Foodbasket Partners

National Labor Relations Board - Board Decisions

Jun 3, 2005

344 N.L.R.B. 799 (N.L.R.B. 2005)

FOODBASKET PARTNERS
344 NLRB No. 96
799
Erica Inc., General Partner d/b/a Foodbasket Part-
ners, Limited Partnership and United Food and
Commercial Workers International Union Local
No. 1564, AFL–CIO. Case 28–CA–17521
June 3, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On October 11, 2002, Administrative Law Judge Al-
bert A. Metz issued the attached decision. The Respon-
dent filed exceptions. The General Counsel filed limited
exceptions and a supporting brief, as well as an answer-
ing brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Erica, Inc., General Partner
d/b/a Foodbasket Partners, Limited Partnership, Truth or
Consequences, New Mexico, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Mitchell S. Rubin, Esq., for the General Counsel.
John A. Ferguson Jr., Esq., for the Respondent.
Angela B. Cornell, Esq., for the Charging Party Union.

1 We agree with the judge that Head Clerk Sara Crouse and Produce
Manager Ruben Lucero were appropriately included in the Respon-
dent’s Truth or Consequences store’s retail unit on September 12, 2001,
the date that the Respondent received the Union’s demand for recogni-
tion and bargaining. Thus, the former predecessor’s employees consti-
tuted a majority of the unit employees, whether or not Courtesy Clerk
Brandi Yniquez is counted as a former employee of the predecessor.
We therefore find it unnecessary to pass on Yniquez’ status.
2 The General Counsel excepts to the judge’s failure to order the Re-
spondent, as a successor, to rescind any changes in the terms and condi-
tions of employment of the unit employees, made after September 12,
2001, and to make unit employees whole for any losses which the em-
ployees incurred as a result of such changes. Because there is no evi-
dence that the Respondent unilaterally changed terms and conditions of
employment, the General Counsel’s exception is without merit under
the authority of Smith & Johnson Construction Co., 324 NLRB 970
(1997). Member Liebman agrees that Smith & Johnson Construction is
on point, although she has misgivings about its correctness, as dis-
cussed by the dissenting opinion in that case (absence of evidence of
unilateral changes in no way affects the successor’s legal obligation to
restore the status quo ante or the Board’s obligation to include such a
provision in its order).
DECISION1
ALBERT A. METZ, Administrative Law Judge. The issue pre-
sented is whether the Respondent is a successor employer who has
refused to recognize and bargain with the Charging Party Union in
violation of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (Act).2 On the entire record, including my observation
of the demeanor of the witnesses, and after consideration of the
parties’ briefs, I make the following findings of fact.
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent operates grocery stores in Truth or Conse-
quences (TC) and Hobbs, New Mexico. The Respondent admits,
and I find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the Union
is a labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNION’S REPRESENTATION OF FURR’S
SUPERMARKET EMPLOYEES
The Union has historically represented employees at Furr’s Su-
permarkets, Inc., in the State of New Mexico. The Union has
bargained on behalf of the retail and meat department employees
at the Furr’s Hobbs store since 1997 and at Furr’s TC store since
1991.
The Union and Furr’s were parties to several collective-
bargaining agreements with effective dates between November 1,
1998, to October 27, 2001, which covered bargaining units of
employees at several locations in New Mexico, including:
1. A retail bargaining unit of employees at various Furr’s stores
in the State of New Mexico, including the Furr’s store in Hobbs.
2. A retail bargaining unit of employees at various Furr’s stores
in the State of New Mexico, including the Furr’s store in TC.
3. Meat unit employees at various New Mexico stores includ-
ing TC and Hobbs.
The collective-bargaining agreements for the retail units at both
Hobbs and TC set forth the following appropriate unit:
All employees working at the specified locations “who are
engaged in handling or selling merchandise, or performing
other services incidental thereto;” but excluding overall store
director, assistant store managers, all employees working ex-
clusively in the meat department, professional employees and
supervisors within the meaning of the Act as amended.
The meat unit was a multistore contract that included Hobbs
and TC. The unit description for the meat units was:
All employees who are engaged in the retail and wholesale
distribution of all fresh meats and all other meat products, in-
cluding rabbits, fish and domestic fowls of all kinds, regard-
less of their origin, and all other products historically proc-
essed and handled by the meat department.

1 This case was heard at Truth or Consequences, New Mexico, on
April 17–19 and May 7, 2002. All dates in this decision refer to the
year 2001 unless otherwise stated.
2 29 U.S.C. § 158 (a)(1) and (5).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD800
III. FURR’S BANKRUPTCY AND RESPONDENT’S
PURCHASE OF THE TC AND HOBBS STORES
In February 2001, Furr’s filed for Chapter 11 bankruptcy for its
operations that included the TC and Hobbs stores. Fleming Foods
was a creditor of Furr’s and eventually agreed to purchase certain
Furr’s stores by means of an asset purchase agreement. On June
25, Furr’s and Fleming entered an asset purchase agreement in
which Fleming essentially was buying everything of Furr’s. On
July 27, the Respondent and Fleming signed a “Store Purchase
Agreement” that memorialized the Respondent’s purchase of six
Furr’s stores including the TC and Hobbs locations. Furr’s oper-
ated these stores until August 30, 2001, at which time all of its
employees were terminated and the stores closed for 1 day. The
Respondent assumed ownership of the stores at that time, hired
many of the former Furr’s, Hobbs, and TC employees and opened
the stores for business on September 1, 2001.
Respondent’s attorney, Joe Harris, testified that he was asked in
early July to review the Furr’s-Fleming asset purchase agreement
and render an opinion as to whether by signing that agreement the
Respondent would be assuming the collective-bargaining agree-
ments between Furr’s and the Union. The asset purchase agree-
ment reviewed by Harris contains the following section:
Article V
Section 5.1 Representation and Warranties of Seller.
Seller [Furr’s] hereby represents to Purchaser [Fleming] as
follows:
(g) Labor Matters. Except as set forth on Schedule
5.1g, (i) seller is not bound by any collective agreements
or other labor Union contract applicable to persons em-
ployed by seller; . . . . [R. Exh. 6 “Plaintiff’s Exhibit A” at
pp. 21 and 25).]
