in consequence of its illicit behav-
ior at Mooresville, the Company conceived the Confer-
ence Committee, which had no existence prior to 1976.
The Committee first met on June 4, 1976, a few months
after the Board had issued its Order in Schwab Foods, 223
NLRB 394, on March 29, 1976, designating the Union as
exclusive collective-bargaining representative of certain
employees at the Mooresville store_ During the period
covered by the instant complaint, and following the Sev-
enth Circuit's placing its imprimatur on the Union's
status as exclusive statutory representative, Leisen and
Schwab continued to meet on a monthly basis with the
employee representatives, including those from the ap-
propriate collective-bargaining unit herein, to distribute
minutes of those meetings to all such employees, and to
treat with the representatives with respect to snch mat-
ters as uniforms, immunization, Christmas party, payroll
deductions, savings plan, job descriptions, employee pur-
chase discounts, college assistance, credit union, pension
plan, dress code, breakroom inadequacy, prescription
cost benefits, 8 night-shift differential, vacation eligibility,
length of workshifts, seniority bidding for Sunday work,
and sick pay benefits.
The General Counsel contends that Respondent violat-
ed Section 8(a)(2) and (1) of the Act by dominating and
interfering with the administration of the Committee and
rendering it unlawful assistance and support. In this con-
nection it is noted that Respondent is on record as har-
boring strong union animus, and there is no avoiding the
conclusion that the Committee emerged therefrom as a
means of assuaging employees with an alternative to
union representation. Nonetheless, Leisen's admission
that the Committee was his idea is no substitute for the
absence of record proof that he either structured the
Committee by dictating the election procedure or basis
of employee representation, or that he, or any other
agent of Respondent, specifically laid down restrictions
on the proper role or responsibility of any designees of
'In addition to the campaign at Mooresville, in 1971 Local 167 of the
Meat Cutters and Packing House Workers, affiliated with Amalgamated
Meat Cutters and Butcher Workers of North America, embarked on an
organizational campaign at one of Respondent's Martinsville stores. In
1972, the Board held that Respondent engaged in serious unfair labor
practices in connection with that campaign. See Schwab's Food, 197
NLRB 1068 (1972).
8 Apparently after May 1978, meetings were conducted on a 2-month
basis See minutes of May 1978, G C. Exh. 128.
the employees serving on that Committee. Yet even if
that were not the case, and record facts substantiated
that Respondent did have such a role in the initial formu-
lation of the Committee, such action would have oc-
curred in advance of the 10(b) cutoff date.
Within the 10(b) period, the Committee, as far as can
be ascertained from this record, consisted of representa-
tives elected by employees without Employer interfer-
ence, whose representative action was carried to man-
agement without prior influence by the latter. Although
I am convinced, as shall be seen below, that the Commit-
tee was unlawfully assisted, the evidence of domination,
although meagre, rests entirely on time-barred matter.8
With respect to the question of assistance, it is noted
that before and after the 10(b) cutoff date, Respondent
continued to meet with the Committee, including elected
representatives from the Mooresville store at times when
it was under a duty to bargain with the Charging Party
as exclusive agent for employees at the latter location.
There can be no stronger evidence of proscribed assist-
ance than that supplied by the Employer's recognition
and negotiation with one labor organization at a time
when it is under a statutory duty to recognize another.
In addition, support furnished the Committee through
meetings conducted on company time, with payments to
employee representatives, and through the preparation
and distribution of minutes of those meetings by the Re-
spondent dramatically conveyed to employees the Em-
ployer's preference as to the means by which their terms
and conditions of employment should be ascertained.
This was underscored directly by comments in the mate-
rial published by Respondent and distributed to the em-
ployees, including those at Mooresville, encouraging
them to look to the committee as the vehicle through
which their working conditions would be enhanced."
Respondent thereby engaged in unlawful assistance vio-
lative of Section 8(a)(2) and (1) of the Act.
2. The issue of subjective bad faith
a. Preliminary statement
The charge of subjective bad faith in this proceeding
arises in the context of some 19 formal negotiating ses-
sions, during the 10-month course of which the parties
exchanged a plethora of written communications both at
and away from the bargaining table. The General Coun-
sel charges that the failure to reach agreement was at-
tributable to the intransigence of the Respondent, its fail-
ure to bargain in good faith, and its disposition to engage
in surface bargaining with no intention of reaching
agreement.
9 The formation of the Committee herein cannot be the basis of a find-
mg of unlawful domination because it occurred more than 6 months prior
to the filing of any unfair labor practice charge in this proceeding. See
Rennselaer Polytechnic Institute, 219 NLRB 712 fn. 5. Although the evi-
dence does disclose that representatives of employees serving as the
Committee were compensated for time spent in sessions and that these
meetings were held at a company facility, on worknig time, such factors
do not alone add to a case of unlawful domination See Speigel Trucking
Co., 225 NLRB 178, 179 (1976).
1-9 See, e.g., G.0 Exh. 124, minutes of Committee meeting, December
1977.
MOORESVILLE IGA FOODLINER 1069
It is true that the designation of a labor organization as
exclusive representative furnishes no assurances to em-
ployees that their economic lot will be improved, remain
the same, or be diminished through free collective bar-
gaining, if that process is unblemished by a party's bad
faith. Thus, Section 8(d) defmes the duty to bargain as
"the performance of the mutual obligation of the em-
ployer and representative of the employees to meet at
reasonable times and confer in good faith with respect to
wages, hours, other terms and conditions of employment
or the negotiation of an agreement. . . ." To fulfill this
obligation, "the parties are obligated to do more than
merely go through the formalities of negotiation. There
must be a serious intent to adjust differences and to
reach an acceptable common ground. . . ."11
Where, as here, the employer has adopted a course of
rigidity at the bargaining table in a number of areas, the
line between legitimate hard bargaining and that which is
consciously calculated to frustrate employee designation
of a statutory representative is often thinly drawn. "The
problem in essentially to determine from the record the
intention or state of mind of the [Employer] in the
matter of [its] negotiations with the Union. . . such de-
termination is a question of fact to be determined from
the whole record."12
The inquiry is a delicate one and not lacking in con-
straint. For the Act does not compel either party to
agree to a proposal or to make a concession." Further-
more, the trier of fact may not sit "in judgment on sub-
stantive terms offered by parties negotiating in good
faith."" These principles of nonintervention preclude a
per se approach that would threaten the free and inde-
pendent system of collective bargaining envisaged by the
Act. At the same time, however, the Board, with court
approval has observed that recalcitrants might well draw
on them as the cutting edge by which employee designa-
tioin of a statutory representative is finally scaled to nulli-
ty. The caution to be exercised to assure against such
manipulation of the bargaining process was succinctly
stated in Sweeney & Co. v. NLRB, 437 F.2d 1127, 1134
(5th Cir. 1971) (citing NLRB v. Herman Sausage Co., 275
F.2d 229 at 231-232 (5th Cir. 1960)):
The obligation of the Employer to bargain in
good faith does not require the yielding of positions
fairly maintained.. . .
' • °
[W]hile the Employer is assured these valuable
rights, he may not use them as cloak. In approach-
ing it from this vantage, one must recognize as well
that bad faith is prohibited though done with so-
phistication and fmesse. Consequently, to sit at the
bargaining table, or to sit almost forever, or to
make concessions here and there, could be the
means by which to conceal a purposeful strategy to
make bargaining futile or fail. Hence, we have said
1 Continental Insurance Co., 495 F.2d 44, 47-48 (2d Cir. 1974).
12 NLRB v. National Shoes, 208 F.2d 688, 691-692 (2d Cir. 1953).
13 NLRB v. American National Insurance Co., 343 U.S. 395 (1952).
14 See, e.g., NLRB v. Wright Motors, 603 F.2d 604 (mem.) (7th Cir.
1979).
in more colorful language it takes more than mere
"surface bargaining" or "shadow boxing to a
draw," or "giving the Union a run-around while
purporting to be meeting with the Union for the
purpose of collective bargaining."
