Sharp's Markets, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1963

140 N.L.R.B. 1221 (N.L.R.B. 1963)

SHARP'S MARKETS, INC. 1221
engaged in by the Respondent. Indeed, there is a total lack of evidence that any
agent of the Respondent even communicated in any way, shape, or form with any
person in Gridley's management 27 It is accordingly concluded that the General
Counsel has failed to establish that the Respondent violated Section 8(b) (4) (ii) (B)
of the Act with regard to Gridley.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. E. C. Ernst, Inc., and Darin and Armstrong, Inc., are and at all material times
have been employers engaged in commerce within the meaning of Section 2(6) of
the Act.
2. International Union of Operating Engineers, Local 106, AFL-CIO, is, and
at all material times has been, a labor organization within the meaning of Section
2(5) of the Act. Paul Moran and Milton J. Orslick are, and at all times have been,
its agents within the meaning of Section 8 (b) of the Act.
3. The General Counsel has failed to prove that Joseph Bundy was, at any material
time, an agent of the above-named labor organization within the meaning of Sec-
tion 8(b) of the Act.
4. By threatening, coercing, and restraining Darin and Armstrong, Inc., with an
object of forcing or requiring Darin and Armstrong, Inc., to cease doing business with
E. C. Ernst, Inc., the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (4) (ii) (B) of the Act.
5. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
6. The General Counsel has failed to establish that the Respondent has engaged
in or is engaging in unfair labor practices within the meaning of Section 8(b)(4)
(I) (B) of the Act
7. The General Counsel has failed to establish that the Respondent violated Sec-
tion 8(b) (4) (ii) (B) of the Act with regard to C. M. Gridley and Son, Inc.
[Recommendations omitted from publication.]
27 This is true even if Robert Gridley, because of his stock ownership in Gridley, is con-
sidered as a "person engaged in commerce" within the meaning of Section 8(b) (4) (ii) (B)
of the Act See Local Union No 505, International Brotherhood of Teamsters, et al.
(Carolrna Lumber Company), supra
Even if Bartolet's testimony as to what Orslick said in an alleged telephone conversa-
tion of February 28 is taken as tine and even if Orshck's alleged remark therein ("sign
our contract . . . and that will be it") is considered as a threat, this was addressed to
Bartolet, a representative of the primary employer, and could not in any sense be viewed
as a threat to Gridley, the neutral employer.
Sharp 's Markets, Inc. and Amalgamated Meat Cutter and
Butcher Workmen of North America , Local 109 , AFL-CIO.
Case No. 28-CA-822. February 13, 1963
DECISION AND ORDER
On November 14, 1962, Trial Examiner James R. Hemingway
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Intermediate Report. Thereafter, the General Counsel and
140 NLRB No. 114.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following additions.
The Trial Examiner found that the Respondent had, on and after
April 2, 1962, refused to bargain collectively with the Union, in
violation of Section 8(a) (5) and (1) of the Act, and recommended
that the Respondent be ordered, upon request, to bargain collectively
with the Union. The General Counsel and the Union contend that,
as the Trial Examiner found that the Respondent and the Union
had reached agreement on all the terms and conditions of a collective-
bargaining agreement on or about April 2, 1962, the Respondent
should be ordered to execute this agreement. We agree.
For several years, the Union has entered into agreements with an
employers' association covering the meat department employees of
the member employers in the Tucson area. Although the Respondent
was not a member of this association and did not execute these agree-
ments, it did apply the contract provisions to its meat department
employees. The Union and the association entered into a new con-
tract in March 1962. On April 2, 1962, a union representative met
with the Respondent's president, discussed the terms of this new
contract at length with him, and, according to the testimony which
the Trial Examiner credited, the Respondent "agreed to go along
with the contract in its entirety." The Union also asked the Respond-
ent to sign this agreement. The Respondent, however, maintained
that, while it would carry out the terms and conditions of the contract,
it would not execute it.
We find that the Respondent, having reached agreement with the
Union, violated Section 8(a) (5) of the Act by refusing to execute
a contract embodying the terms thereof. Accordingly, we shall adopt
the Recommended Order of the Trial Examiner with the added
requirement that the Respondent, upon request, execute the contract
on which it reached agreement with the Union on or about April 2,
1962.
