Hen House Market No. 3

National Labor Relations Board - Board Decisions

Apr 25, 1969

175 N.L.R.B. 596 (N.L.R.B. 1969)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harold W . Hinson , d/b/a Hen House Market No. 3
and Amalgamated Meatcutters & Butcher
Workmen of North America , Local Union 576,
AFL-CIO. Case 17-CA-3484
April 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 16, 1968, Trial Examiner Maurice
S. Bush issued his Decision in the above-entitled
proceeding , finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner ' s Decision.
Thereafter, Respondent and the Charging Party,
herein referred to as the Union , filed exceptions to
the Trial Examiner ' s Decision and supporting briefs.
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.
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 the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner , as modified herein.
We find , in substantial agreement with the Trial
Examiner that Respondent violated Section 8(a)(1)
of the Act by promising 3 employees better pay and
working conditions if they would reject the Union,
and by threatening the 3 employees that they would
have to go elsewhere to work if they did not
withdraw from the Union. We also agree with the
Trial Examiner that Respondent violated Section
8(a)(1) and (5) of the Act' by his refusal to bargain
for a new collective-bargaining agreement, upon
request , with the Union as the exclusive bargaining
representative of all meat department employees at
Respondent ' s Harrisonville , Missouri , store; by
unilaterally , and without bargaining with the Union,
increasing wages of the employees in the unit;' and
by unilaterally changing health , welfare, and
retirement benefits of the employees.'
The Board finds insufficient support in the record for the Trial
Examiner 's finding that Hinson told his employees he would operate this
store as a nonunion shop after February 3, 1968, and therefore does not
adopt this finding
'N L R B v Katz , 369 U S 736, 747
'See Laclede Gas Company , 173 NLRB No 35 See also Mor Paskesz,
171 NLRB No 20, N L R B v Sheridan Creations, Inc , 384 F 2d 696
(C A 2), Cook and Jones , Inc, 146 NLRB 1664, enfd 339 F 2d 580
(CA 1)
The Union has taken exception to the
Recommended Order of the Trial Examiner, on the
ground that it contains no specific provisions to
remedy Respondent's unlawful unilateral
discontinuance of payments on behalf of unit
employees to the Union's pension, health, and
welfare funds. We find merit in this exception. The
pension, health, and welfare plans provided for by
the expired contract constituted an aspect of
employee wages and a term and condition of
employment which survived the expiration of the
contract and could not be altered without
bargaining.' The appropriate remedy for
Respondent's unilateral action in discontinuing
contributions to the union-sponsored plan and in
substituting a plan of its own, just like the
appropriate remedy for any other unlawful
unilateral action,' where feasible, is to reinstate the
status quo ante and retain it until Respondent
fulfills its bargaining obligation by either bargaining
out a new agreement covering the subject or
bargaining to an impasse. For these reasons we shall
modify the Recommended Order to require
Respondent to make whole the employees in the
unit by paying all pension, health, and welfare
contributions, as provided in the expired
collective-bargaining agreement, which have not
been paid and which would have been paid absent
Respondent's unlawful unilateral discontinuance of
such payments found herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondent,
Harold W. Hinson, d/b/a Hen House Market No.
3, Harrisonville, Missouri, his agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Insert the following at the end of paragraph
1(d) of the Recommended Order, and at the end of
the fourth indented paragraph of the Notice, after
first deleting the last period and substituting a
comma therefor:
except that nothing herein contained shall be
construed as requiring Respondent to revoke any
'See Frank Gallaro and Joseph Gallaro , d/b/a Gallaro Bros and G &
G Foods Co , 172 NLRB No 107 See also Overnight Transportation
Company, Inc, 157 NLRB 1185, 1190-91, enfd . 372 F 2d 765 (C A 4),
Herman Sausage Co Inc, 122 NLRB 168, enfd 275 F 2d 229 (C A 5)
Contra, N L R B v George E Light Boat Storage Co , 373 F 2d 762
(CA 5)
'See H W Elson Bottling Company , 155 NLRB 714, and cases cited
therein See also Creutz Plating Corp , 172 NLRB No 1, Lincoln Mfg
Co, 160 NLRB 1866
'See Frank Gallaro and Joseph Gallaro , dlbla Gallaro Bros and G &
G Foods Co , supra See also N L R B v Strong Roofing and Insulating
Co. 391 U S 933
175 NLRB No 100
HEN HOUSE MARKET NO. 3
wage increase or other benefits which it has
heretofore granted.
2. Add the following as paragraph 2(b) of the
Recommended Order, and reletter subsequent
paragraphs accordingly:
"Make whole the employees in the appropriate
unit by paying all pension, health and welfare
contributions, as provided in the expired
collective-bargaining agreement, which have not
been paid and which would have been paid absent
Respondent's unlawful conduct found herein, and
continue such payments until such time as
Respondent negotiates in good faith with the Union
to a new agreement or an impasse."
3. Insert the following as the last indented
paragraph of the Notice:
I WILL make to the appropriate fund, from the
date of the expired agreement, all such pension,
health and welfare payments which I have not
made and which I would have made absent my
unilateral changes.
