Wagner's Food Mart

National Labor Relations Board - Board Decisions

May 15, 1964

146 N.L.R.B. 1650 (N.L.R.B. 1964)

1 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in acts of surveillance of our employees ' union activities
or union meetings.
WE WILL NOT interrogate our employees concerning their union activities in
a manner constituting interference , restraint, and coercion in violation of Sec-
tion 8 (a) (1) of the Act.
WE WILL offer to Rena Vaughan and Agnes Watson immediate and full rein-
statement to their former or substantially equivalent positions , without prej-
udice to their seniority or other rights and privileges , and make them whole
for any loss of earnings they may have suffered as a result of the discrimina-
tion against them.
WE WILL preserve and, upon request , make available to the Board or its
agents, for examination and copying , all payroll records , social security pay-
ment records , timecards , personnel records and reports, and all other records
necessary to analyze the amount of backpay due to Rena Vaughan and Agnes
Watson.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self-organization , to form , join, or
assist United Hatters, Cap & Millinery Workers International Union , AFL-CIO,
or any other labor organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the
purposes of collective bargaining or mutual aid or protection , or to refrain
from any or all such activities.
All our employees are free to become , remain , or refrain from becoming or
remaining members of any labor organization.
M & B HEADWEAR Co., 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, Sixth
Floor, 707 North Calvert Street, Baltimore , Maryland, Telephone No. 752-8460.
Extension 2100, if they have any questions concerning this notice or compliance with
its provisions.
Irl N. Wagner d/b,/a Wagner 's Food Mart and Retail Clerks
International Association , Local 1565, AFL-CIO. Case No.
36-CA-1272. May 15, 196.
DECISION AND ORDER
On February 3 1964, Trial Examiner Martin S. Bennett issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed as to such
allegations. Thereafter, the Respondent filed exceptions to the De-
cision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
146 NLRB No. 191.
WAGNER'S FOOD MART 1651
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner and orders that
Respondent, his agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
It is further ordered that those allegations of the complaint alleging
violations of Section 8(a) (1) of the Act not herein so found, and
Section 8 (a.) (3), be, and they hereby are, dismissed.
1 The Trial Examiner inadvertently failed to make a finding regarding the continuing
nature of the Respondent's refusal to bargain. The record shows and we find that on
August 4, 1963, and continuing tberealfter, the Respondent refused to bargain in good
faith with the exclusive representative of his employees.
TRIAL EXAMINER'S DECISION.
STATEMENT OF THE CASE
This matter was heard at Prineville, Oregon, on October 8 and 9, 1963, before
Trial Examiner Martin S. Bennett. The complaint I alleges that Respondent, Irl N.
Wagner d/b/a Wagner's Food Mart, had engaged in unfair. labor practices within
the meaning of Section 8(a) (1), (3), and (5) of the Act. Briefs have been received
from the General Counsel and Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Irl N. Wagner, an individual proprietor doing business under the name and style
of Wagner's Food Mart, maintains his principal office and operates a supermarket
in the city of Bend, Oregon. He also operates another supermarket in the city of
Prineville, Oregon, some 35 miles distant; only the latter store is directly involved in
this proceeding. During Respondent's last fiscal year, the Prineville store enjoyed
retail sales of groceries, produce, meat, and bakery products valued in excess of
$500,000. During the same period, Respondent received at its Prineville store goods
valued in excess of $50,000 which were shipped directly from points outside the State
of Oregon. I find that the operations of Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local 1565, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
'Issued September 12, 1963, and based upon charges filed August 7 and September 9.
1963, by Retail Clerks International Association, Local 1565, AFL-CIO, herein called
the Union.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
Respondent's Bend store is managed directly by its owner, Irl Wagner, and has
been under contract with the Union since 1945. The Prineville store opened in 1954
or 1955; has been managed by one John Wangler; and, prior to the events described
herein, had not been organized. The record discloses that Wagner visits his Prine-
ville store only several times a year, although he speaks with Wangler by telephone
once every week or two. It is clear, and I find, that Wangler has a free hand in the
operation of the Prineville store.
Organizational activities were undertaken by the Union at Prineville in July 1963,
and by July 30 seven cards had been signed. On July 31 the Union wrote to Wagner
at Bend, with a copy to Manager Wangler at the Prineville store. It has been
stipulated that these were received at the respective stores on August 1, 1963. The
letter states as follows:
Mr. IRL WAGNER,
Wagner's Market,
.Bend, Oregon.
DEAR MR. WAGNER: This is to advise you that a majority of your full time
and part time grocery clerks have designated Retail Clerks Union No. 1565 as
their collective bargaining representative. We do not claim to represent any of
your meat market employees or any supervisors -as defined in the LMRA of
1947 as amended.
Accordingly, we now ask you to meet with us to negotiate and sign a collec-
tive bargaining agreement.
As stated above, a 'majority of your employees have authorized this union
to represent them. Authorization cards signed by 'a majority of your em-
ployees are in the hands of the undersigned. They are available to you for
your inspection upon your request.
. . .. Very truly yours,
(S) Robert L. Smith,
ROBERT L. SMITH,
Sec.-Treas.
cc: Mr. Charles J. Kelleher, Vice-President
Retail Clerks International Assn.
Mr..John Wangler.
Wagner's Market
Prineville, Oregon [Emphasis supplied.)
Mr. Herbert Gallon V
Galton, Galton Goldstein and Popick
Attorneys at Law
Much has been made by Respondent of the fact that the letter was addressed to
Wagner at the Bend store. But inasmuch as the Bend store has enjoyed contractual
relations with the Union for many years and the most recent contract was negotiated
in April or May 1963, this is a claim with no substance. It hardly needs stating that
Wagner knew.that there was no problem of bargaining with the Union concerning the
employees at Bend because they already were under contract. I find, therefore,
that he well knew that the request was being made to him as bead of the Company
with respect to the Prineville employees; indeed, the letter discloses in its lower
left corner that a copy was sent to the Prineville store.
The issues framed by the complaint are whether Respondent (1) interrogated
and threatened certain named employees concerning their union activities; (2) pro-
vided John McBride and F. Wayne McBride with less employment after July 31;
(3) discharged John McBride on August 19 because of his union activities; and
(4) agreed to a cross-check of union cards on or about August 5, but although said
cross-check was duly carried out and the union majority duly established, Respond-
ent thereafter refused to recognize or bargain with the Union.
