Cutten Supermarket

National Labor Relations Board - Board Decisions

Sep 23, 1975

220 N.L.R.B. 507 (N.L.R.B. 1975)

CUTTEN SUPERMARKET 507
James W. Whitfield, d/b/a Cutten Supermarket and
Retail Clerks Union Local 541 , Retail Clerks Inter-
national Association , AFL-CIO. Case 20-CA-9443
the Act by denying these employees such benefits in
an effort to undermine the Union and take reprisals
against them for supporting the strike.
September 23, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On February 10, 1975, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a brief in support
thereof. Subsequently, the General Counsel submit-
ted an answer to Respondent 's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge recommended dis-
missing the complaint in its entirety. He found that
Respondent did not violate Section 8 (a)(5) and (1) of
the Act by conditioning its negotiations with the
Union upon resolution of an alleged question con-
cerning representation raised by Respondent 's filing
of a representation petition , or violate Section 8(a)(3)
and (1) by denying striking employees their accrued
vacation pay. We find merit in the General Counsel's
exceptions to both of these findings.
As to the alleged refusal to bargain, the General
Counsel contends that, as of the filing of the repre-
sentation petition, Respondent lacked any objective
basis for doubting that the Union represented a ma-
jority of its employees and that Respondent, by con-
ditioning bargaining on the resolution of the alleged
question concerning representation , violated Section
8(a)(5) and (1) of the Act. As to Respondent's denial
of accrued vacation benefits to strikers, the General
Counsel contends that Respondent's striking em-
ployees are entitled to accrued vacation benefits and
that Respondent violated Section 8(a)(3) and (1) of
Absent exceptions thereto , we adopt pro forma the Administrative Law
Judge's findings that Respondent did not violate Sec. 8 (a)(5) and (1) by
dealing directly with an employee regarding wages, hours, and conditions
of employment, to the exclusion of the Union , and that Respondent did not
violate Sec. 8(a)(1) by informing two employees that Respondent would not
negotiate a collective-bargaining agreement with the Union.
The Refusal To Bargain
The relevant facts are as follows: On June 30,
1972, Respondent voluntarily recognized Retail
Clerks Union, Local 541, Retail Clerks International
Association, AFL-CIO (hereinafter called the
Union), as the exclusive collective-bargaining repre-
sentative of a unit of its employees 2 and signed the
collective-bargaining contract then in effect between
the Food Employers Council (hereinafter called
FEC) and the Union, effective from late 1971 or ear-
ly 1972 through May 31, 1974.
By letter dated March 20, 1974,3 the Union noti-
fied all parties signatory to its contract with FEC of
its desire to terminate that agreement and to negoti-
ate a new one . The letter requested any employer
desiring "to negotiate separate and apart from the
industry negotiations" to so advise the Union. The
letter stated that employers which did not notify the
Union of a desire to negotiate independently would
"be assumed" to have agreed "to be bound by the
result of the industry negotiations." Respondent re-
ceived this letter on March 23 but did not respond
thereto.
On May 6, Respondent joined the Redwood Em-
ployers Association (hereinafter called REA), an or-
ganization representing employers in various indus-
tries for collective-bargaining purposes. Respondent,
however, did not notify the Union of its relationship
with REA until June 4. On that day, the Union's
business agent , James Shreeve, delivered a copy of a
"Memorandum of Agreement" between the Union
and FEC to Respondent's owner, James W. Whit-
field. At that time Whitfield told Shreeve that Re-
spondent was represented for bargaining purposes by
REA, and that he would turn the document over to
his attorney, David Comb of REA, who was in
charge of the matter.
Pursuant to Comb's instructions, REA informed
the Union by letter dated June 14 that the terms of
the "Memorandum of Agreement" were unaccept-
able to Respondent and that it (REA) was preparing
counterproposals on Respondent's behalf. The letter
did not request a response, but stated that "in the
meantime , questions or other communications re-
garding matters dealing with [Respondent's] labor re-
lations" should be directed to REA. Subsequently
2 We find , in agreement with the Administrative Law Judge , that the
contractual unit consisting of all employees of Respondent excluding own-
ers, meat department employees , office clericals, guards and supervisors as
defined in the Act is appropriate
3 Unless otherwise indicated , all events herein occurred in 1974.
220 NLRB No. 64
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Comb commenced drafting counterproposals.
No further communications between the Union
and either Whitfield or REA took place until June
26. At or about 8:30 a.m. on that date, the Union's
business agent, Shreeve, appeared at Respondent's
market, threw a copy of a "Memorandum of Agree-
ment" on the checkstand in front of Whitfield, and
said "Bill, sign this." Whitfield asked if Shreeve had
heard from REA and Shreeve responded that he
"[did] not want to talk to those . . . people." Whit-
field refused to sign the contract, stating that REA
was his bargaining agent, that he was acting on the
advice of his counsel, and that the problem was out
of his hands. Shreeve threatened to strike if the con-
tract was not signed by 10 a.m. Whitfield again re-
fused to sign, and Shreeve began to picket the store
with a sign stating, "Cutten Market on strike." Em-
ployees Lola Bonomini, Joe Bonomini, Erica Pelton-,
en, and Jerry Hawkes joined Shreeve in picketing
when they arrived at work. Store Manager Dale Vis-
nor, whose supervisory status is in issue, crossed the
picket line and reported for work. Picketing by
Respondent's employees continued for some 10 to 14
days and thereafter was carried on by pickets who
were not former Cutten employees.4 Between June 26
and August 20, Respondent hired five new employ-
ees in the following order: Jerry Coiner on June 28;
Beverly Yopper on July 2; Ted Sillapanna on July 3;
Mike Landing on July 16; and Ernie Nunes on Au-
gust 20.
