Furr's Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1966

157 N.L.R.B. 387 (N.L.R.B. 1966)

FURR'S, INC. 387
Further, it provides for the selection of leadmen and other supervisory
categories from the crafts they are to supervise; allows the business
representatives of the various craft unions access to the employers'
premises; and grants to the respective craft unions the right to appoint
their own shop stewards.
In view of the foregoing, we conclude that the joint bargaining here
involved did not destroy the separate units, but was merely a matter
of convenience for the parties, and that it did not affect Petitioner's
right to bargain according to its certification .7 It is also clear from
the record that Petitioner's request for separate bargaining was timely
and unequivocal.8 Accordingly, we shall clarify Petitioner's certifica-
tion by amending the unit description in the manner requested by
Petitioner,9 and we find that Petitioner is entitled to demand bargain-
ing in the certified unit as so amended.
ORDER
IT IS HEREBY ORDERED that the petition in Case No. 20-RC-6387 be,
and it hereby is, dismissed.
IT IS FURTHER ORDERED that the certification issued in Case No. 20-
RC-2157 be amended to read as follows.
All electricians, electronic technicians, instrument and/or motor
repairmen, their leadermen, helpers, and/or apprentices employed
to construct, install, repair, and/or maintain electrical equipment
by the members of the Pacific Coast Shipbuilders Association,
excluding all other crafts and their related subcrafts, all guards,
watclunen, professional employees, clerical employees, and super-
visors as defined in the Act.
'' Shell Oil Company, 116 NLRB 203 ; see also Bethlehem Pacific Coa8t Steel Corp ., etc.,
117 NLRB 579.
s Although no one disputes the timeliness of Petitioner 's request , the Employer and the
Intervenor contend that Petitioner ' s withdrawal from multiunion bargaining was not
unequivocal because, in a subsequent letter to the Employer , Petitioner stated that it was
not withdrawing financial or other support to the Pacific Coast Metal Trades Council.
We find no merit in this 'contention . The Petitioner's statement is not inconsistent with
its withdrawal , which the record establishes was unequivocal in all respects.
BAs previously indicated , there was no opposition to Petitioner 's request to amend its
petition to reflect the present composition of the multiemployer group.
Furr's, Inc. and Retail Clerks International Association, Local
Union No . 462, AFL-CIO. Case No. 928-CA-1154. March 7,1966
DECISION AND ORDER
.On July 14, 1965, Trial Examiner JamesT. Barker issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
157 NLRB No. 38. ' , ' ,
221-374-66-vol . 157-26
:388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondent had not
,engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that those allegations be dismissed. The
Respondent filed exceptions to the Trial Examiner's Decision and a
,brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision,' the exceptions and brief, and the entire record
in this case,2 and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations, as modified herein.3
We agree with the Trial Examiner that Respondent violated Section
'8 (a) (5). However, unlike the Trial Examiner, we do not rely on
Fred Snow et al., d/b/a Snow eC Sons, 134 NLRB 709, affd. 308 F. 2d
,687' (C.A. 9).4 The record establishes that shortly before and after
the Union made its original request for recognition on October 8, 1964,
Respondent's Supervisors Amador and Harrison engaged in extensive
8(a) (1) conduct. This included Amador's attendance at a union
meeting, his interrogation of various employees concerning their union
activities, and his threats of possible unemployment and cuts in work-
ing hours should the Union be successful. Harrison made threats to
various employees of impending discharge and eventual replacement,
and of harassment and deterioration of working conditions in the
event that the Union gained recognition. In addition, Harrison, for
the first time, began keeping a notebook in which were recorded the
mistakes of the employees, to be used, he claimed, as justification to the
Union for discharging employees.
Respondent contends that Amador and Harrison were acting with-
out its authorization and approval and that it had in fact cautioned
them to be completely neutral toward the Union.,' Moreover, Respond-
1 Certain inadvertent errors in the Trial Examiner 's Decision have been corrected.
S The Respondent 's request for oral argument is hereby denied, as the facts and issues
in the case are adequately presented in the record and the brief.
8 The Board finds that Arnold's speech on October 13 did not violate Section 8(a) (1)
and dismisses that portion of the complaint which is based thereon.
4 The record does not establish that Respondent 's filing of an RM petition on October 12
was in bad faith.
5 Ellington was notified by employee Aaron of Harrison 's notebook ; shortly thereafter
he made Harrison get rid of the book.
FURR'S, INC. 389
ent contends that any suggestions of union animus were rebutted by
conversations and meetings of Store Manager Ellington and Vice
President Arnold with the employees held prior to and during the
Union's organizational campaign at which Respondent's neutrality
was constantly stressed.
We find that Amador's and Harrison's illegal activity, for which
the Respondent is responsible, made the holding of a fair election
impossible and reflected a rejection of the collective-bargaining prin-
ciple. Under the principle of Joy Silk Mills, Inc., 85 NLRB 1263,
•enfd. as modified 185 F. 2d 732 (C.A.D.C.), we therefore hold that
Respondent's refusal to recognize the Union was violative of Section
8(a) (5) of the Act
Further, effectuation of the policies of the Act requires a remedial
request, in order to remedy properly the Respondent's other unfair
labor practices. Therefore, we shall order the Respondent to bargain,
upon request, with the Union both to remedy its violation of Section
8(a) (5) and its violations of Section 8(a) (1) of the Act.6
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications:
[1. Delete paragraph 1(b) of the Trial Examiner's Recommended
Order, renumbering paragraphs 1(c) and 1(d) as new paragraphs
1(b) and 1(c), respectively.
[2. Delete from new paragraph 1(b) of the Trial Examiner's Rec-
ommended Order the clause beginning with the words "and inviting
them to deal directly with ..." and ending with the words "... employ-
ment relationship."
[3. Delete from the notice attached to the Trial Examiner's Deci-
sion, marked "Appendix B," the sixth indented paragraph beginning
with the words "WE WILL NOT interfere with . . .," and the seventh
indented paragraph beginning with the words "WE WILL NOT
bypass ..."
[IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges violations of the Act not found
herein.]
e Respondent has excepted to the Trial Examiner 's finding that it also violated Section
8(a) (5) by failing to bargain with the Union prior to changing the work hours and break
time of its part-time employees. As our order herein sufficiently delineates Respondent's
obligation to bargain with the Union, we deem this finding to be cumulative and do not
adopt it.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 14, 1964 , by Retail Clerks International Associa-
tion , Local Union No. 462, AFL-CIO , hereinafter called the Union , a first amended
charge filed on November 16, 1964 , and a second amended charge filed on Decem-
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 7,-1964, also' filed by the Union, the Regional Director for Region 28 on Decem-
ber 15, 1964, issued a complaint and notice of hearing designating Furr's, Inc., as
Respondent and alleging violations of Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, hereinafter called the Act.
Pursuant to a notice, a hearing was held before Trial Examiner James T. Barker
at Los Fresnos, Texas, on February 16, and at Las Cruces, New Mexico, on Febru-
ary 17 and 18 and March 9, 1965. All parties were represented at the hearing and
were afforded full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs with me. Counsel waived oral argument and on
May 3, 1965, filed briefs with me 1
Upon consideration of the entire record and the briefs of the parties and upon my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been, a Texas corporation main-
taining a retail supermarket and place of business at 1549 Solano Drive, Las Cruces,
New Mexico, and various other retail markets, cafeterias, places of business, ware-
houses, and other facilities in the States of New Mexico and Texas. It is, and has
been at all times material herein, engaged at said locations in the -sale and distribu-
tion of groceries and related merchandise. During the 12-month period immediately
preceding the issuance of the complaint herein, Respondent, in the course and con-
duct of its business operations, sold and distributed products having a gross value
in excess of $500,000. During the same period of time, Respondent received goods
valued in excess of $50 ,000 transported in interstate commerce to its place of busi-
ness in New Mexico, directly from States of the United States other than the State
of New Mexico.
Upon these admitted facts I find that Respondent is engaged in, and at all times
material herein has been engaged in, commerce within the meaning of Section 2(6)
•^ _r .L _ . _.and
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, and the parties stipulated at the hearing, that at all times
material herein Retail Clerks International Association, Local Union No. 462, AFL-
CIO, has been a labor organization within the meaning of Section 2(5) of the Act,
and I so find. -
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that at all times relevant on and after Septemher.29, 1964,2
the Union has represented a majority of the Respondent's employees in an appropri-
ate collective-bargaining unit, and that on October 8 the Union requested Respond-
ent to bargain collectively with it, which request the Respondent unlawfully refused.
Respondent denies the appropriateness of the `unit and the Union's claimed majority
status therein, and further asserts that its refusal to recognize and bargain with the
Union is and has been predicated upon its good-faith doubt that the Union repre-
sents a majority of its employees.