B. Interference, restraint, and coercion V .
Initially, I find that Manager Wangler knew of the union campaign prior to receipt.
of the union demand for recognition on August 1, 1963. This is reflected in the
testimony of Produce Manager Leonard Bigham who admitted discussing this topic-
with Wangler before August 1. On July 30, the morning after a union meeting,.
according to John McBride, and I so find, Wangler commented to him that McBride
WAGNER'S FOOD MART 1653
had spoken to one of his, Wangler's, friends, viz, a "representative." There was
some joking on the topic and the matter was dropped. Later that day, Wangler
reminded McBride that McBride had not told him what he had told the "representa-
tive." McBride replied that he had discussed the labor law with him and that be-
fore he made any decision on the question of union representation he, McBride,
planned to discuss it with an acquaintance who was an attorney.
According to Wangler, McBride brought up the subject, asking which side was the
more desirable; he proceeded to ask where he could learn about the merits of
unionization and acquire information concerning the Union. Wangler replied that
he did not know the answer. McBride's testimony discloses that the matter was
treated lightly on both sides and, under the circumstances, no adverse findings are
based upon this incident.
That same morning, Wangler spoke with John McBride's brother, F. Wayne Mc-
Bride, in the presence of Bigham. Wangler asked what the union, representative
had told him, but McBride evaded a response. Wangler stated that union organiza-
tion would not prove beneficial to McBride in view of his imminent departure from
the store in the near future; this is treated more fully below. Wangler had an ice
pick in his hand and proceeded to jam it rapidly in and out of -a wooden box, stat-
ing that he would mete out like treatment to any union representative he discovered
"around" the market. Wangler, in essence, corroborated McBride, admitting that
this had taken place. He did attempt to portray this as a joking matter but McBride,
it is clear, did not so regard it, and I find otherwise. I find that this technique with
the ice pick; demonstrating the fate that might befall a union representative around'
the market, even though Wangler presumably would not have carried out his threat,
would reasonably tend to coerce an employee in the exercise of his right to engage
in union activities.
On August 3, John McBride inadvertently undercharged a customer. Contrary to
past practice, Wangler instructed him to make up the loss of approximately $5
from his own pocket rather than to contact the customer whose identity was known.
McBride did not comply. A flareup resulted and McBride, contrary to his religious
beliefs, swore at Wangler. Ultimately, their tempers subsided and, in an ensuing
talk, McBride apologized, stating that he had been under some tension because of
the union campaign.
. Wangler then stated that' he was angry at McBride because he had gone behind
Wangler's back to sign union cards and to converse with union representatives. He
added that he was aware of the date of the union meeting [July 29] and also of
the identity of those who had attended. He went on to say that McBride had here-
tofore been considered as one of Wangler's family,2 but that from then on McBride
would be just an "employee." Wangler substantially corroborated McBride's ver-
sion of the incident. I find that Wangler's statement that McBride would be treated
differently thereafter because of his union activities and his statement about ostensi-
ble surveillance of union meetings were coercive and therefore violative of Section
8(a)(1) of the Act.
At 6 p.m. that same day, a Saturday, a conversation took place between both
McBrides and Wangler in which the latter notified them that they were through for
the day. They had previously worked until 8 or 9 p.m. on Saturdays. The Gen-
eral Counsel contends that this was discriminatorily motivated. John McBride
admitted, however, that Wangler pointed out that they had already worked 48 hours
that week. He also admitted that others in the store worked regular shifts thereafter
without overtime hours in excess of 48 per week. And while McBride claimed that
business was increasing because of a forthcoming rodeo and convention, he also
testified that the convention had taken place I or 2 weeks previously. The testi-
mony of Wayne McBride is to the same general effect, he also noting that as of
6 p.m. the brothers had already put in 3 hours of overtime.
As will appear, the two brothers did not work again for Respondent after com-
mencement of a strike on August 15. Hence, they worked only one additional Sat-
urday, and the record does not demonstrate that others continued to work overtime.
In view thereof, the evidence is too vague to support the position of the General
Counsel, and I shall recommend the dismissal of this allegation.
The General Counsel contends that in an attempt to influence Colleen Rajala
to abandon the Union, Wangler informed her that employees would be laid off:
The record discloses only that Rajal-a and Wangler happened to be talking in the
stockroom on or about August 1. She commented that business had been good
that day and Wangler replied that this was a good thing because he had been think-
2 The record discloses that both rsfcBrides had been friendly with Wangler and had been
guests in his home.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing about "letting some of the crew off." I deem this to be too remote to support
the finding advocated by the General Counsel and shall accordingly recommend
dismissal of this allegation.
. The complaint alleges that Produce Manager Bigham unlawfully interrogated
employee Alfred Perez concerning his union activities. Totally aside from Bigham's
status as a supervisor, treated below, Perez testified only that Bigham stated he had
heard through the "grapevine" that the Union had "coerced" the employees to join
up; Perez denied this. Bigham then pointed out that Perez had not done the "right
thing" in view of many favors previously extended him by Wangler. I do not be-
lieve that this goes beyond the expression of an opinion and I shall accordingly
recommend the dismissal of this allegation.
The complaint further alleges that Manager Wangler went to the home of Alfred
Perez on October 3 and offered him a wage increase if he would abandon the Union
and return to work. Perez was not working at the time because he had been respect-
ing the picket line established at the store on August 15. The record uncontrovert-
edly discloses, however, that this conversation with Perez stemmed from a request
to Wangler by a Teamster official that an offer of this nature be made in order to
get Perez and others back to work, as well as a request by one of the employees in
the meat department of the market that Perez be allowed to return to work.
I find that on October 3 Wangler did call upon Perez, whose salary prior to the
strike had been $80 for a 48-hour week, and asked him to return to work. Perez
indicated that he wanted a wage increase and Wangler made a rapid calculation and
stated that in view of recent amendments to the Fair Labor Standards Act he could go
as high as $87. As will appear below, certain amendments to that Act, effective
September 3, 1963, require overtime pay for hours in excess of 44 hours per week.