TRIAL EXAMINER'S DECISION
MAURICE S. BUSH, Trial Examiner: Respondent Harold
W. Hinson in August 1967 purchased a food store
operating under a subsisting collective-bargaining
agreement between the store's former owner and the
above-named Union covering the store's three meat
department employees which Hinson recognized as legally
binding upon him. The issues in the case are whether
Hinson, despite his recognition of liability under the
contract, is nevertheless in violation of Section 8(a)(1) and
(5) of the National Labor Relations Act by (a) refusing to
bargain with the Union in good faith as the exclusive
bargaining representative of the involved unit, (b) by
promising the three employees better pay and working
conditions if they would reject the Union, (c) by
threatening the three employees that they would have to
go elsewhere to work if they did not withdraw from the
Union, (d) by unilaterally, and without notice to the
Union, increasing the wages of the employees in the unit,
and (e) by unilaterally, and without notice to the Union,
changing various subsisting health, welfare and retirement
benefits of the involved employees.
The complaint was issued on March 29, 1968, pursuant
to a charge filed by the Union on February 12, 1968, a
copy of which was duly served upon Respondent on the
same day. A timely answer to the complaint was filed on
April 5, 1968. Amendments to the complaint and answer
were made at the trial and pursuant to direction have been
reduced to writing and received in evidence as General
Counsel's Exhibit 3 and Respondent's Exhibit 1,
respectively. Respondent's answer and amendments
thereto were further modified by certain stipulations of
fact made at the opening of the trial.
The case was heard at Kansas City, Missouri, on May
9, 1968. Counsel for General Counsel and Respondent
have filed excellent briefs. These have been carefully
reviewed and considered.
Upon the entire record and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
597
Respondent Harold W. Hinson is an individual
proprietor engaged in the retail sale of grocery and meats
products at stores in Kansas City and Harrisonville,
Missouri. In the course of his business operations,
Respondent annually sells groceries and other merchandise
valued in excess of $500,000, of which more than $50,000
worth originates outside of the State of Missouri.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meatcutters & Butcher Workmen of
North America, Local Union 576, AFL-CIO, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. BACKGROUND FACTS
Associated Grocers is a large association of
independent grocers located in the area of Greater Kansas
City, Missouri. Associated performs for its members a
variety of services, including the service of negotiating
collective-bargaining agreements with the aforementioned
Union in behalf of such of its grocer-members as operate
union shops. Respondent Harold W. Hinson, who
operates nonunion shops in Kansas City, Missouri, has
been a member of Associated for many years and has
been on its board of directors for the past 10 or 12 years.
Hugo Nyman, also a member of Associated Grocers, for
many years owned and operated Nymans Food Center, a
corporation, with place of business at Harrisonville,
Missouri, under a collective-bargaining agreement with the
Union. On August 20, 1967, Nyman sold all the capital
stock of the Center to Associated Grocers and assigned to
it the lease occupied by the Center.
On the following day, August 21, Associated Grocers
sold all the physical assets and going business of the
Center to Hinson who thereafter operated it as a sole
proprietorship. It is established by stipulation that Hinson
upon the acquisition of the physical assets and business of
Nymans Food Center became a successor employer,
within the meaning of the Act, to the subsisting
collective-bargaining agreement (G.C. Exh. 4) between
Nymans Food Center and the Union. The contract
covered only the employees in the Center's meat
department which consists of a unit of 3 employees. The
contract was for the period October 4, 1965 through
February 3, 1968. It provided for automatic renewal on
February 3, 1968 on a month-to-month basis unless either
the Employer or the Union by a prior 60-day written
notice requested that the agreement "be reopened for
negotiations of changes." Although the agreement on its
face appears to be solely a contract between Nymans
Food Center and the Union, it is established by
stipulation that it follows a prototype worked out by the
Union and the retail food industry in industry-wide
negotiations for the Greater Kansas City area. The same
contract was thus in force between the Union and
designated operating markets in the Greater Kansas City
Area consisting of 5 counties. The record shows that it
had been Hugo Nyman's practice for many years to
accept any contract worked out between his industry and
the Union without personally or through a representative
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participating in the negotiations leading to the prototype
agreement.