The complaint further alleges that on certain specified dates the' Respondent,
through designated agents and supervisory personnel, threatened and interrogated
employees, thereby interfering with, restraining, and coercing them in violation of
Section 8 (a) (1), of the Act. The complaint also alleges that in violation of Section
8(a)(1) and (5) of the Act,' Respondent on October 13 bargained directly with its
employees and on October 30 reduced hours of employment and changed work
schedules and total wages of some of its employees. Additionally, the complaint
alleges that on November 12, in,violation of the same section of the Act, Respondent
unilaterally ,increased the wages of meat department employees.
iAdditionally, on May 3, the counsel for the General Counsel filed a motion to correct
record, and on May 17, 1965, the Respondent filed its reply thereto In consideration
thereof, and upon a comparison of the transcript and-my own notes recorded at the hear-
ing, the General Counsel's motion is granted. Moreover, wherever reference is made to
Don R. Miehls, Ralph Melendrez, Angel Lucero, or Luis Amador, the transcript is corrected
to conform, where pertinent, to first name and/or to spelling.
2 All datesrrefer to 1964 unless otherwise specified' ' -
FURR'S, INC. 391
The Respondent denies the foregoing allegations, and additionally contends that
the individuals who allegedly engaged in acts of interference, restraint, and coercion
were neither agents nor supervisory personnel of Respondent. Further, the Respond-
ent asserts that such changes in hours and working schedules as were made, as well
as the wage increases granted meat department employees, as alleged in the com-
plaint, resulted solely from competitive developments, and that the wage increase
was in accordance with Respondent's past practice.. Further, the Respondent asserts
that the wage increases and other changes in wages and working conditions were not
unilateral within the meaning of the Act in that the Union was not the duly desig-
nated bargaining representative of the employees affected, and that, additionally,
prior to granting the wage increase, the Respondent on November 7 advised the
Union that it contemplated granting the increase and was willing to meet with the
Union to discuss the matter.
A. The supervisory issue
Respondent's Las Cruces store is one of 10 stores included in Respondent's El Paso
division which is under the direction of A. R. Arnold, division manager and a vice
president of Respondent. The other nine stores of'Respondent included in the El
Paso division are situated in El Paso, Texas, where Arnold resides. Respondent's
president is Roy Furr, who, like his son, Don G. Furr, a vice president in charge of
the Lubbock division, resides in Lubbock, Texas. The Lubbock division is comprised
of 30 stores.
In carrying out his responsibilities as division manager of the El Paso division,
Arnold is assisted by district supervisors who oversee the operation of a specific
department in each of the stores in the division. Arnold reports directly to Clem
B. Boverie, a.senior vice president of Respondent. Bob Hurmence is Respondent's
personnel director and resides in Lubbock, Texas.
The Las Cruces operation is managed by Harold Ellington. The store is orga-
nized into four departments: the store department, the market (or meat) department,
the produce department, and drug department. Luis Amador, who works in the
store department, is designated assistant manager, and Bill Harrison, John Morgan,
and Ernest Butler have the title department head of the market, produce, and drug
departments, respectively.3 The parties are in agreement that A. R. Arnold and Har-
old Ellington are supervisors within the meaning of the Act, but the supervisory
capacity of Amador, Harrison, Morgan, and Butler is in issue.
Harold Ellington credibly testified that Amador, Harrison, Morgan, and Butler
are hourly paid, but in the fulfillment of their responsibilities they are required to
work a greater number of hours per week than other employees, and, consequently,
their total wage renumeration is greater. Amador and Harrison are paid at a higher
hourly rate than other individuals in the market, but Morgan and Butler receive the top
scale paid to approximately two other employees. Each of the four department
heads performs manual labor, including the work tasks performed by other individ-
uals in their respective departments. The department heads receive no employee
benefits which are not received by other individuals employed in the Las Cruces
operation. Ellington, as store manager, has authority to hire and discharge employ-
ees and the department heads may make recommendations in this regard. Often, but,
contrary to Ellington's testimony, not invariably, as with Bill Harrison .and John
Morgan, recommendations are subject to an independent investigation. The work
schedule encompassing the operation of the entire store is prepared by Ellington and
in its preparation he consults with Luis Amador, the assistant manager. Depart-
mental work schedules are also prepared by Ellington in consultation with the respec-
tive department heads. Most stock and merchandise sold in the, Respondent's Las
Cruces store is purchased from Respondent's warehouse, through the use of a
printed order form. The ordering and reordering of stock is determined by person-
nel of the affected department but these orders are subject to Ellington's scrutiny
and approval, and he checks the order form before forwarding it to the warehouse.
Local purchases of produce are made by John Morgan for his department, but Mor-
gan consults with Ellington or his divisional supervisor before consummating such
purchases. A small volume of meat is occasionally obtained from a Denver sup-
plier, and Bill Harrison has authority to make such purchases as he may need. .
S The foregoing is based on the credited testimony of A. R. Arnold and Harold Elling-
ton, and General Counsel 's Exhibit 5. ,
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Customer checks used in payment for merchandise purchased are approved by
Ellington, or in his absence, by Luis Amador, or, in the drug department, by a desig-
nated rank-and-file employee.
Margaret Rosas credibly testified that in the absence from the store of Harold
Ellington, Luis Amador is in charge of the operation. Rosas further testified credibly
that on an occasion she and Amador disagreed on a matter and that the following day
Manager Ellington told her to "follow orders from whoever [sic] he left in charge."
She further testified credibly that on occasion when she has asked Amador for break
time he has instructed her to await the return of another employee. Additionally,
during Ellington's absence, Amador directs the work of employees in the store depart-
ment including checkers and sackers, and they look upon him at all times as their
"boss." 4 Ida Leyva credibly testified that when absent from work due to illness
she has reported her illness to Amador. Joe Archuleta, who had been employed as
a carry-out sacker, testified that 1'/z years prior to the hearing herein he became a
part-time checker and stocker under circumstances wherein Luis Amador informed
him that he needed an individual to fill that position and gave Archuleta the job.
Additionally, Jerry Aaron testified that when Respondent's Las Cruces operation was
preparing to open, he made application for a position. He was given an applica-
tion form by Harold Ellington which he completed and returned, and he was then
instructed to report to the store a day or two later. In so doing, he was selected
along with approximately 50 other individuals for employment. The individuals
making the selection were Harold Ellington and Luis Amador. Further, Louis Del-
gado testified that his father consulted with Amador concerning a job opening and
was instructed to have Delgado report to the store the following morning. Amador
spoke with Delgado, and instructed him to return that evening. He did so and was
told by Amador that he could start working the following day.
I conclude upon the foregoing that Luis Amador is a supervisor within the mean-
ing of the Act in that he possesses authority to responsibly direct the work of employ-
ees, and, in the absence from the store of Harold Ellington, exercises managerial
and supervisory authority. I do not predicate my finding of supervisory status on
the evidence recounted above with respect to Amador's alleged independent author-
ity to hire employees.
The evidence introduced by the General Counsel with respect to the role of
Amador in the hire of Jerry Aaron, Louis Delgado, Angel Lucero, and Joe Archu-
leta is not inconsistent with the testimony of Harold Ellington that he alone exercises
ultimate authority to hire employees and that he makes an independent investigation
of all personnel recommended to him by his department heads. While I find below
authority to hire employees resides in Bill Harrison, and while the testimony of Joe
Archuleta is susceptible of an interpretation at variance with the testimony of Elling-
ton with respect to the exclusivity of Ellington's hiring authority, it [sic] is lacking in
detail and falls short of the substantiality necessary to support a finding affirmative to,
the General Counsel's contention with respect to Amador's authority to hire.
In the meat department, Bill Harrison directs the work of the employees of the
department, and he has authority to grant time off. Employee complaints have been
lodged with him and he is considered by employees in the department as their
"boss." 5 In addition, Harrison possesses the authority to hire employees as is.
revealed by the credited testimony of Shirley Wellborn, and that of Luis Samaniego,
with respect to their initial hire under circumstances revealing that Harrison pos-
sessed authority to exercise his own judgment and initiative in hiring employees
without the necessity of prior consultation with or approval of Ellington or other
supervisors.
John Morgan directs the work of the employees in the produce department, and
he has authority to grant employees time off. When it is necessary to be absent
from work because of illness, employees in the produce department have reported
their illness to Morgan. Additionally, Morgan has authority to cause employee
vacation schedules to be arranged to conduce to the most efficient operation of the
department. Moreover, the circumstances surrounding the hire of employees Harold
Mims and Angel Lucero reveal that Morgan possessed authority to effectively recom-
mend the hire of employees.6
4 Margaret Rosas, Jerry Aaron, Louis Delgado, Frederico Montalvo, Gilbert Chavarria,
Ida Leyva, and Joe Archuleta each so credibly testified.
5 The 'foregoing is based principally upon the credited testimony of Shirley Wellborn
and that of Donna Harwood, Martha McLane, and Jimmy Nevarez. I have considered also
the testimony of Mary Jackson.
9 The foregoing factual findings are based upon a composite of the credited testimony of
Harold Mims and Angel Lucero.
FURR'S, INC. 393:
In light of the foregoing , I find that Bill Harrison and John Morgan are super-
visors within the meaning of the Act.
The General Counsel produced no evidence of a direct nature concerning the
authority vested in Ernest Butler, the designated head of the drug department.