In essence, then, Wangler was offering Perez a $7 wage increase. While it would
seem that compliance with the provisions of that Act required a lesser increase, a
finding is not warranted that Wangler was aware of all the ramifications thereof.
Accordingly, I shall recommend that this allegation be dismissed.3
I find that by telling an employee that union representatives would be physically
assaulted with an-ice pick and demonstrating same; by stating that employees would
receive less favorable treatment because of their union activities; and by fostering
among employees the belief that a union meeting had been under surveillance,
Respondent has engaged in conduct violative of Section 8(a)(1) of the Act.
C. Alleged discrimination against McBride
The complaint further alleges that Respondent discriminatorily discharged John
McBride on August 19, 1963, because of his union activities. However, this reduces
itself actually to a claim that Respondent, advanced McBride's planned departure
from its employ by approximately 1 month. The General Counsel relies upon the
following:
Both Wayne McBride and John McBride agree that in a conversation with
Wangler early in July they discussed the fact that Wayne McBride planned to leave
Respondent's employ for a church mission on August 17 and that John would work
until the "last of September." Wangler replied that this arrangement was quite
satisfactory. Indeed, John McBride in a conversation with Mrs. Wangler at or about
that time had shown her on the calendar that his school year commenced on either
Monday, September 23, or Tuesday, September 24. I find, therefore, that he had
planned to work no longer than the weekend of September 21-22, if that long,
pursuant to agreement with Manager Wangler.
I have previously set forth the conversation between Wangler and John McBride
on August 4 wherein McBride's union activities were discussed. In this same talk,
Wangler made reference to McBride leaving Respondent's employ on August 17
when his brother did and stated that he had so informed other employees. The
record discloses no protest by McBride at the time. Respondent's position is sup-
ported by the fact that Wangler announced a need, at that time, to reduce hours..
A strike by Respondent' Prineville employees commenced on August 15 and John
McBride either picketed or refused to cross the picket line. On August 19, McBride
was invited by Wangler into the store to receive his paycheck for the previous week.
s It is clear that Wangler made a hasty computation at the time. I assume that an
accurate computation would be based upon the division of 48 hours into the $80 per week
salary, thus establishing an hourly rate, and then offering Perez 4 hours of half-time pay
at such rate to be added to the figure of $80. It would seem that Wangler's computation
was upon a more generous basis, but I do not find evidence of discriminatory motivation
therein.
4
WAGNER'S FOOD MART 1655
They chatted on other topics and Wangler presented him with his check plus a form
consisting of two parts to be signed by McBride . The first was an admission that
McBride was resigning and the second was an acknowledgment that he had been
paid in full. McBride refused to sign the first part and physically detached it, but
signed the second part.
The strike was still continuing as of the date of this hearing, October 8 and 9,
and McBride is presumably at college. In sum, then, even if the record pre-
ponderated in favor of a finding that Respondent was discriminatorily motivated
in accelerating McBride's departure, the fact is that he performed no additional
work for Respondent and probably would not have, thus suffering no monetary loss.
True, the conduct by Wangler is not inconsistent with a desire to accelerate the de-
parture from the scene of a union adherent in the bargaining unit involved in the re-
fusal to bargain aspect of the case treated below . On the other hand, I am impressed
by an additional factor. It was Respondent's policy to give I week's vacation pay to
employees who had been in its employ for 1 year. Even though McBride lacked
1 month of that term, during the same conversation Wangler gave him an addi-
tional paycheck covering 1 week's vacation pay and stated that although McBride
did not qualify, he, Wangler, wanted him to have it. He also added that if McBride
ever needed a job to call upon him. The record elsewhere indicates that both
McBrides were considered to be exemplary workers.
On consideration of the foregoing factors, I find that the evidence does not pre-
ponderate in favor of a finding that Respondent accelerated McBride's departure
from its employment because of discriminatory considerations. I shall therefore
recommend that this allegation of the complaint be dismissed.
D. The refusal to bargain
1. Appropriate unit and majority representation therein
The parties are in agreement that all employees of Respondent's Prineville store,
excluding meat department employees, guards, professionals, and supervisors, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act. It is clear from the record, and I find, that
Manager John Wangler is a supervisor within the meaning of the Act and is to be
excluded from the unit.
It is also stipulated that seven persons who signed cards on July 29 and 30, 1963,
are properly to be included in the unit. These are: John McBride, F. Wayne
McBride, Colleen Rajala, Grace Mann, Alfred Perez, James Halsey, and Carl
Chancellor. I find that all seven were employees on August 1, the date of receipt
of the Union's demand for recognition, as well as on August 4 and 5 when union
representatives met with Respondent, Irl Wagner. There is dispute between the
parties as to whether three others should be included in the unit. These are (1)
Mrs. Edith Wangler, wife of Manager Wangler; (2) John Wangler, Jr., the son of
Manager Wangler; and (3) Produce Manager Leonard Bigham.
These three individuals make the unit potentially a unit of 10, because the only
others employed in the store are 3 meat department employees whose exclusion is
agreed upon. Also in dispute and affecting the issue -are whether the cards of
the two McBrides, Halsey, and Chancellor should be counted. Those of the Mc-
Brides are challenged because they had announced their intention to leave the
employ of Respondent shortly after the critical dates of August 1 and 5. Those
of Halsey and Chancellor are challenged because they were signed allegedly solely
for the purpose of obtaining an election.
Turning initially to the McBrides, the record discloses the following. They are
brothers of college age who performed various jobs in this supermarket. John
McBride entered the employ of Respondent in the latter part of September 1962.
He worked a 40- to 48-hour workweek and attended a local college in. the late
afternoon and evenings; at the end of the college year his workweek was increased
to a 48-hour week plus overtime. I find that he was a regular full-time employee.
As set forth above, he and Manager Wangler agreed that be would leave the em-
ploy of Respondent, immediately prior to the last week of September 1963, to
attend college in a different area and , as noted , Respondent accelerated his departure
by giving him his last paycheck on August 19, during the course of the strike which
was still continuing at the time of the instant hearing. Thus, McBride worked for
Respondent slightly less than a year.