As should be apparent from the above principles, it is
one thing to bargain hard, yet quite another to approach
the table with a predetermination to frustrate employee
choice by drawing the line on flexibility so as to assure
that any agreement reached is well within an area pre-
cluding survival of the chosen representative.
b. The Negotiations
The contract discussions opened formally on August 4,
1977, and broke off after 19 sessions on June 5, 1978.
During the course thereof the parties conducted omnibus
negotiations, both at the table and via telephone and the
mail. In this instance, the bad-faith allegations are unac-
companied by certain traditional indicia of bad faith such
as unilateral action; refusal to furnish requested, relevant
information; or a refusal to meet on a regular basis.
Nonetheless Respondent's commitment to a course of
hard bargaining reflected a degree of inflexibility as to
provisions that ordinarily combine to constitute the heart
of an agreement to such a degree as to raise doubts
whether Respondent sought simply a favorable contract
or to accomplish through "negotiation" what it could
not secure during the underlying organization campaign.
At the first formal bargaining session on August 4,
1977, the parties reviewed the Union's written contract
proposal, presented to Respondent earlier on June 20,
1977. Respondent's initial reaction was to state opposi-
tion to a number of provisions and, as shall be seen
below, it held firm on many of these issues throughout
the negotiations, that is, unless the Union receded earlier.
Thus, with respect to the noneconomic issues, Respond-
ent registered the following positions on August 4, 1977:
1. Opposed contract language applying any term there-
of to "successors, lessees and assigns.""
2. Opposed a union shop.
3. Opposed checkoff of union dues."
4. Advised that it would propose its own management-
rights clause.
5. Advised that it would propose its own no-strike, no-
lockout clause.
6. Opposed union proposal whereby employees on ap-
proved leave of absence of less than 90 days would not
forfeit vacation pay.
7. Opposed union proposal affording employees option
of taking one-half or 1 hour for lunchbreak.
8. Opposed union proposal of 31 days' probationary
period indicating it would insist on 90 days.
9. Opposed union proposal authorizing leave of ab-
sences for the purpose of conducting union business."
15 The Umon later agreed to delete such language.
16 Although this position was consistently maintained by Respondent,
it did subsequently propose that the Union be authorized to collect dues
through a union representative who would be afforded access to the store
once per month for that purpose.
17 Ultimately the Company agreed to a limited provision approving,
leaves of absences only for employees attending the Union's annual con-
vention.
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10.Opposed a union proposal precluding the Employ-
er from requiring employees to take polygraph tests.
11.Opposed a union proposal permitting union mem-
bers to wear union buttons while on duty."
12.Opposed payment of severance pay under any con-
ditions.
13.Opposed checkoff of funds on behalf of employees
who elected to save through the Union's credit union.
14.Opposed a provision requiring Respondent to fur-
nish the names and addresses of new hires."
Also on August 4, the Company presented its manage-
ment-rights clause. That proposal preserved in manage-
ment a variety of rights and was draft in broad, compre-
hensive terms. 2° Nonetheless, after a limited nonsubstan-
live modification, the Union eventually accepted the
Company's proposal.
On August 5, 1977, the Company proposed its own
no-strike clause," which, inter alia, precluded employees
from handbilling or using the media to further any kind
of economic pressure against the Employer, its owners,
managers, or merchandise. The Company insisted on,
and the Union opposed, this aspect of the Company's
proposal throughout and no agreement was ever reached
on the no-strike clause.
At the negotiation session of August 5, the parties en-
gaged in extensive discussion of the grievance arbitration
proposal. The Company announced that among things a
short time limit on the filing of grievances would be
sought and that it was of the view that the parties should
be denied the right to invoke arbitration independent-
iy.22
On November 11, 1977, the Company put forth its
written position on all open noneconomic issues." It
continued to flatly oppose union security, dues checkoff,
overtime, time and a half for work on the sixth day of
the workweek, and for work in excess of 8 hours daily
and double time for Sunday work. The Company ad-
hered to its position against a night-shift premium. It op-
posed the Union's proposal for holiday pay, countering
with an offer six holidays, and rejected the Union's pro-
posal for vacation eligibility, countering with its own
proposal of 1 week's vacation after 1 year's service, 2
weelcs after 2 years' continuous employment, and 3
weeks after 10 years of continuous employment. The
Company adhered to its counterproposal on management
rights, polygraph test, probationary employees, no-strike,
no-lockout, and separation pay. It did agree to allow em-
ployees to wear union buttons at work, a concession con-
sistent with what the statute requires.
18 Ultimately the Employer agreed to this provision, which was
merely reflective of the rights enjoyed by employees wider the Act.
43 Respondent later accepted the Union's proposal in this regard.
2° See G.C. Exit 19.
24 See G.C. Exh. 21.
32 With respect to time limitations, the Union's initial proposal sought
a 30-day time limit The Company on August 5, proposed a 3- to 4-day
limit on filing. Ultimately, the parties agreed to time limits of 5 days for
discharges and 7 days for all other grievances, except wage claims that
would be subject to a 30-day limitation. The Union ultimately agreed to
the Union's proposal that an arbitrator be designated "jointly." See G.C.
Exh. 132.
22 See G.C. Exh. 61.
Apart from those issues which the Company stuck to
its guns, refusing to make a concession, it is noted that
on February 24, 1978, the Company while opposing a
checkoff, agreed to allow a union representative 2 hours
each month to collect dues on the Company's premises.
With respect to its no-strike proposal the Company
agreed to drop a section imposing liability on the Union
"and its members" for damages resulting from violation
thereof. There was no change in its position on lie detec-
tor, separation pay, successors, store closing, credit
union, etc. At this negotiation session, the Union
dropped its demand for separation pay and a successor-
ship clause.
On June 5, 1978, at the last bargaining session, the
Company submitted to the Union its fmal position. 24 In
that document Respondent showed no movement on the
question of union security and reiterated its opposition to
checkoff. The Company adhered to its position on no-
strike, no-lockout With respect to Sunday overtime, the
Company backed off on its firm resistance and offered
time and a half for Sunday work. The Company contin-
ued to resist the Union's demand for an increase in the
number of holidays by addition of a personal holiday.
The Company proposed that vacation eligibility not be
impaired by approved sickness or injury leaves exceeding
60 days. Other approved leaves not exceeding 30 days
would not affect vacation eligibility under the Compa-
ny's proposal. However, approved leaves of absence of
greater length would disqualify the employee from vaca-
tion entitlement for that year. With respect to probation,
the Company agreed to accept the Union's compromise
proposal to a 60-day base period, to be increased to 90
days in individual cases at the Company's option. No
movement was evident with respect to the Company's
position on mandatory lie detector tests.
By way of summary, prior to the breakdown in negoti-
ations on June 5, 1978, the Company bargained hard
with respect to the above areas, while making conces-
sions in certain areas and entering agreements on specific
proposals. It was my impression, however, that in most
areas when this occurred, the agreements were made
possible in most instances by efforts on the part of the
Union to accommodate the Company's opposition to
original union proposals. On many occasions the Union
receded, so as to abandon requests for provisions custom-
arily found in collective-bargaining agreements. None of
this, even considering the Company's unyielding position
on union security and persistent opposition to checkoff,
would alone suffice to establish that the Company was
guilty of subjective bad faith.
At the same time, however, the Company's posture on
major economic matters reflected a hold-the-line ap-
proach lending itself to a clear signal that employees
would gain little, if not lose, by their designation of a
Union as their bargaining representative. Thus, with re-
spect to key economic sectors of the negotiations conces-
sions were scant, and Respondent rigidly adhered to its
preexisting policy in a number of areas, including pen-
sion, health, and welfare, number of holidays, night-shift
24 See G.C. Exh. 105.
MOORESVILLE IGA FOODLINER 1071
premium, and the vacation eligibility benefit formula.