There is evidence of record revealing that the drug department is comprised of twos
employees in addition to Butler. One of the employees devotes 39 hours per week
to work in the department and the other divides his workweek, devoting 20 hours
to work in the drug department and a like number of hours to performing tasks in
the grocery operation. I have considered the testimony of Margaret Rosas, a gen-
erally credible witness, to the effect that in the absence of Amador and Ellington
from the store, Jerry Aaron or Ernest Butler have on occasion been left "in charge."
However, this testimony was not further developed on the record, and, in the absence
of a more substantial showing of Butler's alleged supervisory capacity and in recog-
nition that the small drug department may be fully susceptible to the responsible
direction of Manager Ellington, I am unable to conclude and find that Ernest Butler
is a supervisor within the meaning of the Act.
B. The alleged refusal to bargain
1. The Union's majority status
On September 29 Union Representatives Ralph Melendrez and Alfred Cano held
a meeting at which approximately 20 of the Respondent's employees were present.
Ralph Melendrez conducted the meeting and passed out authorization cards to the
employees present.?
The General Counsel introduced into evidence at the hearing 18 authorization
cards bearing a September 29, 1964, execution date. Seventeen of the cards were
authenticated through testimony of the signators at the hearing and were received
in evidence without objection.8
At the meeting Melendrez explained that the purpose of the card was to authorize
the Union to represent the employees, and he informed them that it would be neces-
sary for 51 percent of them to so designate the Union in order to give the Union that
authority. He further explained the procedures of a card check indicating, in effect,
that under such a practice the cards are submitted to a disinterested third party for
the purposes of establishing whether or not the Union indeed represented a majority
of the employees. Melendrez further answered questions posed to him by the
employees with respect to the cards . Melendrez explained to the employees the role
of the Union and urged the employees to execute the cards if, in their opinion, the
7 In relevant part the face of the card reads as follows:
RETAIL CLERKS INTERNATIONAL ASSOCIATION
(Affiliated with the AFL-CIO)
AUTHORIZATION FOR REPRESENTATION
Desiring to enjoy the rights and benefits of collective bargaining I, the
undersigned, employee of the_____________________________________
(Firm Name)
Store Address ------------------------------ Store No.____________
Employed as -------------------------------- Dept .--------------
(Job Title)
Home Address _______________________________Phone -------------
hereby authorize Retail Clerks International Association, AFL-CIO, or
its chartered Local Union to represent me for the purposes of collective
bargaining, respecting rates of pay, wages, hours of employment, or
other conditions of employment, in 'accordance with applicable law.
---------------------------------------------------------------
Date (Signature of Employee)
e A card bearing the purported signature of Amelia Hernandez and the date of Sep-
tember 29 was received in evidence over objection of Respondent. After a careful com-
parison of the signature contained on the card with that contained on the employee's
withholding exemption certificate drawn from the files of Respondent, and after giving
full consideration to Respondent's practice with regard to the execution and filing of
withholding certificates, I affirm my ruling receiving the card of Amelia Hernandez in
evidence . Acre Corporation, 149 NLRB 1283.
Jimmy Nevarez credibly testified that although his card was executed at the Septem-
ber 29 meeting of the Union, he erroneously dated the card "4/29/65 "
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union would be of assistance to them. He further told the employees that the cards
were not "binding" on them. The meeting which lasted approximately 2 hours was
not an orderly one and was punctuated by confusion 9
Further, during the meeting the representatives of the Union were asked by Jimmy
Nevarez.if the, meat department personnel would be represented by the Retail Clerks
and whether, if this were so, the wage scale of the meat department employees would
be lower, with the passage of time, than that of the other store personnel. Nevarez
then inquired if the meat department personnel were going to join the Amalgamated
Meat Cutters Union. In response, either Melendrez or Cano stated that the butch-
ers' scale was traditionally higher than that of the retail clerks and that initially the
meat department employees would be, represented by Retail Clerks and later, after
the store was organized, they could, if they desired, join the Amalgamated Meat
.Cutters. In the weeks that followed employees Rodriquez, Wellborn, and Harwood
signed, Amalgamated authorization cards.lo
Upon a careful consideration of the record testimony relating to the meeting, I am
convinced that neither Union Representative Melendrez nor his assistant, Cano,
informed the employees that the purpose of the authorization cards was to permit
the Union to obtain a Board-conducted election Rather, I am convinced that such
discussion of an impending election as may have occurred at the meeting was among
the employees themselves, and derived from their impressions as to the procedures to
be followed and not from the affirmative statement of the Union's representatives.
In addition, during the 9 days that followed, 14 other employees signed union
authorization cards. Thus, Henry O'Neill credibly testified that he affixed his signa-
ture to a card while in attendance at a meeting of the Union held on October 1.
Louis Delgado, Felix Montoya, Johnny Montoya, and Carlos Holguin each credibly
testified that they executed union authorization cards while attending an informal
meeting at the home of Jerry Aaron on October 2. According to Delgado' s undis-
puted, credited testimony, Aaron invited him to be "associated" with him by signing
an authorization card which Aaron had proffered; gave him adequate time to read
the card and deliberate concerning the matter; discussed wages obtainable through
the Union ; and, in answer to Delgado's inquiry if execution of the cards resulted
"automatically" in employee representation by the Union, answered that the employ-
ees "had to get an election first."
Harold Mims credibly testified that on October 2, in the store parking lot and in
his presence, Tony Gonzales affixed his signature to an authorization card. Further,
Mims credibly testified that the following day Rufus Brunson signed a card in Mims'
presence at Brunson's home. On both occasions , Mims summarized what the union
representatives had said at the September 29 meeting and stated that if the individ-
ual "thought" the Union would "help him" he should sign the card.
Additionally, Frederico Montalvo, Manuel Gutierrez, and Lupe Saldivar each
credibly testified that on October 2 they executed union authorization cards which
had been given to them by Joe Archuleta. Four additional authorization cards were
executed by employees Freddy Ruiz, Henry Garcia, Joaquin Hernandez, and Tommy
Martinez at a meeting of the Union conducted on October 8.
Don Miehls, a representative of the Union. credibly testified that each of the 32
authorization cards above were given to him by Ralph Melendrez, a representative
of the Union, and that after receiving them he made a record of them.
2. The bargaining request
a. Miehls contacts Furr
On October 7 Don Miehls was informed during the course of a telephone conversa-
tion with Ralph Melendrez that a majority of the Respondent's employees had
signed authorization cards. As a result of this conversation, the following day
Miehls conversed by telephone with Don Furr, vice president of Respondent.
Miehls informed Furr that the Union had secured signed authorization cards from
a majority of the Respondent's employees and requested recognition from Respond-
ent. Furr responded by asserting, in substance, that the Respondent desired to move
toward a resolution of the matter as quickly as possible and to reach a proper solu-
9 The foregoing is predicated on the credited testimony of Alfred Cano and Harold
Mims, as well as a careful consideration of the testimony of each of the employees who
testified concerning,the meeting.
10 The foregoing finding is predicated on a composite of the credited testimony of
Jimmy Nevarez, Shirley Wellborn, Donna Harwood, Erlinda Rodriquez, and Martha McLane.
I have considered also the testimony of Luis Samaniego.
PURR'S, INC. 395
Lion, in the circumstances, but he informed Miehls that the Las Cruces store was an
operating division of the Company over which he had no direct responsibility. As
a consequence , he informed Miehls that he would convey the information concern-
ing the Union's request for recognition to Arnold and Bouverie, officials of the Com-
pany concerned with the Las Cruces operation. However, the conversation pro-
ceeded to a further consideration of the means to be employed in reaching an early
resolution of the question, and the use of a card check as a means of determining
the validity of the Union's claim of majority status was discussed. Furr asked
Miehls for a description of the mechanics of a card check, and Miehls outlined the
procedure. Furr reiterated his desire to cooperate and indicated his tentative ap-
proval of the use of the card check device as a means of resolving the question of
the Union's majority. Miehls told Furr he would summarize in writing the card
check procedure. The conversation ended on this note.11
b. The Union's October 8 letter
As a consequence of the telephone conversation Miehls, on October 8, wrote the
following letter to Don Furr with respect to Respondent's Las Cruces operation:
Recently Retail Clerks Union Local #462 was approached by a number of
your employees, requesting that we assist them in some of their problems and to
be their representative
Because we now represent a large majority of your employees we are asking
you for voluntary recognition of all your employees in this unit
In order to prove our majority status we will agree to a card cross check of
names by an impartial party, such as a Mayor, Minister, or some other impartial
person.
We do insist on the following policies until our negotiations have been com-
pleted, that no employee be fired, transfered [sic] to other stores, wage reductions
or raises, or re-scheduling of hours, or other conditions that are currently being
exercised in the store Furthermore in the event that you have store meetings
with your employees, it is requested that I be invited to attend.
We would like to commence the above-mentioned as outlined as soon as pos-
sible in order to maintain good labor relations with your company.
In the event your company is not prepared to go along in a harmonious-man-
ner, then we shall have no other choice but to pursue our campaign of organizing
your store with any and all legal means that are at our disposal.
c. Miehls and Hurmence converse
Following his conversation with Miehls, Don Furr conversed with Robert Hur-
mence, Respondent's personnel director. Furr and Hurmence discussed the substance
of Furr's telephone conversation with Miehls, and thereafter Hurmence discussed the
matter with Arnold and Bouverie.