His brother, Wayne McBride, entered the employ of Respondent in mid-June
1962. He also attended college from September 1962 through June 1963 on the
same basis as his brother and worked an identical workweek . I find that he too
was a regular full-time employee . Early in July 1963 , he informed Manager
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wangler that he planned to leave the employ of Respondent on August 17, 1963, to
undertake a mission, presumably for 1 year, in behalf of his church, the Church of
Jesus Christ of Latter Day Saints; this was agreed to. Inasmuch as he qualified
for 1 week's vacation because he had been in the employ of Respondent for over
1 year,, he subsequently asked Wangler whether he could take his vacation com-
mencing on August 11 and then depart on his mission. This was agreed to and
McBride worked through that date and duly departed on his mission in which he
is now engaged.
The General Counsel contends that even in election situations the Board has
normally considered as eligible voters regular employees who intend to leave their
employment subsequent to the election and in fact do so. Personal Products Corpo-
ration, 114 NLRB 959, 961, and Reidbord Bros. Co., 99 NLRB 127, 129. Needless
to say, many an intention, disclosed or undisclosed, never comes to fruition. More-
over, it does not seem equitable or logical that hindsight should be the dispositive
criterion in this area. The simple fact is that both McBrides, full-time employees
of some tenure, were so employed at the crucial times herein, viz, August 1 and 5,
1963, the dates when the. issues involved herein are to be evaluated. I find there-
fore, in view of Board precedent, that both McBrides were in the bargaining unit at
the time material herein and that their cards are properly to be counted.
Turning next to the cards of Halsey and Chancellor, the record discloses that they
are 17 and 16 years of age, respectively, and are high school students who work
approximately 32 hours per week during the school year and longer weeks during the
summer vacation. They signed cards which are the customary type of card designating
the Union "as my representative in collective bargaining"; the cards are silent on the
subject of an election.
The signatures of Halsey and Chancellor were solicited by John McBride who im-
pressed me as a courteous, gentle, and far from aggressive individual. Halsey 'admit-
tedly had ample opportunity to read the card before he signed it. While Halsey stated
that reference had been made to a possible election, he testified several times that the
reference was to the possibility of an election; a typical example was his testimony that
McBride's statement in soliciting his signature was "if it had to come to an election."
Again he testified that he was told that there would be an election "only if they had
to." His affidavit, the veracity of which he admitted, states only that he signed a card
of his "own free will" in order to give the Union the right to "represent me in deal-
ing with" Respondent.
Although Chancellor testified that he had read the card hastily, he flatly admitted
that the primary reason he signed a card was his belief that it would help him obtain
better wages. Indeed, he admitted at one point that he was not even certain that Mc-
Bride had used the word "election" in his conversation with him relative to signing
the card. Although he allegedly was led to believe that there would be an election, he
signed the card of his own free will. And it may be noted that Chancellor, as he
uncontrovertedly testified, had been questioned by Mrs. Wangler as to what he knew
about the Union and whether he had signed a union card .4 In view of the foregoing
considerations, I find that the evidence preponderates in favor of the position of the
General Counsel and that the cards of Halsey and Chancellor are properly to be
counted. _
While this gives the General Counsel 7 out of a potential 10 in the bargaining unit,
in the event that my treatment of ,the foregoing 4 cases is viewed otherwise, it appears
to be in order to treat the other 3 potential additions to the unit.
Mrs. Wangler and her son were on the payroll at the time of the hearing in Octo-
ber 1963. They were not on the payroll when the Union's demand for recognition
was received on August 1, 1963. It is Respondent's contention that they were placed
on the payroll on August 3 for reasons unrelated to the Union's organizational cam-
paign, a contention I do not credit because of various factors which are set forth
below. The General Counsel contends that the two Wanglers were added to the
payroll in a belated attempt to expand the bargaining unit so as to affect the Union's
majority. The record discloses the following facts.
John Wangler has been manager of this store for 9 years and during this entire pe-
riod Mrs.. Wangler has worked there. She averages 4 hours of work per day in the
,store exclusive of Sundays. I find, therefore, that she puts in a workweek of ap-
proximately 24 hours. Neither she nor her son, who is a high school student, ever
appeared on a store payroll until they appeared on that for the period covering the
* While Mrs. Wangler's status is treated below, and totally aside from whether she was
a supervisor under the Act, a consideration of her special status in the store warrants the
Inference that any employee would consider her as speaking with the. voice of authority,
viz, of management.
WAGNER'S FOOD MART 1657
week ending Saturday, August 3. It is also clear that prior to this critical date, all
remuneration for the services of the three Wanglers was encompassed solely in a
single monthly salary to John Wangler who testified that his earnings are based both
.upon an hourly rate as well as a commission.
Irl Wagner who owns the market, and is actively engaged in operating his other
.market some 35 miles distant in Bend, testified that he has a working agreement with
Wangler that his remuneration will cover the services of Wangler, his wife, and
"whatever they wanted to do in the family." Wangler's salary, the amount undis-
closed herein, was allegedly ample to cover the services of the entire family.
Mrs. Wangler selects her own working hours and,. as is the case with her-son, does
not make out a timecard. She arrives when she chooses in the morning but no later
than 11 a.m. Her husband conceded on the record that she enjoys privileges which
the other store employees do not. Manager- Wangler and his wife customarily go
home together for lunch and this absence, according to John McBride, is for ap-
proximately 1r/2 to 2 hours. The record does not disclose whether Mrs. Wangler
returns in the afternoon, although it would seem that she would do so -at least some of
the time in order to average 4 hours of work per day.
As for her duties, she is the only office clerical in the supermarket. She handles
.any correspondence that comes in, arranges .for change and bills in the registers,
checks out the cash registers, handles the banking, and processes the timecards each
week.5 The record discloses that this occupies at least one-half of her time. Ac-
cording to her further testimony, she also fills in at various other tasks in the market,
.including the pricing of merchandise, stocking shelves, and helping out at the check-
stand as needed.
Needless to say, Mrs. Wangler enjoys a special status in the store. She was paid by
her husband out of his earnings, or as she put it, while she did not receive an al-
located sum to reflect her own earnings, she had "access" to his earnings "anytime I
needed it," testimony which I fully credit. She testified further that she now receives
$1.25 an hour as do the other girls in .the store. As noted, her questioning of em-
ployee Chancellor adequately reflects her identity with management in a literal if not
legal sense.