On July 2, Comb spoke to Shreeve at the picket
line, and asked Shreeve if he would meet to negotiate
a contract. According to Comb's credited testimony,
Shreeve replied that the contract had already been
negotiated and that if Comb desired a meeting he
should contact Carl Bunch, the Union's attorney.
Shreeve subsequently contacted Bunch, apparently
by telephone, and relayed Comb's message.
On July 3, Comb wrote to Shreeve confirming
their July 2 conversation, stating that Respondent
had counterproposals prepared and that Respondent
was ready to negotiate. The letter requested that the
pickets be removed pending negotiations and that
the Union's attorney (Bunch) contact Comb to ar-
range a time to begin negotiations. By letter dated
July 8, Bunch requested Comb to contact him to ar-
range a mutually convenient date to begin negotia-
tions.
On July 9, Respondent filed an RM petition in
Case 20-RM-1773.
On July 10, Comb received Bunch's letter of July 8
and immediately phoned Bunch's office and sched-
uled a meeting for July 29. Comb then wrote a letter
4 The record indicates that the picketing continued through the hearing in
the instant case
to confirm this arrangement. The letter stated that
Respondent continued willing to negotiate and bar-
gain in good faith "with final agreement subject only
to resolution of the existing question concerning rep-
resentation." Neither Bunch nor anyone else from
the Union responded to Comb's July 10 letter and
there was no further contact between the parties rela-
tive to bargaining.
Respondent executed a Stipulation for Certifica-
tion Upon Consent Election on July 25 at the request
of a Board agent. The Union, however, did not exe-
cute the stipulation and, on August 7,5 a representa-
tion hearing was conducted in Case 20-RM-1773.
On August 7 and 9, the Union filed the instant
8(a)(1), (3), and (5) charges.
It is well settled that Section 8(a)(5) and Section
8(d) of the Act require an employer to recognize and
bargain in good faith with the bargaining representa-
tive selected by a majority of its employees. That rec-
ognition establishes a presumption of majority status
which, in circumstances such as this, may be rebut-
ted 6 The employer may lawfully refuse to bargain
with the union if it rebuts the presumption by affir-
matively establishing that the union has in fact lost
its majority status, or shows that it has sufficient ob-
jective bases for reasonably doubting the union's
continued majority status.' To establish sufficient ob-
jective bases, however, requires more than the mere
assertion thereof based upon the employer's subjec-
tive frame of mind.' Furthermore, the employer must
not have engaged in any conduct tending to encour-
age employee disaffection from the union.'
Applying these well-established principles to the
instant case, we find that the Employer has presented
no evidence of objective considerations to support its
assertion that on July 9, when it filed a representa-
tion petition, it entertained a genuine doubt of the
Union's continued majority status. Respondent con-
tends that on July 9 its employee complement was
such that the Union could not have won an election.
Respondent bases this contention on the fact that
Respondent's bargaining unit on that date consisted
of four strikers,10 three strike replacements, and Store
Superintendent Dale Visnor, who, Respondent con-
s The Administrative Law Judge stated that this hearing , orginally sched-
uled for July 25, was postponed by the Regional Director on August 23 The
postponement date was in fact July 23
6 Cf N L R B v Frick Company, 423 F 2d 1327 (C A 3, 1970), Keller
Plastics Eastern, Inc, 157 NLRB 583 (1966)
7 Celanese Corporation of America, 95 N LRB 664, 672 (1951), Peoples Gas
System, Inc, 214 NLRB No 141 (1974)
s Laystrom Manufacturing Co, 151 NLRB 1482 (1965), enforcement de-
nied 359 F 2d 799 (C A 7, 1966), Automated Business Systems, Inc, a Divi-
sion of Litton Business Systems, Inc, 205 NLRB 532 (1973), enforcement
denied 497 F 2d 262 (C A 6, 1974)
9 Peoples Gas System, Inc, supra
10 We find, contrary to Respondent's contentions , that as of July 9 Joe
Bonomini had not retired and was therefore an employee whose vote would
be included in determining the Union's majority status
CUTTEN SUPERMARKET
tends, is a rank-and-file employee, but whose super-
visory status is in question. According to
Respondent 's calculations , the three replacements
and Visnor would oppose the Union, leaving the
Union a maximum of four votes in its favor, and,
therefore, not a majority.