ORDER
The Board adopts as its Order the cease-and-desist and affirmative
action recommendations made by the Trial Examiner in his Inter-
SHARP'S MARKETS, INC. 1223
mediate Report with the following addition, to be numbered "2. (b),"
provisions 2. (b) and 2. (c) of these reconunendations to be renum-
bered "2. (c)" and "2. (d) ", respectively :
If requested by Local Union 109, Amalgamated Meat Cutter
and Butcher Workmen of North America, AFL-CIO, execute
the contract on which it reached agreement with the said Union
on or about April 2,1962.'
I The notice attached to the Intermediate Report is amended by adding as the last
paragraph of the notice the following:
WE WILL, if requested by Local Union 109, Amalgamated Meat Cutter and Butcher
Workmen of North America, AFL-CIO, execute the contract on which we reached
agreement with the said Union on or about April 2, 1962
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on May 8, 1962, by Amalgamated Meat Cutter and Butcher
Workmen of North America, Local 109, AFL-CIO,' herein called the Union, against
Sharp's Markets, Inc., herein called the Respondent, the General Counsel, by the
Regional Director for the Twenty-eighth Region of the National Labor Relations
Board, herein called the Board, issued a complaint on June 14, 1962, alleging that
the Respondent had engaged in and was engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act.
With respect to the unfair labor practices, the complaint alleges, in substance,
that, commencing on December 4, 1961, and continuing thereafter to the date of the
complaint and, more specifically, on December 4, 1961, and April 2, 13, 23, and
24, 1962, the Union had requested and the Respondent had refused to bargain in
good faith with the Union as the exclusive collective-bargaining representative of all
employees in an alleged appropriate unit whom, it is alleged, the Union represented
and represents for the purposes of collective bargaining. The Respondent's answer
filed on June 26, 1962, denied the requests and refusal to bargain as alleged.
Pursuant to notice, a hearing was held at Tucson, Arizona, on July 25, 1962,
before Trial Examiner James R. Hemingway. The General Counsel and the Re-
spondent were represented by counsel and the Union appeared by its representative.
All parties were afforded full opportunity to examine and cross-examine witnesses
and to introduce evidence bearing upon the issues. At the close of the hearing, at
the request of the parties, a time was fixed in which to file briefs. Following an
extension of such time, briefs were received from the General Counsel and the
Respondent and they have been considered.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material herein a corporation duly
organized under and existing by virtue of the laws of the State of Arizona with
places of business at Tucson, Fry, Sierra Vista, Kearney, and Ray, Arizona. It is
engaged in the business of the retail sale of groceries and related merchandise.
During the year 1961, the Respondent in the course and conduct of its business
operations sold and distributed products, the gross value of which exceeded $3,438,-
273. During the same period of time, the Respondent received goods valued in
excess of $376,124, transported to its places of business in interstate commerce di-
rectly from States of the United States other than the State of Arizona. No issue
is raised as to the jurisdiction of the Board. I find that the Board has jurisdiction
and that it will effectuate the policies of the Act to assert jurisdiction in this case.
I This is the way the Union 's name is given in the complaint and one place in the
charge In another place in the charge the word "Cutters" is used instead of "Cutter "
The Union's business representative testified that the Union was not affiliated with
AFL-CIO, but its contract describes it as affiliated.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material hereto, a labor organization ad-
mitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
The complaint alleged, and the answer admitted, that all meat department em-
ployees of the Respondent, employed at its retail stores located at Casas Adobes, at
5250 East Speedway Boulevard, and at 1830 South Alvernon, all in Tucson, Arizona,
exclusive of all other employees and all supervisors as defined in the Act, constitute
a unit appropriate for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act, and I so find.
2. The Union's majority in the appropriate unit
On December 13, 1961, Respondent had 10 employees in the appropriate unit,
exclusive of Charles Stark, who was then a supervisor. Of the 10, 8 were members
of the Union. On April 2, 1962, the Respondent had 12 employees in the ap-
propriate unit. Eleven of these were members of the Union? The Respondent
objected to proof of membership of some of the employees because of the fact that
their dues were not current, and in a few instances had not been paid for some time.
