Bob's Market, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1967

162 N.L.R.B. 897 (N.L.R.B. 1967)

BOB'S MARKET, INC. 897
Street NW.; 1800 H Street NW.; and 718 18th Street NW.,.
Washington, D.C., but excluding carpet layers, engineers, cafe-
teria employees, dining room employees, office clerical employ
ees, guards, and supervisors as defined in the Act.
HERBERT HARVEY, 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.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, Sixth Floor, 707 North Calvert Street,.
Baltimore, Maryland 21202, Telephone 752-8460, Extension 2159.
Bob's Market, Inc. and Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, District Union No. 271..
Case 17-CA-2857. January 13, 1967
DECISION AND ORDER
On July 21, 1966, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Decision, a supporting brief, and an answering brief. The Gen-
eral Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this 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 briefs, and the entire rec-
ord in the case, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
162 NLRB No. 77.
264-047-6 7-vol. 162-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board adopted the Trial Examiner' s Recommended Order
with the following modifications :
[1. Add the following to paragraph 2(b) of the Trial Examiner's
Recommended Order :
["... and make them whole for any loss of pay suffered by rea-
son of the Respondent' s refusal, if any, to reinstate them by pay-
ment to each of them of a sum of money equal to that which he
normally would have earned less the net earnings, during the period
from 5 days after the date on which he applies or has applied for
reinstatement to the date of the Respondent' s offer of reinstatement."
[2. Add the following as paragraph 2(c) to the Trial Examiner's
Recommended Order :
P (c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary or useful to determine the amount
of money due and the rights of reinstatement under the terms of
this Recommended Order."
[3. Add the following as paragraph 2(d), and consecutively relet-
ter the paragraphs subsequent thereto :
["(d) Notify the above-named employees if presently serving' in
the Armed Forces of the United States of their right to full rein-
statement, upon application, in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."
[4. Delete the second paragraph from Appendix A attached to
the Trial Examiner's Decision.
[5. Substitute the following for the sixth paragraph of Appen-
dix A attached to the Trial Examiner's Decision :
[WE WILL, upon application, offer to Earl Day, John Schmidt,
and Bob Werger immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them
whole for any loss of pay they may have suffered as a result of
any refusal to reinstate them upon such application.
[6. Add the following immediately below the signature line of the
Appendix attached to the Trial Examiner's Decision :
[NOTE.-We will notify the above-named employees if pres-
ently serving in the Armed Forces of the United States of their
right to full reinstatement, upon application, in accordance with
the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed
Forces.]
BOB'S MARKET, INC. 899
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on February 23, 1966, by Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, District Union No. 271,
hereinafter called the Union, the General Counsel of the National Labor Relations
Board, hereinafter called the General Counsel 1 and the Board, respectively, by the
Regional Director for Region 17 (Kansas City, Missouri), issued its complaint dated
April 18, 1966, against Bob's Market, Inc., hereinafter referred to as the Respond-
ent. The complaint alleged that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sections 8(a)(1)
and (5) and 2(6) and (7) of the Labor Management Relations Act, as amended,
herein called the Act. Copies of the charge, complaint, and notice of hearing
thereon were duly served on Respondent and the Union.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held at Lincoln, Nebraska, on June 9,
1966, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing,
were represented by counsel, and were afforded full opportunity to be heard, to pro-
duce, examine, and cross-examine witnesses, to introduce evidence material and per-
tinent to the issues, and were advised of their right to argue orally upon the record and
to file briefs and proposed findings and conclusions or both. Oral argument was
heard at the close of the hearing. Briefs have been received from General Counsel
on the due date of June 30, 1966, and from Respondent on July 5, 1966. Despite
its late filing I have considered Respondent's brief.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I find that Bob's Market, Inc.,
is now, and at all times material herein has been, a Nebraska corporation with
its principal place of business at Lincoln, Nebraska, where it operates a retail meat
and grocery business. Respondent, in the course and conduct of its business, has
an annual gross volume of sales in excess of $500,000. It annually purchased goods,
materials, or services valued in excess of $10,000 directly outside of the State of
Nebraska.