Irl Wagner claimed herein that Mrs. Wangler always was an employee, despite the
working agreement with Wangler that "one lump sum" would cover the entire family,
as noted. He contended that immediately after July 4 both Mrs. Wangler and her
son were put on the payroll because it had been realized that Respondent was not
complying with the social security laws as well as the withholding requirements of the
tax laws. Also brought into the picture were recent changes in the Fair Labor
Standards Act. He testified flatly that both were put on the payroll in the latter part
of July prior to the time Respondent received the Union's demand for recognition and,
.in support of this allegation, payroll stubs for workweeks starting with that ending
August 3 were introduced in evidence for Mrs. Wangler. This contention, however,
does-not withstand scrutiny.
(1) John McBride, Wayne McBride, 'and Colleen Rajala testified that neither Mrs.
Wangler nor her son filled out timecards prior to receipt of the Union's demand for
recognition.
(2) Work schedules for all employees were posted in the store but not for Mrs.
Wangler or her son.
(3) Wangler testified that his son was not included on the payroll because "I paid
him out of my pocket."
(4) Respondent's original payroll ledger sheets contain a line where an entry is
.placed to reflect the date when an -employee enters the employ of Respondent;
specifically, the form has printed thereon-``Date Employed." Bookkeeper Ruth Reed
at the Bend store admitted that the payroll ledger sheet for young Wangler bore the
date of August 8 as the date on which he was employed and that the sheet for Mrs.
Wangler was undated. By significant contrast, the sheets for high school students
Halsey and Chancellor bore the dates of their entry into Respondent's employ.
(5) Manager Wangler swore to and signed an affidavit for the General Counsel
to which was attached a list of employees on the payroll as of August 2, 1963, pre-
pared by Mrs. Wangler. The name of young Wangler did not appear thereon. Mrs.
6 There is no timeclock. Each employee records hours on his or her timecard and on
Saturday night Mrs. Wangler mails them to Respondent's office in Bend. Ruth Reed, the
full-time bookkeeper at the Bend store, makes out the payroll on the following Wednesday
or Thursday and mails the paychecks covering the previous workweek to the Prineville
store. This would mean that the timecards for the week ending August 3 were mailed on
August 3 by Mrs. Wangler and that the paychecks were returned on August 7 or 8.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wangler testified that she remembered this omission subsequent to the date she pre-
pared the statement , August 8, but she at no time contacted the General Counsel or
called to his attention the fact that she had made a significant omission.
( 6) Owner Irl Wagner was asked to explain the circumstances under which Mrs.
Wangler commenced filling out a timecard , allegedly in July. He replied that "We
were informed by either the government or this new law that went into effect on the
first of September . . to get ready for it . . . we discovered that we were not in
compliance with the law , the Social Security , and withholding , and things like that."
He later testified that this was discovered immediately after July 4 and that the
problem involved social security . In addition , as noted heretofore , Manager Wangler
was aware of certain amendments to the Fair Labor Standards Act as reflected in his
offer of a pay raise to employee Perez.
Sifting through the foregoing, one is asked to believe that Respondent for many
years ignored longstanding requirements of the income tax and social security laws.
Moreover , I am unaware of any ostensible violation , and I am cited to none, of the
Federal income tax laws. The simple answer is that Mr . and Mrs. Wangler filed a
joint income tax return and his income was fully listed , hence there was no possible
violation in this area . And as for social security , I can only assume that some
cogent reason existed why Mrs. Wangler chose not to obtain this coverage. More-
over, it would certainly seem that that agency at the time a claim for benefits was
made, would recognize that Mrs. Wangler had worked in the store and would allocate
Wangler's accumulated earnings between the two of them.
(7) Actually, the only recent and pertinent legislation in the picture that I am
aware of is that which Wangler referred to in his talk with Perez . I must conclude
that Wagner , if credence is to be given the advice he was given , had this in mind, viz,
the 1961 amendments to the Fair Labor Standards Act, 75 Stat. 65 , passed. May 5,
1961. These amendments became effective September 3, 1961 , and extended jurisdic-
tion to retail stores enjoying a volume of business in excess of $1,000,000. Two
years later , on September 3, 1963, the 44 -hour week went into effect, i.e., overtime
at time and one -half was to be paid for all hours worked in excess of 44.
However , a brief consideration of this demonstrates that these amendments were
not relevant to the instant case. In the first place , since September 1961, Respondent
was required to keep records listing the name , address, and age of each employee and
the number of hours worked . In addition , compliance with the minimum wage was
required. I cannot believe that Respondent , a member of the Oregon Independent
Retail Grocers Association , whose secretary is Harold Carlson , a man with extensive
experience in labor problems , was not advised of these requirements at a timely date
in 1961.
And, turning to the amendments taking effect in 1963 , it is readily apparent that
they did not affect either Mrs . Wangler or her son. These amendments merely im-
posed a requirement for time and one-half pay for hours in excess of 44. Mrs.
Wangler worked about a 24-hour week and her son worked 10 to 15 hours per week.
Stated otherwise , there was nothing new in the legislative picture affecting Mrs.
Wangler or her son. The only thing that was new was the advent of the Union
upon the scene.
In view of the foregoing considerations , I am led to the following conclusion.
Mrs. Wangler in the literal sense is employed by her spouse, meets the test set forth
in Section 2 ( 3) of the Act, and accordingly is not an employee within the meaning of
the Act. In any event, under the special circumstances present in this case , and they
are indeed special , she is very definitely allied to management and in logic is to be
excluded from the unit. That she so regarded herself is demonstrated by her inter-
rogation of employee Chancellor concerning his union activities and his signing of a
union card . I accordingly find that she is not to be included within the unit. See
N.L.R.B. v. Champa Linen Service Co., 324 F. 2d 28 (C.A. 10), and Adam D. Goettl
and Gust Goettl, d/b/a International Metal Product Company, 107 NLRB 65.
As for John Wangler , Jr., who did not testify herein , the record discloses the
following.
(1) As noted , John Wangler made an affiadvit on August 8 wherein he listed the
employees of the concern but conspicuously did not mention his son who did various
odd jobs about the market.