Even if this were a valid objection, which it is not, since a member does not
automatically cease to be one because of nonpayment of dues, a majority of the
member-employees were current in their dues. I find, therefore, that the Union
was, on the dates mentioned and at all times material herein, the exclusive representa-
tive of all employees in the aforesaid unit for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employment, and other terms and
conditions of employment within the meaning of Section 9(a) of the Act
3. The refusal to bargain
a. History of the Union's dealings with Respondent
The Respondent or its predecessors have been in the grocery business since about
1953. Mervin Stark, the Respondent's president, was a partner and part owner in
the Respondent's predecessors. The meat department originally had been sublet,
but in early 1954, the Respondent's predecessor took over the operation of the meat
department. At that time, it employed Charles Stark as head meatcutter. Under
supervision of Sharp, Stark would hire and discharge personnel for the meat depart-
ment If someone was needed for the meat department, Stark, when directed to
hire someone, would request the Union for such personnel as the Respondent needed.
Only in the event that the Union was unable to supply the required help did Stark
use any other source for procurement of labor. Stark testified that he procured
employees through the Union 95 percent of the time. More frequently than not,
the employees supplied by the Union were already members thereof, but in some
instances they were not, although most of them joined the Union after they were
employed.
The Union was accustomed to negotiate periodically a contract covering meat
department employees of a number of employers in the Tucson area who were
represented by an employers' council in such negotiations. Although the employers
individually signed copies of the resultant agreement, the copies were all the same.
At first, the Union entered into annual contracts with members of the employers'
council, but beginning in 1957 it had a 2-year contract expiring in 1999, and in the
latter year it entered into a 3-year contract, expiring in February 1962.
The Respondent was not a member of the employers' council and was never a
signatory to any of the contracts so negotiated. However, the Respondent always
attempted to conform to the provisions of the contract entered into by signatory
employers. Before the 1959 contract was negotiated, the Union had not requested
the Respondent to sign its contract. E. H. Eagle, the Union's business representa-
tive, testified that he did not do so because the Respondent always followed the terms
of the contract, because the Union had never had grievances from the Respondent's
2 Stark, a member of the Union, ceased to be a supervisor on a date which he estimated
as 6 weeks before the hearing. I do not count him as in the unit in April 1962
SHARP'S MARKETS, INC. 1225
employees, and because he had heard that Sharp had a personal feeling against
unions, and he felt like he was handling a delicate situation.
In late 1958, prior to the expiration of the 1957 contract, when Eagle sent notices
to contract signatories of the Union's desire to negotiate a new contract, he also
sent such a notice by registered mail to the Respondent. There were a number
of negotiating meetings in 1959 and, although the Respondent was not a member of
the employers' council, Sharp and his brother (another part owner of Respondent
and its predecessors) attended one or two of the negotiating sessions.
Following the completion of the 1959 negotiations and after the contract had
been signed, Eagle called on Sharp at the Respondent's office and went over the
provisions of the contract with Sharp to acquaint him with the changes At this
time, Eagle attempted to get Sharp to sign the contract, but Sharp said that they had
been getting along all right and that they should continue it that way. During the
term of that contract, Eagle made no other effort to get the Respondent to sign.
The evidence is persuasive, however, that the Respondent put into effect the changes
called for by the contract and conformed therewith during the term thereof.
b. The request to bargain and the Respondent's refusal
Sixty days before the expiration of the 1959 contract, the Union again sent the
customary notices to contract signatories of the Union's request to negotiate a new
contract. Again, it sent one to the Respondent by registered or certified mail. This
was received by the Respondent about December 13, 1961. Following this date,
the Union conducted negotiations with the employers' council, and about March
1962 concluded a 3-year contract.