Accordingly, I find that Respondent at all times material herein has been
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, District Union No. 271, is a labor organization admitting to membership
employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Bob's Market is a combined grocery store and meat market operating under
the direction and supervision of Robert W. Fulton, Respondent corporation's vice
president, and Mrs. Margaret Butler, Respondent's treasurer.2
As of February 1966,3 Respondent employed seven clerks under one Lou Wat-
kins 4 in its grocery department and four meatcutters including Earl (Bill) Day
who directed the activities of the other three meatcutters but admittedly did not
1 This term specifically Includes the attorney appearing for the General Counsel at the
hearing.
2 Each of the above individuals, brother and sister, own 2 percent of the corporate shares.
The other 96 percent of the corporate shares were at the time of the hearing in probate in
two different estates.
2 All dates herein are in the year 1966 unless otherwise noted.
Since deceased.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have the authority of a "supervisor" within the meaning of the Act. These two
departments, grocery and meat, were separate and distinct except that, when the
meat market was busy, Fulton or Butler would assist the meatcutters on duty and,
on rare occasions, grocery clerks would also assist in such unskilled jobs as grind-
ing hamburger or similar other odd jobs. Otherwise there was no interchange of
employees between the two departments.
It is thus quite clear and is here found that all meat department employees in
the Respondent's Lincoln, Nebraska, retail store , excluding office-clerical employ-
ees, and all other employees, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for collective bargaining within the meaning of Section
9(b) of the Act.
About February 1, Earl (Bill) Day telephoned Union Representative Vernon
D. Allen, Jr., requesting the Union to organize the meatcutters in Respondent's,
meat department.
As a result thereof on February 9 Allen held a meeting of the meatcutters in
Lincoln, Nebraska, during which Respondent's meatcutters Day and Robert Wer-
ger executed unambiguous union application cards authorizing the Union to repre-
sent them for the purpose of collective bargaining. They further agreed to have
Respondent's meatcutters John Schmidt and Kenneth Taylor appear at the Labor
Temple the following day at 1 p.m. to execute similar cards.
On February 10, Schmidt and Taylor, the other two meatcutters in Respondent's
meat market, did meet with Allen and, like Day and Werger, executed similar
union application cards a;uthorizing the Union to represent them in collective
bargaining. During his meetings with all four of these employees Allen had stressed
the necessity for the employees to. engage only in "group action."
Thus by February 10 all four of Respondent's meatcutters had authorized the
Union to represent them in collective bargaining with Respondent and thereby the
Union became the representative of a 100 percent majority of Respondent's
employees in the above found appropriate unit.
Under date of February 11, the Union over Allen's signature wrote Respondent
as follows:
Dear Mr. Fulton:
You are hereby advised that a majority of your meat market employees
employed at Bob's Market, Lincoln, Nebraska have designated District Union
271, Amalgamated Meat Cutters and Butcher Workmen of North America,.
AFL-CIO, as their collective bargaining representative.
The Representatives of District Union 271 are prepared to prove this majority
representation by submission of authentic signed authorization cards to any
mutually agreed Third Party for checking against the Company's payroll and
for checking against standard signatures of said employees in your Company
files. We would like to suggest to you we would be agreeable to a minister,
priest, or rabbi, or any other disinterested person as the party to be used for
purpose of checking signatures.
We are prepared to commence bargaining with you at the earliest oppor-
tunity, and we hereby request that you meet with us to commence such collec-
tive bargaining with respect to wages, hours, and conditions of employment
of the employees of the meat market of Bob's Market. We, therefore, request
that a meeting be set up for any day up to and including February 25, 1966,
at any hour and place convenient to the Company. We shall be prepared at
such meeting to present such authentic authorization cards signed by employ-
ees of the meat market of Bob's Market, Lincoln, Nebraska for the purpose
of the checks noted above; and therefore, we shall be prepared to commence
bargaining toward a collective bargaining agreement for the mutual benefit
of your Company and its' employees. We will be awaiting your reply.
This letter was received by Fulton about noon on February 12. His first act
was to call Day into the office and ask him to read the letter. After recognizing
the letter which he knew was going to be sent, Day was asked by Fulton, "Did
you sign a union card?" Day answered, "Yes, I did, and the other three men
also." Fulton ended the conversation by saying, "You fellows could have talked
to me before you did."
A half hour later Fulton left the store, went to Butler's home where he informed
her of the above letter and telephoned his attorney, Dalton, for advice in the
matter. No answer to the Union's letter was sent.
BOB'S MARKET, INC. 901
During the day of. February 13 a cigarette butt inadvertently was wrapped up
in the same package with a customer's meat. The customer complained to Fulton.