(2) As further noted , Irl Wagner testified that Mrs. Wangler and her son were
put on the payroll in the latter part of July prior to receipt of the Union 's demand
for recognition . However, Respondent 's payroll ledger sheets show that John
Wangler , Jr., did not become an employee until August 8.
WAGNER'S FOOD MART 1659
(3) In the most accurate sense, perhaps the testimony of John Wangler is disposi-
tive of the issue. He testified that he believed he should tell his son what to do
and that his son, unlike the rest of the work force, should not read his instructions
from the bulletin board.
(4) Although young Wangler worked no specific hours, and averaged 10 to 15
per week, it is undisputed that there was no specific amount of earnings that he was to
retain. While his situation is not as clear as that of his mother, I find that he too
was part of this vague and undefined managerial setup. This serves only to convince
me that John Wangler, Jr., as is the case with his mother, is in a special situation
where his interests are perforce allied to management rather than with rank-and-file
employees. It follows therefore that he, for the reasons previously stated, should be
excluded from the bargaining unit, and I so find.
Turning to the case of Produce Manager Leonard Bigham, the situation with
respect to him would seem to be the reverse of that in the usual case where the labor
organization seeks inclusion of people in this category in the unit and the employer
is resistant. Here, the General Counsel contends that Bigham is a supervisor where
Respondent contends otherwise. Bigham was not questioned about his duties and
his case is, indeed , a close one.
Initially, it would seem that he does not possess the -attributes of a supervisor
because he works alone in the produce department. However, when Wangler goes
home daily to lunch, Bigham is in charge. While Wangler testified that Bigham
does not have the authority to hire and fire, in his affidavit to the General Counsel
he admitted that Bigham had such authority.
On the other hand, it does not appear that Bigham has ever exercised this authority
despite the fact that he has been in the market for 81/2 years. It is undisputed that
he never sent anyone home, although, according to Wangler, Bigham has authority,
in the absence of Wangler, to send someone home who has not done his work. It
would further seem that Bigham is more in the nature of a conduit to Manager
Wangler, this being a relatively small market in terms of the number of employees,
and that this aspect of his authority was, at best, an irregular or sporadic one.
There is also present the fact that the employees looked to Mrs. Wangler for
instructions. Bigbam's case is therefore different from one where a produce depart-
ment manager has several subordinates in the department beneath him. See, e.g.,
The Great Atlantic & Pacific Tea Company, 119 NLRB 603.
It is true that Wangler and Bigham are the only ones who have keys to open or
close the market, but this in of itself is more in the nature of a ministerial or custodial
act. Offhand , I see no basis for distinguishing Bigham from the produce managers
recently found to be rank and file employees in N.L.R.B. v. Marsh Supermarkets, Inc.,
327 F. 2d 109 (C.A. 7), and The Great Atlantic & Pacific Tea Company, Inc.,
144 NLRB 1571.
Wangler's admission as to Bigham's authority to hire and fire, although probative,
is not conclusive and appears in large measure to be unsupported by the record.
There is -testimony that employees were told to take up problems with Bigham in
the absence of Wangler, but on the other hand, there is Wangler's uncontroverted
testimony that one of the three meat deparment employees does about as much
as B:gham in the administrative area. It would probably seem that because of Mrs.
Wangler's role in the store, Bigham came next in line. A contrary view could well
lead to the result of having many chiefs and few warriors. Accordingly, although
the matter is not free from doubt, I find that Bigham does not meet the statutory
definition of a supervisor and shall recommend his inclusion in the bargaining unit.
Overton Markets, Inc., et al., d/bla Overton Markets, 142 NLRB 615; Meijer Super-
markets, Inc., 142 NLRB 513; and Theriot Super Food Markets Inc., 101 NLRB 259.
I find therefore that on August 1. 1963, and at all times material thereafter, the
Union has been and now is the majority representative of all the employees in the
above-described appropriate unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
2. Refusal to bargain
As found, the Union's demand for recognition was received at both the Bend
and Prineville stores on August 1, 1963. There is also evidence that on that very
morning, as Colleen Rajala testified, Mrs. Wangler entered the store, handed Manager
Wangler the letter, and informed him that she had "bad news" for him. While
Mrs. Wangler described this as a communication from the Board, I find that she
was in error and that it was the Union's demand for recognition. Not receiving an
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate response to the letter, Secretary Robert Smith of Local 1565, accompanied
by International Representative Frank de Sell of the International Union, attempted
to contact owner Irl Wagner and ultimately met him on Sunday, August 4, at the
Bend market.6
The two union representatives met with Wagner and announced that the Union
represented a majority of employees in the grocery and produce departments of the
Prineville store. They handed Wagner seven signed cards, together with a copy
of •a stipulation, wherein Wagner was asked to acknowledge that the Union represented
a majority in the above found appropriate unit. Wagner "looked at each of the
cards," replied that he lacked familiarity with the employees in the Prineville store,
and asked if the union representatives would return on the following day, when
his bookkeeper would be present, in order to check the respective signatures against
the payroll. Smith and de Sell agreed and departed. They returned at 11 a.m. on
August 5 and met with Wagner and his bookkeeper, Ruth Reed.
De Sell suggested that a desirable way to check the authenticity of the signatures
would be to compare them with payroll records or income tax withholding forms
which concededly reflected -genuine signatures. Wagner agreed to this mode of
procedure and Reed commenced a comparison of the signatures on the cards with
those on payroll records. She had checked three of the cards when Wagner excused
himself, stating that it was imperative for him to get to the bank. He left immedi-
ately and Reed completed the comparison of the remainder of the signatures. She
then told the two union representatives that all seven signatures appeared to be
genuine. I find that the majority was established 'at this point. The two men left,
planning to return after Wagner had completed his banking errands.
De Sell and Smith flatly agree that Reed, in the presence of Wagner, checked three
of the seven cards, at which time Wagner left for the bank. Wagner claimed that he
received the Union's demand for recognition on August 2, although I have previously
found that he received it on August 1. He conceded that he recognized that the
Union was making a demand for recognition at the Prineville store. He further
claimed that he did not, on August 4, look at any of the cards, although he conceded
that they were handed to him at that time, and that he stated that he could not check
any of the signatures and would not do so until he spoke with Secretary Harold Carl-
son of the Oregon Independent Retail Grocers Association. As for August 5, he
contended that the men returned at approximately 11 a.m., the hour they fixed, at
which time he refused to sign a stipulation recognizing their majority representation.