Indeed, the Company's overall position in these areas
tended to reflect a downgrading of certain benefits avail-
able to employees prior to the advent of the Union.
Thus, with respect to vacation eligibility, the Company's
employee handbook, though defining many aspects of
the vacation pay policy, made no reference to the possi-
bility of an impaired vacation entitlement attributable to
excused leaves of absence. Consistent with the absence of
any such restriction, Rose Young, an employee assigned
to the Mooresville store in the summer of 1977 took 6
weeks of personal leave, but was not penalized in terms
of her vacation eligibility by reason of this absence.
Nonetheless, under the Respondent's consistently main-
tained position in negotiations, employees on personal
leave, though authorized for an excess of 30 days, would
lose their vacation for that year. In addition, with re-
spect to lunch periods, although under Respondent's
prior practice, employes were allowed, at their option, to
select either one-half hour or 1 hour, the Company insist-
ed that lunch hours be set at 1 hour, with 30 minutes
permitted only with management approval.
Respondent's resistive approach in the above areas was
matched by its stance on wages. Prior to the commence-
ment of negotiations, Respondent had maintained a step-
rate, progressive pay system with advancement on a clas-
sification basis. Movement between wage levels was
based on periodic reviews, made on each annual anniver-
sary date of the individual's employment, or earlier as
management determined. According to Leisen, Respond-
ent's vice president, with respect to new hires, it was Re-
spondent's practice to terminate employees if they were
not entitled to a wage increase on conclusion of their 90,
day trial period. Furthermore, the Company's handbook
recites that, "Increases are granted in accordance with
the wage scale when a person works the amount of time
designated and his work performance is average or
better." In addition to the step-rate increase system, each
May the Company reviewed its wage structure and
granted a cost-of-living increase or annual wage adjust-
ment on May I. Just prior to the commencement of ne-
gotiations, the Company decided to grant a 6-percent in-
crease to employees in its four stores on May 1, 1977. In
connection therewith, union approval of this general in-
crease was sought and obtained. With this a tactical pat-
tern emerged, whereby the Respondent would unilateral-
ly determine increases that it intended to grant employ-
ees, and then present such determinations to the Union,
threatening that if not approved by the latter, the in-
creases would be implemented anyway. This posture of
course placed the Union in the position of endorsing the
Company's unilateral determination of wage rates, even
though the increases would reduce wage gains to be
achieved through bargaining, or of withholding approval
and thereby foreclosing participation of Mooresville
store employees in benefits to be enjoyed at the non-
union stores.
More specifically, the overall pattern of bargaining
with respect to wages discloses that three wage propos-
als were made by the Company during the entire course
of negotiations. The first came on November 11, 1977.
Significantly the increases proposed therein were de-
ferred to January 1 and May 1, 1978. The only employ-
ees who would receive an increase prior to May 1, 1978,
were those whose prenegotiation wage level fell below
$2.65 hourly, the new federally guaranteed minimum
wage that was to become effective on January 1, 1978.
Because cashiers who had completed their probationary
period and all employees in the stocker classification
would, under the Employer's proposal receive no in-
crease until May 1, 1978, the Union, at the November 15,
1977 session, sought assurances that all employees would
receive some form of increase on execution of a contract.
The Company resisted any such guarantee. 25 Also at
that session, the Union charged that the wage rates pro-
posed by the Company were less than some Schwab em-
ployees were actually earning at the time. Despite this
charge, the Company declined to make a further propos-
al upgrading its offer, indicating instead that it would be
willing to "red circle present employees, so that they
would not go down in pay under the new wage scale."
Finally, the increases to be effective on May 1 under the
Company's proposal involved a 6-percent upgrading and
as such was entirely within the framework of Respond-
ent's practice of giving such increases each year at that
time.
After conclusion of the November 15, 1977 session, a
strike vote was taken and a strike initiated on November
17, 1977. Unfair labor practice charges were also filed by
the Union alleging that the Company refused to bargain
in good faith.
Notwithstanding the foregoing, no revision was made
in the Company's wage offer until December 23, 1977.
By letter of that date, over signature of Frank Hahn, Re-
spondent's attorney and principal negotiator, the Compa-
ny forwarded a proposed wage increase, which was to
become effective on January 1, 1978.r Pursuant thereto
negotiations resumed on December 29, 1977. On that
date, the Union was for the first time informed that the
December 23 proposal contained an error. The correc-
tion actually reduced the amounts effective May 1, 1978,
as originally offered. As for this latter date, the increases
offered were identical to those in the Company's No-
vember 11 proposal. However, it did include at 15-cent
offer to be effective January 1. At the December 29 bar-
gaining session, the Company denied that this proposal
was founded solely on the new Federal minimum wage
level to be effective January 1. Nonetheless, the Compa-
ny admitted that it intended to give a similar increase to
its other stores, describing the offer as "fair" and express-
ing the hope that it would be "attractive to the
Union."2 6 It is also noted that when the Union requested
inforniation about the cost basis for the new offer, the
Company refused, explaining that "cost is only one
factor which the Company considered." Further indica-
tive of Respondent's lack of candor with respect to this
proposal was its response to the Union's inquiry as to
25 At this session, the Union inquired whether the Company would
allow the Mooresville store to participate in the general increases normal-
ly given on May 1. The Company responded "that the employees in
Mooresville would get exactly What was negotiated in the contract, and
nothing else." See R Exh. 1(k), p. 3.
28 See R. Exh. 1(m).
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether it was the Company's practice to raise all wages
when the Federal minimum wage level increased. The
Company replied that "the Company probably would
have adjusted some rates to keep approximately the same
spread between rated."
Later, during the same session the Union was informed
that the Company wished to implement its new wage
offer on January 1, 1978. The Company pointed out that
if the Union refused to approve, "there would have to be
some explanation to the employees as to why the raise
was not given." The Company argues that it had the
right to implement its "fmal offer," because the Compa-
ny had made the offer and the Union rejected it. Before
the meeting closed, the Union signified its objection to
implementation and was informed that the Company in-
tended to implement its offer.
However, by letter of January 5, 1978, over signature
of Arthur Donovan, another attorney representing the
Company, the Union was informed that "the Company
decided to honor. . . [the union] request that it not im-
plement its proposed wage increases at the Mooresville
store. In that letter it was represented that "the only
wage increases given effective January 1, 1978 at
Mooresville were those required by the new minimum
wage law." 27 The wage offer was implemented in full at
Respondent's three unorganized stores.
Thereafter, the unfair labor practice charges filed by
the Union in Case 25-CA-9465 were resolved by an
agreement on the part of Respondent, inter alia, to bar-
gain in good faith. Pursuant thereto, the formal bargain-
ing resumed at formal negotiation sessions held on Feb-
ruary 24, March 30, April 28, May 8, and June 5, 1978.
During the February 24, 1978 session, the Company
made a counterproposal in which it indicated that there
was no change in the Company's position, but expressed
its willingness to implement the raise offered on Decem-
ber 29 at Mooresville and to give the raise proposed on
May 1, 1978. The Union then raised the question of ret-
roactivity, the Company, though indicating a willingness
to discuss, opposed retroactivity, explaining that it would
be unwise to agree thereto because the Union then
would have no incentive to reach agreement.
At the March 30, 1978 bargaining session, the Compa-
ny indicated that its wage offer of December 29, 1977,
remained unchanged, stating that "the Company's objec-
tive in negotiation was not what it could 'live with,' but
what it wanted in the contract."
A further bargaining session was held on April 28,
1978. The Company at that time presented its proposal
on all opened issues, again signifying that it maintained
its position on wages as it existed on December 29, 1977.