Subsequently, on October 9, Hurmence initiated a telephone call to Miehls. Hur-
mence informed Miehls that he had received Miehls' October 8 letter and had also
conversed with Don Furr the previous evening. Hurmence stated that he was "sur-
prised by the whole circumstance" in that he had earlier discussed the "Las Cruces
situation" with Union Representative Davis and was under the impression that an
election would be conducted to determine the Union's claimed majority status 12
Miehls reasserted the Union's claim of majority, and the conversation turned to the
scope of the unit. Hurmence asked Miehls whether the Union claimed to represent
a "wall-to-wall" unit, including the meat department, and Miehls stated that it did.
"The foregoing is based on a composite of the credited testimony of Don Miehls and
Don Purr. ,However, I find that Miehls was mistaken in his recollection that during the
conversation an agreement was reached for Miehls to meet in Las Cruces on the following
Tuesday with Purr, or one of his representatives Not only was Purr unable to recall
such an arrangement , but I consider significant the absence of any reference to such a
specific meeting date in Miehls' letter of October 8, discussed below, directed to Purr and
written immediately after Miehl ' s conversation with Purr.
v Hurmence testified credibly that on Tuesday , October 6, at collective-bargaining nego-
tiations in Denver , Colorado , relating to a different operation , he conversed briefly with
respect to the Las Cruces operation with Harold Davis , International representative of
the Union , who maintains headquarters in Los Angeles, California . During that conversa-
tion , Davis stated that the Union represented a majority of the Las Cruces employees.
Hurmence stated that he had been aware of the Union's activity in Las Cruces and stated
that , based on what he knew, an election should be conducted . Davis and Hurmence dis-
cussed the matter pro and con briefly , but no agreement was reached
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miehls further informed Hurmence that the question of unit was one that could be
"worked out," but that it wasn 't inconsistent with the Union 's policies since it repre-
sented "wall-to-wall" units in other locations. No definitive agreement was reached
with respect to the unit, and the conversation turned to the question of whether Don
Furr had agreed to a card check , Hurmence asserting that there had been a misunder-
standing between Don Furr and Don Miehls with respect to resorting to a card check
as an agreed-upon means of establishing the Union 's majority . Miehls stated that he
did not believe that Furr had misunderstood . Hurmence suggested that Don Furr
again contact Miehls in an effort to clarify the card check issue.13
d. Miehls and Furr again converse
Later that day, Friday , October 9 ; Furr again contacted Miehls by telephone, and
the two conversed . Miehls stated that Furr had put him in an embarrassing position
with respect to his superiors by agreeing to recognize the Union as representative of
the Las Cruces employees and by then reversing his decision under the influence of
Bob Hurmence . Miehls continued by recounting past incidents when Furr on behalf
of the Company had recognized the Union voluntarily and, in substance , asked Furr
why this was not being done with respect to the Las Cruces store. Miehls further
stated that he and Hurmence could not work together.
Furr answered by asserting that Miehls "made trouble where there was no trouble
necessary ," and stated that Miehls had in the past "gone to [Respondent 's] people and
made trouble " when this was not necessary , and that if Miehls had problems under
existing contracts he should contact the Company directly in order to clear up any
issues 14
e. Carter and Farr converse
After conferring with Hurmence , Miehls contacted Don Carter and informed him
of the substance of their conversation . As a consequence , Carter conversed with
Don Furr by telephone the following Monday, October 12. Carter expressed to
Purr his understanding that Furr had initially agreed during his conversation with
Miehls to recognize the Union on the basis of a card check , but had reversed his deci-
sion upon the advice of a subordinate . He expressed his disappointment and "shock "
In response , Furr asserted that he had no authority to make decisions affecting the
Las Cruces operation , and asserted further that he had informed Miehls of this
limitation upon his authority , and had further told Miehls that he would convey the
information to the "people that had the authority ." Further, Furr reiterated his lack
of understanding of the mechanics of the card check process Carter responded by
asserting that in mid-April, in a conference with the Union relating to another opera-
tion of Respondent , Furr had agreed to recognition of the Union on the basis of a
card check in order to avert a picket line . Furr asserted that there was an area of
confusion between him and Miehls with respect to the card check and that he desired
Carter to discuss the matter with Hurmence . Carter agreed to do so at some future
time.15
f. Carter and Hurmence again confer
On October 16, in Denver, Carter conversed with Hurmence again urging him to
reexamine his position and "make good Don Furr's word to [the Union]" and , further,
he urged Hurmence to recognize the Union in Las Cruces . Hurmence responded by
asserting that if the Union did in fact represent a majority of the employees , an elec-
tion should be conducted to establish that fact. Harold Davis, a representative of the
International, who was also present , answered , "You are not going to get an election
in Las Cruces, you beat our ears off pretty badly before, and we're not interested in
having an election in Las Cruces." 16
>s The foregoing is predicated on a composite of the credited testimony of Bob Hur-
mence and Don Miehls, which, in ultimate respects, is mutually corroborative.
14 The foregoing is based on the composite of the credited testimony of Miehls and Furr.
I credit Furr's explanation of the context of his reference during the conversation to the
difficulties encountered by Respondent in dealing with Miehls, and reject Miehls' testi-
mony to the effect that Respondent refused to engage in a card check because the Union
was "Just a little too rough" or because it was vigorous in the enforcement of its contract.
15 The foregoing is predicated on a composite of the credited testimony of Don Carter
and Don Furr.
>a The foregoing is based on a composite of the credited testimony of Don Carter and
Bob Hurmence.
FURR'S, INC. 397
g. Respondent weighs the Union's demand
After conversing with Miehls on October 9, Hurmence discussed with Respondent's
senior vice president, Bouverie, the Union's Las Cruces demand for recognition.
Thereafter, Bouverie conferred with A. R. Arnold, manager of the operating division
encompassing the Las Cruces operation, and Arnold informed Bouverie that in his
opinion the employees had been "upset" by the discharge of an employee, one
Barreras, who, as hereinafter considered, was discharged a month earlier for mis-
appropriating funds Arnold stated to Bouverie that he felt that the discharge of this
employee had been "misrepresented" to the employees and for that reason he was of
the opinion that the Company should file a representation petition to test the Union's
following among the employees. In the meantime, Arnold had similarly conversed
with Hurmence by telephone and had expressed similar sentiments. Additionally,
Hurmence conferred during this period of time with the manager of the Las Cruces
store.
On October 12 Respondent filed a representation petition in Case No. 28-RM-126
in which it sought an election among the employees in the following described units:
All regular full time and regular part time grocery food clerks who display,
handle, and sell merchandise currently being handled by the grocery, produce,
and general merchandise department and also porters; all of whom work in
excess of 20 hours per week. All box boys who work in excess of 20 hours per
week. Excluded: watchmen; Delicatessen workers; all meat department employ-
ees; clerical and bookkeeping employees; and supervisors as defined in the Act.
This petition was dismissed by the Regional Director on December 16, 1964, for the
reason that refusal-to-bargain charges had been filed and were pending, and a com-
plaint had issued concerning employees in the petitioned-for unit. On January 28,
1965, the Board sustained the Regional Director's dismissal of the RM petition.17
In late October or early November, according to the credited testimony of Bob
Hurmence, Hurmence spoke with representatives of Amalgamated who asserted that
their union repiesented a majority of the Las Cruces meat department employees.
Subsequently, on November 5, a representation petition was filed by Amalgamated
in Case No. 28-RC-1268, seeking representation in a unit of "all iegular full-time
and regular part-time employees in the meat department and delicatessen department."
In explication of his reasons for desiring an election to test employee preference
with respect to union representation, Bob Hurmence testified, in substance, that in
conversations with Arnold and Ellington concerning the Union's organizational drive
at the Las Cruces store he had been informed by them that a misunderstanding existed
on the part of the employees with regard to the then recent discharge of one of their
fellow employees. Additionally, Hurmence testified that his experience in union
organizational drives had revealed to him that authorization cards many times are
executed by employees for reasons unrelated to the betterment of their working condi-
tions or "purely to authorize representation."
Additionally, Harold Ellington testified that he discussed the matter of the Union's
demand for recognition with Arnold and entertained the doubt as to their majority
status "because I hadn't seen anything or heard anything that would tell me that they
did have a representation."