Fulton complained to Day, who informed the meatcutters of the event.
As the four meatcutters were standing around ready to leave work about 10
p.m. on February 13, Fulton came up and stated, "Fellows, I am handling this
market, and no more coffee in the market and no more smoking, and you will
have a 15 minute break in the morning and a 15 minute break in the afternoon
. No more overtime and no extra help in the market." 5
As the employees were somewhat apprehensive as to Fulton's reaction to the
Union's letter and feared some reprisals against one or more of them, they had
agreed that, if such action were taken against any one of them, the others would
strike as a group in protest.
On Wednesday, February 16, Attorney Marti, acting on the request of Attorney
Dalton, telephoned Fulton to ascertain the facts vis-a-vis the Union's request for
recognition in order to search out the law applicable thereto .6 They took no action
on the request theretofore made by the Union.
About 2 p.m. on February 18 Margaret Butler, operating the store in the
absence of Fulton who was in the hospital, discharged Kenneth Taylor. As the
Regional Director dismissed the Union's charge that this discharge was discrimina-
tory and as the complaint makes no allegation that the discharge was discrimina-
tory, this discharge must be considered here as having been "for cause."
Upon learning of his discharge from Taylor and in accordance with previously
made agreement as to "group action," Day, Werger, and Schmidt took off their
aprons and walked out on strike because of Taylor's discharge. As they walked
out, they informed Butler that they "were walking out on strike" and advised her
to get somebody else to handle Respondent 's meat department.
At 8 p.m. that night the four meatcutters met with Allen at the Labor Temple
where Allen took statements regarding' the discharge of Taylor. He then called
attention to the fact that, as yet, the Union had received no response from
Respondent regarding the Union 's request for recognition and bargaining. Allen
considered this to constitute an unfair labor practice. The men then voted unani-
mously "to continue the strike."
On the morning of February 19 the Union telegraphed Fulton as follows:
This is to officially notify your establishment that an unfair labor practice
strike commenced at 2:15 p.m. February 18, 1966.
On Monday, February 21, the meatcutters again met with Allen and decided to
commence picketing Respondent's place of business the following morning. This
picketing has continued ever since with picket signs stating that Respondent was
"charged with unfair labor practices."
Under date of February 21 Marti on behalf of Respondent wrote the Union
as follows:
Dear Mr. Allen:
After having been forwarded your letter of February 11 to Mr. Robert Fulton,
we were informed by him on Friday that his store manager had terminated
the employment of one Kenneth R. Taylor due to his insulting a customer
with gross impoliteness, whereup John Schmidt, Earl O. Day and Robert E.
Werger either left their jobs or failed to report for work.
As far as Mr. Fulton is able to ascertain, the termination of the employment
of Kenneth R. Taylor was entirely justified based upon information he secured
from his store manager, another employee , and the customer involved.
He had accordingly made payment of all wages due these employees up to the
time that they voluntarily terminated their employment with Bob's Market.
Due to these recent developments we assume there is no longer any reason
for a meeting with you or other representatives of your union.
5 Fulton had given similar orders about smoking and drinking behind the meat counter
before but had soon become lax in enforcing the same. Actually after February 13 the meat-
cutters were allowed to smoke and drink coffee in the office area next to the meat counter
but not behind the counter. They also got their two 15-minute breaks per day.
The meatcutters were each being paid a certain stated sum of money for working shifts
of 53 or 55 hours per week with overtime pay for work beyond that. The record indicates
that the meatcutters decided when to work overtime by themselves.
6 Marti candidly stated on the record that his firm were not specialists in labor law.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 24 Marti wrote-the'Union again as follows:
Dear Mr. Allen:
Robert Fulton of Bob's Market, 27th and Adams, Lincoln, Nebraska, was ill
at home under doctor's orders on February 17, 1966, and was just discharged
from the hospital yesterday. This is the first date upon which he had been
available to investigate the incident which occasioned the three employees
to leave their jobs on February 18, and to respond to your letter indicating
that you represent a majority of the meatcutters employed by Bob's market.
Please be advised that Bob's Market does not believe that your union repre-
sents a majority of its employees in its meat market. We suggest that you
proceed with an election in order that the matter may be resolved before
any meetings are arranged in regard to a collective bargaining agreement.