Schedule 5.1(g) of the asset purchase agreement listed collec-
tive-bargaining agreements for a retail unit including the Hobbs
store, a retail unit including the TC store, and a meat unit includ-
ing Hobbs and TC. Each of the three agreements had the same
October 27, 2001 expiration date.
IV. THE BANKRUPTCY COURT’S JULY 3 ORDER
On July 3, the Bankruptcy Court entered its Order in the Furr’s
Supermarkets proceedings approving the asset agreement with
Fleming Companies, Inc. authorizing the sale of all or substan-
tially all of the debtors operating assets and transactions contem-
plated by the asset purchase agreement, and granting related relief.
In its July 3 Order the Bankruptcy Court stated:
Except as expressly set forth in the Asset Purchase Agree-
ment, the (i) transfer of the Purchased Assets to Fleming, or
the Third Party Purchasers, as the case may be, and (ii) as-
sumption and assignment to Fleming, or the Third Party Pur-
chasers, as the case may be, of the Purchased Contracts, if
any, and the assumption of the Assumed Liabilities do not and
will not subject any of Fleming or the Third Party Purchasers
to any liability by reason of such transfer under (i) the laws of
the United States, any state, territory or possession thereof,
based in whole or in part, directly or indirectly, including
without limitation, any theory of antitrust, environmental,
successorship or transferee liability, labor law, de facto
merger, or substantial continuity, or (ii) any employment con-
tract, understanding or agreements, including without limita-
tion collective bargaining agreements, employee pension
plans, or employee welfare benefit plans. As set forth in the
Asset Purchase Agreement, neither Fleming nor any Third
Party Purchasers is assuming any of the Debtor’s obligations
to its employees (including without limitation any obligation
under the Debtor’s collective bargaining agreements) (R. Exh.
6, p. 7).
The Union had not entered an appearance in the bankruptcy
proceedings as of the date of the July 3 Order and it was not
shown to have received notice of that Order. On August 29, Mi-
chael D. Four of the law firm of Schwartz, Steinsapir, Dohrmann
and Sommers, Los Angeles, California, in association with the
local union counsel filed an appearance in the Furr’s bankruptcy
proceeding on behalf of the Union.
The United Food and Commercial Workers International Un-
ion, AFL–CIO, CLC (the International) was represented on the
unsecured creditors committee commencing in about February. In
approximately July, the International Union withdrew from par-
ticipation in the committee in order to devote its efforts to finding
a buyer for the stores. At no time did Furr’s seek to set aside any
of the collective-bargaining agreements covering the units in con-
tention in this case.
The Respondent argues that the July 3 Bankruptcy Court Order
relieving a purchaser from any successorship liability had the
effect of sheltering it from any bargaining obligations under the
Act. The Government takes the position that under established
labor law successorship principles the court’s Order did not buffer
the Respondent from its obligations to recognize and bargain with
the Union.
When the employer takes over a business whose employees are
represented by a labor organization, hires a majority of the prior
employer’s employees, and continues in effect the same basic
operation, that new employer has a duty to bargain with its em-
ployees’ collective-bargaining representative. NLRB v. Burns
Security Service, 406 U.S. 272, 281 (1972); Fall River Dyeing &
Finishing Corp., 482 U.S. 27 (1987). This mandate applies
equally when the new owner purchases the business as an out-
growth of a bankruptcy proceeding. Nephi Rubber Products
Corp., 303 NLRB 151, 153 (1991), enfd. 976 F.2d 1361 (10th Cir.
1992); Bellingham Frozen Foods v. NLRB, 626 F.2d 674 (9th Cir.
1980); Jersey Juniors, Inc., 230 NLRB 329, 332–333 (1977).
The court in Goodman, 873 F.2d 598, 602–603 (2d Cir. 1989),
found that the Board has principal responsibility to resolve labor
successorship issues:
The NLRB has primary jurisdiction over activity that is ar-
guably subject to Sections 7 and 8 of the NLRA. Federal
courts must defer to the exclusive competence of the Board to
adjudicate such claims. See San Diego Bldg. Trades Council
v. Garmon, 359 U.S. 236, 245 [ ] (1959). Whether a new em-
ployer is an alter ego of, or a successor to, an earlier employer
for purposes of liability under the NLRA is a question of sub-
stantive federal labor law. The Labor Board has expertise in
adjudicating successorship issues, and there is an interest in
having uniform determinations by a single agency. See
Aquabrom v. NLRB, 746 F.2d 334, 336 (6th Cir.1984); Com-
FOODBASKET PARTNERS 801
puter Sciences Corp. v. NLRB, 677 F.2d 804, 807–808 (11th
Cir. 1982). Thus, the question of successorship normally falls
within the Labor Board’s primary jurisdiction. See In re Bel
Air Chateau Hospital, Inc., 611 F.2d 1248, 1251 (9th
Cir.1979).
See also Carib-Inn of San Juan Corp., 905 F.2d 561, 562 (1st
Cir. 1990) (Board has exclusive jurisdiction to determine the mer-
its of the case, as “[t]he [Board’s] complaint . . . is directed solely
at [respondent successor] and seeks no remedy against the bank-
ruptcy estate.”).
Successorship obligations are, as the cases teach, within the
Board’s jurisdiction. The bankruptcy code is designed to extin-
guish liabilities and obligations incurred prior to the sale of the
bankrupt entity’s assets. The Respondent’s subsequent third party
purchase of assets from Fleming does not qualify as such a liabil-
ity. Ninth Ave. Remedial Group v. Allis-Chalmers Corp., 195
B.R. 716, 731 (N.D. Ind. 1996) (“a sale free and clear does not
include future claims that did not arise until after the bankruptcy
proceedings concluded.”). A successorship obligation under the
Act is determined by the number of the predecessor employees
hired and the substantial continuity between the enterprises, as
measured by the degree of similarity in the nature of the business,
the extent to which employees of the new company perform the
same jobs under the same employment conditions and supervi-
sion, and the degree of similarity between the products or services
offered, the production process, and the customers. Fall River
Dyeing & Finishing Corp., 482 U.S. 27, 43, 46–47 (1987); NLRB
v. Burns Security Service, supra. The court in Fall River ex-
plained that “to a substantial extent” the application of successor-
ship obligations is in the hands of the purchaser of a business: “If
the new employer makes a conscious decision to maintain gener-
ally the same business and to hire a majority of its employees
from the predecessor, then the bargaining obligation of § 8(a)(5) is
activated.” Id. at 41.