Hinson renamed Nymans Food Center to Hen House
Market No. 3. Although Hinson has been in the retail
grocery business for 30. years he has never had a union
shop prior to his acquisition of the Center. His other two
stores, Hen House Markets Nos. 1 and 2, have never been
under a collective-bargaining agreement. Hen House
Market No. 1 which he has owned and operated for 30
years employs around 100 persons of which some 20 to 25
work in its meat department. Store No. 2 has about 30
employees of which 8 are employed in the meat
department. The store here involved employs about 20
employees of which 3, as heretofore shown, are employed
in its meat department. It is Hinson's only self-service
food store and all meat department employees employed
by Respondent at that store, but excluding office-clerical
employees, guards, and supervisors as defined by the Act
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
Despite the fact that Hinson has never had to deal with
a union in his 30 years of experience as an independent
grocer, the record shows by his own admissions that he is
quite knowledgeable of union affairs and practices and the
obligations of an Employer under the Act. His testimony
shows that he generally seeks to match for his meat
department employees the wages and health, welfare and
retirement benefits called for in the industry-wide
collective-bargaining agreement . The record further shows
that Hinson as a member of the board of directors of
Associated Grocers for many years, has been exposed to
the ins and outs of industry-wide negotiations with the
Union over the years in the renegotiation of expiring
collective-bargaining agreements , since one of the
functions of Associated Grocers is to represent its
grocer-members as a group in industry-wide negotiations
with the Union which it does through a representative
appointed by its board of directors who, it must be
presumed , reports to the board the status of the
negotiations from time to time and ultimately submits to
the Board for its approval or disapproval the final draft of
the prototype contract.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The Union learned about Hinson's purchase of the
Nyman store almost immediately and lost no time in
contacting Hinson. Within a day or two after the
acquisition, one of the Union's business representatives,
Ted Wolff, spoke to Hinson at his new store in the
presence of the store's 3 meat department employees. He
called Hinson 's attention to his succession to the Nyman
collective-bargaining agreement with the Union and
requested his signature to the contract in order to bring its
provisions for a Pension Plan and Trust Agreement in
compliance with-the rules and regulations of the Internal
Revenue Service . Hinson readily acknowledged that he
had "bought the contract" and would abide by it, but
stated he would refer the request for his signature to his
attorney who would later contact the Union. Wolff saw
Hinson again two weeks later as the contract was still
unsigned and Hinson again said he would refer the matter
to his attorney. Two weeks later, not having heard from
Hinson's attorney, Wolff once more spoke to Hinson
about getting his signature on the contract . Hinson replied
that he had forgotten to send the contract to his attorney,
Frank Rope, but would now do so. Thereafter, as no word
was forthcoming from attorney Rope, Wolff made several
unsuccessful attempts to reach Hinson by telephone.
The record shows that Hinson eventually sent the
contract to another attorney, Robert Frager, for advice
and such action as he deemed advisable. Under date of
November 8, 1967, Frager wrote to the Union seeking
new language in the contract to make it expressly clear
that the contract would apply only to Hen House Market
No. 3 and not to Hinson's other two food markets. The
Union never responded to Frager's letter.
Some 17 days later, on November 25, 1967, Hinson
under his own signature sent the Union an undated letter
(G.C. Exh. 5) notifying the Union that "Nymans Food
Center does not intend to be bond by the present existing
contract with your union after February 3, 1968, the date
of its expiration." The notice was timely under the
existing contract. From Hinson's testimony, it is found
that at the time he sent his notice of contract termination
to the Union, he told the 3 meat department employees in
Hen House Market No. 3 about his notice to the Union
and informed them that after February 3, 1968 he would
operate that store as a nonunion shop.
On December 27, 1967, the Union sent Hinson a letter
(G.C. Exh. 6) requesting a contract negotiation meeting
on January 2, 1968, under the following text:
This will serve as our notice that we would like to have
a meeting with you on January 2, 1968, at 2:00 p.m. at
the Bellerive Hotel for the purpose of negotiating a new
contract to replace the one covering Nyman's Food
Center which expires on February 3, 1968. Find
enclosed another copy of the contract proposal which
we sent you on November 28.
Hinson did not answer the Union's letter. On January
22, 1968, the Union sent him a second letter (G.C. Exh. 7)
requesting a meeting on January 29,.1968, for the purpose
of negotiating a new contract to take the place of the old
expiring contract. Hinson again did not reply. Prior to
these letters by the Union to Hinson, the Union in
November had commenced industry-wide negotiations
with retail market employers in the heretofore described
Greater Kansas City Area for a new prototype contract to
replace the then existing contract, of which as noted, the
Nyman contract to which Hinson had succeeded, is an
example. In these industry-wide negotiations, the Union
negotiated with representatives of various groups of
employers, of which the Associated Grocers was one.
These negotiations came to fruition in a new industry-wide
collective-bargaining agreement reached on or about
February 20, 1968, as successor to the old contract.
Hinson testified that he did not respond to the Union's
two letters requesting contract negotiating meetings
because he "knew there could be no separate contract...
until the industry had arrived at a decision . . . and
because he felt that he would be bound by whatever the
industry decided on anyway." He gave as a further reason
for not responding to the Union's requests that as a
member of the Associated Grocers, he felt that he "had
negotiations going on in any event." These reasons are not
credited as the evidence shows, as found above, that
Hinson had no intention of running a union shop at Hen
House Market No. 3 after the expiration of the Nyman
contract to which he fell heir and that he had notified his
meat department employees to that effect.
The fact that Hinson had no intention of operating Hen
House Market No. 3 under a collective-bargaining
contract after the February 3, 1968 expiration of its
subsisting contract is also reflected in a letter sent by his
aforementioned attorney, Robert Frager, under date of
March 5, 1968, to government trial counsel herein, in
HEN HOUSE MARKET NO. 3 599
connection with the then anticipated complaint in this
matter pursuant to the charge filed by the Union in the
case. In his letter (G.C. Exh. 2) Frager stated ". . . that
the employer's [Hinson's] evidence would be that at the
time the contract expired, a representative of Associated
Grocers spoke to the employees of the meat department at
the Harrisonville store [Hen House Market No. 3] and
advised them that if they desired to work in a union shop,
he would find them -jobs."' He could hardly have said
more clearly that Hinson planned to run a strictly
nonunion shop , at Hen House Market No. 3 after the
expiration of the old Nyman collective-bargaining
agreement on February 3 pursuant to Hinson's notice.