We find Respondent's contentions unsupportable
and its calculations irrelevant. As to the four strikers,
the record affirmatively shows that they are members
of the Union. However, as to the replacements, Re-
spondent has produced no evidence to indicate their
voting preferences . Indeed , it is a well-settled princi-
ple that new employees are presumed to support the
union in the same ratio as those whom they have
replaced." Furthermore, there is no presumption that
an employee has rejected the union as collective-bar-
gaining representative when the employee elects not
to support the strike.12 On the other hand, there is a
presumption that the strikers in this case, being
union members, continued to support the Union. As
to Visnor, we disagree with Respondent's contention
that he is a rank-and-file employee whose vote
should be counted in determining the majority status
of the Union. To the contrary, the record reveals,
and we find, that Visnor is a supervisor within the
meaning of the Act and is, therefore, not within the
unit and ineligible to vote." Accordingly, as of July
9, there were a total of seven employees in the unit;
i,e., four strikers who clearly supported the Union
and three replacements whose union sentiments were
not known. Respondent adduced no evidence that
any of the employees expressed dissatisfaction with
union representation . Furthermore , the mere filing of
a petition for an election is insufficient evidence to
establish either that Respondent acted in good faith
or that it acted upon objective considerations in
withdrawing recognition.14
We conclude , therefore, that Respondent has not
rebutted the presumption of the Union's continued
majority by demonstrating either that the Union had
"True Temper Corp., 217 NLRB No. 180 (1975); Maywood Packing Co,
181 NLRB 778, 781 (1970), Laystrom Manufacturing Co., supra.
12 Frick Company, 175 NLRB 233, In . 1 (1969), enfd . 423 F.2d 1327, 1330
(C .A. 3, 1970).
13 Visnor was given the title of assistant manager by Whitfield when
Respondent's meat department was contracted out and Visnor was relieved
of his responsibilities as butcher (a position which was specifically excluded
from the recognized unit). As assistant manager, Visnor has authority to
hire and fire ; he alone has keys to the store and runs the store in Whitfield's
absence ; he helps supervise and instruct new employees ; and, unlike other
employees , is paid a weekly rather than an hourly salary and receives 2-
percent commission on all profits . We find that Visnor is a supervisor within
the meaning of the Act. Moreover , it is clear from the record that Visnor
was initially named assistant manager , in part , to avoid the contract's
union-security requirement that all rank -and-file employees join the Union.
We find that Respondent cannot , at its convenience , redefine the status of
its personnel.
1 United States Gypsum Company, 161 NLRB 601 (1966), Cantor Bros.,
Inc, 203 NLRB 774, 778 (1973)
509
in fact lost its majority status or that it-had sufficent
objective bases for reasonably doubting the Union's
majority status as of July 9 when it withdrew recogni-
tion and filed the representation petition.15 Accord-
ingly, we find that Respondent, by withdrawing rec-
ognition from the Union on July 9 and thereafter by
conditioning final agreement upon the resolution of
an alleged question concerning representation, vio-
lated Section 8(a)(5) and (1) of the Act.
The Strike and the Strikers
We further find that Respondent's unlawful refus-
al to bargain on and after July 10 tended to impede
any possible settlement of the strike and, indeed, had
a tendency to prolong the strike. It follows, therefore,
that from July 10 forward one of the purposes of the
strike was to protest Respondent's unfair labor prac-
tices.16 Accordingly, we find that the strike which be-
gan on June 26 was converted to an unfair labor
practice strike on July 10 " and that the strikers on
that date assumed the status of unfair labor practice
strikers. Thus, Respondent is obligated to reinstate,
upon request, all strikers who were not permanently
replaced before July 10 to their former or substan-
tially equivalent positions."
Denial of Accrued Vacation Benefits
The General Counsel contends that the Adminis-
trative Law Judge erred in failing to find that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by denying its striking employees their accrued vaca-
tion benefits.19 The General Counsel argues that Re-
spondent withheld accrued vacation benefits from
striking employees in an effort to undermine the
Union and take reprisals against them for supporting
the strike. We agree with the General Counsel.
According to Shreeve's uncontradicted testimony,
1 or 2 days after the strike began on June 26, the
15 C. H Guenther & Son, Inc. d/b/a Pioneer Flour Mills, 174 NLRB 1202
(1969).
16 N L R B v Pecheur Lozenge Co, Inc, 209 F.2d 393, 399 (C.A. 2, 1953),
cert denied 347 U S 953 (1953).
17 Cavalier Division of Seeburg Corporation, 192 NLRB 290, 291 (1971).
18 Laidlaw Corporation, 171 NLRB 1366 ( 1968), enfd. 414 F.2d 99 (C.A. 7,
1969), cert. denied 397 U.S. 920 (1970).
19 Respondent contends that the issue of whether it is obligated to pay
strikers accrued vacation benefits is a matter of contract interpretation and
should be deferred under Collyer Insulated Wire, 192 NLRB 837 (1971).
Respondent, however, made no affirmative plea in its answer to the com-
plaint that the Board should defer this issue to arbitration and did not raise
the issue of deferral at the trial. In fact, Respondent first made a plea for
deferral in its brief to the Administrative Law Judge . Member Penello finds,
in accordance with established Board policy , that Respondent 's plea is un-
timely. Conval-Ohio, Inc, 202 NLRB 85 (1973)
Chairman Murphy, without taking a formal position on Collyer, agrees
that the issue must, in any event , be timely raised and that here it was not
Member Fanning, for the reasons stated in his dissent in Collyer, would not
defer to arbitration in any event.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers expressed to him some concern about their
vacation pay. Shreeve spoke to Whitfield and asked
if the strikers could be paid their accrued benefits.