The present case centers on the Respondent’s bargaining obli-
gation under the Act after it acquired assets owned by Fleming. I
find that the Respondent has failed to demonstrate that it is not
possible to interpret the Bankruptcy Court’s Order harmoniously
with the mandates of the Act. Morton v. Mancari, 417 U.S. 535,
551 (1974) (When two statutes are capable of coexistence, it is the
duty of the courts to regard each as effective, absent a clear ex-
pression of congressional intent to the contrary.). In light of the
Supreme Court’s decisions concerning successorship principles
and the other cited authority for the Board’s primacy in determin-
ing successorship obligations, I conclude that the Bankruptcy
Court’s July 3 Order does not insulate the Respondent from the
Act’s successorship requirements. NLRB v. Horizons Hotel, 49
F.3d 795 (1st Cir. 1995), enfg. 312 NLRB 1212 (1993); Carib-Inn
of San Juan Corp., supra.
V. THE UNION’S REQUEST FOR RECOGNITION
AND BARGAINING
On September 6, the Union’s president, Diane Kimberle,
mailed a certified letter to the Respondent’s president, Raymond
Schalek, requesting that the Respondent recognize and bargain
with the Union. Kimberle’s letter made the following points:
1. The Union had learned that the Respondent had acquired the
Furr’s, Hobbs, and TC stores.
2. That the Respondent had employed a majority of the former
Furr’s employees at each of these locations, and that a majority of
the present employees at each location are former Furr’s employ-
ees.
3. “Furr’s has been and remains signatory to a collective bar-
gaining agreement with [the Union] which covered each of the
locations above, as well as all other Furr’s locations in New Mex-
ico. It is the position of [the Union] that there is a substantial
continuity of enterprise by virtue of, among other factors, [the
Respondent’s] employment of a substantial representative com-
plement of employees for the purpose of carrying on essentially
the same operation, and the [the Respondent] is the labor law
successor of Furr’s Supermarkets, Inc. [The Union] therefore
demands that [the Respondent] recognize [the Union] as the bar-
gaining agent for its employees and promptly begin collective
bargaining with [the Union] regarding wages, hours and other
terms and conditions of employment for these employees.”
4. “Please let me hear from you promptly so that we can set a
date for a first bargaining session, and please do not hesitate to call
or write if I can answer any questions or otherwise be of assis-
tance.” (GC Exh. 8.)
The return receipt for Kimberle’s certified letter states the Re-
spondent received it on September 12. The Respondent’s attor-
ney, Joe Harris, testified that he asked his client about receiving
the September 6 demand letter. Schalek told him that “something
had been received . . . and he couldn’t locate it.” Schalek never
responded to the September 6 letter. I find that the Respondent
did receive the Union’s September 6 letter on September 12. I
further find that the Respondent ignored this communication and
did not question the Union’s demand or seek any clarification of
the September 6 letter until after the Union filed unfair labor prac-
tice charges against the Respondent on October 18.
There was disputed testimony from witnesses for both parties
regarding Kimberle’s alleged receipt of a letter from the Respon-
dent’s attorney, Joe Harris, around October 18. The Union’s wit-
nesses testified that this letter had been misplaced and it was not
introduced into evidence. In sum, these witnesses believed that
the letter stated the Respondent’s refusal to bargain with the Un-
ion. Harris testified that he never sent such a letter. I found Har-
ris’ demeanor and credibility to be persuasive. I find that the Un-
ion’s witnesses were mistaken about the alleged October 18 letter
and that the Respondent did not communicate with the Union
concerning its demand for bargaining at that time.
I find that the first time the Respondent did communicate with
the Union was after the Union filed its unfair labor practice
charges. This first contact was in the form of an October 22 letter
that Harris wrote to the Union’s attorney, Angela Cornell. Harris’
letter asked for certain information regarding the Union’s demand
for bargaining. Harris requested copies of the Union’s demand for
recognition and bargaining with respect to the Hobbs and TC
stores and the “the former collective bargaining agreement or
agreements between UFCW Local 1564 and Furr’s covering its
stores in Hobbs and Truth or Consequences.”
Cornell telephoned Harris to discuss his October 22 letter. She
told him that she would provide him the documents he requested.
Harris asked Cornell to just provide him with the recognition sec-
tions from the pertinent collective-bargaining agreements and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD802
noted that he did not need a copy of the Union’s demand letter as
he had received a copy from the NLRB.
On November 16, Cornell faxed Harris the first two pages for
the TC retail agreement and the Hobbs retail agreement that con-
tained the recognition section. That section stated, in part, that
Furr’s “recognizes the Union as the exclusive Collective Bargain-
ing Representative for all employees working for the Employer in
the State of New Mexico in the bargaining units set forth in Ap-
pendix C, who are engaged in handling or selling merchandise
. . . .” The fax did not include appendix C of the Hobbs retail
agreement. Cornell also faxed Harris the first page of a draft of
the meat unit collective-bargaining agreement that included sec-
tions entitled “Recognition of the Union.” This meat unit draft
page referred to separate meat department bargaining units at
Furr’s stores located in various cities, including Hobbs. The list-
ing, however, did not include the TC store. Cornell subsequently
realized that omission and faxed Harris the first page of the meat
unit agreement that listed the TC meat unit.