During the course of the session, the Company reminded
the Union of its usual policy of granting a wage increase
on May 1 of each year, stating that part of the 6 percent
had been given in January at the other stores and the
Company wished to give the remainder in May, and
would in fact do so at Morgantown and its two stores in
27 William Petite, the dairy department head, and a member of the bar-
gaining unit, received a 25-cent increase on January 16, 1978, in what ap-
pears to have been a violation of the Company's representation that only
wage mcreases required by the new minimum wage law would be grant-
Martinsville. The Company then requested the Union's
position on implementation of the increase in Mooresville
as well. The Union opposed, and was informed that the
Company intended to implement at all four stores.
With respect to the proposal in question, of the 55 em-
ployees in the unit as of April 28, 1978, 15 would not
have received any wage increase as of January 1, 1978,
and 13 would receive no increase as of May I, 1978.28
When confronted by union charges that two department
heads since January I, 1978, at Mooresville had actually
received increases exceeding what had been proposed to
the Union, the Company revised its wage proposal, but
only to increase the rates offered with respect to the de-
partment beads.
By letter dated May 2, 1978, Hahn, on behalf of the
Company, informed the Union that the Company would
be willing to delay implementation of the proposed May
1, 1978 wage increase for "a few days," signifying that it
would delay until after the next negotiating session of
May 8, 1978. During that session, after the Union had
scaled down its wage demands considerably, the Compa-
ny made a counterproposal. Under it, wage rates to be
effective on May 1, 1978, were, with two minor excep-
tions," identical to the December 29 wage package. The
new offer did sanction additional increases effective Jan-
uary 1, 1979, with 10-cent increases to stockers, depart-
ment heads, and cashiers with 1 year or more of service.
Raises to others were essentially equal to the 25-cent in-
crease in the Federal minimum wage to be effective on
that date. This phase of the new counterproposal was in
all probability drafted with an eye to the impending revi-
sion in the Federal wage law, and the need to avoid a
compacting of wage levels on that eventuality."
By letter dated May 13, 1978, over Donovan's signa-
ture, the Union was informed that the Company would
implement its offer at the Mooresville store retroactive
to May 1, 1978. Excerpts from that letter, include the
following:
[A]s you know, since January 1, 1978, the employ-
ees whom you represent in Mooresville have been
paid less than the Company's other employees at
your insistence.
. . .
[W]e feel there is unrest in the store because of the
years delay in any wage increase and as I told you
it just doesn't seem fair that the employees should
be involved in the strategy of bargaining.
[11n the interest of decent, honest personnel rela-
tions with their employees, both union members and
nonunion members, we cannot ask them to continue
working for less money than we think their labor is
worth.
. . .
[W]e have requested you to consent to the imple-
mentation in the best interest of the people you rep-
28 See R. Exh. 2(c), App. a.
29 The exceptions involved an increase in the rates available to cash-
iers with 1 and 2 years' service.
0 Compare G.C. Exti 95 with G.C. Exh. 67.
MOORESVILLE IGA FOODLINER 1073
resent, but you have refused. As we said, this final
offer has been on the table for some time. We will
therefore implement immediately for the reasons
stated above.
The increase was implemented and, when negotiations
broke off on June 5, 1978, the employees at Mooresville
had been prejudiced in relation to their counterparts at
Respondent's nonunion stores, in terms of their participa-
tion in increases in wage levels.
C. Conclusions
Respondent's contention that it simply bargained hard
when considered against positions taken at various stages
of the bargaining table is viewed with suspicion. The
fmal agreements reached showed that Respondent suc-
cessfully maintained its position seeking a broad and
comprehensive management-rights clause. Its insistence
on a uniform lunch period, where in the past employees
could elect the length thereof, also ultimately resulted in
union assent. A similar departure from past practice was
manifested by Respondent's insistence on contract lan-
guage making polygraph tests mandatory.
Although Respondent's position on wages shall be dis-
cussed below, not unlike that issue, it manifested a
grudging resistance to negotiation of economic benefits
that would alter the status quo. Thus, no real flexibility
was shown at any time in the negotiations with respect
to vacation pay entitlement, paid holidays, health, wel-
fare, and retirement. Respondent insisted that any con-
tract reflect what had been its policy in the past in these
areas.
In the critical area of wages, Respondent's approach
would predictably contribute either to frustration of
agreement, or one, under which, the Union had little
chance of survival. The excerpts set forth above from
the Donovan letter of May 13, 1978, contained a number
of truths pertaining to the adverse impact that wage ne-
gotiations had on employees in the Mooresville store. It
is difficult to imagine that Respondent was unaware of
these dire implications while formulating its wage strate-
gy.31 This strategy removed effectively the wage issue
from give-and-take negotiations. Prior to the onset of
formal negotiations, in May 1977 Respondent requested
and obtained union assent to across-the-board increases.
The Union, unaware that assent would diminish Re-
spondent's flexibility at the bargaining table, approved
implementations and employees in the appropriate unit
shared in Respondent's grant of the increases. Respond-
ent's first wage proposal was made on November 11,
1977. It reflected little change in the existing wage struc-
ture. Thereafter, faced with Federal compulsion to in-
crease wages effective January, Respondent made a
The concern Manifested by the Respondent in this letter for the in-
terest of employees at the Mooresville store is puzzling in at least one
sense. Because the increase proposed on December 29, 1977, was imple-
mented at the three nonunion locations, Mooresville employees earned
prejudically lower rates between January 1 and May 1, 1978. Respondent
could hardly deny an awareness that the inequity for those employees
could only have been resolved through full retroactivity to January 1,
1978. Respondent's specious argumentation against retroactivity while
taking the questionable implementation action of May 17, 1978, is not
without significance,
second wage offer on December 23, 1977, which was
considered at the negotiating session on December 29,
1977, but only after the terms thereof were corrected
and presented to the Union under a threat of implemen-
tation. Though having received what might fairly be de-
scribed as a last-minute offer, the Union was placed in a
position of either acceding to Respondent's unilateral de-
termination of increases, or take a position to the preju-
dice of represented employees. The Union elected to
resist, and the Company subsequently informed that the
only wage increases to be placed in effect in Mooresville,
were those required by the changes in Federal laws.
Nonetheless, the increases proposed to the Union were
granted in Respondent's nonunion stores effective Janu-
ary 1, 1979. Respondent repeated this approach on April
28, 1978, threatening the Union with implementation
unless it agreed to a contract, which according to my
perception of the posture of negotiations, would have re-
quired union capitulation on essentially all open points.
When this did not occur, the Union was notified that the
Company would implement. Before doing so, a third
offer was made by Respondent on May 5, and then im-
plemented on May 17. At the June 5 session, prior to ne-
gotiations breaking off, the wage offer included in the
Company's final proposal was identical to that placed in
effect on May 17, 1978, and varied therefrom only to the
extent apparently dictated by revision in the Federal
minimum wage law to be effective on January 1, 1979.
Respondent's negotiating stance with respect to wage
rates was hardly in consonance with a receptive attitude
good-faith bargaining. Though not pleading inability to
pay, it made three wage offers, each of which, I am con-
vinced, was drafted within limits that employees would
readily perceive, as affording precisely what they would
have enjoyed had there been no Union in the picture.
Thus, in each instance, the offers, while rejecting the
notion that all unit employees should receive some im-
mediate increase, were born of no more than the Em-
ployer's interest in both accommodating its annual
review policy and in assuring an equitable wage distribu-
tion in the face of revisions in the federally guaranteed
wage. 32 The message that collective bargaining was a
prejudicial exercise that would result in no gains for em-
ployees was evident in each. Aside from the terms of the
offers, Respondent's tactic of confronting the Union with
them on an 11th-hour basis, with the characterization of
"last offer," under self-serving declarations of impasse,
and threats of implementation, was calculated to remove
effectively from bargaining the wage issue. The Union
was forced to either accept implementation, and thereby
to acknowledge Respondent's right to unilaterally deter-
mine wage rates on a take-it-or-leave-it basis, or to
accept the consequences of full or partial implementa-
tion. Indeed, Respondent's action, in having implemented
its last-minute December offer at the nonunion stores,
and thereafter steadfastly opposing full retroactivity at
Mooresville with respect to the very benefits granted
32 The accuracy of this assessment is underscored by the fact that the
December offer was implemented at the nonunion stores. Thus, Respond-
ent is in no position to argue that it gave more at these locations than
would have been the case had there been no bargaining at Mooresville.