He denied that he was present at any time when Reed checked any of the cards.
I do not credit Wagner's testimony in this latter respect. He admitted that "There
was something in the conversation that led her [Reed] to believe that I approved
of it [the card check]" on August 5. I am unable to believe that Reed would have
conducted the card check, especially when Wagner had been present when the union
representatives arrived on the scene, unless Wagner had authorized it. And the events
of the previous day envisaged precisely such a card check on August 5 when Book-
keeper Reed would be present.
Moreover, Reed was a witness in this case and gave testimony concerning payroll
records and the tenure of various employees. I deem it significant that she was not
questioned about this crucial factor of the case and can only conclude that her testi-
mony would have been adverse to the position of her employer. I find, therefore,
that Wagner excused himself after three cards had been checked.
At 2 or 2:30 p.m., the two union representatives managed to catch up with Wagner
and spoke to him in the presence of Reed, who similarly did not testify about this
conversation. Wagner stated, according to Smith, that before he did anything fur-
ther he wished to confer with Harold Carlson of his Association, and the union
representatives agreed to return after such a contact had been made. At 4 p.m.,
they met again -and Wagner stated that Carlson had advised him to petition for an
election. The union representatives rejected this approach, pointing out that they
had demonstrated a very clear majority; stated that the validity of their cards had been
established; and contended that they would not agree to an election and the require-
ment to establish their majority twice. I find that Wagner did not dispute the union
majority on this occasion.
. 9 These findings, unless otherwise indicated, are predicated upon the testimony of Smith
who impressed me as an intelligent, straightforward, and objective witness, who did not
attempt to embellish his recitation of the pertinent events in his favor. To the extent he
was queried thereon, International Representative De Sell corroborated Smith. Indeed,
Wagner in large measure corroborated both of them, except to the extent that he disputed
that the Union's authorization cards were checked. This latter contention I do not credit
for reasons stated below.
WAGNER'S FOOD MART 1661
Consistent with Wagner'•s request; Smith immediately placed a telephone can to
Carlson in Portland. The latter, as he testified, had previously been contacted by
Wagner and had spoken with Manager Wangler in Prineville. According to Smith,
Carlson expressed resentment in this conversation that he had not been contacted
initially by Smith, who replied that he had not known that Carlson represented the
Prineville store or the Erickson store in Redmond which was also being currently
organized by the Union.
Carlson then proposed that Wagner's Prineville store and this Erickson store in
Redmond, some 19 miles distant, be placed in a single unit, and that an election be
held; he promised to sign a contract for both stores if the Union won in such -a unit.
Smith rejected this, stating that Erickson's had already agreed to bargain with the
Union and accordingly there. was no basis for agreeing with such a proposal. Smith
stated that he would picket Wagner's Bend store and Carlson threatened to file charges
with the Board. Carlson threatened to take steps to do away with "compulsory
unionism" in Bend, presumably a reference to the union shop then existing at the
Wagner store, although there is nothing whatsoever to indicate that the union proposal
for the Prineville store included such a demand, inasmuch as the record discloses
only efforts to obtain recognition. Carlson again asked the Union to agree to an
election and Smith refused. The conversation ended at this point but was followed by
another telephone call some minutes later from Carlson to Smith wherein Carlson
again unsuccessfully asked the Union to agree to an election.?
As indicated, Wagner testified that he initially contacted Carlson about 4 p.m.
that day. Carlson testified that before speaking with Smith, he ascertained the
scope of the unit and the number of part-time employees and concluded that there
were circumstances that merited investigation in view of the presence of two high
school boys on the payroll, the planned departure of two employees, the eligibility of
the two Wanglers, and the issue of whether or not Bigbam was a supervisor.
Carlson acknowledged that Smith claimed a majority representation and that he,
Carlson, then advocated an election, to which Smith refused to agree. A representa-
tion petition was filed by Carlson on the following morning. I have credited the
testimony of Smith where in conflict with that of Carlson for several reasons.
(1) Carlson testified that on August 5 he informed Wagner that an election was
"mandatory" and that it was the only manner in which the issue could be settled.
This, of course, is not the fact and reflects an erroneous concept of the problem.
N.L.R.B. v. Nelson Manufacturing Company, 326 F. 2d. 397 (C.A. 6), and N.L.R.B.
v. Daniel Crean and Joseph Messore d/b/a The Grand Food Market, 326 F. 2d.
391 (C.A. 7). Indeed, Carlson admited herein that he knew that card checks are
conducted, but predicated his reluctance in the matter upon the existence of the
union-shop clause in the existing Bend contract. True, an employer may under
certain circumstances demand an election with, impunity and reject a card check to
determine a union majority. But it is a decision made at one's peril and on the basis
of a good-faith doubt of union majority; the election is not mandatory. And the
union shop was not under discussion.
(2) Dispelling the. existence of a good-faith doubt of the union majority on the
part of Carlson is his proposal of the two-store unite This most unusual proposal
ignored the other Wagner store, ignored the other Erickson store or stores, and
ignored the fact that the two stores referred to were separate stores not involved
in joint bargaining, as well as the fact that they were 19 miles apart in separate
communities.
I do not believe that Respondent had any good-faith doubt as to the Union's
majority. It knew that the union demand applied to the Prineville store, although it
attempted to becloud the issue by bringing in the Bend store. I believe that Wagner
authorized his bookkeeper to satisfy herself concerning the Union's majority claim
but then changed his mind after he learned the result. Only then did the thought of a
"mandatory" election or a highly inappropriate bargaining unit emerge and, contrary
to Carlson's claim, the Union did not request a union shop because the discussion
never got beyond the point of recognition and the signing of a contract in general
terms.
4 The union representatives did picket the Bend store for 3 or 4 days.
81 find , as Smith testified, that Carlson did make this proposal. Carlson at onc.. point
was vague in his testimony and evaded a. direct response to a question as to whether he
had made such a proposal. He then stated that he did not know who brought up the
matter. Asked again if he made the proposal, he admitted that such testimony had been
previously given in the case, but stated that "I don't recall" making it. He did admit
that such a combined election seemed logical, "but I don't know that I nude that proposal."