On November 16, Harris sent Cornell a letter acknowledging
receipt of her fax. Harris’s letter noted that while he still had
“some questions regarding a few categories, e.g., produce man-
ager, deli manager, and office clerical employees,” the categories
were “too few in number to affect the disposition” of the issue
before Respondent and the Union. Harris declared that Respon-
dent was declining the Union’s recognition demand because
whether employees in these classifications are included or ex-
cluded at the Hobbs and TC stores, or both stores combined, for-
mer Furr’s employees do not constitute a majority of employees
“employed in either bargaining unit.” Harris’ October 22 and
November 16 letters did not express any confusion about the units
for which the Union was seeking recognition and bargaining.
Harris testified that during the course of the investigation of this
case he sent NLRB Field Examiner Ed Lopez copies of his and
Cornell’s November 16 exchange of correspondence. Lopez in-
formed Harris that the Union’s faxed information did not corre-
spond with the Union’s claim to the Region. Harris testified that
to clarify the matter he sent a letter to Cornell on December 3 and,
for the first time, asked the Union to “clarify the unit or units in
which Local 1564 is seeking recognition.” Harris wrote that while
Respondent had declined the Union’s recognition demand in his
November 16 letter, Respondent was “hereby suspend[ing] that
declination of recognition until [Harris] underst[ood] the unit or
units in which Local 1564 is seeking recognition.” Harris stated
that the Union’s September 6 letter “would appear to request rec-
ognition in a store-wide unit at Hobbs and Truth or Consequences,
or at both locations combined,” but that the three unit descriptions
sent him did not indicate storewide units because both “the New
Mexico” and the TC agreements excluded meat department em-
ployees, and “[t]he Hobbs agreement is limited to meat market
employees only.” Harris added that he had not received appendix
C to the New Mexico agreement and wanted to know if appendix
C listed Hobbs. Harris concluded his letter by asking the Union to
clarify the units for which it was seeking recognition and re-
quested that the Union send him appendix C.
Cornell replied to Harris’ request for clarification in a letter
dated December 6. Cornell explained, “Virtually all of the em-
ployees in the Hobbs and Truth or Consequences stores, excluding
those statutorily ineligible, were organized into bargaining units
per store: retail and meat. The Union is seeking recognition in the
same units for which it has previous[ly] represented these em-
ployees.” Cornell attached to her letter the first page of the final
version of the meat agreement (which included a description of
both the TC and the Hobbs meat units), as well as appendix C of
the Hobbs retail collective-bargaining agreement. Cornell con-
cluded her letter by asking Harris to promptly clarify whether
Respondent was willing to negotiate with the Union.
On December 13, Harris sent a letter to Cornell. His letter
stated that the Respondent was declining the Union’s recognition
demand because “former Furr’s employees do not constitute a
majority of the employees in any of the bargaining units” re-
quested by the Union.
The Respondent argues that it did not employ a representative
full complement of employees until December 6. It contends that
the former employees of Furr’s did not compose a majority of the
Respondent’s employees as of that date in each of the units the
Union seeks. The Respondent also argues that the Union made no
valid claim for recognition until December 6 because it was at that
time the Union finally clarified the units it was seeking to repre-
sent. The Respondent’s brief cites the following in support of that
argument:
First, even though successorship status and a representative
complement may have occurred earlier, the obligation to rec-
ognize the Union is based upon conditions as they exist at the
time of the Union’s (valid) demand. “But where no (valid)
demand is made until sometime after successorship and repre-
sentative complement have occurred, the obligation will rise
and fall depending on the Union’s representation among the
unit employees at the time of its demand. Royal Midtown
Chrysler-Plymouth, Inc., 296 NLRB 1039, 1040 (1989).
The Respondent’s second point is that the December 6 date is
concordant with Board precedent stating that “when a new em-
ployer expects, with a reasonable certainty, to increase its em-
ployee complement substantially within a relatively short time, it
is appropriate to delay determining the bargaining obligation for
that short period.” Myers Custom Products, 278 NLRB 636, 637
(1986).
The Respondent contends that the “Union’s September 6, 2001
demand letter was hopelessly vague and ambiguous and did not
give Food Basket any sort of definitive notice regarding the nature
of the bargaining units sought.”
VI. ANALYSIS OF THE UNION’S SEPTEMBER 12
DEMAND FOR RECOGNITION AND BARGAINING
The Respondent offers no explanation why it did not respond to
the Union’s September 6 demand letter. If the Respondent had
questions concerning the demand it could have punctually brought
those to the attention of the Union. Kimberle’s letter made a point
of inviting any questions and urged a prompt reply from the Re-
spondent. The Respondent had garnered knowledge from the
asset purchase agreement that the Union represented various units
of Furr’s employees including the retail and meat units at Hobbs
and TC. These units were covered by collective-bargaining
agreements that were effective through October 27, 2001. The
Respondent’s store managers at Hobbs and TC were holdovers
from Furr’s and also had knowledge of the retail and meat units.
FOODBASKET PARTNERS 803
The Respondent ignored the Union’s September 6 letter and failed
to raise any question concerning the Union’s demand for recogni-
tion and bargaining until after the charge was filed a month and a
half later. I find that the Respondent’s conscious disregard of the
September 6 demand letter was an unsubtle attempt to avoid bar-
gaining with the Union. I conclude that the Union’s September 6
demand was legally sufficient. Hydrolines, Inc., 305 NLRB 416,
419–420 (1991); RTW Industries, 296 NLRB 910, 911–912
(1989).
VII. SUBSTANTIAL CONTINUITY
In NLRB v. Burns International Security Service 406 U.S. 272
(1972), the Supreme Court set forth the criteria for determining
whether a new employer is the successor to the prior employing
entity. The approach is primarily factual and is based on the total-
ity of the circumstances presented by each case. The Court in-
structed that the analytical focus should be upon whether there is
“substantial continuity” between the enterprises, and whether a
majority of the new employer’s employees had been employed by
the predecessor. The Court held that when one employer takes
over the union represented bargaining unit employees of another
employer, it is bound to recognize the union as the collective-
bargaining representative of the employees in the unit.