Whitfield responded that "if they [the employees]
would come into the store and sign a statement that
they terminate their employment at the store" he
would pay them their accrued vacation benefits. A
week or two later, Shreeve repeated the request and,
again, Whitfield conditioned payment of accrued
benefits upon employee resignation. Whitfield did
not deny that the strikers had earned vacation bene-
fits 20 or contend that the contract prevented pay-
ment of such benefits at that time. Nor did Whitfield
contend that payment would be inconsistent with
past business practices.21 To the contrary, Whitfield
agreed to pay the vacation benefits, albeit on condi-
tion that the employees abandon the strike and ter-
minate their employment. Indeed, Respondent's at-
torney Comb of REA testified at a hearing before the
California Labor Commissioner on the issue of
Respondent's obligation regarding these accrued
benefits that Respondent's position remained un-
changed 22 And in the hearing of the instant case,
Comb testified that "there was no requirement for
the Employer to finance a strike against themselves."
In our opinion, Respondent has misperceived its
legal obligations. The Supreme Court has held that
withholding vacation benefits from striking employ-
ees is "inherently destructive" of important employee
rights and that, without proof of adequate business
justification for an employer's conduct, specific
proof of an antiunion motivation is not required.23
Accordingly, we find that Respondent, by withhold-
ing accrued vacation benefits from the strikers in an
effort to undermine the Union, violated Section
8(a)(3) and (1) of the Act.24
20 It is clear from the record that all four strikers were sufficently tenured
to have earned 3 weeks' paid vacation by the beginning of the strike
21 Respondent now contends that the contract required advance schedul-
ing of employee vacations Whitfield testified , however, that employees
"had free rein" in taking vacations, that they would simply inform him of
the time they wanted, sign up on the calendar, and then take off Thus, it is
clear that Respondent never implemented the contractual requirements for
scheduling vacations . Furthermore , we note that the contract on which Re-
spondent relies expired on May 31 , 1974 However , even if Respondent had
adhered to these contract requirements , the record shows that Respondent
denied vacation benefits to two strikers who had scheduled their vacations
in advance We find, therefore , that Respondent 's reliance on the expired
contract provisions comes as an afterthought in an effort to conceal the true
and unlawful reason for denying the strikers their accrued vacation benefits
22 This hearing was held on September 10 and, on October 3, the Labor
Commissioner issued a decision ordering Respondent to pay the vacation
moneys owed to employees Comb then wrote a letter requesting a stay of
the Labor Commissioner's order pending the outcome of the instant pro-
ceedings ; the stay was granted on October 16
23 N L R B v Great Dane Trailers, 388 U.S 26, 33 (1967)
24 Cavalier Division of Seeburg Corporation, supra
Remedy-
Having found that Respondent engaged in certain
unfair labor practices, we shall order it to cease and
desist therefrom and take certain affirmative action
which we find necessary to effectuate the policies of
the Act.
Having found that Respondent, on and after July
10, 1974, refused to bargain with the Union in viola-
tion of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit concerning wages, hours, and other
terms and conditions of employment and, if an un-
derstanding in reached, embody such understanding
in a signed agreement.
Having found that Respondent's refusal to bargain
with the Union tended to impede strike settlement
and converted the strike to an unfair labor practice
strike on July 10, we will order that Respondent rein-
state all striking employees, upon unconditional re-
quest, who were not permanently replaced before
that date to their former jobs or, if such positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges, discharging if necessary any replacements
hired after July 10;25 and that it make whole such
employees for any loss of earnings resulting from its
failure to reinstate them within 5 days of their uncon-
ditional request, computed in accordance with the
formula stated in F. W. Woolworth Company, 90
NLRB 289 (1950), and with interest at the rate of 6
percent per annum, Isis Plumbing & Heating Co., 138
NLRB 716 (1962). Such employees for whom no em-
ployment is immediately available shall be placed on
a preferential hiring list for employment as positions
become available, and before other persons are hired
for such work. Priority for placement on such list is
to be determined by seniority or some other nondis-
criminatory test.
Having found that Respondent discriminatorily
withheld from its employees vacation pay to which
they had become entitled under the terms of the con-
tract between Respondent and the Union in violation
of Section 8(a)(3) and (1), we shall order Respondent
to pay Lola Bonomini , Joe Bonomini , Erica Pelton-
en, and Jerry Hawkes the vacation moneys due and
25 The record shows that not long before the strike began one of
Respondent 's five regular checkers , Gary Jackson , voluntarily quit Absent
evidence to the contrary, we find that Jerry Colmer, employed by Respon-
dent on June 28, was hired to replace Jackson, rather than one of the strik-
ing employees . The record also shows that Beverly Yopper and Ted Silla-
panna were hired prior to July 10 to replace two of the four strikers. It is
impossible , however , from this record to determine which of the strikers was
first replaced We therefore leave this determination for the compliance
stage of this proceeding.