'The Frager letter was received in evidence (G.C. Exh. 2) as an
admission against interest by Hinson through his attorney Frager over the
objections of Hinson 's present and successor counsel to Frager on the
ground that government counsel had failed to show that Hinson had
authorized a representative of Associated Grocers to speak in his behalf to
the 3 union meat department employees in Hen House Market No. 3 and
advise them "that if they desired to work in a union shop , he would find
them jobs [elsewhere]." The law , ably briefed by Respondent 's present
counsel , is quite clear (Wigmore, Evidence, Vol. IV, 3d ed., sec. 1063 and
related sections ) that an "attorney's admission can effect his client so far
as he has authority to act in his client's place ..... The issue is thus
solely a question of fact as to whether Hinson , either directly or indirectly
or through attorney Frager , had authorized a representative of Associated
Grocers to make the indicated contact and offer to the employees.
Quite aside from the oral testimony in the case , the quoted statement
from attorney Frager 's letter is susceptible to the inference that Hinson
himself directly authorized the Associated Grocery representative to tell his
3 union meat department employees in his behalf that if they wanted
employment in a union shop he would find them jobs elsewhere , or to the
inference that attorney Frager, upon authority conferred on him by
Hinson, authorized the representative in question to make that statement
and offer to the 3 employees.
Hinson's own testimony is conflicting on whether he had authorized a
representative of Associated Grocers to speak for him to the 3 union meat
department employees and offer to get them jobs in a union shop if that is
what they desired . In one part of his testimony Hinson flatly denied that
he had given any representative of Associated Grocers such authority, but
in response to a question put to him by the Examiner , he acknowledged
that he had given his then attorney , Frager, full authority to act for him in
connection with the charge involved in this case which, it follows, would
include the authority to authorize a representative of Associated Grocers to
make the offer of union jobs elsewhere to the 3 employees . Hinson also
acknowledged (Tr. 97) that he had told Frager that a representative of
Associated Grocers had talked to the 3 employees and had offered to
relocate them in union shops if they desired to continue to work in a union
shop . This carries the strong inference , here found , that Hinson himself
had authorized the representative in question to make the offer of union
jobs elsewhere to the 3 employees if they desired to remain in union jobs,
particularly since the record fails to disclose that Hinson had at any time
disclaimed responsibility to his employees for the offer.
Hinson 's own testimony also leaves no doubt that the Associated
Grocer's representative who contacted the 3 meat department employees
was Bill Sheehan , Associated's retail meat supervisor, whose function it is
to assist grocer-members of Associated Grocers with their meat
department problems. When one of Hinson's 3 meat department employees
in Hen House Market No. 3 left that store , Sheehan selected a
replacement (Michael Jackson) for him who was still working at that store
at the time of this trial . The record supports an inference that there is a
close business relationship between Sheehan , in his capacity as an
employee of Associated Grocers , and Hinson , in his capacity as a member
of the Associated's Board of Directors.
On the basis of the record as outlined in this footnote, it is found that
Hinson either directly or indirectly or through his then attorney , Frager,
authorized Sheehan, the aforementioned representative of Associated
Grocers, to contact the 3 involved meat department union employees in his
behalf to offer to get them jobs at other union shops "if they desired to
work in a union shop ." Accordingly Hinson 's denial that he had given such
an authorization to "a representative of Associated Grocers" (Sheehan) is
not credited.
The letter in question by Hinson 's attorney Frager was written in the
management of the then anticipated litigation here involved . The Board
Commencing concurrently with his notice of November
25, 1967 to the Union of contract termination as of
February 3, 1968, Hinson made a series of statements to
his employees in the meat department of Hen House
Market No. 3 and took certain actions affecting the terms
and conditions of their employment. The three involved
employees are Michael Sargeant, a meatcutter with 4
years' experience who has worked for the store now
known as Hen House Market No. 3 for the past 2 years;
Goldie Cunningham, a meat wrapper with 8 years'
experience who has worked at the same store since about
the time Hinson took it over; and Michael A. Jackson, a
journeyman meatcutter with nearly 7 years' experience
who has worked at the store since September 6, 1967 and
who was hired by Hinson, as heretofore noted in footnote
No. 1 above, upon the recommendation of Associated
Grocers' meat supervisor, Bill Sheehan. All three of these
employees were members of the Union when they were
hired to work at store No. 3 and remained union members
at least until such time as they mailed in requests to the
Union for withdrawal cards on February 7, 1968, a few
days after the collective-bargaining contract between the
Union and Nymans Food Center had expired. Mrs.
Cunningham had been a member of the Union for some 8
years and Sargeant for about 2 years at the time they sent
in requests for withdrawal cards to the Union; the record
is silent as to how long Jackson had been a member prior
to his request for withdrawal.