The Supreme Court revisited the successorship issue in Fall
River Dyeing & Finishing Corp., 482 U.S. 27 (1987), where it
reiterated the requirement that a “substantial continuity” must
exist between the enterprises before warranting a finding that the
new employer is a successor. The Supreme Court in Fall River,
supra at 43, summarized the factors relevant to determining when
substantial continuity exists as follows:
[W]hether the business of both employers is essentially the
same; whether the employees of the new company are doing
the same jobs in the same working conditions under the same
supervisors; and whether the new entity has the same produc-
tion process, produces the same products, and basically has
the same body of customers.
The Court also stated that the Board would analyze these fac-
tors primarily from the perspective of the employees, i.e.,
“whether ‘those employees who have been retained will view their
job situations as essentially unaltered.’” Id., quoting Golden State
Bottling Co. v. NLRB, 414 U.S. 168, 184 (1973). The Court reit-
erated that although each factor must be analyzed separately they
must not be viewed in isolation and, ultimately, it is the totality of
the circumstances that is determinative.
Prior to September 1, 2001, Furr’s operated the Hobbs and TC
stores as grocery markets. On September 1, 2001, the Respondent
commenced operations at these stores and operates them as gro-
cery markets, offering the same services to the public, and hiring
many of the same employees of the predecessor. The customer
base for the stores remained the same. The employees working at
the various job classifications at both stores were basically doing
the same jobs as employees in those job classifications had for-
merly performed at both Furr’s stores. The employees at both
stores were supervised by at least some of the same supervision
after September 1. At the TC supermarket, Director Abel Hinson,
Assistant Store Director David Frietze, and Customer Service
Manager Roberto Chavez held similar positions for Furr’s and the
Respondent. The same situation existed at the Hobbs store where
Store Director Eddie Granado, Assistant Store Director Jesse
Marquez, and Customer Service Manager Sharon Lewis each
worked at similar supervisory positions for Furr’s. The Union had
represented the former Furr’s retail and meat employees hired by
the Respondent. From the perspective of the Respondent’s em-
ployees, there is no difference in their job situation. I, therefore,
find that there was substantial continuity between the two employ-
ing enterprises.
VIII. RESPONDENT’S HIRING PLANS
Respondent’s President Schalek met shortly before September
1 with Hinson, told him he would be employed to manage the TC
store, and that he should continue the store’s operation with a
minimum of disruption. Schalek also told Hinson to hire what-
ever TC store employees he wanted to work for the Respondent.
Hinson testified that he determined to hire the number of employ-
ees that could run the store at the time the Respondent started
operations. Beyond that he would make further hiring decisions
based upon need as dictated by sales.
Hobbs store manager, Eddie Granado, testified that there was a
similar situation regarding hiring at his store. He would hire a
minimum amount of employees to keep the store going and then
would determine if other hires were subsequently needed based
upon sales. Granado testified that there was no set number of
employees that he intended to hire to eventually run the store. I
find that the record establishes that the Respondent had no rea-
sonably certain hiring plans, other than the initial work force, for
its operations at the Hobbs and TC stores.
IX. SUBSTANTIAL AND REPRESENTATIVE COMPLEMENT
In Fall River, the Supreme Court explained that in deciding
whether a “substantial and representative complement” exists, the
Board examined a number of factors including: (1) whether the
job classifications designated for the operation were occupied or
substantially filled; (2) whether the operation was in normal or
substantially normal production; (3) the size of the complement on
the date of normal or substantially normal production; (4) the time
expected before a substantially larger complement would be at
work; and (5) the relative certainty of the employer’s expected
expansion. Id. at 48.
The Hobbs and TC Furr’s employees were interviewed for con-
tinued employment with the Respondent about a week before
September 1. They were notified of the hiring decisions shortly
before the start up of the Respondent’s operations at the stores.
The two stores then commenced operations on a reasonably nor-
mal operation as compared to the Furr’s operations.
Hinson testified that by September 11, the following TC posi-
tions were occupied or substantially occupied: (1) deli clerks; (2)
bakery clerks; (3) grocery clerks; (4) produce clerks; (5) customer
service managers; (6) nonfood managers; (7) head clerks; (8)
assistant managers; (9) courtesy clerks; (10) cashiers; (11) deli
clerks; (12) bakery clerks; (13) produce managers; (14) DSD re-
ceiving clerks; (15) dairy grocery clerks; (16) meat wrappers; (17)
meat cutters; (18) video clerks; (19) grocery clerks; and (20) non-
foods clerks. As of September 11, the Respondent employed 36
individuals (including supervisors and employees) at its TC store.
By September 11, each of the positions Respondent needed to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD804
operate the TC store during its full operating hours were either
occupied or substantially occupied. Hinson testified that the TC
work force increased about 20 percent between September and the
end of December because of the improvement in sales. Hinson
testified that he was still continuing to staff the store after Decem-
ber. The Respondent employed 44 individuals (supervisors and
employees) at its TC store as of December 8.
On September 11, the Respondent employed 33 persons at its
Hobbs store. Granado testified that by the second week of Sep-
tember the Hobbs store’s pharmacy, deli, bakery, produce, and
meat departments were fully stocked with products, were in full
operation or production, and were either fully or substantially
staffed with employees. Granado hired more employees at the
Hobbs store as sales increased until December, at which time he
determined the store was fully staffed. As of December 8 the
Hobbs store employed 42 individuals (including supervisors and
employees). Granado noted that in February 2002, a Wal-Mart
Super Center opened for business, a mile away from the Hobbs
store. This competition resulted in his store losing approximately
35 percent of its business and the Respondent then reduced the
number of Hobbs store employees.
The Respondent argues that as of September 12 a representative
complement of employees was not employed in the four units.