Conclusions
a. The bargaining demand
I conclude and find that on October 8, by his telephone conversation with Don Furr,
and through the device of his letter to Furr of the same date, Miehls, on behalf of
the Union, made a valid demand upon Respondent for recognition as bargaining
representative in a storewide unit of employees. While the unit was not defined spe-
'cifically, the clear implication was that the unit sought was storewide in scope and
-the claim of majority was unequivocal. Such references made to a card check for
the purpose of establishing the Union's majority status as were contained in the tele-
phone conversation clearly did not place a qualification upon the Union's claim,
making it contingent upon later proof of its majority. I find that, in the circum-
stances, the Union's October 8 bargaining demand clearly met established standards.18
14 The foregoing is predicated on the credited composite of the testimony of A. It.
Arnold and Bob Hurmence, as supported by the stipulation of the parties and by documents
of record
Is See N.L.R .B. v. Rural Electric Co., Inc., 290 F. 2d 523 ( C.A. 10 ) ; Joy Silk Mills, Inc.
v. N.L.R.B. , 185 F . 2d 732 , 741 (C . A.D.C.) ; Barney's Supercenter, Inc, 128 NLRB 1325;
Harlan B. Browning and Roy J, Rasco d/b/a Cottage Bakers, 120 NLRB 1841.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Appropriate unit
Further, I find that the storewide unit in which the Respondent sought representa-
tion, while not the only appropriate unit of retail grocery store employees, was an
appropriate unit for the purposes of collective bargaining 19
c. The Union's majority
Moreover, I find that on October 8 the Union possessed 28 authorization cards,
dated and signed. The employee complement at the Las Cruces store on October 8
numbered 49, including Ernest Butler, but excluding Harrison, Morgan, and Amador.
It is thus apparent that a majority of the Respondent's Las Cruces employees had
executed cards prior to October 8 Further, on the evening of October 8, four other
employees signed cards at a meeting conducted under the auspices of the Union which
merely had the effect of augmenting the Union's majority.
The Respondent contends that a number of the cards sufficient to negate the Union's
majority were executed for reasons other than for authorizing the Union to serve as
bargaining representative of the employees. In its brief, it contends that at least 10
employees executed cards based on representation that the cards would be used for
obtaining a Board election. The evidence does not support this contention. The evi-
dence does not reveal that at the September 29 meeting, the meeting of employees at
Jerry Aaron's home, or during employee Mims' conversation with the two employees
whose signatures he obtained was any representation made that the sole, or even the
principal, purpose of the card was to secure an election. This is equally true with
respect to Jerry Aaron's comments to Louis Delgado explaining Aaron's understand-
ing of the prerequisite for formal union representation of the employees. Clearly, the
emphasis in all instances, including the Aaron-Delgado exchange, was upon the need
to secure representation through the Union and the benefits to be derived from such
representation.
While some employees appear mistakenly to have believed that the cards were but a
prelude to an election, the purpose and effect of the card is expressed in concise and
unambiguous terms and the subjective state of mind of the signator-as contrasted
with representations made to him as an inducement to sign-is not relevant.
In the circumstances, I conclude and find that none of the cards introduced by the
General Counsel at the hearing were tainted in the manner alleged by the Respondent,
and, as a consequence, each may be included in the computation of the Union's
majority.20
d. The alleged good-faith doubt
In the foregoing circumstances, the obligation evolved upon Respondent under
the Act to recognize and bargain with the Union unless it entertained a good-faith
doubt that the Union in fact represented a majority of the employees in the unit The
record is singularly lacking in support of Respondent's asserted good-faith doubt
The testimony of Respondent's officials reveals that their purported good-faith
doubt sprung principally from a conviction that an accurate understanding by the
rank-and-file employees of the good-cause reason for the Barreras discharge would
dilute if not dissipate their ardor for union representation; and from a further belief,
born of prior organizational experience, both at the Las Cruces store and others in the
chain, that executed authorization cards do not serve as an accurate barometer of
employee sentiment when tested in a secret-ballot election.
Present in both contentions is the tacit recognition that, at the time of its October 8
bargaining demand, the Union possessed authorization cards executed by a majority
of the employees. While conducting a dialogue with the Union, the Respondent on
October 12 filed an RM petition, and by this action, considered in context of its verbal
insistence upon an election as a prerequisite to recognition, signaled its rejection of
the Union's October 8 demand.
In Fred Snow, et al., d/b/a Snow & Sons v. N.L.R.B., 308 F. 2d 687, 694 (C.A. 9),
the court, in enforcing the Board's order, 134 NLRB 709, stated:
The fact as to whether an employer entertained a genuine doubt that a union
represents a majority of the employees is to be determined as of the time the
employer refused to recognize the union. Once it is' shown that the employer
entertained no genuine doubt of this kind at the time it refused to bargain, an
70 See Safeway Stores, Incorporated, 110 NLRB 1718, 1731.
m 4ero Corporation, 149 NLRB 1283 '-, Corbea, Perez A Morell, S. en C., 133 NLRB 362,
entd. In pertinent part 300 F. 2d 886 (C.A. 1) ; cf. Englewood Lumber Company, 130
NLRB 394. '
FURR'S, INC. 399
unfair labor practice has been established. The fact, that, [it] later developed,
there were grounds which might have created a genuine doubt at that time is
then immaterial.
A consideration of the two grounds advanced by Respondent in explanation of its
refusal to recognize the Union reveals quite clearly that the refusal was grounded not
upon a well-founded doubt as to the numerical extent of the Union's following among
the Las Cruces employees on October 12, when the RM petition was filed, but upon a
self-indulged assumption as to the tenor and stability of employee allegiance to the
Union. As the "doubt" harbored by Respondent is thus revealed manifestly to be
one relating to the future and not present status of the Union's majority, analogizing
Snow it perforce is fatally deficient as a defense.
But the determination need not rest alone on this ground, for the evidence other-
wise runs strongly counter to the Respondent's position.
With respect to its first contention, it may well be that a motivating factor in the
employees' initial search for union representation was a mistaken belief that the
Barreras discharge was unwarranted and without good cause. But there is nothing of
record to reveal that this motivation did more than trigger the employees' investigation
of the advantages of collective representation. Significantly, the evidence refutes the
notion that employee allegiance was transitory and limited solely to a concern over a
single discharge, for in the days that followed the initial meeting with representatives
of the Union, the number of executed authorization cards, rather than diminshing
through rescissory action of the employees, nearly doubled. Moreover, as will be
presently considered, the reaction of the employees in the face of interrogation and
threats by Respondent's supervisors was one of equanimity and resolve, rather at odds
with an ambivalence of mind concerning collective representation
The second facet of Respondent's alleged good-faith doubt-past organizational
experience-provides Respondent no refuge in the present state of the law.21
Nor does this avowed reason gain validity from the evidence revealing con-
temporaneous employee interest in an organizational effort on behalf of the Amalga-
mated Meat Cutters. Even assuming Respondent's awareness of the interest in
future affiliation of the meat department personnel with Amalgamated demonstrated
initially at the first meeting of the employees with the Union, this interest involved
potentially only 8 employees in a complement of 49 and, considered alone, and absent
evidence revealing widespread defection among employees otherwise comprising the
unit, provides no significant basis for a good-faith doubt. Moreover, the petition
which was subsequently filed in November by Amalgamated clearly had no status as
a rival petition at the time of Respondent's refusal to recognize and bargain with the
Union, and raised, no question concerning representation, as would relieve Respond-
ent of its legal obligation to treat with the Union.22
In these circumstances, and as Respondent carried on simultaneously a campaign,
as found hereinafter, designed to undermine the Union, I am convinced and find that
Respondent's refusal to recognize and bargain with the Union was not based on a
good-faith doubt as to its majority, but was for the purpose of gaining time to under=
mine the Union. Respondent sought through the device of its campaign and the filing
of the RM petition to destroy the Union's majority and defeat it in an election, and
thereby violated Section 8(a) (5) and (1) of the Act 23 And this is so even though
there is unrefuted evidence of record that on other occasions, at other of its stores,'
Respondent has voluntarily recognized the Union and carried on an amicable iela-
tionship with it.
C. Alleged violations of Section 8(a) (1)
1. Surveillance of union meetings
After the initial meeting on September 29 the Union, during October and Novem-
ber, held several meetings attended by employees of Respondent. The second meet-
ing was held on October 1, and the third on Monday, October 5. The latter meeting
was attended by Ernest Butler who also attended the fourth meeting held some days
later. Luis Amador also attended the fourth meeting. Harold Mims testified that'
after the fourth or fifth meeting, as he was alighting from his automobile to attend a
meeting at the Knights of Columbus hall in Las Cruces, he observed Ernest Butler,
accompanied by his wife, parked in an automobile approximately one-half block away.
25 N.L.R.B. v. Overnite Transportation Co., 308 F. 2d 279 (C.A. 4), enfg. 129 NLRB 1026.
m See Gaylord Printing Co., Inc., 135 NLRB 510; cf. Midwest Piping & Supply Co , Inc,
63 NLRB 1060, 1069-1071.
i Joy Silk Mills, Inc. N.L.R.B , 185 F. 2d 732 (C.A.D.C.), cert denied 241 U.S. 914,
Mitchell Concrete Products Co., Inc., 137 NLRB 504; Fred Snow, Harold Snow and Tom
Snow d/b/a Snow & Sons, 134 NLRB 709.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He further testified that as he crossed the street Butler drove by and that he waved
to Butler. During the fourth meeting, Butler and Amador were asked to leave by the
union representative, Miehls.24
Butler was similarly observed by Erlinda Rodriquez on the occasion of one of the
union meetings conducted at the Knights of Columbus hall parked in his automobile
across the street from the hall.