Thereafter, after making an unsuccessful attempt to find Sharp in his office about
March 29, Eagle on April 2 again called at Sharp's office about 1:30 p.m. and was
told by a receptionist to return at 4:30 p.m. Eagle did so and was then directed
to Sharp's office, where he spent approximately 21/2 hours with Sharp, going over
the contract and talking about the Respondent's position with regard to it. The
testimony of Eagle and Sharp differed as to what was said at this meeting. Accord-
ing to Sharp, none of the provisions of the contract except that concerning hospital-
ization insurance was discussed Sharp testified that about 6 o'clock, Eagle asked
that the Respondent sign the contract and that he told Eagle that even if he (Sharp)
negotiated a contract with him he would not be interested in "that phase of it," that
is, the hospitalization provision which covered the employee's family as well as
the employee. Eagle gave a more explicit account in his testimony of what was
said at the meeting He testified that he pointed out the changes in the contract
including that concerning the health and welfare program which was not to go into
effect until February 1, 1963. Eagle testified that Sharp told him that the Respond-
ent was already giving insurance to his employees and that he objected to the cover-
ing of dependents. Eagle sought to explain to Sharp the fact that the employee
would be paying for the increased coverage, and Eagle testified that thereafter Sharp
did not object to the provision since he was not required to pay the cost of the added
benefits. Eagle testified that Sharp agreed to go along with the contract in its entirety,
testimony which was denied by Sharp. Eagle testified that when he asked Sharp
to sign the contract, Sharp said that they were getting along nicely, that he was
living up to the contract, but that he did not want to sign it. Eagle testified that he
told Sharp that the Respondent had new ownership in it (a new stockholder had
been acquired) and that it was only businesslike to have a signed contract. He
quoted Sharp as saying that, if he signed the contract, that is when they would have
trouble. According to Eagle, Sharp repeated that they should go along as they
had been in the past and that the next time the contract expired the Respondent
would get in on it. Sharp told Eagle that his pride had a great deal to do with his
refusal to sign a contract, that he had various grievances against the Union, that in
1952, when there was a strike, he had gone through a picket line at a certain market,
and that, as he drove away, another car followed and someone in it had thrown
tacks into Sharp's car and hit Sharp's wife. Eagle apologized and said that that
was not the policy of the Union In the course of the meeting, according to Eagle,
Sharp told Eagle that, if he would divorce himself from the International, he would
sign the contract and that Sharp also brought in the name of Hoffa. Eagle told
Sharp that Hoffa had nothing to do with his Union and that the Union was not even
affiliated with the AFL-CIO.3 Eagle also quoted Sharp as asking why Eagle did
not let Sharp give him a job and that he had answered that he would be no good
'The contract describes the Union as affiliated with "Arizona State Federation of
Labor and the Tucson Central Labor Council, all affiliated with the American Federation
of Labor and Congress of Industrial Organizations."
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Sharp because he had been away from the craft too long. Eagle told Sharp that
he valued his friendship and acknowledged that they had gotten along very well
but said that he would have to insist on Sharp' s signing and that if Sharp failed to
sign, Eagle would have to take other action, intimating that the Union would call
a strike. At 7 o'clock, Eagle, noticing how late it had become, asked Sharp to
think the matter over that night and to let him know the next day. Sharp told
Eagle that he would not be in the next day. Eagle asked if he would be in the day
after that, Wednesday, April 4. Sharp replied that he would be out of town but
might be in on Friday, the 6th, suggesting that Eagle telephone to see if he was in
and that, if he was not in then, to call the following Monday, April 9. Eagle had
with him copies of the contract. He himself signed one copy, intending to leave it
with Sharp. The evidence is vague as to whether any copies were left with Sharp.
From my observation of the witnesses and on the entire record, I credit Eagle's
account of the April 2 conference as substantially accurate
On Friday, April 6, Eagle inquired at the Respondent's office and was told that
Sharp was not in. He returned on the following Monday, April 9, and was told
that Sharp was still not in. He tried again later that day and also on the succeeding
2 days Each time he received the same answer-that Sharp was not in. Following
an unsuccessful telephone call on April 11, Eagle consulted the Union's attorney,
who advised him to write a letter. On April 13, Eagle wrote as follows:
This is in reference to the copies of our contract with present employers in
the city of Tucson, effective February 10, 19'62.
You have stated to me on several occasions that you are willing to live up
to all of the terms of the contract, and in accordance therewith you have even
paid your employees retroactive pay to February 10, 1962. Everything was
satisfactory to you, even the new health and welfare provisions of the agreement.
However, as I explained to you, the agreement is reduced to writing and should
be signed by the parties. The union as therefore requesting that you execute
the agreement signed by me on behalf of the union and return the same to me
at your earliest convenience. Please advise.
The letter was sent certified mail. Sharp declined to accept delivery; so it was
returned to the Union unopened. On April 23, the Union wrote a letter which
included the first two paragraphs of the above-quoted letter and then added the
following:
We cannot understand why you are unwilling to sign the agreement, and
hereby request you to do so, unless you are willing to state what you don't
like, if you have changed your mind since I last saw you. If this is true please
call me at your earliest convenience so that I might bargain with you in regard
to any changes.
I have written to you on April 13, 1962, but you have not picked up the
certified letter.
The letter of April 23 was delivered by a process server to Sharp's home, where
Sharp's wife received it 4 Sharp never replied to it.