The Respondent was operating the stores for approximately 2
weeks by September 12. As related above the stores were stocked
and staffed in all departments. The evidence demonstrates that the
Respondent was uncertain of the number of employees that may
be necessary to run the two stores. The Respondent’s hiring out-
look was based upon an evaluation of store sales. The Respondent
admits it was uncertain when, if ever, sales might justify the hiring
of additional employees. The Respondent’s employment needs
were contingent upon undeterminable future sales. I find that the
Respondent’s prospective hiring requirements were unknown to it
on September 12, and thereafter as it continued a “wait and see”
evaluation of sales to determine if any additional employees were
needed. The Respondent established no time limitation or projec-
tion as to when any hiring decisions would be made or if any hir-
ing would be substantial. Delta Carbonate, 307 NLRB 118, 119
(1992), enfd. 989 F.2d 486 (3d Cir. 1993) (employer’s was not
justified in delaying its recognition when its plans lacked any
timetable and were dependent on the “vagaries” of new product
development and “new customer cultivation;” the Board found
that the employers’ plans “were not so certain in terms of timing
and scope” as to warrant the delay). General Wood Preservative
Co., 288 NLRB 956, 964 (1988), enfd. 905 F.2d 803 (4th Cir.
1990), cert. denied 498 U.S. 1016 (1990) (employer’s request for
later bargaining obligation determination date rejected because the
employer’s expected expansion “was highly uncertain”). I find
that as of September 12, the Respondent did employ a substantial
and representative complement of employees in the Hobbs and
TC stores collective-bargaining units. I further find that Septem-
ber 12 is the appropriate date for determining the Respondent’s
successor bargaining obligations. Fall River Dyeing & Finishing
Corp., 482 U.S. 27, 47 (1987); Sullivan Industries v. NLRB, 957
F.2d 890, 897 (D.C. Cir. 1992), a “substantial and representative”
complement need not constitute a majority of the “full comple-
ment” work force.)
X. THE UNION’S MAJORITY STATUS ON SEPTEMBER 12
A successor employer’s bargaining obligation attaches when it
has hired a “substantial and representative” complement of em-
ployees within the bargaining unit, a majority of which were em-
ployees of the predecessor. Fall River, supra.
A. TC Store
As of September 11 the Respondent employed 36 individuals at
the TC store. The parties agree that four of these persons, Roberto
Chavez, David Frietze, Abel Hinson, and Janet Romero are ex-
cluded as supervisors. Of the remaining 32 persons, 3 worked in
the meat department.
1. TC meat unit
The Respondent contends that meat manager, Michael Hearn,
should be excluded from the TC meat unit as a supervisor. The
Government argues he was included in Furr’s unit and should
continue to be included in the unit under the Respondent. Hearn
did not testify at the hearing.
On September 12 the Respondent employed three individuals
in its TC meat department. These persons were head meat cutter,
Michael Hearn, and employees Kathy Lujan and Lynn Rainwater.
All of these individuals were TC Furr’s employees and were in-
cluded in the meat unit. I find it unnecessary to determine
whether or not Hearn is a supervisor at present. I find that the
Union represented a majority of the employees in the TC meat
unit as of the pertinent September 12 date regardless of Hearn’s
alleged supervisory status.
2. TC retail unit
On September 11 there were 29 persons working in the TC
store retail unit. The parties agree that 15 of these persons were
former Furr’s employees. The parties disagree on whether two of
that number, Ruben Lucero and Sara Crouse should be included in
the unit or counted in calculating the Union’s majority status as of
September 11. The parties also disagree on whether Brandi
Yniquez is a former Furr’s employee for purposes of establishing
the Union’s majority status.
a. Brandi Yniquez
The Respondent contends that Brandi Yniquez is not a former
Furr’s employee who should be counted as part of the Union’s
majority status as of the September 12 demand date. Yniquez
formerly worked as a courtesy clerk at the TC Furr’s store. In that
capacity she was included in the retail bargaining unit. Yniquez
quit her employment at Furr’s around July 1, 2001, at the time
Furr’s bankruptcy petition was pending.
The Respondent hired Yniquez to work as a courtesy clerk at its
TC store around September 8, and she has continued in that capac-
ity. I find Yniquez’ short hiatus in employment is insufficient to
preclude her being counted in determining former Furr’s union-
represented employees that were employed by the Respondent on
September 11. Derby Refining Co., 282 NLRB 1015, 1016
(1989), enfd. 915 F.2d 1448 (10th Cir. 1990); Mangold Markets,
280 NLRB 773 (1986).
b. Ruben Lucero
The Respondent contends that Ruben Lucero is a supervisor
and should be excluded from the retail unit at the TC store.
FOODBASKET PARTNERS 805
Lucero did not testify at the hearing. Lucero was a produce man-
ager in the Furr’s TC retail bargaining unit. The collective-
bargaining agreement for the retail employees states a wage rate
for produce managers and the agreement’s recognition clause
excludes supervisors. Lucero was hired by the Respondent to be
the produce manager at the TC store when it commenced opera-
tions on September 1. The Respondent offered TC Store Manager
Hinson as its witness to establish Lucero’s supervisory status.
Hinson testified that Lucero had the authority to discipline em-
ployees, effectively recommend termination, and recommend pay
raises. He offered no evidence as to the source of that authority or
any examples where Lucero ever exercised this alleged authority.
In addition to Lucero there were two produce clerks working in
that department. Their work appears to be of a routine nature in
handling the produce. Lucero likewise spends most of his time
stocking the department, removing spoiled product, and working
with signage.
Section 2(11) of the Act defines the term “supervisor” as:
The term supervisor means any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use
of independent judgment.
It is well settled that the possession of any one of the indicia of
supervisory authority specified in Section 2(11) of the Act, pro-
vided such authority is exercised with independent judgment on
behalf of management, is sufficient to confer supervisory status on
an employee. California Beverage Co., 283 NLRB 328 (1987).
The burden of proving that an individual is a supervisor is on the
party alleging that supervisory status exists. Ferguson-Williams,
Inc., 322 NLRB 695, 702, (1996); Health Care Corp., 306 NLRB
63 fn. 1 (1992). Supervisory status is not determined by title or
job classification, but by the nature of the individual’s functions
and authority in the workplace. Mack’s Supermarkets, 288 NLRB
1082 (1988).