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
elsewhere, strongly suggested an intent to subvert bar-
gaining to ends inimical to statutory obligations.
The foregoing was consistent with Respondent's decla-
ration that its objective in negotiations was not to obtain
a contract that it could live with, but one which con-
tained provisions it wantec1. 33 Indeed, at no time during
the negotiations did the Company indicate to the Union
that the reason it was not able to meet wage demands or
to improve benefits was due to the financial condition of
the Company. Respondent did agree to certain provi-
sions pertaining to union activity, including limited
access by union representatives, authorization of employ-
ee leave for attending union-sanctioned conventions, and
the posting of union decals. However, its unwaivering
resistance to union security and dues checkoff and its in-
sistence on restrictive provisions foreclosing its own em-
ployees from publicizing grievances would contribute
foreseeebly to an environment hardly conducive to
agreement.
Also arousing curiosity was a particular argument
made by Respondent against union security and checkoff
and, during the early stages'; its objection to supplying
addresses of new hires to the Union. In resisting these
union proposals, Respondent repeatedly adverted to a
concern held for the interests of employees. This stood
in stark contrast with Respondent's regard for such inter-
ests, when in the past its employees sought to avail them-
selves of what Congress said was rightfully their prerog-
ative. Thus on June 28, 1972, well before the inception
of the instant Union's effort to organize employees at the
Mooresville store, the National Labor Relations Board
issued a decision involving one of the Martinsville stores,
finding that Respondent engaged in violations of Section
8(a)(1) and (3) of the Act through a pattern of conduct
whereby a different union's majority was reversed by
discriminatory transfers, promotions, and discharges.34
These unfair labor practices were viewed as sufficiently
egregious to warrant a bargaining order under authority
of NLRB v. Gissel Packing Co., 395 U.S. 575, 615 (1969).
These flagrant violations invited still others that became
evident during subsequent organization at Mooresville,
the campaign that lies at the threshold of this proceed-
ing. Thus, in connection therewith, the Board in Scotts
IGA Foodliner, 223 NLRB 394 (1976), again found perva-
sive violations of Section 8(a)(1) as well as further Acts
of discrimination in violation of Section 8(a)(3), once
more issuing a bargaining order to redress Respondent's
continuing disregard of statutorily guaranteed employee
rights. Indeed, among the independent violations of Sec-
tion 8(a)(1) attributed to Respondent by the Board's find-
ings in that case was a statement by David Schwab, the
son of Respondent's president and sole owner, that, "no
matter what, his dad wouldn't let the Union in, he would
33 See R. Exh. 2(b), minutes of negotiations of March 30, 1978, P. 3.
34 During the course of that effort to organize meat department em-
ployees at one of the Martnisville stores, according to findings made by
the administrative law judge, "Respondent transferred, terminated or oth-
erwise sought to effect the employment status of four of the six employ-
ees in the meat department, suspended a fifth employee m that depart-
ment, and discharged Henry Nocas, the meat department manager." See
197 NLRB at 1073. In that case only one employee in the unit that was
subject to organization was not reached directly by Respondent's unlaw-
ful discrimination.
take it to court as he did in Martinsville . . . he had a
lawyer from Chicago. . . and no matter what he would
keep his Union from coming in." 35 As should be obvious
from the foregoing Respondent's declared concern for
employee interests did not always run constant.
But more significant is the fact that the instant record
contains clear evidence that Respondent has adhered to
and, at least in one respect, embellished its reputation as
an offender of this Act. First etched by the almost com-
plete annihilation of a unit subject to organization at one
of the Martinsville stores, Respondent, having again
demonstrated during the Mooresville campaign that its
own interest in maintaining a union-free operation took
precedence over statutory compliance, subsequently ex-
tended its record of unfair labor practices at the Moores-
ville location. Thus, the order of the National Labor Re-
lations Board on March 29, 1976, directed Respondent to
bargain with the Union on behalf of employees. None-
theless, Respondent thereafter conceived "Crax and
Fax," a publication drafted by Leisen and distributed to
employees at all four stores, through which it propagan-
dized against union support through the reprint of arti-
cles charging that store closings were attributable to
union demands, reporting threatened increases in union
dues, and citing specific instances of union decertification
as well as a high frequency of decertification evidenced
by statistics released by the National Labor Relations
Board. Indeed, Respondent's answer to the Circuit Court
of Appeals for the Seventh Circuit, when the latter en-
forced the bargaining order in this unit, appeared in the
July 1977 issues of "Crax and Fax," and is set forth
below:
UNION ACTIVITY
Most of you are probably already aware that the
Mooresville store has been ordered to begin "Bar-
gaining in good faith" with Retail Clerks Union,
Local 725 which wants to represent the employees
of that store only.
I have been asked many questions by employees
concerning this situation. Should any others have
questions, I will be glad to answer them honestly on
an individual basis. I feel qualified to do this, since I
have been a member of that union.
I do not wish to come out with detailed state-
ments which might be labeled "Unfair labor prac-
tice." But I'm available to any of you.
My only comment to those in doubt about what
they think best for them is to remember that politi-
cal or union "promises" are never put in writing
and are very seldom ever kept.
In some cases unions are good, some cases bad. It
depends on employee's needs and how the union
delivers to those needs. Sometimes unions are not as
beneficial as they seemed, as indicated by the fol-
lowing news article:
"Employees of Mace supermarket in Conners-
ville, Indiana in a federally supervised secret elec-
35 223 NLRB at 403.
MOORESVILLE IGA FOODLINER

1075
tion have voted against continued representation by
the Retail Clerks Union."
This is the second store that has decided against
Retail Clerk's representation in this company. The
Mace Supermarket in Kokomo, Indiana voted out
the Retail Clerks on October 20, 1976."
There have been many articles of this type re-
cently. So I think a person should make their own
decision very carefully. Once a union is in . .
you're stuck with it for at least three years regard-
less of what you think later.
I might add, that these comments are my person-
al feelings and in no way are intended to be a com-
pany viewpoint.
Thus, the bargaining that commenced on August 4,
1977, began and continued against a background where-
by the Employer was wedded to propaganda, albeit le-
gitimate on its face, calculated to dissuade employees
from continuing their support of the Union. At the same
time, Respondent maintained its relationship with the
Conference Committee, which it held out to employees
as a viable alternative to union representation. Such con-
duct, in derogation of the Union's status as exclusive stat-
utory representative, constituted an indefensible and bla-
tant violation of the earlier Board Order and the court
decree thereon."
The animus reflected by the above was not lacking in
consistency with that which radiated from the bargaining
table. Thus, although Respondent's communications with
employees included sometimes subtle, sometimes direct
appeals that they reject union representation, the caution
with which Respondent proceeded in negotiations to
avoid any notion that collective bargaining could be the
source of enhanced benefits obviously lent credibility to
its antiunion posture. Throughout, and in the end, Re-
spondent dominated negotiations, expressing a will to
accept a contract only if it contained a broad and com-
prehensive management-rights clause, prohibitive no-
strike clause, no union security, no checkoff, and an eco-
nomic package that in net value actually penalized
Mooresville employees for their adventure with collec-
tive bargaining.
36 Respondent points out in its brief that the Union was aware of the
Conference Committee, and voiced no objection thereto. It does appear
that this subject came up at the negotiating session of November 1, 1977.