On November 25, 1967, the stipulated date of his
contract termination notice to the Union, Hinson spoke
collectively to the 3 meat department employees in Hen
House Market No. 3 and told them about his notice to
the Union. He also informed them that after the
expiration of the then preexisting collective-bargaining
agreement on February 3, 1968, the store would no longer
operate under a contract with the Union. Shortly
thereafter Hinson spoke individually to the 3 employees.
He told them that after February 3, it would be up to
each of them to decide whether "to stay union or
nonunion ," but informed them that if they decided to
remain in his employment he would match their pay with
the union scale and would put them under his own
independent health and welfare and retirement plans then
applicable to all other employees in his 3 stores which he
stated were comparable to those under the Union
contract.
At around the time Hinson advised the 3 employees
that it would be up to them to decide whether "to stay
union or nonunion" after the February 3, 1968 expiration
date of collective-bargaining agreement , he took action to
increase the salaries or wages of 2 of the employees in the
unit. On November 25, 1967, he promoted Sargeant from
journeyman meatcutter to head meatcutter with the title
of Meat Department Manager at a salary increase to $175
from $139 a week; the parties have stipulated that this
promotion to manager did not disqualify Sargeant from
membership in the Union. On December 15, 1967, he
raised Goldie Cunningham's salary approximately $10 a
week for the stated reason of wanting to place her on par
with the wages he was paying his other meat wrappers at
Stores Nos. 1 and 2. These salary or wage increases were
made unilaterally and without notice to the Union.
has held that, "It is well settled that the admissions of an attorney in the
management of litigation are admissible against a client ." Alban Poultry
& Egg Company, 134 NLRB 827, In. 1. The Examiner adheres to his
original ruling receiving in evidence the letter sent by Frager as attorney
for Hinson in the management of anticipated litigation to government
counsel herein.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 3, the date the contract expired, the 3
employees were contacted, as heretofore shown, by a
representative of Associated Grocers in behalf of Hinson
who told them that "if they desired to work in the union
shop, he would find jobs for them." (G.C.-Exh. 5 and fn.
1, above.) The record shows that each of the 3 employees
clearly understood that they could not continue working
for Hinson after February 3 unless they dropped their
union membership. On February 7, each of the 3
employees sent an identical letter to the Union requesting
withdrawal of membership in the Union. Two of the 3
employees were partially motivated in taking this action
by their strong desire to remain at Store No. 3 because of
its convenient location with respect to their homes.
Thereafter Hinson put the 3 employees under the health,
welfare and retirement benefits theretofore applicable to
all other employees in Hinson's three stores which differed
from their benefits under the collective-bargaining
agreement. This was also done unilaterally and without
notice to the Union.
Hinson denied that in talking to the 3 employees at the
time he sent his notice of contract termination to the
Union that he made any comparisons to them as to what
they could expect from him in the way of wages and
health, welfare and retirement benefits as compared to
what they would get in a union shop. He denied that he
had even mentioned the Union to the 3 employees. This
conflicts with quite specific testimony to the contrary by
the 3 employees. Jackson for example, testified that
Hinson told him that he would "go along with the
[Union] contract, it would be just as good or better."
Sargeant and Cunningham also testified that Hinson made
substantially the same statements to them. This
unanimous testimony by all 3 of the employees in the unit
requires acceptance. The Examiner discredits the denials
of Hinson that he made any comparisons to them of the
wages and benefits he would give them as nonunion
employees as compared with what they would get under a
Union contract. (The record shows, by Hinson's own
admission, that the industrywide contract eventually
renegotiated by the Union on February 20, 1968 provided
for more pay and more benefits than he was paying his 3
meat department employees after they withdrew from the
Union.) The 3 employees denied that they were influenced
by anything Hinson had told them about working
conditions at the store after February 3 in withdrawing
from the Union and testified that they arrived at their
decision to withdraw from the Union independently
because they believed they would be better off financially
as nonunion employees in Hinson's No. 3 store. This
testimony given at the time when they were still in the
employment of Hinson and beholden to him cannot be
credited as the entire record supports the contrary
conclusion that they felt that they had no alternative than
to withdraw from the Union in view of their desire to
remain at the store and Hinson's determination to operate
it as a nonunion store after February 3. This was finally
made abundantly clear to them on the day the store's
collective-bargaining agreement expired, by the offer they
received that very day from a representative of Associated
Grocers in behalf of Hinson to find them jobs elsewhere
"if they desired to work in a union shop." They lost no
time thereafter in mailing their letters of February 7 to
the Union requesting withdrawals of their memberships.
The record shows that Hinson by his own admission
was fully aware of the fact that if his 3 meat department
employees "stayed in the Union" he "would have to
bargain with them."
Discussion and Conclusions
From the evidentiary facts set forth above, the
Examiner finds and concludes that Respondent Hinson is
in violation of Section 8(a)(1) and (5) of the Act (a) by his
refusal to bargain with the Union both before and after
the expiration of the binding subsisting
collective-bargaining agreement he took over when he
purchased the Harrisonville food market, (b) by his
promise to the 3 employees in the involved unit of better
pay and working conditions if they rejected the Union, (c)
by his threats to the employees that they would have to go
elsewhere to work if they did not withdraw from the
union , (d) by his unilateral action in increasing the wages
of the employees in the unit without notice to or
consultation with the Union, and (e) by his unilateral
action in changing various subsisting health, welfare and
retirement benefits of the involved employees without
notice to and consultation with the Union.