CUTTEN SUPERMARKET
owing to them to the extent that such was not paid to
them. The amount due to each employee shall bear
interest at the rate of 6 percent per annum from June
28, 1974, the date on which Respondent first refused
to make such payments.
The Board, upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. The Respondent , James W. Whitfield, d/b/a
Cutten Supermarket, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Retail Clerks Union , Local 541, Retail Clerks
International Association , AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. The appropriate unit for the purposes of 'collec-
tive bargaining within the meaning of Section 9(b) of
the Act is:
All employees at Respondent 's retail supermar-
ket, excluding owners , meat department employ-
ees, office clericals , guards and supervisors as
defined in the Act.
4. At all times material herein the Union has been
and is the exclusive representative of all the employ-
ees in the above-described unit for the purpose of
collective bargaining within the meaning of Section
9(a) and Section 8(a)(5) of the Act.
5. By withdrawing recognition from the Union
and refusing, on and after July 10, 1974, to bargain
collectively with the above-named labor organization
as the exclusive bargaining representative of all the
employees of the Respondent in the above-described
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
6. By refusing and continuing to refuse to pay
strikers the accrued vacation benefits due them un-
der the collective-bargaining agreement with the
Union , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
7. The strike which commenced on June 26, 1974,
was converted to an unfair labor practice strike on
July 10, 1974, the date Respondent unlawfully with-
drew recognition and refused to bargain with the
Union.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
511
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondent,
James W. Whitfield, d/b/a Cutten Supermarket,
Eureka, California , its officers , agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail
Clerks Union, Local 541, Retail Clerks International
Association , AFL-CIO, as exclusive collective-bar-
gaining representative of the employees in the follow-
ing appropriate unit:
All employees of the Respondent's retail super-
market , excluding owners , meat department em-
ployees , office clericals , guards and supervisors
as defined in the Act.
(b) Withholding vacation pay from, or otherwise
discriminating against, its employees in regard to
their hire or tenure of employment or any term or
condition of employment to discourage membership
in the above-named, or any other, labor organiza-
tion.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which we
find necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good
faith with Retail Clerks Union, Local 541, Retail
Clerks International Association, AFL-CIO, as the
exclusive bargaining representative of the employees
in the appropriate unit described above, concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment and, if an
agreement is reached, embody it in a signed contract.
(b) Reinstate, upon unconditional request, all
strikers who were not replaced before July 10, 1974,
to their former jobs or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privi-
leges , discharging if necessary any replacements
hired after July 10, 1974; and make such employees
whole for any loss of earnings resulting from its fail-
ure to reinstate them within 5 days of their uncondi-
tional request, with interest at the rate of 6 percent
per annum. Such employees for whom no employ-
ment is available shall be placed on a preferential
hiring list based upon seniority, or some other non-
discriminatory test , for employment as jobs become
available, in the manner set forth in the "Remedy"
section of this Decision.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Forthwith pay to employees Lola Bonomini,
Joe Bonomini, Erica Peltonen, and Jerry Hawkes
their accrued vacation pay to which they were enti-
tled as of June 28, 1974, under the terms of article XI
of the agreement between James W. Whitfield, d/b/a
Cutten Supermarket, and Retail Clerks Union, Local
541, Retail Clerks International Association, AFL-
CIO, executed by Respondent on June 30, 1972, with
interest at the rate of 6 percent per annum.
(d) Preserve and, upon request, make available to
the Board and its agents, for examination and copy-
ing, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and
all other records necessary to analyze the amounts
due under the terms of this Order.
(e) Post at its supermarket in Eureka, California,
copies of the attached notice marked "Appendix." 26
Copies of said notice, on forms provided by the Re-
gional Director for Region 20, after being duly
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
26 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, upon request, to bargain
collectively with Retail Clerks Union, Local 541,
Retail Clerks International Association, AFL-
CIO, as the exclusive bargaining representative
of the employees in the following appropriate
bargaining unit:
All employees at our retail supermarket, ex-
cluding owners, meat department employees,
office clericals, guards and supervisors as de-
fined in the Act.
WE WILL NOT withhold vacation pay from, or
otherwise discriminate against, our employees in
regard to their hire or tenure of employment, or
any other term or condition of employment, to
discourage membership in the above-named or
any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them un-
der Section 7 of the Act.
WE WILL, upon request, bargain collectively in
good faith with Retail Clerks Union, Local 541,
Retail Clerks International Association, AFL-
CIO, as the exclusive representative of all em-
ployees in the above-described appropriate bar-
gaining unit with respect to rates of pay, wages,
hours of employment, and other terms and con-
ditions of employment and, if an understanding
is reached, embody such understanding in a
written and signed agreement.
WE WILL reinstate, upon unconditional re-
quest, all strikers who were not replaced before
July 10, 1974, to their former jobs or, if such
positions no longer exist, to substantially equiva-
lent positions, without prejudice to their senior-
ity or other rights or privileges, discharging if
necessary any replacements hired after July 10,
1974; and make whole such employees for any
loss of earnings resulting from our failure to re-
instate them within 5 days of their unconditional
request, with interest at the rate of 6 percent per
annum. We shall place employees for whom no
employment is available on a preferential hiring
list based upon seniority or some other nondis-
criminatory test, for employment as jobs be-
come available.