Although the 1962 contract with the employers' council was not signed until late
in March, the new wage rates as well as the rest of the contract were effective as
of February 10. Some time after that contract was negotiated, the Respondent gave
its employees a retroactive wage increase. The record is vague as to dates, but I
infer that the increase was granted in April and that it was, in amount and effective
date, in conformity with the terms of that contract. The only provision of the
contract that Sharp had found fault with was the one extending hospital insurance
to dependents of employees. Even as to this, he gave Eagle to believe, there would
be no objection if the employees were the ones to bear the cost.
c Concluding findings, contentions, and conclusions thereon
Although the complaint alleges a refusal to bargain on December 4. 1961 (as well
as on April 2, 1962, and thereafter), the General Counsel in his brief does not allude
to this allegation of the complaint nor does he argue that there was a refusal to
bargain on December 4. It is unnecessary to make a finding as to that date, because
a refusal to bargain on and after April 2, 1962, is clearly evident. The Respondent
4 Sharp also refused to receive the Board 's registered letter containing the notice of the
filing of the charge Following a visit by a field examiner , on about May 25, at which
time the field examiner served a copy of the charge on Sharp, Sharp did go to the post
office and accepted a second registered notification letter which had been sent by the
Board on May 18.
SHARP'S MARKETS, INC. 1227
on and after April 2, 1962, demonstrated a purpose not to enter into a contract under
any circumstances. Sharp admitted that he had argued with Eagle on April 2 that
a contract was not needed and that he would not sign it. At the hearing, on direct
examination by Respondent's counsel, Sharp testified that, at the April 2, 1962,
meeting with Eagle, he had told Eagle that he "wouldn't under any condition sign
a contract that 1 wasn 't allowed to negotiate, furthermore, I wasn't sure whether
our employees wanted it.. . The Respondent argues that it did not refuse to
bargain but just refused to sign a contract without its being negotiated by it Col-
lective bargaining embraces the signing of a written contract containing the terms
and conditions agreed to. There is no credible evidence that Sharp indicated any
desire to negotiate a different contract. His objection was to signing any contract.
In the past, the Respondent had always conformed to the Union's contract and the
changes effected by new contracts, which had been negotiated without the Respond-
ent's participation. It had paid the contract wage rates, conformed to the contract
hours (when the 1959 contract reduced the hours from 48 to 40 a week, the Re-
spondent had conformed), to the holidays and vacation provisions, and when a
question arose concerning some matter involving conditions of employment, Sharp
would ask Stark, the head meatcutter, what the contract provided in such case. The
entire history of the Respondent and its predecessors discloses a purpose on the Re-
spondent's part to maintain the wages, hours, benefits, and working conditions in
effect at markets whose owners were under contract with the Union. However,
even if Sharp had genuinely wished to depart from such practices and to reach
different terms, the Union, by its letter of April 23, gave the Respondent such an
opportunity, but the Respondent chose to ignore the letter. By this action the Re-
spondent clearly demonstrated a refusal to bargain. Even before the letter of
April 23 reached the Respondent's home, however, Sharp had sought to avoid any
communication from the Union. Sharp testified that he never received any informa-
tion about Eagle's calls (which stretches credulity) and that it was his policy not
to accept registered mail. This policy, he said, was only for himself, when he went
to the post office for the Respondent's mail ; it did not apply to others who picked up
the Respondent' s mail at the post office. Such testimony I find incredible. Receipts
for registered mail in December 1958 and December 1961 were signed by other
agents of the Respondent than Sharp. That others than Sharp should cease to
pick up mail in April 1962 or refuse to accept registered letters would appear to be
a departure from precedent. The notation of the post office on the Union's certified
letter of April 13 (postmarked "April 14, [at] 6 p m ") was "unclaimed" not
"refused." Yet the evidence indicates that it was refused. If it was unclaimed, it
was an intentional omission I find that the Respondent's refusal to accept the
Union's letter of April 13 evidences its attempt to evade its statutory obligation
to bargain with the Union. I further find that the refusal of the Respondent to
reply to the Union's letter of April 23 was because the Respondent had a fixed
determination not to sign any contract with the Union, even if the terms were agree-
able to it. Hence, I find that Respondent on April 2, on April 15 (I infer from
the postmark on the envelope containing the Union's letter of April 13 that the letter
would not have come to the Respondent's attention before April 15,) and on and
after April 23, 1962, refused to bargain with the Union.