2. Impression of surveillance
Harold Mims credibly testified that on October 3, the day following the second
union meeting, while at his work station in the store, Luis Amador came over to him
and asked, "Are you part of the seventy-nine percent?" Mims answered, "Seventy-
nine percent of what, Luis? What are you talking about?" Amador answered,
"Seventy-nine percent for the Union."
Additionally, Ernest Tiujillo credibly testified that on Wednesday, February 10,
1965, the day following Trujillo's attendance of a union meeting of Safeway employ-
ees, Amador approached him in the backroom and asked, "How was the Union last
night?"
Similarly, Sammy Chavez credibly testified that he attended the union meeting of
Safeway employees on February 10, and that the following morning Amador asked
him, "How was the meeting?" Chavez answered that "It was fine," and nothing more
was said.
3. Other alleged threats, interrogation, and promises of benefits
a. By Ernest Butler
Mims also testified credibly that on October 3 he was approached at his work sta-
tion by Ernest Butler who inquired, "What is this idea about a union? Are you all
trying to get a union?" Additionally, Butler asked Mims if he wanted a union and
the reason for wanting one. Mims parried Butler's inquiries by answering, "What are
you talking about, a union? What union? Why should I want a union'>"
Additionally, Mims credibly testified that during the 2-week period following
October 3, he had various conversations with Butler concerning the Union and Butler
would ask why Mims wanted a union and why the employees wanted a union.
Further, during this period of time as Mims would come in contact with Butler during
the performance of his tasks, Butler would state, in effect, "I think you are making
a mistake."
In this vein, Mims credibly testified that he had many conversations with Butler
concerning a variety of matters and that some were friendly and some were arguments
wherein they had "quite heated differences of opinion." He further asserted that
Butler had the reputation of being loquacious.
Jerry Aaron credibly testified that at a time subsequent to the second union meeting
on October 1 he conversed with Ernest Butler during working hours in the back area
of the store at which time Butler stated that "if the union went into the store ... all
the employees that worked in the store at that time would be forced to obey all the
rules of the company to the letter and that [the company] would make it hard on the
employees to the [extent] that they would want to quit, or that they would quit through
a result of the pressure put on them." Additionally, Butler stated that if the Union
were successful in organizing the employees there would be no chance for employee
advancement, that the employees would "just have a job with the company and that
was as far as it would go."
Frederico Montalvo credibly testified that on a date that he could not recall Ernest
Butler spoke with him at the cosmetic bar in the store and stated that "we didn't know
what we were getting into with the Union." Additionally, Butler asked Montalvo if
he had signed "a card," and Montalvo stated that he had not.
Ernest Trujillo testified credibly that in late October or early November he was
conversing with Ernest Butler , Joe Archuleta, and another individual concerning the
termination of a fellow employee, and during the conversation Ernest Butler asked
if the employee had been "contacted by the Union because he had heard that . . .
Ralph Melendrez had been asking around ... trying to get some of the people to join
the Union." Trujillo answered Butler's inquiry in the negative.
Sammy Chavez credibly testified that after executing a union authorization card on
September 29, Ernest Butler spoke with him asserting that "the Union wasn't any
good" and if it were "to get him proof" and he, too, would sign a card.
24 The credited -testimony of Don Miehls.
FURR'S, INC. 401_
b. By Luis Amador
The credited testimony of Louis Delgado reveals that on an occasion following his
execution of a union authorization card he went to the store to pick up his check and
Luis Amador asked him if he had been contacted by anyone about joining the Union.
Delgado answered that he had not been contacted and asked Amador if he favored
the Union. Amador did not answer.
Frederico Montalvo further credibly testified that approximately 2 weeks after he
executed his union authorization card he spoke with Amador in the backroom of the
store. Amador asserted that "The Union is just trying to make money from suckers,
and that they would promise one thing, and then not keep it." Amador asked:
Montalvo if he were in favor of the Union or against it. Montalvo answered that.
he was opposed to the Union.
The credited testimony of Gilbert Chavarria, which is supported by that of Angel
Lucero and Sammy Chavez, reveals that at a time following his execution of a union
authorization card he conversed with Luis Amador at a bar in the presence of two,
employees, Angel Lucero and Sammy Chavez. On this occasion, Luis Amador, who
was already in the bar, observed Chavarria and his fellow employees enter the bar,,
and he asked them where they were going. They answered that they had "dates and
we're going out." Amador responded, "No, I don't think you are. You are going to
that Union meeting." The employees at first denied it, then admitted that they were
going to the meeting. A conversation then followed and Amador stated that if he
thought the Union were a good idea he would "go for it" because, in effect, he was,
always trying to help the employees benefit themselves. This led to further discussion,
and Amador asserted, according to Chavarria, "that the Union was just promises and
that if they'd write it down on a piece of paper and sign it, and take it to him, he'd be
glad to join it, but it was just promises, promises, and they wouldn't do nothing about.
it. Just take your money and that was it." Further discussion ensued and Amador-
stated , "You are getting to be like [Joe] Archuleta, but you don't know what you are
going to get them into. You don't have responsibility to those other guys " Chevar--
ria credibly testified that Amador added, "If this thing goes through, it will be more
pressure on you, and I know you and Joe can't take it so it will be within months,
that you will have to give up the company."
Joe Archuleta credibly testified that in the month of October he conversed with
Luis Amador in the backroom of the store. The conversation commenced by Amador-
inviting Archuleta to meet with him after he got off work at a place away from the
store premises. Archuleta declined and Amador stated, in substance, that Archuleta
was "bitter against everything" and that his bitterness derived from an incident wherein
Archuleta and others had been required by management to execute a statement.
Amador continued asserting that "The Union wasn't worth a damn." Further, by use-
of written figures, he contended that if the Union represented the employees at the-
store any resultant raise would be offset by union dues. Amador further stated that
he could reduce the hours of "all the help and the Union wouldn't have any control
over that." Additionally, Amador stated that if "Ralph Melendrez would put down,
everything that the Union said they would do for [the employees] in black and white,,
that he would join the Union too."
Ernest Trujillo credibly testified that in early October he conversed with Amador in,
the backroom of the store during working hours. Amador asked Trujillo if he had
been contacted by the Union and Trujillo answered that he had not. Amador stated
that if he were, Trujillo was to let him know.
Carlos Holguin credibly testified that 3 or 4 days after the October 1 union meet-
ing, which he attended, Amador conversed with him at the store and asked him to,
relate to him the names of some of the persons present at the meeting Holguin
declined, but Amador was persistent. In the face of Holguin's declination, Amador
spoke adversely about the Union to the effect that "The people running it were just
. taking [the employees'] money, and doing nothing for [them]." Amador again
sought to learn the names of those employees in attendance, and when Holguin still-
refused , Amador asked if Holguin "had forgotten who had given [him his] job
The conversation terminated on this note
c. By Bill Harrison
In early October, Bill Harrison conversed with employees Donna Harwood,,
Erlinda Rodriquez, Martha McLane, Mary Jackson, and Shirley Wellborn in the-
office at the store. During the conversation Harrison stated, in substance, that the,
Union was principally interested in obtaining money from the employees and that.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under union representation the employees lost their right in that they were required
to follow union rules, but that in addition, in such circumstances, the employees
additionally were required to follow company rules and that if they made mistakes
they would be subject to discharge. Additionally, he stated that within 6 months
there would be an entirely new complement of employees. Harrison added that if
the employees were not "smart enough to think for [themselves] and had to have
someone else represent [them they] weren't smart enough to work for Furr's." Har-
rison further stated that it was "too bad" the employees "couldn't tear up those little
cards they had signed. [They] just signed [their] rights away." 25
Shirley Wellborn further credibly testified that Harrison carried a small black book
in his pocket and that when employees made mistakes he would write in the book.
She observed him do so on an occasion when she had made an error, and she lodged
a complaint with him. She asked Harrison why he was recording the mistake in the
book and he answered, "Well, because I've been accused by the union of abusing
these people and when they ask me why I've been harrassing [sic] you I'm going to
show them this little black book so they'll understand why I have to reprimand you."
Shirley Wellborn testified that after this incident she did not again observe Harrison
use the book.
Jimmy Nevarez credibly testified without contradiction that in the context of a
conversation with Harrison wherein Harrison asserted that the Union was "just
promising a full moon" and that the Union would not keep its promises, he stated
that if Nevarez, an employee in the meat department, left meat on the bones that
he was going to record this in his notebook. Nevarez answered that it was impos-
sible to "take all the meat off, especially on necks." Harrison answered, in effect,
that it would be his word against that of Nevarez.
Nevarez further testified credibly that the following day as he was putting the
hamburger in the racks, Harrison stated to him that he was "going to put pressure
back there," and was "going to put pressure on." Nevarez also testified credibly
that during this conversation Harrison stated, in effect, that within 6 months Nevarez
would resign because of pressures he, Harrison, would bring against the employees.
Erlinda Rodriquez testified that the day following her attendance at a union meet-
ing she observed Harrison and Roger Dermine, one of the meat department per-
sonnel, conversing and was under the impression that they were speaking of her.