WE WILL pay to employees Lola Bonomini,
Joe Bonomini, Erice Peltonen, and Jerry
Hawkes the accrued vacation pay to which they
were entitled as of June 28, 1974, under the
terms of article XI of our contract with Local
541, which was executed by Respondent on June
30, 1972, with interest at the rate of 6 percent per
annum.
JAMES W. WHITFIELD, d/b/a CUTTEN SUPER-
MARKET
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT , Administrative Law Judge: This
matter was heard at Eureka, California, on November 12,
1974. The complaint, issued October 3 and based on
CUTTEN SUPERMARKET
charges filed August 7 and 9, 1974, by Retail Clerks Union,
Local 541, Retail Clerks International Association, AFL-
CIO, herein the Union , alleges that Respondent , James W.
Whitfield d/b/a Cutten Supermarket , has engaged in un-
fair labor practices within the meaning of Section 8(a)(5),
(3), and (1) of the Act. Briefs have been submitted by the
General Counsel and Respondent.
Upon the entire record in the case, and from my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a sole proprietorship engaged in the retail
grocery business at Eureka , California. It annually enjoys
gross revenues in excess of $500,000 and purchases goods
and supplies valued in excess of $50 ,000 directly from sup-
pliers located outside the State of California . 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 Union, Local 541, Retail Clerks Interna-
tional Association , AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
Respondent purchased this retail grocery business in Au-
gust 1971 from one, Joe Sandretto . At the same time, it also
leased the grocery building and a nearby residence from
Sandretto and brothers Joe and Louis Bonomini. Joe Bo-
nomini and his wife Lola became employees of the market
under Respondent.'
On June 31 , 1972, Respondent executed a collective-bar-
gaining contract with the Union running through May 31,
1974. Respondent was never a member of any multiem-
ployer group and the record reflects that Respondent, on
its own , agreed to an association agreement previously exe-
cuted on a broader basis 2 It is uncontroverted that the
Union duly reopened the contract on March 20, 1974, and
announced that association negotiations would be held in
Monterey, California, between April 15 and 17; the con-
tract duly expired May 31, 1974. In the interim, Respon-
dent decided to obtain professional help and, on May 6,
1974, duly joined an employer association, Redwood Em-
ployers Association , herein Redwood , headed by David
Comb which represents employers in collective bargaining.
Shortly before June 4, 1974, Business Agent James
i Respondent stresses that the Bonominis should not, as in essence land-
lords of, the properties, be considered employees of Respondent I fail to see
how this denigrates from their Sec. 7 rights as employees . Stated otherwise,
as full-time employees they are subject to the protection of Sec. 7 of the Act.
Cf. Everett Plywood & Door Corporation, 105 NLRB 17 (1953).
2 The contract refers to an agreement of August 15, 1971, and reflects
signature by Respondent on January 31, 1972
513
Shreeve of the Union, as he testified, spoke with Whitfield
of Respondent about a new contract. He left with him a
memorandum of a proposed agreement, apparently signed
with the multiemployer association, and stated that he
would return in a few weeks after Whitfield had an oppor-
tunity to look it over.
Whitfield, according to Shreeve and I so find, responded
that he would turn this over to his attorney and that the
latter was in charge of the matter. On June 14, Jack Harper
of Redwood, pursuant to instructions from David Comb,
his superior, wrote the Union and stated that, upon review
of the contract, it was deemed unacceptable and that Red-
wood, upon instructions from Respondent, was preparing a
counterproposal which would be submitted in the near fu-
ture.
Shreeve testified at one point that he did not recall Whit-
field telling him that he was represented by Redwood.
However, in one of his affidavits to the General Counsel,
well prior to the events litigated herein and I so find,
Shreeve deposed that Whitfield told him he would not sign
the contract until he received advice from Redwood. Sig-
nificantly, Shreeve also deposed therein that he then stated
negotiations were completed and that he had a memoran-
dum for Respondent to sign. As is readily apparent, this
was contrary to the fact because Respondent in no way
had participated or been invited to participate in negotia-
tions for a new contract and the June 14 letter remained
unanswered; this brings us to the events of June 26.
The Union, as stated, did not respond to the June 14
letter from Respondent's bargaining representative. Ac-
cording to Comb, he commenced the preparation of a
counterproposal directly thereafter. On June 26 , Business
Agent Shreeve of the Union appeared at Respondent's
store and spoke with Whitfield. According to Shreeve, he
asked Whitfield if he had read the contract and had come
to a decision. Whitfield responded that his attorney had
advised him not to sign the contract and Whitfield alleged-
ly then became evasive.
Whitfield, an objective and straightforward witness,
whom I credit, testified that Shreeve appeared that morn-
ing, threw a copy of the contract on the table and directed
him to sign it. Whitfield asked Shreeve if he had heard
from his collective-bargaining representative; namely,
Redwood. Shreeve replied that he did not want to talk to
them and Whitfield then stated that Redwood was his bar-
gaining representative. Whitfield also protested that he
could not sign a contract, upon advice from his bargaining
representative, and that the problem was in the hands of
the latter. Shreeve next threatened to strike the store that
morning and did so. More specifically, he promptly left
and personally began to picket the store with a sign stating
"Cutten Market on strike."