On March 4 the parties, including NLRB Attorney Auslander, met in Marti's
office apparently in an effort to settle this matter informally where Allen is alleged
to have stated that meatcutter "pickets will march until [ Respondent ] signs a
contract."
On April 7 the Union wrote Respondent again requesting a meeting for the pur-
poses of negotiations. The letter was mailed. There has been no answer. There is
no proof on this record that the letter was ever received.
B. Conclusions
Immediately upon receipt of the Union's letter of February 11 claiming majority
representation and requesting recognition and bargaining,, Respondent, through Ful-
ton's inquiry of Day, confirmed not only the fact that the Union did in fact repre-
sent a majority of Respondent's employees in the unit which Respondent has never
claimed to be inappropriate but, indeed, represented all of the employees in such
appropriate unit. Thus, there was no room for doubt as to the Union's majority
status in that unit. With that settled it became Respondent's obligation under the
Act to recognize and bargain with the Union as such majority representative.
But Respondent did not answer the request. It has advanced several "excuses"
for such delay. ,
Upon receipt of the request Fulton promptly sought legal advice. This was, of
course, his right as admittedly he was "naive" and_ totally unconversant with any
labor laws. This resulted only in delay as explained by Respondent's attorney
during oral argument as follows:, ;
Mr. MAR'ri: That's right. But he got the usual lawyer's service, that is he
didn't hear from us before Wednesday of the next week, and at the time his
lawyer had passed on, and the junior partners, I merely called him to find
out what was going on. If there was any' delay -involved, it was his attorney's
delay, but I believe Mr. Fulton, and I don't think you should penalize him
for consulting with the attorney and waiting for an answer on a letter he
receives like this which represents something totally and absolutely new and
different. [Emphasis supplied.] • • ,
After establishing the fact that his firm were not specialists in labor relations,
Marti continued as follows:
... He didn't get an answer out of our firm as quickly as he might if he
went to a full-time labor attorney. By the time he was hospitalized, then the
strike takes place, now here again you have to take into account the naive
position, I think Mr. Auslander asked if we were really this naive, but we
were, but frankly when everybody walked off his job and quit, [Mrs.] Butler
had thought they had quit, and that was it, and that was all there was to it.
Mr. MARTn: We have learned a whole new vocabulary, all words have differ-
ent meanings, and I would, I am still in doubt that a strike, [if] it was a
strike that actually took place, but it was later declared to be a strike, but
we frankly have been at a loss to understand why we are required to meet
a proposal such as a union has submitted to us. To us this is like saying I
would like to negotiate with you, you bring your pencil and pad and I will
bring my shotgun and we'll negotiate in my back alley with all my buddies.
If such constitutes a valid excuse for delay, then we have uncovered an unassail-
able defense and soon the slowest lawyer will monopolize all the legal business.
BOB'S MARKET, INC. 903
Fulton was hospitalized from February 18 to 23. However, this did not prevent
him from conducting some business as shown by Attorney Marti's letter of
February 21 to the Union concerning the Taylor discharge. It is to be noted that
this letter was written within 3 days of the discharge. There was no delay as to
this such as occurred relative to the request for recognition and bargaining.
Next Respondent argues that the phraseology of the Union's letter permitted
Respondent until February 25 within which to answer the request. At the very
least this constitutes a standard construction of the perhaps awkwardly phrased
letter, even as Attorney Marti acknowledged during oral argument?
In the above-quoted oral argument, Marti suggested that Butler "had thought
they had quit" when the meatcutters walked out on the afternoon of February 18.
The undisputed testimony proves that Butler had no right or license to so think,
if in fact she did, because that evidence proves that the meatcutters told her that
they "were walking out on strike" as they departed. Therefore Respondent's refer-
ence to the fact that the meatcutters "voluntarily quit" in its letter of February 21
constitutes nothing more than a self-serving declaration or wishful thinking in
the light of the above undisputed testimony as well as the Union's telegram of
February 19.
The fact is, and Respondent knew it, that the three meatcutters were engaging
in a protected concerted activity when they went on strike on February 18 in
protest of the discharge of Taylor, a fact which they mistakenly believed to be
an unfair labor practice.