Thereafter, she was switched from job to job in the meat department and her supe-
riors in the department, in her evaluation, had her "going around in circles."
d. By A. R. Arnold
Arnold credibly testified that following the discharge of an employee, one Barreras,
for misappropriation of store funds, he was informed that employees were under a
misapprehension as to the reason for that employee's discharge. As a consequence,
he met with groups of employees of the Las Cruces operation on October 13. He
spoke to all the full-time and part-time checkers and stockers that were on duty on
that day and estimated that he spoke to approximately 23 of them. Arnold testified
credibly that in substance he told each group of employees about the control meth-
ods used by management in surveying employee accuracy in checking and for cour-
tesy and service. He went on to explain that the employee that had been discharged
had been found short on cash sales on several occasions through the' device of the
survey and that management had felt justified in discharging him. He told the
employees, in substance, that such surveys were merely routine to insure proper
procedure and that they should not be "upset" because of this. In context of this
discussion, he further informed the employees that the Respondent had filed a peti-
tion for a Board-conducted election and that the employees were free to express
their wishes and to decide whether they wanted a union or not. He further informed
the employees that it was Respondent's policy to leave this choice to the employees,
that Respondent did not discriminate against the employees because of union activity.
In conjunction with his remarks about the discharged employee Arnold stated, in
substance, that the employees had not been earlier informed concerning the matter
because it was company policy in order to protect the employees involved not to
disclose to fellow employees the details and circumstances leading to his discharge.
Arnold added, however, that if the situation arose in the future he might alter this
z; The foregoing is based principally upon the credited testimony of Shirley Wellborn
as supported by that of Donna Harwood , Martha McLane , and Erlinda Rodriquez.
FURR'S, INC. 403
procedure and inform all employees in the store affected. Additionally, Arnold asked
the employees if they had any complaints or grievances and informed them that the
"door was always open and they could come to him with their problems." 26
4. The wage increase
Effective November 12, the employees in the meat department of Respondent's
Las Cruces store were given a 10-cent-per-hour wage increase A. R. Arnold cred-
ibly testified that the decision was made to grant wage increases to employees in the
meat department in each of the stores in Respondent's El Paso operating division,
including the Las Cruces store. He further credibly testified that the raises were
granted to meet the wage scale of Safeway stores in the affected area. Prior to
granting the wage increase, he consulted with Respondent's attorneys and, as a
consequence, on November 7 a letter was written by the attorneys to Don Miehls
and Ralph Sanders, in the following terms:
We represent Furrs, Inc and are writing this letter on their behalf. Furrs has
requested that we notify you that consistent with their past practice of maintain-
ing competitive wage rates and in order to maintain such competitive rates, they
plan to give all employeees in the meat departments in their stores in El Paso
and Las Cruces a wage increase of 10 cents per hour effective November 12,
1964. The company has further requested that you be advised that they will
be willing to meet with you at any time mutually agreeable to discuss this mat-
ter if you have any questions in regard thereto.
Arnold further credibly testified that between November 7 and 12 he received no
communication from Miehls or Sanders and that he was not thereafter contacted by
any representative of the Union.
Don Miehls credibly testified that he received the November 7 letter, but, in light
of his own October 8 letter wherein he claimed to represent a majority of Respond-
ent's employees and demanded that the Company maintain without change the then-
existing wages, hours, and other conditions of employment of its employees, he felt
that Respondent's letter warranted no answer.
Shirley Wellborn testified credibly and without contradiction that she learned of
the wage increase from Bill Harrison who informed her that "I've got good news
for you, you've just got a 10 cent raise." He amplified this by stating that the El
Paso division had granted the raise.
5. Changes in working conditions
In October Food Mart, a principal competitor of Respondent in the El Paso
region and an enterprise which at all times pertinent had operated an existing and
older store approximately 11/2 miles from the Respondent's Las Cruces operation,
opened a new store some three blocks from that of Respondent. The new store was
a modem supermarket and encompassed approximately 15,000 square feet as com-
pared with the approximately 18,000 square feet which the Respondent's operation
occupies. As a result, the Respondent's business decreased on the order of 15 per-
cent in volume. Thereafter, the hours of all part-time employees, including package
boys, stockers, and checkers, were reduced. No full-time employees were affected.
The reduction in hours was uniform by job category and applied to all employees
on part time. The Union was not consulted concerning this decision.
Employees Margaret Rosas, Donna Harwood, Erlmda Rodriquez, Louis Delgado,
and Gilbert Chavarria credibly testified that during the period of October and
November their hours of work were modified. Rosas was given a different work
schedule and an extra half hour of work per week; Harwood worked approximately
4 hours less than she had theretofore been averaging; Rodriquez experienced a loss
of hours on the order of 40 percent to 50 percent from her 32- to 36-hour week,
Delgado was reduced from working 4 days per week to 3 days per week, and on
20The foregoing findings are predicated principally on the testimony of A. 11 Ainold
as supported by that of Shirley Wellborn, Margaret Rosas, Ernest Trujillo, and Ida Leyva
I do not credit the testimony of Ida Leyva to the effect that during the conversation
Arnold stated that he "felt pretty bad" because the employees had not talked to him
about going into the Union. This testimony has no other record support and Leyva
revealed a lack of certitude with respect to this alleged statement.
221-374-60-vol. 15 7-2 7
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturdays , contrary to prior practice , he was given a break period , and Chavarria's
workweek was reduced by approximately 2 hours, and for a period of approximately
2 weeks, his lunch hour was cut from a full hour to a half.
Additionally , Shirley Wellborn testified credibly that after A. R Arnold appeared
at the store and met with groups of employees , Harrison informed her and other
employees that thereafter they would be permitted 15 minutes break time in lieu of
the 10 minutes that had been permitted , and that they could, if they desired, leave
the store premises during this time.
Conclusion
I conclude and find that Respondent may not be held responsible for the conduct
of Ernest Butler, for he was not a supervisor , and there is no evidence of record
revealing that management had vested him with authority to speak and act in its
behalf, or, beyond his attendance of a single union meeting in the company of Luis
Amador, that the Respondent had an awareness of, and thus condoned , any of his
actions or statements alleged by the General Counsel to be a violation of the Act,
so as to make him its agent.27
However, I do find that Respondent violated Section 8(a)(1) of the Act by its
surveillance of the Union's fourth meeting through the attendance of Luis Amador,
a supervisor ; Amador's comments on October 3 to employee Harold Mims, and on
February 11, to employees Sammy Chavez and Ernest Trujillo, whereby he fostered
the impression that the organizational meetings of the employees were under sur-
veillance by Respondent, and that what transpired at the meetings came immediately
to the attention of management ; Amador's interrogation of Delgado , Montalvo,
Chavarria, Lucero, Chavez , Holguin, and Trujillo as to their union activities and
interests ; and (a ) his threats of loss of employment made to Chavarria during the
conversation with him at a bar, (b) a similar threat implicit in his comment to
Holguin during the early part of October , and (c ) the threat of reduction in working
hours made during his October conversation with Archuleta . Similarly, the Respond-
ent violated Section 8 ( a)(1) of the Act by Supervisor Harrison 's threat in early
October to employees Harwood, Rodriquez , McLane, Jackson, and Wellborn of
more onerous working conditions , and of impending discharge in the event the Union
were selected by the employees ; his similar threat voiced to employee Nevarez, his
threat of loss of rights resulting from the employees ' execution of union authorization
cards; and , in context of the organizational efforts of the employees and his threats
of more onerous working conditions , through his use for the first time of a book to
record employee errors.
Similarly, I find that Respondent violated the Act by the remarks of A. R. Arnold
to assembled groups of employees , as found above . While his remarks contained
no threats or promises of benefit , but, rather , assured the employees of their freedom
of choice and the Company ' s neutrality in the impending election, which he asserted
would result from the Company 's filing of its RM petition with the Board, his com-
ments, taken in context , were clearly an invitation to employees to look directly to
management for the solution of problems arising out of the employment relation-
ship. As the Union was the collective -bargaining representative of the employees
and entitled to recognition at the time Arnold spoke to the employees , these remarks
had the effect of undermining the Union and violated Section 8 ( a)(1) of the Act.28
But, in the circumstances here revealed , the mere invitation to employees to seek
solution of their problems through consultation with management , not accompanied
by actual negotiations or discussions , is not violative of Section 8(a)(5) of the
Act.29
However, I find that by modifying employee hours of work and granting them
additional break time without consulting the Union , the Respondent violated Sec-
tion 8 ( a)(5) and (1 ) of the Act . 30 And this is so even though the evidence strongly
supports the Respondent's contention that the modification in hours of work of the
employees was entirely attributable to a temporary but substantial loss in volume,
occasioned by the opening of a competitive operation in the immediate vicinity of
the store . However, this consideration did not relieve Respondent of the responsi-
27 The Little Rock Downtowner, Inc, et al , 145 NLRB 1286, 1290-1291 ; cf. Square
Binding and Ruling Co ., Inc., 146 NLRB 206, 210-211.