He admitted, however, that the Erickson case was discussed in the same conversation.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This also is colored by the hanky-panky undertaken with respect to placing the
other two Wanglers on the payroll, demonstrating an attempt to evade obligations
under this Act. This is not to say that they should not be on the payroll. It is to
say that I believe it was motivated solely by an effort to pack the bargaining unit and
would not have been done but for the Union's demand for recognition. And as the
issue here is directly one of motivation it is relevant. Respondent knew, or should
have known, that the Union was speaking solely of a storewide unit, excluding the
meat department employees and supervisors, the unit so common in the retail food
store field. I find, therefore, under all the foregoing circumstances, that Respondent
has -refused on August 4 and 5, 1963, to bargain in good faith, -thereby engaging in
unfair labor practices within the meaning of Section 8(a)(5) of the Act. I further
find that by such conduct Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with this operations set forth in section I, above, have a close, intimate, and substan-
tial 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
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recom-
mend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. I shall recommend that Respondent be
ordered, to bargain with the Union, upon request, concerning 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 unfair labor practices committed by Respondent involve conduct in derogation
of the principles of good-faith collective bargaining. The inference is warranted that
Respondent maintains an attitude of opposition to the purposes of the Act with
respect to the protection of employee rights in general. It will accordingly be recom-
mended that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Irl N. Wagner d/b/a Wagner's Food Mart is an employer within the meaning
of Section 2(2) of the Act.
2. Retail Clerks International Association, Local 1565, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees of Respondent's Prineville store, excluding meat department
employees , professional employees , guards, and supervisors , constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. Retail Clerks International Association, Local 1565, AFL-CIO, has been since
August 1, 1963, and now is the exclusive representative of the employees in the
above-described appropriate unit within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain with the Union, Respondent has en-
gaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. By the foregoing conduct; by threatening employees with less favorable treat-
ment; by fostering the belief that union activities were under surveillance; and by
threatening to inflict physical harm on union representatives , Respondent has en-
gaged 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.
8. Respondent has not otherwise'engaged in unfair labor practices.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , it is rec-
ommended that Respondent, Irl N. Wagner d/b/a Wagner 's Food Mart , Prineville,
Oregon , his officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Retail Clerks International Asso-
ciation , Local 1565, AFL-CIO, as the exclusive representative of his Prineville em-
WAGNER'S FOOD MART 1663
ployees, excluding meat department employees, professional employees, guards,
and supervisors.
(b) Threatening employees with less favorable treatment because of union activ-
ities; fostering the belief that union activities were under surveillance; threatening
physical harm to union representatives, or in any other manner interfering with,
restraining, or coercing employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named or any other labor
organization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with the above-named labor organization
as the exclusive representative of the employees in the above-described appropriate
unit with respect to rates of pay, wages, hours of work, or other terms and conditions
of employment, and, if an understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its store at Prineville, Oregon, copies of the attached notice marked
"Appendix." 9 Copies of said notice, to be furnished by the Regional Director
for the Nineteenth Region, shall, after being duly signed by Respondent, be posted
by it immediately upon receipt thereof, and be maintained for a period of 60 con-
secutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Nineteenth Region, in writing, within
20 days from the date of receipt of this Decision, what steps it has taken to comply
herewith.'°
U In the event that this Recommended Order be adopted by the Board, the words "a
Decision 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 "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
'5 In 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 Respondent has taken to comply herewith."
APPENDIX
NOTICE TO 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 you that:
WE WILL, upon request, bargain with Retail Clerks International Association,
Local 1565, AFL-CIO, as the exclusive bargaining representative of all our
Prineville, Oregon, employees, excluding meat department employees, profes-
sional employees, guards, and supervisors, with respect to rates of pay, wages,
hours of work, or other terms -and conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a signed agreement.
WE WILL NOT threaten employees with less favorable treatment for engaging
in union activities, foster the belief that union activities are under surveillance,
or threaten to inflict physical harm upon union representatives.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities, except to the
744-670-65-vol. 146-106
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment , as authorized in Section
8 (a) (3) of the Act.
IRL N . WAGNER D/B/A WAGNER'S FOOD MART,
Employer.
Dated---------------- --- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
Employees may communicate with the Board 's Regional Office, 327 Logan Build-
ing, Fifth and Union Streets, Seattle, Washington , Telephone No. Mutual 2-3300,
Extension 553, if they have any questions concerning this notice or compliance with
its provisions.
Cooke & Jones , Inc. and Local No. 549 , United Brotherhood of
Carpenters and Joiners , AFL-CIO. Cases Nos. 1-CA-3906 and
1-CA-4178. May 15, 196.41
DECISION AND ORDER
On January 31, 1.964, Trial Examiner James T. Barker issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Decision. Thereafter,
the Respondent filed exceptions to the Decision and a supporting brief,
and the General Counsel filed a brief in support of the Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
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 Trial
Examiner's Decision,' the Respondent's exceptions and briefs, and
the entire record in these cases, and hereby adopts the findings, con-
clusions,2 and recommendations of the Trial Examiner.
1 We hereby correct the following inadvertent errors in the Trial Examiner's Decision:
In section III, C , 1, the second sentence should state that the membership of the Associa-
tion also included other building trades firms.
2 The Trial Examiner 's conclusion that Respondent violated Section 8 (d), and thus Sec-
tion 8 ( a)(5), by entering into the individual arrangements of October 31, 1962, without
following the procedure prescribed by Section 8(d), is adopted in the absence of exceptions.
The Trial Examiner ' s conclusion that the Union and the Association members, including
the Respondent , did not become contractually bound until a majority of the members
executed the collective -bargaining agreement is not adopted. We find instead that a bind-
ing agreement , giving rise to an obligation to sign the written contract , was reached
when the Union communicated to the Association its intention to withdraw its insistence
upon the picketing clause, the sole remaining unresolved issue. Knowledge of this change
of position was conveyed to the Association by the Union 's presentation of the printed
contracts , omitting its previously proposed picketing clause, to the five Association
members.
146 NLRB No. 192.