Allen's reference in his telegram of February 19 to the strike of February 18
as "an unfair labor practice strike" is likewise self-serving-and incorrect. The
men went on strike to protest the discharge of Taylor. However this strike, con-
trary to the contention of the General Counsel, was only an economic strike-
not an unfair labor practice strike because even though the meatcutters may have
considered the discharge of Taylor to have been an unfair labor practice dis-
charge, they were mistaken in this belief under the pleadings here. The meat-
cutters were thus engaged in a protected concerted activity and an economic
strike.8
Hence, contrary to Allen's telegram, the strike which began on February 18 in
protest of the discharge of Taylor was, at its commencement at least, an economic
strike.
However, under Section 2(3) of the Act these economic strikers remained
employees of Respondent, even though on strike, because their work had ceased
in connection with a current labor dispute.
The law is now too well settled to require the citation of authority that an
employer is not relieved of his obligation under the Act to recognize and bargain
with the majority representative of his employees in the appropriate unit by reason
of the fact that the unit employees may be on strike, economic or unfair labor
practice.
Consequently Respondent here remained under the continuing duty to recognize
and bargain with the Union as the majority representative of its employees in the
appropriate unit even though those unit employees were out on an economic
strike. This strike did not change Respondent's duty in this regard at all, particu-
larly as there is here no contention or proof that these economic strikers had been
replaced, permanently or otherwise, even to the date of the hearing .9
Respondent's contention, voiced in its letter of February 24, that it "doubted"
the Union's majority status is, consequently, verbiage without substance. The letter
of February 24, therefore, becomes a refusal to bargain with the Union which has
prolonged the strike and thereby converted the same into an unfair labor practice
7 In its further answer to the complaint Respondent professed to have even another in-
terpretation of the Union's letter, to wit, "requesting the date of February 25, 1966, to
11commence bargaining . . . .
8 Despite my request during oral argument, General Counsel has failed to cite any
authority that employees, who go on strike to protest what they mistakenly believed to
be an employer's unfair labor practices, are themselves on an unfair labor practice strike.
I doubt the existence of any such authority.
9In fact in dismissing the charge regarding Taylor's discharge, the Regional Director
notes that as of April 18 Respondent had "reconsidered" the Taylor discharge and had
converted it into a 2-week "suspension."
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike, if such conversion had not occurred considerably earlier because of Respond-
ent's unnecessary delay in answering the Union's request. As there has been no
replacement of strikers, there is no necessity for me to determine the actual date
of the conversion of the strike into an unfair labor practice one.
Consequently I must, and hereby do, find that at least by February 24, 1966,
Respondent refused to recognize or bargain with the Union as the majority repre-
sentative for the purposes of collective bargaining of the Respondent's employees
in the above-found appropriate unit in violation of Section 8(a)(5) of the Act.
General Counsel maintains vigorously that Respondent interfered with, restrained,
.and coerced its employees by the following actions:
(1) When on February 12 Fulton inquired of meatcutter Day as to whether
Day had signed a union authorization card.
(2) When on February 13 Fulton told the assembled meatcutters that there was
.to be no more smoking or coffee drinking behind the meat counter, that they were
to have two 15-minute breaks a day for that purpose, that there was to be "no
more overtime or extra help in the meat department," and that he, Fulton, wanted
-a "damn good day's work out of each of them."
As to the first of these, the facts show that Fulton had just received the Union's
letter claiming majority representation. While it is true this letter offered him a
means of verifying the Union's claim, it also appears that Fulton by first showing
Day the Union's letter was merely using a little self-help in confirming the accu-
racy of the claim made. I do not believe that there was any coercive purpose or
intent behind the inquiry nor, under the circumstances here extant, would the
ordinary employee have considered the inquiry coercive. I, therefore, recom-
mend the dismissal of this allegation.
In regard to the other incident, Respondent, a retail grocer, had the right, if
.not the duty to his customers, to require his meatcutters not to smoke or drink
behind the counter, even as he had done long before the Union was ever in the
picture, particularly when he at the same time provided them with regular breaks
for these purposes and especially in view of the inadvertent wrapping of the
,cigarette butt in a customer's package of meat. Accordingly I see nothing coercive
in this part of the statement.