See R. Exh. 1(j). At that time the parties were discussing a union propos-
al as the statute of itself demands, simply required the Company to
treat with the Union as the exclusive representative and no one else. Of
interest is the fact that Hahn, on behalf of Respondent, commented on
that occasion that "as a legal matter, he could not think of a safe way to
retain a separate employee representative while in a collective bargaining
relationship with the Union." This was a plain reference to the Confer-
ence Committee, and it is curious that Respondent itself would question
the legality of its relationship with the Committee in the context of nego-
tiating a union proposal that simply embodied the Employer's statutory
obligation. Despite this observation by Respondent's counsel, the Compa-
ny continued to meet with the Conference Committee and the employee
representative from the Mooresville store.
Respondent's contention that the Union waived any objection to Re-
spondent's continuing dealings throughout the negotiations with the Con-
ference Committee is lacking in merit. It is true that at least as of Novem-
ber 1, 1977, the Union was aware of the existence of that arrangement,
but its indication at that time on execution of a new contract, the employee
representative could be the Union's steward, was not tantamount to ap-
proval of the illegal relationship.
In sum, it is one thing for an employer to take eco-
nomically sound positions in negotiations to which it is
deeply, honestly, and fairly committed and to maintain
them forever even though destined to produce a stale-
ment.37 Yet it is quite another to condone a conclusion
effort to manipulate the bargaining process in service of
a predetermination to frustrate the choice of employees
to designate a collective-bargaining representative and to
enjoy the fruits of that designation. I am convinced that
Respondent's stance in the course of these negotiations
was contrived as an integral of a three-pronged offensive
whereby antiunion propaganda and dealings with and
support of the Conference Committee could be evaluated
by employees and considered by them against the dra-
matically impaired economic plight of those who sought
advantage through union representation. In sum, I fmd
that Respondent acted with an intent and state of mind
throughout to utilize bargaining, and the apparent discre-
tion available to it within that process, to chill unioniza-
tion once and for all at each of its several locations. It
thereby violated Section 8(a)(5) and (1) of the Act.
3. The alleged interference with picketing
The complaint alleges that Respondent in the course
of the strike, on various dates, independently violated
Section 8(a)(1) by prohibiting employees from picketing
its Mooresville and Martinsville South facilities.
(a) With respect to Mooresville, it appears that on De-
cember 1, 1977, picketing occurred in the immediate vi-
cinity of the store entrance. On that date nonemployee
union agents Al Sanford, Dan Reasons, Jim Preddy, and
Ed Stahl joined employees Sandy Kingham, Noble Cal-
vert, and others who were unidentified for the purpose
of picketing that location.
Subsequently, Stahl and nonemployee Clara Rogers,38
together with employee Sandy Kingham, proceeded to
picket and handbill in and near a common vestibule adja-
cent to the separate entrances utilized for ingress and
egress to Respondent's facility and an adjacent drugstore.
It does not appear that this conduct on the part of the
pickets posed a significant impediment to those seeking
to enter and leave the stores. After about 10 minutes, Re-
spondent's vice president, Leisen, emerged from the
store, informing Stahl personally, "you are not supposed
to be picketing in front of this IGA store." Stahl replied
that the striking employees had the right to do so and
would continue unless ordered away by the police or
given "something in writing." Following employee
Kingham's disappearance from the group, a police offi-
cer arrived at the scene, stating that a complaint had
been received from the drugstore and asking Stahl to
move in front of Respondent's store. The nonemployee
pickets did so. Leisen then reappeared, stating, insofar as
relevant, to Stahl, you have no right, as a union repre-
sentative, or a picketer, to picket in front of the store."
Stahl answered, "I have just as much right as anyone
else coming into the store."
37 See Gehnrich & Gehnrich, Inc., 232 NLRB 1122 (1977).
38 Rogers was an employee of Krogers and a member of the Charging
Union.
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After this, Clara Rogers left and Al Sanford joined
Stahl in front of the store. Leisen, still with no employ-
ees present, approached the union agents again, this time
threatening to call the police if they did not leave. Stahl
and Sanford remained at the disputed location until a
police cruiser arrived, whereupon the two union agents
repaired to the parking lot entrance.
A second confrontation took place at Mooresville on
February 15, 1978. That morning, Union Representative
Stahl and employees Lloyd Bales and Jeff Smith re-
turned to the vestibule to picket and handbill. An indi-
vidual named David Pryor emerged from the store, stat-
ing that the police were on the way and the pickets
would have to leave. 39 They refused, whereupon Leisen
arrived, asking, "Have they passed a new city ordinance
to where you people can picket up here?" Stahl replied,
"No, we just got tired of walking out in the street."
Leisen told the group to leave or he would have them
arrested. The picketing employees and Stahl again de-
clined to leave. Shortly thereafter, a police officer ar-
rived and under threat of arrest told the group to
remove themselves to the parking lot entrances.
(b) As for the Martinsville South store, Union Repre-
sentatives Stahl, Mayhew, and Preddy arrived at that lo-
cation with Respondent's employees Pat Boler, Lloyd
Bales, and Mark Austin at 4 p.m. on December 15, 1974.
Unlike the Mooresville store and adjacent parking lot,
which is accessible through two entrances. At approxi-
mately 5:15 p.m., a policeman cautioned the pickets not
to obstruct traffic. About 10 minutes later, the pickets
were approached by an individual who identified himself
as the chief of police, Jack Stanley, who informed the
pickets that they had been expected and "there had been
a Town Council Meeting and that they didn't care for us
being there, as long as we were peaceful and that we
could walk on the sidewalks, but that we could not walk
on the street surrounding the IGA parking lot."
In the course of this conversation, Bill Schwab, Re-
spondent's president appeared and was asked by "Stan-
ley" if he wanted the pickets on his property. Schwab
said, "No." At this point, "Stanley" told the pickets that
the only location at which the pickets could "walk" was
on a sidewalk across the street from the Martinsville
store. Stahl, on behalf of the pickets, asked what would
result if the latter stayed where they were Stanley said
he would have to arrest them. The pickets then left the
site. 4 o
Conclusions
On the above findings of fact, it is clear that Respond-
ent perpetrated or condoned a coercive restriction on
employee picketing and handbilling in the vestibule of
the Mooresville store on February 15, 1978, and on its
property at the Martinsville South facility on December
39 Stahl testified as to his "belief" that Pryor was the "Assistant Store
Manager" The complaint does not allege that Pryor was an agent or su-
pervisor of Respondent.
40 At the hearing, the parties stipulated that on December 15, 1977, an
agreement was entered between the Union and the city attorney of Mar-
tinsville, allowing picketmg on an easement consisting of an area on one
of the streets bordering the Martinsville South store
15, 1977.41 Whether such restraint violated Section
8(a)(1) of the Act presents a more difficult question.
At both locations the threats of arrest curtailed peace-
ful picketing and handbilling by employees in furtherance
of an economic strike against their employer. In both in-
stances the employee conduct occurred at locations oc-
cupied by, and was directed exclusively toward, their
employer. While this form of economic pressure at those
locations was clearly protected by Section 7 of the Act,
the inquiry goes further, for the precedent has under cer-
tain conditions afforded primacy to property rights or
the employer's right to maintain operations and discipline
in condoning intrusions on the exercise of otherwise pro-
tected employee rights.
Over the years, the Supreme Court has recognized
that it is the duty of the Board to accommodate the ten-
sion that exists between inherent employer interests and
employee rights where unfair labor practice charges em-
anate from conduct occurring on the employer's proper-
ty. In earlier cases, involving organizational, as distin-
guished from strike, activity, latitude had been afforded
to employers as against outside nonemployee organizers
engaged in the distribution of literature on property of
the former. Thus in NLRB v. Babcock & Wilcox Co., 351
U.S. 105 (1956), and Central Hardware Co v. NLRB, 407
U.S. 539 (1972), the Supreme Court held that an employ-
er's property rights control and that it may lawfully
impede nonemployee organizers from intruding on its
property to engage in organizational distribution unless
the General Counsel proves that no alternative means
exist for communicating with the employees. With re-
spect to employees, however, these cases were preceded
by Republic Aviation Corp v. NLRB, 324 U.S. 793 (1945),
in which it was held that an employer could not restrict
its own employees from distributing literature on its
property on their own time in nonworking areas, unless
the employer demonstrates that such a ban was necessary
to maintain plant discipline or production.