Directly after Shreeve commenced the picketing on June
26, the employees arrived. Dale Visnor, whose supervisory
status is in issue, crossed the line. Rank-and-file employees
Joe Bonomini, his wife Lola Bonomini , Erica Peltonen,
and Jerry Hawkes joined Shreeve on the picket line. They
picketed for some 10 to 14 days and were thereafter re-
placed by nonemployee pickets. Respondent hired five re-
placements; - namely, Jerry Colmer on June 28, Beverly
Yopper on July 2, Ted Sillapanna on July 3, Mike Landing
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on July 16, and Ernie Nunes on August 20. All five are still
in the employ of Respondent.'
On July 2 , according to Comb an easygoing witness
whom I credit , he spoke to Shreeve at the picket line , intro-
duced himself , and asked Shreeve if he would meet to ne-
gotiate a contract . Shreeve responded that the contract had
already been negotiated and that , if Comb desired a meet-
ing, he should contact the attorney of the Union, one,
Bunch . Comb asked that Shreeve have Bunch call him be-
cause Comb , as he uncontrovertedly testified , had encoun-
tered difficulty in the past in meeting with Bunch who did
not testify herein . In due course , according to Shreeve, he
relayed this conversation to Bunch.4
By letter of July 3, Comb wrote Shreeve to confirm their
conversation of the previous day. Therein , he stated that
Respondent had proposals ready for negotiation . He made
reference to the letter of June 14 (that Respondent was
represented by Redwood ); said that the contract demands
of the Union were unacceptable ; and further said that Re-
spondent would submit a counterproposal . He added that
"we are willing to bargain in good faith at times and places
mutually agreeable ." The letter ended by requesting that
the Union remove its pickets , pending negotiations, and
that the Union have its attorney contact Respondent to
finalize arrangements for negotiations.
On July 9, Respondent filed an RM petition for an elec-
tion covering its retail food store employees , excluding
owners , meat department employees , office clericals, and
supervisors . On July 10, Comb received a letter sent July 8
from Bunch on behalf of the Union to the effect that Comb
should select a meeting date convenient for negotiating a
new contract . Comb telephoned the office of Bunch and
the latter was unavailable but Comb did respond to Bunch;
he wrote and acknowledged the receipt of the July 8 letter
and incorporated a telephone arrangement made with the
secretary of Bunch that they meet at 10 a.m. on July 29 in
Eureka . Comb also acknowledged his willingness to negoti-
ate and bargain in good faith for a contract on behalf of
Respondent; there was no response to this letter.
The Regional Office of the General Counsel notified
Comb in the interim that the Union had agreed to a stipu-
lation for certification upon consent election; this was exe-
cuted by Comb on July 25. On August 23, the Regional
Director postponed the hearing in the representation case.
It appears that the Union reneged on its agreement for an
election and filed the instant charges herein on August 7
and 9 which perforce blocked the election proceeding.
3 At this point, it may be noted that there is no evidence that this was
anything other than an economic strike called by Shreeve . Certain conduct,
much earlier, allegedly violative of Sec . 8(a)(I) of the Act is treated below,
but it manifestly had nothing to do with the calling of the strike ; stated
otherwise , Shreeve, authorized by the employees, called the strike because
Respondent did not sign the nonnegotiated contract submitted by the
Union . Viewed similarly, and treated below , is certain other conduct after
the start of the strike.
At the hearing, Shreeve attributed a profanity to Comb in their conver-
sation of July 2 at the picket line followed by a statement that the Union
and its adherents would "walk this picket line" forever . In three affidavits to
the Board , Shreeve did not set forth the profanity . I credit Comb herein that
he did not utter the profanity; in any event , it would not affect the instant
issues.
B. The Alleged Refusal To Bargain
As for the refusal-to-bargain allegation , the complaint
alleges that the Union sought to bargain with Respondent
since March 20, 1974; that Respondent, to the contrary,
dealt directly with an employee on June 24, 1974, concern-
ing working conditions ; and that Respondent has bar-
gained in bad faith since July 10, 1974. Four employees
who struck on June 26 are also alleged to be unfair labor
practice strikers because of the conduct allegedly commit-
ted by Respondent. But, in view of the Union's failure to
acknowledge the existence of Redwood and the lateness of
the July 10 date in terms of meaningful labor relations, I
have difficulty in grasping this concept on the part of the
General Counsel.
The complaint alleges , and I find, that all employees of
Respondent , excluding owners , meat department employ-
ees, office clericals , guards and supervisors constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.5
Respondent has stressed that Respondent had a genuine
doubt as to union representation of a majority in the unit
as well as other bases for its defense . I find one of them
persuasive . In essence , I do not believe that this record will
support a finding of a refusal to bargain for the following
reason . Early in June 1974, Business Agent Shreeve of the
Union personally submitted a contract proposal to Re-
spondent and stated that he would return in several weeks.