However the additional statement, that there would be "no more overtime or
-extra help" combined with Fulton's demand for a "damn good day's work,"
definitely was coercive and in apparent retaliation for the employees having joined the
Union. This is especially so as the employees' remuneration and amount of work
definitely and directly connected with the remark thus constituting both a threat of
a reduction of pay and of considerably harder work over and above their regular
53- or 55-hour per week shifts. Accordingly I must, and hereby do, find the above
remark to have interfered with, restrained, and coerced Respondent's employees in
violation of Section 8 (a) (1) of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section.. III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relationship 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.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent has refused to recognize and bargain
collectively with the Union as the exclusive bargaining representative of the
majority of the Respondent's employees in the following appropriate unit:
All meat department employees at Respondent's Lincoln, Nebraska, retail
store; excluding office-clerical employees and all other employees, guards, and
supervisors as defined in the Act.
I will recommend that, upon request , Respondent recognize and bargain in good
faith with said Union as such representative and embody any agreement reached
into a written, signed document.
Because of the type of the unfair labor practices engaged in by the Respondent,
it appears that Respondent has an opposition to the policies of the Act in general,
BOB'S MARKET, INC. 905
and so I deem it necessary, in order to effectuate the policies of the Act, to order
Respondent to cease and desist from in any manner infringing on the rights guar-
anteed its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, District Union No. 271, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By refusing to recognize and bargain collectively with Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, District Union No.
271, as the exclusive representative of Respondent's employees in the aforefound
appropriate unit, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the Act.
3. By threatening its employees with loss of overtime pay and with more onerous
working conditions, Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them 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.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, I recommend that Bob's Market, Inc., Lincoln,.
Nebraska, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, District Union No. 271, or any other labor
organization, by threatening said employees with loss of overtime pay, with more
onerous working conditions, or any other terms or conditions of employment.
(b) In any manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist labor orga-
nizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Upon request, recognize and bargain collectively with Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, District Union No.
271, as the exclusive representative of the employees in the appropriate unit set.
forth below:
All meat department employees at Respondent's Lincoln, Nebraska, retail
store; excluding office-clerical employees and all other employees, guards, and
supervisors as defined in the Act.
(b) Upon their unconditional offer to abandon the strike and return to work,
offer meat department employees Earl Day, John Schmidt, and Robert Werger
immediate and unconditional reinstatement to their former positions without preju-
dice to their seniority or other rights and privileges.lo
(c) Post at its retail store in Lincoln, Nebraska, copies of the attached notice
marked "Appendix A," 11 copies of said notice to be furnished by the Regional
11 General Counsel's proposed order to the Trial Examiner included Kenneth Taylor as
one of the employees to be so reinstated . Because Taylor was discharged prior to the com-
mencement of the strike , apparently for cause , he did not become , like the others mentioned
above , unfair labor practice strikers and hence cannot be included in this portion of the-
Recommended Order . However it is to he presumed that Respondent will honor the com-
mitment made by it to the Regional Director that Taylor's discharge had been subsequently-
reduced to a 2-week suspension.
11 In the event that this Recommended Order is 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. If the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order."
906 I iI1 IISIIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 17 of the Board (Kansas City, Missouri), after being duly
signed by Respondent's representative, shall be posted by Respondent immediately
upon receipt thereof in all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to be sure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the aforesaid Regional Director, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.12
I FURTHER RECOMMEND that, unless within 20 days from the receipt of this Decision,
Respondent has notified said Regional Director that it will comply with a fore-
going recommendation the Board issue an order requiring Respondent to take the
aforesaid action.
is In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 17, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX A
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
Relations Act, as amended, we hereby notify our employees that:
After a trial in which both sides had the opportunity to present their evidence,
a Trial Examiner of the National Labor Relations Board has found that we violated
the law and has ordered us to post this notice and to keep the promises that we
make in this notice.
WE WILL NOT question you in any way over the Union or your activities
therein.
WE WILL NOT threaten to take away your overtime or extra help because of
your union activities.
WE WILL NOT discourage union activity or membership in Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, District
Union No. 271, or any other labor organization, by discriminating against you
if you choose to engage in union activity or join Local Union No. 271 or any
other union.
WE WILL, when it asks, recognize and bargain collectively with the Amal-
gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
District Union No. 271, as the only representative of the employees in the
appropriate unit set forth below.
All meat department employees at our Lincoln, Nebraska, retail store,
excluding office-clerical employees and all other employees, guards, and
supervisors as defined in the Act.
WE WILL, when they ask, offer immediate and full reinstatement to meat-
cutters Earl Day, John Schmidt, and Bob Werger to their old jobs.
You and all our employees are free to become members of any labor
organization.
BOB'S MARKET, 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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 610
Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone
FR 4-5282.