This diminution of property rights in the interest of
primacy to Section 7 rights by divergent standards and
proof responsibility in the case of employees, as distin-
guished from outside organizers, was preserved in Bab-
cock & Wilcox and Central Hardware. This was reiterated
recently in Eastex, Inc. v. NLRB, 437 U.S. 556, 557
(1978), in which the Court stated:
In Babcock & Wilcox, on the other hand, nonem-
ployees sought to enter an employer's property to
distribute union organizational literature. The Board
applied the rule of Republic Aviation in this situa-
tion, but the Court held that there is a distinction
"of substance" between "rules of law applicable to
employees and those applicable to nonemployees."
The difference was that the nonemployees in Bab-
cock & Wilcox sought to trespass on the employer's
property, whereas the employees in Republic Avia-
tion did not. Striking a balance between § 7 organi-
41 No violation inured from the December 1 confrontation at Moores-
ville. The complaint alleges an interference with employee pickets on
that occasion, and the evidence does not substantiate that this occurred,
as employee Kingham had left before Lessen had manifested any threats.
MOORESVILLE IGA FOODLINER 1077
zational rights and an employer's right to keep
strangers from entering on its property, the Court
held that the employer in Babcock & Wilcox was en-
titled to prevent "nonemployee distribution of union
literature [on its property] if reasonable efforts by
the union through other available channels of com-
munication will enable it to reach the employees
with its message. . . ." The Court recently has em-
phasized the distinction between the two cases: "A
wholly different balance was struck when the orga-
nizational activity was carried on by employees al-
ready rightfully on the employer's property, since
the employer's management interests rather than his
property interests were there involved."
In Eastex, Inc., the Supreme Court held that an employer
violated Section 8(a)(1) by interfering with employees
engaged in distribution of literature on the employer's
property, noting that "[the] employees are 'already right-
fully on the employer's property.,' so that in this case it
is the employer's management interests rather than its
property interests that primarily are implicated."
In the interim, however, the Supreme Court decided
Hudgens v. NLRB, 424 U.S. 507 (1976), in which the
property right concept was deemed a reliable criteria in
reconciling Section 7 activity with the right of a neutral
owner to curtail legitimate strike action waged on its pri-
vate property. That case grew out of a labor dispute in
which warehouse employees were striking their employ-
er in support of economic contract demands. The strik-
ing warehouse employees elected to extend their dispute
beyond their immediate place of employment and to their
employer's retail outlet located in a large enclosed shop-
ping mall. The general manager of the mall prevented
the employees from picketing in the mall at entrances ad-
jacent to their employer's retail store. The Board in find-
ing that the owner of the mall violated Section 8(a)(1)
deemed the existence or nonexistence of alternative
means of communication to by immaterial. In remanding
to the Board, the Supreme Court stated at 521-522:
In the Central Hardware case, and earlier in the
case of NLRB v. Babcock & Wilcox Co., 351 U.S.
105, the Court considered the nature of the Board's
task in this area under the Act. Accommodation be-
tween employees' rights and employer's property
rights, the Court said in Babcock & Wilcox, "must
be obtained with as little destruction of one as is
consistent with the maintenance of the other." 351
U.S., at 112.
Both Central Hardware and Babcock & Wilcox in-
volved organizational activity carried on by nonem-
ployees on the employers' property./10/ The con-
text of the § 7 activity in the present case was dif-
ferent in several respects which may or may not be
relevant in striking the proper balance. First, it in-
volved lawful economic strike activity rather than
organizational activity. See Steelworkers v. IV.L.R.B.
[Carrier Corp.], 376 U.S. 492, 499; Bus Employees V.
Missouri, 374 U.S. 74, 82; 1V.L.R.B. v. Erie Resistor
Corp., 373 U.S. 221, 234. Cf. Houston Insulation
Contractors Ass'n. v. 1V.L.R.B„ 386 U.S. 664, 668-
669. Second, the § 7 activity here was carried on by
Butler's employees (albeit not employees of its
shopping center store), not by outsiders. See
NL.R.B. v. Babcock & Wilcox Co., [351 U.S.] at
111-113. Third, the property interests impinged
upon this case were not those of the employer
against whom the § 7 was directed, but of another.
The Babcock & Wilcox opinion established the
basic objective under the Act: accommodation of
§ 7 rights and private property rights "with as little
destruction of one as is consistent with the mainte-
nance of the other." The locus of that accommoda-
tion, however, may fall at differing points along the
spectrum depending on the nature and strength of
the respective § 7 rights and private property rights
asserted in any given context. In each generic situa-
tion, the primary responsibility for making this ac-
commodation must rest with the Board in the first
instance.
i ° A wholly different balance was struck when the organiza-
tional activity was carried on by employees already rightfully on
the employer's property, since the employer's management inter-
ests rather than his property interests were there involved. Repub-
lic Aviation Corp. v. N.L.R.B., 324 U.S. 793. This difference is "one
of substance." 1V.L.R.B. v Babcock & Wilcox Co., 352 U.S., at 113.
On remand the Board reaffirmed its 8(a)(1) finding
against the owner of the mall. See Scott Hudgens, 230
NLRB 414 (1977). The Board concluded that neither the
nature of the protected activity, the persons engaged
therein, nor the identity of the person holding title to the
property precluded a violation on the facts presented. As
I interpret that decision, it does not stand for the propo-
sition that striking employees who confront their own
employer on private property may only avail themselves
of a statutory remedy where the Babcock & Wilcox test
of no alternative means of access is substantiated. On this
narrow question the Board stated "the employee status
of the pickets have entitled them to at least as much pro-
tection as would be afforded to nonemployee organizers
such as those in Babcock & Wilcox," 230 NLRB at 416.
(Emphasis added.)
Turning to the instant facts, the question whether the
Babcock & Wilcox or Republic Aviation standard applies is
critical to the handbilling and picketing on December 15
at the Mooresville store. There is no evidence that Re-
spondent in any sense interfered with picketing at the en-
trances to its parking lot, nor am I convinced that picket-
ing at those locations either presented a safety hazard to
the picketing employees or was materially less opportune
in terms of access to entering customers, employees, and
other members of the general public than the vestibule.
On the other hand, the picketing and handbiffing that oc-
curred in and near the vestibule entrance to the store
was not shown by credible evidence to obstruct or inter-
fere with discipline or the maintenance of Respondent's
operations. 42 Thus, the question turns on whether prop-
42 The vestibule is an area about 20 feet wide and 20 feet deep. It is
common to and incorporates the entrances to both the drugstore and Re-
spondent's facility, with one on the left, the other on the right. There was
Continued
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erty interests afforded a cogent justification for Respond-
ent's intervention in this regard.
The question turns on whether the striking employees,
through protestation in the form of picketing and hand-
billing, had a legal right to be present and engage in such
activity in a nonworking area at their employment
situs." As the Board recently stated in Firestone Tire &
Rubber Co., 238 NLRB 1323 (1978):
In an unbroken line of decisions, this Board and the
Supreme Court have stated that, where an employ-
ee exercises his Section 7 rights while legally on an
employer's property pursuant to the employment
relations, the balance to be struck is not vis-a-vis the
employer's property rights, but only vis-a-vis the
employer's managerial rights.