Respondent joined Redwood and , on June 14, Redwood
wrote the Union to the effect that the contract, apparently
an area agreement, was unacceptable and that Respondent
would submit a counterproposal.
This June 14 letter was unanswered by the Union and,
on June 26 , Business Agent Shreeve again visited the store.
On Shreeve's own testimony, Whitfield of Respondent told
him that his attorney had advised him not to sign this con-
tract. And, according to Whitfield, Shreeve declined to talk
with Redwood and struck the store. Moreover, on July 2,
Shreeve told Redwood's representative , Comb, as the latter
testified , in response to the latter 's request to negotiate a
contract , that the contract had already been negotiated and
that Comb should contact counsel for the Union.
As is readily apparent, the Union never did negotiate a
contract with Respondent and was unilaterally attempting
to foist upon it a contract previously negotiated elsewhere.
Not that this is reprehensible , but the simple fact is that the
Union never did bargain with Respondent concerning a
contract , despite the latter's expressed desire to do so. Fur-
thermore , reflecting on Respondent 's good faith was its let-
ter of July 3 to the effect that it had proposals ready for
negotiation . While Respondent did file an RM petition, it
did seek to meet with the Union on July 29 and this was
abortive . The Union then chose to file the charges upon
which the instant complaint is based.
On this picture , and upon a preponderance of the evi-
In view of the findings below , I deem it unnecessary to pass upon the
question of majority representation by the Union within the meaning of Sec.
9(a) of the Act . As stated , the record does demonstrate that the four strikers
were ultimately replaced by five new hires, the fifth reflecting replacement
of an employee whose employment had terminated prior to the strike and
who was unrelated thereto.
CUTTEN SUPERMARKET
dence , I am unable to conclude that Respondent has re-
fused to bargain with the Union within the meaning of
Section 8(a)(5) and , derivatively, Section 8(a)(1) of the Act
and shall recommend that this allegation of the complaint
be dismissed . See AAA Motor Lines, Inc., 215 NLRB No.
149 (1974).
C. Alleged Discrimination and Interference, Restraint, and
Coercion
Erica Peltonen , a checker in the store , testified that in
March or April 1974 Whitfield approached her in the store,
stated that he did not believe he would sign a union con-
tract and she gave no reply thereto. As found, the Union,
after duly terminating the previous contract, did not sub-
mit a new contract proposal until early in June of the same
year.
Whitfield denied ever making such a statement to Pel-
tonen but admitted telling various employees that if the
Union intended to push a new contract down his throat he
would negotiate it. In the first place , a new contract had
not then been submitted by the Union. Secondly, when it
was, and if it was, Respondent was entitled to negotiate
with respect thereto . I see no violation of the Act herein.
Peltonen also testified that on or about June 23, three
days before the strike, Whitfield offered her $10,000 a year
based on a 40-hour workweek. The record discloses that
Peltonen worked a 16- to 20-hour week at a wage rate in
excess of $5 per hour . But the record also discloses that a
full-time employee, Jackson, had left the employ of Re-
spondent shortly before and that Peltonen , on a full-time
basis, would earn approximately $10,000 per annum.
Moreover, according to Whitfield, Peltonen broached the
subject of her further prospects of employment with Re-
spondent and he then made the response set forth above.
Here as well, I see no basis, on a preponderance of the
evidence , for a finding supporting the position of the Gen-
eral Counsel.
Lola Bonomini testified that in March or April Whitfield
told her that he would not sign a union contract . Again,
this was prior to the Union 's actual submission of the con-
tract proposal . Whitfield denied stating that he would not
sign a union contract and testified that he said only that he
would negotiate a new contract . I see nothing here to pre-
515
ponderate in support of a finding of an unfair labor prac-
tice 6
There is an issue as to the payment of vacation pay to
the striking employees. The testimony concerning this is
not clear. There is a conflict (1) as to whether employees
who scheduled their vacations prior to the strike would
receive vacation pay, and (2) whether Respondent refused
to pay some employees a third week of vacation pay. There
is also evidence that Respondent contributed, under the
expired contract, to a vacation trust fund for a third week
of vacation pay and that Respondent was to bill the fund
therefor. This matter was litigated and is pending before a
California labor commissioner who in effect did not pass
upon the issue because of the pending unfair labor practice
case and, realistically, passed the issue to the Board. Be
that as it may, the commissioner did not decide the issue
and I fail to see how this issue of contract interpretation
can constitute an alleged unfair labor practice to be passed
upon by the Board. I therefore recommend the dismissal of
these allegations.
It may be further noted that I conclude that the strike
herein was not an unfair labor practice strike. It was com-
menced by the union business agent when Respondent did
not sign the original contract proposal unilaterally submit-
ted by the Union which in turn ignored and refused to
recognize and respond to the designated representative of
Respondent.
CONCLUSIONS OF LAW
1. James W. Whitfield d/b/a Cutten Supermarket is an
employer whose operations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail C1.erks Union, Local 541, Retail Clerks Inter-
national Association, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(5), (3), and (1) of the
Act.
[Recommended Order for dismissal omitted from publi-
cation.]
6 f deem it unnecessary to treat with whether or not her husband was
present, as stated in her affidavit to the General Counsel.