The Respondent produced no specifics as to Lucero’s posses-
sion of supervisory authority. The record shows that Lucero spent
most of his worktime performing the same work as the produce
clerks. See Williamson Piggly Wiggly, 280 NLRB 1160, 1167
(1986), enfd. 827 F. 2d 1098 (6th Cir. 1987) (produce manager
that spent most of his time performing physical tasks similar to
produce clerks found not to be a be statutory supervisor); Valley
Mart Supermarkets, 264 NLRB 156, 162–163 (1983) (produce
manager, who made sure that work by two produce clerks was
completed on time and performed the “clerical” function of
scheduling employees on a daily basis schedule, not a statutory
supervisor). Hinson’s unsupported opinion testimony concerning
Lucero’s authority is simply insufficient to meet the Respondent’s
burden of establishing the produce manager’s purported supervi-
sory status. Control Services, 314 NLRB 421, 421 (1994) (con-
clusory testimony and lack of corroborating evidence insufficient
to establish supervisory authority); Sears, Roebuck & Co., 304
NLRB 193 (1991). I find that Lucero shall be included in the TC
retail unit and counted as a former Furr’s union represented em-
ployee.
c. Sara Crouse
The Respondent took the position at the hearing that the Re-
spondent’s TC Head Clerk, Sara Crouse, should be excluded from
the retail unit because she was a confidential employee. Crouse
worked for Furr’s in the same position, was covered by the collec-
tive-bargaining agreement in that position and was hired on Sep-
tember 1 to work the same job for the Respondent.
Crouse’s duties are to distribute tills to cashiers, make loans of
cash to them, pick-up the tills, and balance them out. She helps
close up the store at night and will assist in the final counting of
money upon the closing of the store. Crouse estimated that she
spends 50–80 percent of her time relieving cashiers and covering
in the video department.
A party asserting that an individual is a confidential employee
bears the burden of proving that claim. Crest Mark Packing Co.,
283 NLRB 999 (1987). The cases teach that workers are consid-
ered confidential employee only if they 1) “assist and act in a
confidential capacity to persons who formulate, determine and
effectuate management policies in the field of labor relations,” or
2) the employees, “in the course of their duties, regularly have
access to confidential information concerning anticipated changes
which may result from collective-bargaining negotiations.”
Inland Steel Co., 308 NLRB 868, 872 (1992); Rural Electrical
Membership Corp., 454 U.S. 170, 188–189 (1981). I find that the
Respondent has not satisfied either of these tests with regard to
Crouse. I conclude that she is not a confidential employee and
should be considered in calculating the Union’s majority status at
the TC store retail unit. Ernst & Ernst National Warehouse, 228
NLRB 590, 591 (1977).
I find that 16 of the 29 individuals working for the Respondent
on September 11 in the TC retail unit were former Furr’s employ-
ees. I further find that based on those numbers the Union was the
majority representative of the TC retail unit employees as of that
date.
B. Hobbs Store
1. Hobbs retail unit
The parties agree that as of September 11, there are 22 employ-
ees who are properly included in the Hobbs retail unit. The parties
disagree over the inclusion of the following four individuals in the
Hobbs retail unit.
a. Barbara Garcia
The Respondent asserts that scanner and cashier, Barbara Gar-
cia, should be excluded from the Hobbs retail unit as a confiden-
tial employee. The Respondent’s brief does not discuss the issue.
The Government contends she is not a confidential employee and
should be included in that unit. Barbara Garcia did not testify at
the hearing.
Barbara Garcia, the Hobbs’ store scanner, was responsible for
insuring the integrity of the bar code pricing labels on products,
changing shelf price tags, making signs, downloading or preparing
advertisements, and changing prices in the computer. The Re-
spondent considers pricing to be confidential. Store scan coordi-
nators learn of the pricing of sale products before that information
is made public in local paper advertisements. Backup scan coor-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD806
dinator, Heather Barbaree, and receiving clerk, Jean Hopper, were
privy to the same information. The Respondent does not maintain
that they should be excluded from the retail unit.
The Respondent bears the burden of establishing that Barbara
Garcia is a confidential employee. As noted by the authority cited
above, the Board has strict limitations on the exclusion of employ-
ees from representation because of their confidential work. I find
that the Respondent has not met its burden of showing that Bar-
bara Garcia’s duties involve confidential work contemplated by
the decisions of the Board and courts. I find that Barbara Garcia,
a former Furr’s employee, shall be included in the Hobbs retail
unit for purposes of determining the Union’s majority status.
b. Patricia Bruselas
Patricia Bruselas is the Hobbs deli manager. The Respondent
maintains that she is a supervisor and should be excluded from the
unit. The Government urges her inclusion. Barbara Bruselas did
not testify at the hearing.
According to Store Manager Eddie Granado, Bruselas’ deli
manager duties involve keeping track of “purchases, all sales, all
the upcoming ads, ordering, scheduling, [and] correct retailing.”
Bruselas prepares a work schedule for deli employees and has that
approved by Granado. The Respondent failed to provide evidence
of even one instance when Bruselas disciplined or recommended
that an employee be disciplined. Granado testified that on one
occasion Bruselas mentioned to him that an employee had some
problems that needed to be addressed. She apparently did not
recommend that the employee be disciplined. There was insuffi-
cient record evidence presented to determine if the work direction
that Bruselas gave to deli employees was routine or required the
use of independent judgment. In sum, the Respondent did not
establish that Bruselas possessed or exercised any of the necessary
supervisory powers described in Section 2(11) of the Act. I find
that Bruselas, a former Furr’s employee, has not been shown to be
a supervisor and she should be counted in determining the Union’s
September 12 majority status in the Hobbs retail unit.
c. Juan Mares
The Respondent seeks to exclude Hobbs produce manager,
Juan Mares, from the retail unit as a supervisor. The Respondent
presented no evidence in support of that contention. Mares did
not testify at the hearing. The party asserting supervisory status
has the burden of establishing the facts to support such a finding.
I find that Mares, a former Furr’s employee, shall be included in
the Hobbs retail unit and counted in determining the Union’s ma-
jority status.
d. Theresa Garcia
Theresa Garcia is the Respondent’s Hobbs store bakery man-
ager. The Respondent takes the position that she should be ex-
cluded from the retail unit as a supervisor. Theresa Garcia did not
testify at the hearing.