Taken as a whole, Hinson's indicated conduct and acts
discloses a firm determination to undermine and destroy
the Union in Hen House Market No. 3 so that it could be
operated like his other two stores as a nonunion shop
after the expiration of its subsisting collective-bargaining
agreement. Although obliged to recognize his
successorship as an Employer to the store's preexisting
collective-bargaining contract, Hinson's conduct since the
purchase of the store shows a considerable amount of
zigzagging in efforts to find ways and means of escaping
from the contract.
In the 6-month period remaining to the life of the
contract from the time he took over the store Hinson
employed no fewer than 3 sets of attorneys to represent
him in connection with his legal obligations thereunder.
The record carries the inference that he changed attorneys
when it appeared that they could offer him no avenues of
escape from the contract. When contacted by a Union
representative the day after he bought the store for his
signature on the preexisting agreement, he readily
acknowledged his liability thereunder but stated he would
refer the request for his signature to his then attorney, a
Mr. Frank Rope, who would later contact the Union. The
Union never heard from Rope and never succeeded in
getting Hinson's signature on the contract in the 8 or
more weeks following the initial request despite two
subsequent personal calls on Hinson and numerous
unanswered telephone calls to him for this purpose. The
next word the Union received on the matter was a letter
dated November 8, 1967, from a new attorney, the
aforementioned Robert Frager requesting an addendum to
the contract expressly limiting its provisions to store No.
3 and thereby avoiding any possibility that it might also
apply to Hinson's nonunion shops Nos. 1 and 2.
The Union did not immediately reply to this request,
but Hinson in an evident change of mind about being
under a union contract, sent the Union a letter under his
own signature on November 25 notifying the Union that
he did not intend to be bound by the then subsisting
collective-bargaining agreement "after February 3, 1968,
the date of its expiration." In view of the implications in
the notice, the Union sent Hinson two letters under dates
of December 27, 1967 and January 22, 1968 requesting a
meeting "for the purpose of negotiating a new contract for
the one that expires Feb. 3, 1958." Hinson never replied
to either of these letters, although the contract was still in
full force and effect and all 3 employees in the unit
HEN HOUSE MARKET NO. 3 601
covered by the contract were still members of the Union.
Hinson 's excuse at the trial for not replying was that he
felt that he would in any event be bound to accept the
industrywide new contract then being negotiated by the
Union and the industry . This excuse is not credited as it
does not stand critical examination for at least 3 reasons.
One is that if he had intended to be bound by the new
industrywide contract he would never have sent his notice
of November 25 to the Union terminating as of February
3, 1968 the then existing contract which by its terms was
to continue automatically beyond its expiration date until
a new contract was executed unless terminated by one of
the parties . Another is that Hinson failed to let the Union
know by letter or word of mouth , as his predecessor had
under similar circumstances , that he would be bound by
whatever new industrywide contract the Union and the
industry worked out . Certainly Hinson , an astute man,
knew that the Union had a right to expect at least such a
token notice of intention to continue under a Union
contract as it was well known to the Union that he had
never been a party to a collective -bargaining agreement in
all the 30 years he had been operating food markets. The
third reason for not crediting Hinson ' s excuse for not
responding to the Union 's request for negotiations on a
new contract is that Hinson's conduct and acts prior to
the receipt of the Union ' s request for meetings as set forth
in the evidentiary findings above show a clear intent not
to enter into any new collective -bargaining agreement
upon the expiration of the old contract , but on the
contrary reveal an intent to undermine and destroy the
Union so that store No. 3 could be operated as a
nonunion shop after February 3.
Thus the record compels the conclusion that
Respondent Hinson is in violation of Section 8(a)(1) and
(5) of the Act by his refusal to bargain with the Union
pursuant to its requests for a new collective -bargaining
agreement during the contract period when the Union was
concededly the exclusive bargaining representative of
Hinson ' s meat department employees in his store No. 3.
The record is even more direct that Hinson offered the
three employees in the unit better pay and working
conditions if they would reject the Union , in violation of
Section 8 (a)(1) and (5) of the Act . This is implicit in the
testimony of the three employees that Hinson told them
that he would continue to meet the union scale of wages
and benefits , or "better," when he was no longer under
the then subsisting collective -bargaining agreement for
store No. 3 upon the expiration of its term . Respondent
contends , however , that reliance should be given to the
testimony of the three employees that in withdrawing
from the Union they were not influenced by Hinson's
promises of wages and benefits equal to or better than
under a union contract but that they independently arrived
at their decisions to withdraw from the Union based upon
their own judgment that they would be better off working
in Hinson ' s nonunion shop than under a union contract.
As it was found above that the indicated testimony is not
credible , the contention lacks merit. It may be added here
that the demeanor of the three employees while giving
such testimony also compels rejection of the testimony.