28 Medo Photo Supply Corporation v. N.L R B , 321 U.S 678.
29 Cf. Bitten Insulation, Inc, 129 NLRB 1296, enfd . 297 F 2d 141 (C A 4) ; Medo Photo
Supply Corporation v. N L.R.B., supra ; Yale Upholstering Company, Inc, 127 NLRB 440,
Samuel J. Kobrtitz d/b/a Star Beef Company, 92 NLRB 1018, 1030
30 N.L.R B. v Exchange Parts Company, 375 U.S. 405.
FURR'S, INC. 405
bility under the provisions of the Act from advising the employees' collective-
bargaining representative of its intentions, and permitting the Union to consult with
it in reaching a satisfactory solution.
Indeed, the Respondent followed this precise course of action with respect to the
wage increase granted meat department employees. In this regard, the Union was
advised of the Respondent's intention and was invited to meet with its representa-
tives to discuss the matter. As the Union declined to do so, and as the evidence
supports Respondent's contention that it was a divisionwide wage increase and one
granted to meet the wage scale paid by competitors, I find that Respondent did not
fail in its obligation under Section 8(a)(5) of the Act to bargain collectively with
the Union with respect to the wage increase, nor was it an attempt, in violation of
Section 8(a) (1) of the Act, to undermine the Union.
I am unable to conclude, as Respondent asserts, that it is relieved from responsi-
bility for the actions and statements of Supervisors Amador and Harrison and of
Vice President Arnold, above found violative of Section 8(a)(1) of the Act, by
reason of the existence of its avowed policy of nonintervention in the organizational
rights and activities of its employees. Considered together, the statements of Ama-
dor, Harrison, and Arnold were neither casual nor isolated, and they were made
principally on company premises during working hours over a considerable period
of time. These coercive statements by supervisors and management representatives
were, in the circumstances, attributable to Respondent, and, as they ran directly
counter to the avowed policy of Respondent, were not expiated or expunged by
Arnold's reiteration of employee freedom to organize.31
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof. Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and Section 8(a)(5) of the Act, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following.
CONCLUSIONS OF LAW
1. Furr's, Inc., is an employer within the meaning of Section 2(6) and (7) of the
Act and is engaged in commerce within the meaning of those sections.
2. Retail Clerks International Association, Local Union No. 462, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. All employees employed at the Las Cruces, New Mexico, store of Furr' s, Inc.,
excluding professional employees, guards, watchmen, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Retail Clerks International Association, Local Union No. 462, AFL-CIO, has
been at all times material herein, and now is, the exclusive bargaining representa-
tive of all employees in the aforesaid appropriate collective-bargaining unit.
5. By refusing at all times since October 12, 1965, to bargain with Retail Clerks
International Association, Local Union No. 462, AFL-CIO, as the exclusive bar-
gaining representative of the employees in the aforesaid appropriate unit, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) of the Act.
6. By bypassing the Union at a time when it was the exclusive bargaining rep-
resentative of the employees in the aforesaid appropriate unit by modifying hours
of employment and granting additional break time, the Respondent engaged in unfair
labor practices within the meaning of Section 8 (a) (5) and Section 8 (a) (1) of the Act.
7. By engaging in surveillance of meetings of the Union, attended by its employ-
ees; by its statements to employees giving them the impression that their organiza-
tional activities were under surveillance of its agents and representatives; by inter-
rogating employees concerning their union activities, and the union activities of
their fellow employees; by threatening employees with more onerous working con-
31 Birmingham Fabricating Company, 140 NLRB 640; Blumel Ignition Co., 142 NLRB
1019, 1026.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ditions and loss of employment; by recording employee errors in a manner calcu-
lated to impress upon them that its agent's threat of more onerous working condi-
tions and loss of employment were being implemented; and by inviting employees
to consult directly with management concerning problems relating to the employ-
ment relationship, the Respondent engaged in unfair labor practices in violation of
Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
9 Respondent has not engaged in any alleged unfair labor practices not specifically
found herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, I recom-
mend that Respondent, Furr's, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Clerks International Association,
Local Union No. 462, AFL-CIO, as the exclusive bargaining representative for all
employees employed at the Las Cruces, New Mexico, store of Furr's, Inc., excluding
professional employees, guards, watchmen, and supervisors as defined in the Act.
(b) Bypassing the Union by modifying hours of employment and granting employ-
ees additional break time without notifying the Union and affording the Union the
opportunity to meet with it and bargain collectively concerning these matters.
(c) Engaging in surveillance of union meetings of employees, or fostering the
impression that their union activities are under surveillance; interrogating employees
concerning their union activities, or the union activities of their fellow employees;
threatening employees with more onerous working conditions and prospective loss of
employment in the event they select a labor organization as their collective-bargaining
representative; coercing them by recording their mistakes in a manner calculated
to reveal to them that the threat of more onerous working conditions and loss of
employment are being implemented; and inviting them to deal directly with manage-
ment concerning matters pertaining to the employment relationship.
(d) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of the right to self-organization, to form or join, or to assist the
aforesaid labor organization, to bargain collectively through the representative of
their own choosing, and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as amended
2.-Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Upon request, bargain collectively and in good faith with Retail Clerks
International Association, Local Union No 462, AFL-CIO, as the exclusive rep-
resentative of all employees in the aforesaid appropriate unit, and, if an understand-
ing is reached, embody such understanding in a signed agreement
(b) Post at its Las Cruces, New Mexico, store, copies of the attached notice
marked "Appendix." 32 Copies of said notice, to be furnished by the Regional
Director for Region 28, shall, after being duly signed by a representative of the
Respondent, be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 28, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith 33
32 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the 'Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
331n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith 11
FURR'S, INC. 407
It is recommended that unless on or before 20 days from the date of the receipt
of this Decision, the Respondent' notifies said Regional Director, in writing, that it
will comply with the aforesaid recommendations, the National Labor Relations
Board issue an order requiring Respondent to take the action aforesaid
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL, upon request, bargain collectively with heresaid Retail Clerks
International Association, Local Union No. 462, AFL-CIO, as the exclusive
bargaining representative of all employees in the bargaining unit described
below, with respect to rates of pay, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody such understanding
in a signed contract. The bargaining unit is-
All employees employed at the Las Cruces, New Mexico, store of Furr's,
Inc., excluding professional employees, guards, watchmen, and supervisors
as defined in the Act.
WE WILL NOT engage in surveillance of union meetings of our employees,'or
foster the impression that the union activities of our employees are under
surveillance.
WE WILL NOT interrogate our employees concerning their union activities, or
the union activities of their fellow employees.
WE WILL NOT threaten our employees with more onerous working conditions
or prospective loss of employment in the event that they select Retail Clerks
International Association. Local Union No 462, AFL-CIO, or any other labor
organization, as their representative for the purposes of collective bargaining
WE WILL NOT coerce our employees by recording their mistakes in a manner
calculated to reveal to them that the aforesaid threats ale being implemented.
WE WILL NOT interfere with, restrain, or coerce our employees in the exer-
cise of rights guaranteed them under the Act by inviting them to deal directly
with representatives of management concerning matters relating to their employ-
ment relationship at a time when they are represented by a collective-bargaining
representative of their own choosing.
WE WILL NOT bypass Retail Clerks Internatoinal Association, Local Union
No. 462, AFL-CIO, as the exclusive bargaining representative of our employ-
ees, by modifying their hours of work and granting increased break time with-
out notifying the aforesaid labor organization and affording it an opportunity to
meet with us and bargain collectively with us concerning these and all other
matters relating to the rates of pay, hours of employment, and other conditions
of employment of our employees
WE WILL NOT refuse to bargain collectively with the above-named labor orga-
nization, or in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form a labor
organization, to join or assist Retail Clerks International Association, Local
Union No. 462, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as amended.
All of our employees are free to become or remain, or to refrain from becoming
or remaining, members of Retail Clerks International Association, Local Union No
462, AFL-CIO.
FURR's, INC.,
Employer.
Dated------------------- By--------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1015
Tijeras Avenue, NW., Albuquerque, New Mexico, Telephone No. 247-2520.
Young & Greenawalt Co. and United Steelworkers of America,
AFL-CIO
International Brotherhood of Boilermakers , Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO, Local Lodge No.
1012 and United Steelworkers of America , AFL-CIO. Cases
No. 14-CA-3482 and 14-CB-1231. March 7,1966
DECISION AND ORDER
On August 25, 1965, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that the Respondents
had engaged in certain unfair labor practices alleged in the complaint
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondents had not engaged in
certain other alleged unfair labor practices and recommended that the
complaint be dismissed with respect to such allegations. Thereafter,
the General Counsel and the Respondents filed exceptions to the Trial
Examiner's Decision and briefs in support of their exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
1. The General Counsel contends, inter alia, that the Respondent
Company on July 23, 1964, unlawfully recognized the Respondent
Boilermakers and that in consequence the Respondents' entering into
a contract containing a union-security provision on July 25 was also
unlawful. The essential basis of his argument is that the Company on
the date of recognition did not employ a representative complement of
employees. The Trial Examiner found the General Counsel's argu-
ment to be without merit and concluded that both recognition and
execution of the agreement were lawful. Additionally as a result of
157 NLRB No. 18.