With respect to the facts under consideration here,
property rights are asserted by way of a defense to
charges against an employer whose alleged incursion of
employee rights occurred in the context of its own dis-
pute with its own employees emerging from the internal
employment relationship. Respondent did not profess to
act in that regard out of the interests of the owner of its
leased facility or on behalf of the neighboring drug-
store.4
In these circumstances, the interests of Respondent do
not take on heightened significance because its coercion
was addressed to strikers, as distinguished from employee
organizers. At common law, the employee who, without
his employer's permission, returns to the situs of his
work to distribute union literature to unorganized co-
workers is no less a trespasser45 than the striker who
seeks to appeal to coworkers at his place of work. The
striker is an employee too," and his appeals on the very
premises from which the employment relationship and
the labor dispute emerge involve no greater incursion on
private property than effected by the employee organiz-
er. A logical and consistent interpretation of precedent
under this Act requires that both be deemed as within
no evidence that any of those Involved in the picketing physically ob-
structed access to Respondent's store or impeded employee or customer
access to merchandise displayed outside the store. Although Leisen af-
forded testimony as to the desirability of maintaining the vestibule as an
open area it was not an area where merchandising took place or to which
sales personnel were assigned. Further, in addition to my mistrust of
Leisen, and his lack of credibility, I agree with the General Counsel that
his reference to customer complaints were lacking in adequate foundation
and too vague to show an intrusion on the managerial interests involved
here.
46 Although the strikers were unfair labor practice strikers at all times
material, their status as such is not considered material to the analysis.
44 It is true that the drugstore also inveighed against the employee ac-
tivity in the vestibule, but that fact is of no solace to Respondent. For it
is the latter's conduct that is in issue. Because Respondent's intervention
was not expressly on behalf of the drugstore, the allegations of unlawful
interference stand on no lesser footing simply because the picketing at
that locale could have been effectively curtailed by the separately owned
and operated drugstore. See, e.g., Holland Rantos Co., 234 NLRB 726
(1978).
46 Cf. GTE Lenkurt, Inc., 204 NLRB 921, (1973), in which the em-
ployer published a specific rule precluding employees from entering the
premises unless workmg or scheduled for work.
46 Sec. 2(3) of the Act provides in material part:
The term "employee" . . . shall include any individual whose work
has ceased as a consequence of, or in connection with any current
labor dispute. . . .
the class "legally on an employer's property pursuant to
the employment relations."47
Accordingly, Republic Aviation is controlling and, as
Respondent threatened to have employees arrested if
they did not remove themselves from a nonworking area,
without demonstrating that such action was necessary to
maintain production or discipline, I find that its conduct
at the Mooresville store on February 15, 1978, violated
Section 8(a)(1) of the Act.
Respondent's interference with the picketing at the
Martinsville South store was unlawful, even if view from
the more rigid standard applied in Babcock & Wilcox,
supra. That store was not the immediate location of the
employment relationship, and unlike Mooresville, was lo-
cated in the only facility occupying a tract of land all of
which was owned by Respondent. On December 15,
1977, a threat of arrest that evolved from an exchange
between Respondent's president and an individual identi-
fying himself as the chief of police resulted in the em-
ployee pickets removal to a sidewalk across the street.
Under Babcock & Wilcox, the available alternative means
of communication must be "reasonable" if the balance is
to be struck in favor of preserving an employer dispu-
tant's property rights. 4 8 Access by a labor organization
to mailing lists of area residents, to direct mail services,
and other media, including television, radio, and newspa-
pers, is not the equivalent of direct, personal confronta-
tion with those seeking ingress and egress at the situs of
a lawful, peaceable strike. It is clear that the pickets,
from their location across the street would be removed
from the traffic pattern so necessary both to effective
handbilling and to the opportunity for personal identifi-
cation by nonstriking employees from whom they seek
common cause and by customers from whom they seek
economic support. Babcock & Wilcox does not privilege
an employer, who is under interdict of its employees in a
traditional economic labor dispute, to insulate itself from
legitimate economic pressures by asserting ownership in-
terests ha the justification for relegating its grieving em-
ployees to substantially less effective alternatives." I
find that Respondent violated Section 8(a)(1) by its coer-
cive interference with employee picketing and handbill-
ing at the Martinsville South store on December 15,
1977.5°
47 As stated by the Board, on remand from the Supreme Court in Scott
Hudgens, supra at 416:
[T]he instant case involves economic strike activity rather than orga-
nizational activity, it is fully recognized by Board and court prece-
dent, as well as by the parties to this proceeding, that both types of
activity are protected by Section 7. Accordingly, economic activity
deserves at least equal deference, and the fact that the picketing here
was in support of an economic strike does not warrant denying it the
same measure of protection afforded to organizational picketing.
48 See Scott Hudgens, 230 NLRB at 416
46 See Scott Hudgens, 230 NLRB at 416-417.
5° It is noted that although at both Martinsville South and Mooresville
the coercion was addressed to nonemployees as well as employees gener-
ally, the presence of the nonemployees is deemed of no bearing on the
legitimacy of Respondent's action at either location.
MOORESVILLE IGA FOODLINER

1079
CONCLUSIONS OF LAW
1. Respondent Schwab Foods, Inc., d/b/a Mooresville
IGA Foodliner is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 725, Retail Clerks International Association,
AFL-CIO and the Store Representative-Management
Conference Committee are labor organizations within the
meaning of Section 8(a)(1) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
threatening employees with arrest because of their pick-
eting and handbilling though conducted under conditions
protected by Section 7 of the Act.
4. Respondent violated Section 8(a)(2) and (1) of the
Act by rendering unlawful assistance to the Store Res-
presentative-Management Conference Committee.
5. Respondent violated Section 8(a)(5) and (1) of the
Act by an overall pattern of bad-faith bargaining during
initial contract negotiations, in the appropriate unit set
forth below:
All full-time and regular part-time employees of the
Respondent employed at its Mooresville facility ex-
clusive of all meat department employees, profes-
sional employees, guards, the store manager, the as-
sistant store manager, the night manager, the delica-
tessen-bakery manager and all other supervisors as
defined in the Act.
6. The above unfair labor practices are unfair labor
practices having an effect on commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
I have found that Respondent unlawfully failed and re-
fused to engage in good-faith collective bargaining with
the Union, as exclusive representative of employees in
the above-defined appropriate unit. I shall therefore rec-
ommend that it be ordered to bargain collectively with
the Union, on request, and to embody any understanding
reached in a signed contract.
Finally, having found that Respondent granted unlaw-
ful assistance and support to the Store Representative-
Management Conference Committee, it shall be recom-
mended that Respondent withhold and withdraw recog-
nition therefrom until certified in a Board-conducted
election.
On these findings of fact and conclusions of law and
on the entire record, 1 issue the following recommend-
ed'
51 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order herem shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all pur-
ORDER
The Respondent, Schwab Foods, Inc., d/b/a Moores-
ville IGA Foodliner, Mooresville, Indiana, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercing or restraining its employees from engag-
ing in picketing or handbilling where conducted on its
premises under conditions protected by the Act.
(b) Assisting or granting support to the Employee
Representative-Management Conference Committee, any
successors thereto, or any other labor organization.
(c) Refusing to bargain collectively and in good faith
concerning rates of pay, wages, hours, and other terms
and conditions of employment with Local 725, Retail
Clerks International Association, AFL-CIO, as the ex-
clusive bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time employees of the
Respondent employed at its Mooresville facility ex-
clusive of all meat department employees, profes-
sional employees, guards, the store manager, the as-
sistant store manager, the delicatessen-bakery man-
ager and all other supervisors as defined in the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith with Local 725,
Retail Clerks International Association, AFL-CIO, as
the exclusive representative of all employees in the afore-
said appropriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Withdraw recognition from the Employee Repre-
sentative-Management Conference Committee unless and
until certified as exclusive representative in an election
conducted by the National Labor Relations Board.
(c) Post at its facility in Mooresville, Indiana, copies of
the attached notice marked "Appendix." 52 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
52 If this Order is enforced by a judgment of a United States court of
appeals, the words m the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."