Granado testified that he was sure that Theresa Garcia formerly
worked for the Hobbs Furr’s store and that she was at that store
when Granado arrived there about 4 months prior to September 1.
I find that Theresa Garcia was a former Furr’s employee at the
Hobbs store.
The Respondent failed to present any evidence in support of its
contention that Theresa Garcia was a statutory supervisor. Garcia
was paid an hourly wage and hourly paid bakery managers were
included in the Furr’s Hobbs retail unit collective-bargaining
agreement. I find that Theresa Garcia shall be counted in deter-
mining the Union’s majority status in the Hobbs retail unit.
In sum, there were 26 employees working in the Hobbs retail
unit as of September 11. Of that number 17 were former Furr’s
employees. I find, therefore, that the Union represented a majority
of the Hobbs retail unit employees as of its September 12 demand
for recognition and bargaining.
2. Hobbs meat unit
On September 12 the Respondent employed head meat cutter,
Mauricio Jacobo, and employees Martin Florez and Junior
Jacques in its Hobbs meat department. Each of these men was
employed by Furr’s at the Hobbs store and had been included in
the meat unit.
The Respondent asserts that Jacobo is a statutory supervisor,
and should not be included in the bargaining unit. The Govern-
ment argues Jacobo is not a supervisor and is properly included in
the unit. As a majority of the Hobbs meat unit employees were
former Furr’s employees as of the September 12 demand date, I
find it unnecessary to make findings on whether or not Jacobo is a
supervisor within the meaning of the Act. I find that the Union
did represent a majority of the Hobbs meat unit employees on
September 12.
In sum, the credited record testimony shows that as of Septem-
ber 11, 2001, a majority of the Respondent’s employees in the
meat and retail units at Hobbs and TC were former Furr’s em-
ployees that had been covered by the Union’s collective-
bargaining agreements. As of September 12 the Respondent was
a labor law successor employer to Furr’s former employees, em-
ployed a substantial and representative complement of employees
and the Union represented a majority of those former Furr’s em-
ployees in the retail and meat units. Commencing on September
12 the Respondent refused to recognize and bargain with the Un-
ion pursuant to its demand letter received on that date. I find,
therefore, that the Respondent unlawfully refused to recognize and
bargain with the Union and that it violated Section 8(a)(1) and (5)
of the Act by its refusal. I further find that an affirmative bargain-
ing order is the appropriate remedy for the Respondent’s unlawful
refusal to bargain conduct. Caterair International, 322 NLRB 64,
68 (1996).
CONCLUSIONS OF LAW
1. Erica, Inc., General Partner d/b/a Foodbasket Partners, Lim-
ited Partnership, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The United Food and Commercial Workers International
Union, Local No. 1564, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
On these findings of fact and conclusions of law, and on the en-
tire record, I issue the following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommend
FOODBASKET PARTNERS 807
ORDER
The Respondent, Erica, Inc., General Partner d/b/a Foodbasket
Partners, Limited Partnership, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the United Food and
Commercial Workers International Union, Local No. 1564, AFL–
CIO.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) On request, bargain with the United Food and Commercial
Workers International Union, Local No. 1564, AFL–CIO, as the
exclusive collective-bargaining representative of the employees in
the following appropriate units concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
1. All employees working for the Respondent in Truth
or Consequences, New Mexico, who are engaged in han-
dling or selling merchandise, or performing other services
incidental thereto; but excluding overall store director, as-
sistant store managers, all employees working exclusively
in the meat department, professional employees and su-
pervisors within the meaning of the Act as amended.
2. All employees working for the Respondent in
Hobbs, New Mexico, who are engaged in handling or sell-
ing merchandise, or performing other services incidental
thereto; but excluding overall store director, assistant store
managers, all employees working exclusively in the meat
department, professional employees and supervisors
within the meaning of the Act as amended.
3. All employees working for the Respondent in Hobbs
and Truth or Consequences, New Mexico, who are en-
gaged in the retail and wholesale distribution of all fresh
meats and all other meat products, including rabbits, fish
and domestic fowls of all kinds, regardless of their origin,
and all other products historically processed and handled
by the meat department.
(b) Within 14 days after service by the Region, post at its facili-
ties in Truth or Consequences and Hobbs, New Mexico, copies of
the attached notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Rea-

Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
sonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 12, 2001. Excel Container, Inc., 325
NLRB 17 (1997).
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official on
a form provided by the Region attesting to the steps that the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to recognize and bargain with the United
Food and Commercial Workers International Union, Local No.
1564, AFL–CIO, as the collective-bargaining representative of our
employees in the following appropriate units:
1. All employees working for us in Truth or Conse-
quences, New Mexico, who are engaged in handling or
selling merchandise, or performing other services inciden-
tal thereto; but excluding overall store director, assistant
store managers, all employees working exclusively in the
meat department, professional employees and supervisors
within the meaning of the Act as amended;
2. All employees working for the us in Hobbs, New
Mexico, who are engaged in handling or selling merchan-
dise, or performing other services incidental thereto; but
excluding overall store director, assistant store managers,
all employees working exclusively in the meat department,
professional employees and supervisors within the mean-
ing of the Act as amended.
3. All employees working for us in Hobbs and Truth
or Consequences, New Mexico, who are engaged in the re-
tail and wholesale distribution of all fresh meats and all
other meat products, including rabbits, fish and domestic
fowls of all kinds, regardless of their origin, and all other
products historically processed and handled by the meat
department.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD808
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce you in the exercise of your rights stated above in
Section 7 of the Act.
WE WILL, on request, recognize and bargain in good faith with
the Union as the exclusive collective-bargaining representative of
our employees in the appropriate units set forth above concerning
wages, hours, and other terms and conditions of employment and,
if an understanding is reached, embody such understanding in
signed agreements.
ERICA INC., GENERAL PARTNER D/B/A FOODBASKET
PARTNERS, LIMITED PARTNERSHIP