Respondent also advanced the alternative argument that
Hinson 's statements to the three employees that the wages
and benefits he would give them after the expiration of the
store ' s collective -bargaining agreement would match or
exceed what they would get in a union shop are mere
expressions of views, arguments or opinions under the
protective provisions of Section 8(c) of the Act, "as his
statements contain no . . . promise of benefit." This
contention is also without merit as our findings show that
Hinson 's statements to the three employees did contain
"promise of benefit" if the employees would withdraw
from the Union. The promises were, to be sure , not direct
promises - Hinson is too astute to engage in that kind of
obvious and direct violation of the Act - but they were
clearly implied promises of the same or better terms of
employment than under contract if the three employees
withdrew from the Union . The record compels the
conclusion that this is what the three employees
understood from the st atements made to them by Hinson
simultaneously with the mailing of his notice to the
Union that he would not be bound by the subsisting
collective-bargaining contract after its expiration date.
Section 8(c) expressly excepts from its protective
provisions, expressions of "promise of benefit," such as
has been found to have been made in the instant case by
Hinson to the three employees . Such promises of benefits
constitute a violation of the provisions of Section 8(a)(1)
and (5 ) of the Act.
Respondent's further violation of Section 8(a)(1) and
(5) by threats to the three employees that they would have
to go elsewhere to work if they did not withdraw from the
Union, similarly does not require much amplification here
as the evidence of this violation has been discussed at
length above in footnote 1. Summarized , the record
reveals, through a letter written by Hinson 's attorney
Frager , that an agent of Hinson called on the 3 employees
at store No. 3 on the very day that the store's
collective -bargaining contract expired , to offer to get them
jobs elsewhere " if they desired to work in a union shop."
In addition it may be added that wholly aside from the
Frager letter , Hinson ' s conduct and actions with respect to
the three employees from and after the time he notified
the Union of his election not to be bound by the
automatic renewal provision of contract after its
expiration date clearly revealed to the employees that they
could not remain in Hinson ' s employment after the
expiration date of the contract unless they withdrew their
memberships from the Union.
The finding that Respondent is in further violation of
Section 8 (a)(1) and (5) by his bestowing of unilateral wage
increases upon employees in the unit likewise does not
require much discussion . The findings above show that
Hinson , at or near the time of his contract cancellation
notice to the Union, increased the wages of one of the
employees in the unit approximately $ 10 a week and
promoted another employee in the unit to meat
department manager at a salary increase of $36 per week
without solicitation by the two employees and without
notification to or consultation with the Union . The $10
wage increase was given to Mrs. Cunningham for the
alleged purpose of placing her salary on par with salaries
paid meat wrappers at Hinson ' s other 2 stores. But no
reason was advanced by Hinson to explain the fact that he
waited some 3 months until December 15, 1967 , to elevate
Mrs. Cunningham 's salary by about $10 a week in order
to equalize her pay with that of his other meat wrappers
as she had started working for him from about the time
he took over store No. 3 on August 21, 1967. Similarly no
testimony was offered by Hinson to explain the
circumstances under which a vacancy occurred for the
position of Meat Department Manager at store No. 3 to
which he promoted Sargeant at a time practically
concurrent with his notice of contract cancellation to the
Union ; the record is curiously silent on this and
accordingly lends itself to the inference under all the other
circumstances of the case that Hinson artificially created
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the vacancy of Meat Department Manager at store No. 3
in order to elevate Sargeant to that position and thereby
make him more susceptible to Hinson 's indirect pressure
that he withdraw his membership from the Union. But
wholly aside from such an inference ,, the record as a
whole , reflecting as it does Hinson 's refusal to bargain
with the Union, his notice to the Union of termination of
the collective-bargaining agreement , and his implied
threats through an agent to the three employees that they
would have to find work elsewhere if they did not
withdraw from the Union, compels the conclusion that
Hinson raised Cunningham 's salary and promoted
Sargeant to a better paying position for the deliberate
purpose ofinducing them to withdraw from the Union in
order to undermine and destroy the Union. Accordingly
the reasons advanced by Hinson for the salary increases of
Cunningham and Sargeant are rejected as being
pretextual.
Finally the record also leaves no doubt that Respondent
Hinson is in further violation of Section 8(a)(1) and (5) of
the Act by reason of having made admitted unilateral
changes in the Health and Welfare benefits of the three
involved employees without notice to or consultation with
the Union. Respondent advances the argument that these
admitted changes are not unlawful because they were
made (a) after the three employees had "voluntarily"
withdrawn from the Union and (b) after the expiration
date of the involved collective-bargaining agreement, and
thus were made at a time when the Union had ceased to
represent the employees in the unit as their exclusive
bargaining representative . The difficulty with the
argument that the three employees voluntarily withdrew
from the Union is that the record compels the opposite
conclusion that their withdrawals were induced by pay
raises and by threats that they would have to find work
elsewhere if they did not withdraw from the Union.