The complaint alleged the Respondent' s giving of the retroactive increase as addi-
tional evidence of refusal to bargain. In view of the uncertainty as to when the
increase was given and the Respondent's past practice of conforming to the Union's
contract terms with the tacit approval of the Union, I do not rely on the 1962 wage
increase as evidence of a refusal to bargain in reaching my conclusions.
The Respondent, by questions asked of Sharp at the hearing, apparently intended
to raise an issue of Respondent's doubt of the Union's majority. This point was
not, however, raised in the Respondent's brief. It will suffice to say, therefore, that
the Respondent never questioned the Union's majority, and I find that it had no
reason to doubt it.
By refusing to bargain with the Union as herein found, the Respondent has in-
terfered with, restrained, and coerced employees in the exercise of the rights guar-
anteed in the Act.
TV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section 1, above. have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States. and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that the Respondent has refused to bargain with the Union as the
exclusive representative of the employees in the appropriate unit. I shall, there-
fore, recommend that, upon request, the Respondent bargain collectively with the
Union as the exclusive representative of its employees in the appropriate unit and,
if an understanding is reached, embody such understanding in a signed agreement.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Sharp's Markets, Inc., is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Amalgamated Meat Cutter and Butcher Workmen of North America, Local
109, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
3. All meat department employees of the Respondent employed at its retail
stores in Tucson, Arizona, to wit, those located at Casas Adobes, at 5250 East
Speedway Boulevard, and at 1830 South Alvernon, exclusive of all other employees
and all supervisors as defined in the Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9(b) of the Act.
4. On December 13, 1961, and at all times material thereafter, the Union was
and now is the exclusive representative of the Respondent's employees in the said
appropriate unit for the purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on April 2, 15, and 23, 1962, and at all times thereafter to bargain
with the Union as the exclusive representative of all its employees in the above-
described appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
6. By the conduct described in paragraph 5, above, the Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that Sharp's Markets, Inc., Tucson,
Arizona, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated Meat Cutter and Butcher
Workmen of North America, Local 109, AFL-CIO, as the exclusive representative
of all its employees in the unit herein found appropriate, with respect to wages,
rates of pay, hours of employment, and other terms and conditions of employment.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2 Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request bargain collectively with Amalgamated Meat Cutter and
Butcher Workmen of North America, AFL-CIO, as the exclusive representative of
the employees in the unit herein found appropriate and embody any understanding
which may be reached in a signed agreement.
(b) Post at its places of business in Tucson, Arizona, the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
the Twenty-eighth Region, shall, after they have been duly signed by an authorized
representative of the Respondent, be posted by the Respondent at its Tucson stores
5In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
ZIMNOX COAL COMPANY 1229
immediately upon receipt thereof and be maintained by it for a period of 60 consecu-
tive days from the date of posting, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Twenty-eighth Region, in writing,
within 20 days from the date of receipt of this Intermediate Report and Recom-
mended Order, what steps it has taken to comply herewith.6
It is also recommended that unless on or before 20 days from the date of the
receipt of this Intermediate Report and Recommended Order the Respondent notifies
the aforesaid Regional Director in writing that it will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring
the Respondent to take such action.
6In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Amalgamated Meat Cutter
and Butcher Workmen of North America, Local 109, AFL-CIO, as the exclu-
sive representative of all our employees in the appropriate unit described below
or in any other manner interfere with the efforts of the aforesaid Union to bar-
gain collectively on behalf of said employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed in Section 7 of the Act.
WE WILL bargain collectively, upon request, with the aforesaid Union as the
,exclusive bargaining representative of all our employees in the appropriate unit
described below with respect to wages, rates of pay, hours of employment, and
other terms and conditions of employment, and, if an understanding is reached,
,embody such understanding in a signed agreement.
The appropriate unit is:
All meat department employees of the Respondent employed at its
retail stores in Tucson, Arizona, to wit, those located at Casas Adobes, at
5250 East Speedway Boulevard, and at 1830 South Alvernon, exclusive
of all other employees and all supervisors as defined in the Act.
SHARP'S MARKETS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1015
Tijeras Street NW., Albuquerque, New Mexico, Telephone No. 243-3536, if they
have any question concerning this notice or compliance with its provisions.
Zimnox Coal Company and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
General Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 428. Case No. 8-CA-0811. February 13, 1963
DECISION AND ORDER
On October 31, 1962, Trial Examiner Joseph I. Nachman issued his
Intermediate Report in the above-entitled proceeding, finding that the
140 NLRB No. 111.