Similarly , the difficulty with the argument that the
changes in the Health and Welfare benefits are lawful
because they were made after the collective-bargaining
agreement had expired is that the record shows that
Respondent's conduct , as heretofore outlined in detail,
undermined the Union by dissipating the Union
membership of all the employees in the unit and thereby
destroyed the elementary condition required for even the
commencement of negotiations for a succeeding
collective-bargaining agreement . The law is clear that a
Respondent may not profit by his own unfair labor
practices . Because of these unfair labor practices,
Respondent's obligation to consult the Union with respect
to the contract changes here involved persisted beyond the
formal expiration date of the collective-bargaining
contract to which Respondent succeeded as an employer
under the Act when he purchased the going business of
store No. 3. C & C Plywood Corporation, 163 NLRB
No. 136; The Little Rock Downtowner, Inc., 168 NLRB
No. 18; and Ohio Car & Truck Leasing , Inc., 169 NLRB
No. 37.
VI. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(1) and (5) of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designated to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact and
upon the record as a whole , I make the following:
CONCLUSIONS OF LAW
1. Respondent Harold W. Hinson is engaged in
commerce and the Union is a labor organization within
the meaning of the Act.
2. Respondent on August 21, 1967, purchased a food
store at Harrisonville , Missouri , now known as Hen
House Market No. 3, subject to a preexisting
collective-bargaining agreement between the Union and a
prior owner covering a unit of meat department employees
at said store more specifically described below.
3. Respondent upon the purchase of said store became
a successor Employer , within the meaning of the Act, to
the above-described subsisting collective-bargaining
agreement which became effective on October 4, 1965,
and by its terms was to remain in force and effect through
February 3, 1968.
4. All meat department employees at Respondent's said
Harrisonville 's food store, but excluding office-clerical
employees , guards , and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
5. By interfering with, restraining , and coercing his
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging , in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
6. By the unlawful labor practices described in the
paragraph next above , Respondent has caused all
employees in the above-described unit to request the
Union for withdrawals from membership therein.
7. Because of Respondent 's unlawful conduct in causing
the employees in the unit to seek to withdraw their
membership in the Union , the Union remains and
continues to be their exclusive representative for purposes
of collective bargaining within the meaning of Section 9(a)
of the Act.
8. By failing and refusing to bargain in good faith with
the Union as the exclusive bargaining representative of the
described unit of meat department employees in his
Harrisonville store , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8 (a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operation 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 of commerce.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this case,
the Trial Examiner recommends that Respondent Harold
W. Hinson, his agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing , upon request, to bargain collectively in
good faith with the aforesaid Union , as the exclusive
representative of all meat department employees employed
HEN HOUSE MARKET NO. 3
by Respondent in the heretofore described unit at his
Harrisonville, Missouri , store , now operated under the
name of Hen House Market No. 3.
(b) Promising employees better pay and working
conditions if they would reject the Union.
(c) Threatening employees that they would have to
leave his employment if they did not withdraw from the
Union.
(d) Unilaterally changing the wages or working
conditions of employees without notifying , consulting or
bargaining with the Union prior to making such changes.
(e) Unilaterally changing the health , welfare and
retirement benefits of employees without notifying,
consulting or bargaining with the Union prior to making
such changes.
2. Take the following affirmative action which is
necessary to effectuate the purpose of the Act:
(a) Upon request, bargain collectively with
Amalgamated Meatcutters & Butcher Workmen of North
America, Local Union 576, AFL-CIO, as the exclusive
representative of the employees in the aforestated
appropriate unit at Respondent 's Harrisonville , Missouri ,
food store with respect to rates of pay , wages, hours of
employment , and other conditions of employment , and, if
an understanding is reached , embody such understanding
in a signed agreement.
(b) Post at his Harrisonville , Missouri , food market,
operating under the name of Hen House Market No. 3,
copies of the attached notice marked "Appendix ."' Copies
of said notice on forms provided by the Regional Director
for Region 17, shall, after being duly signed by
Respondent , be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places , including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not -altered, defaced , or covered by
any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 10 days from the date of this Order, what
steps have been Taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is 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."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 17, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
603
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , I hereby notify my employees
at my Harrisonville , Missouri retail food store operating
under the name of Hen House Market No . 3 that:
I WILL , upon request , bargain collectively with
Amalgamated Meatcutters & Butcher Workmen of
North America , Local Union 576, AFL-CIO, as the
representative of the employees in the following
appropriate unit at my Harrisonville , Missouri, food
market , with respect to rates of pay , wages , hours of
work , and other conditions of employment , and if an
understanding is reached, embody such understanding
in a signed agreement . The bargaining unit is:
All meat department employees employed at my
Harrisonville Store , but excluding office-clerical
employees, guards , and supervisors as defined in the
National Labor Relations Act.
I WILL NOT promise any of my employees in the unit
better pay and working conditions if they reject the
Union.
I WILL NOT threaten employees in the unit that they
would have to leave my employment if they did not
withdraw from the Union.
I WILL NOT unilaterally change the wages or working
conditions of any of my employees in the unit without
notifying , consulting or bargaining with the Union prior
to doing so.
I WILL NOT unilaterally change the health , welfare
and retirement benefits of any of my employees in the
unit without notifying, consulting or bargaining with the
Union prior to make such changes.
HAROLD W . HINSON,
D/B/A HEN HOUSE
MARKET No. 3
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 610 Federal
Building , 601 East 12th Street , Kansas City, Missouri
64106 , Telephone 374-5282.