Justesen's Food Stores, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1966

160 N.L.R.B. 687 (N.L.R.B. 1966)

JUSTESEN'S FOOD STORES, INC. 687
ply, marking room, millineiy workroom, corset alteration, receiving, shipping
and delivery, and returned goods departments but excluding all selling em-
ployees, office clerical employees, employees represented by other labor
organizations, guards, manageiial employees, confidential employees and all
supervisors, as defined in the Act.
SAKS AND COMPANY,
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 pro-
visions, they may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi-
nois 60604, Telephone 828-7597.
Justesen 's Food Stores, Inc., Justesen 's Rosedale, Inc., and
R. J. Agerton 1 and Butchers Union Local 193, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO. Case 31-CA-74 (formerly 21-CA-6662). August 26, 1966
DECISION AND ORDER
On March 28, 1966, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that the Respondents had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Charging Party and the General Counsel filed exceptions
to the Trial Examiner's Decision, and briefs in support of said excep-
tions, and the Respondents filed cross-exceptions and exceptions to
said Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, 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 entire rec-
ord in this case, including the Trial Examiner's Decision, the excep-
tions, cross-exceptions, and briefs, and hereby adopts the Trial Exam-
' As explained in the remedy section of the Trial Examiner ' s Decision , his Order, which
we adopt, is directed only against the two corporate Respondents.
160 NLRB No. 52.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner 's findings, conclusions, and recommendations, except to the extent
modified herein.2
[The Board adopted the Trial Examiner's Recommended Order 3
and dismissed those portions of the complaint as to which no viola-
tions have been found.]
2In agreeing with , the Trial Examiner ' s dismissal of that part of the 8 ( a) (5) allega-
tion which concerns unilateral installation by the Respondents of a wrapping machine and
resultant layoff of two employees in the Bakersfield unit , we do so because the Union,
Party to the Contract and Charging Party here , failed to protest. Although advised of
Respondents ' unilateral action in December 1964, immediately after the layoffs of Couch
and Manuel , the Union 's sole protest came in June 1965 iihen it filed a first amended
charge alleging that its bargaining contract with the Respondents required negotiations
when "new" methods were Introduced . At no time while attempting to bargain for a new
contract-including a meeting with the Respondents in January 1965-did the Union
raise this issue or in any way request the Respondents to bargain about it. At the
hearing It alluded to the problem' during a record discussion of the contract , but now,
In its exceptions and brief , the Union has not urged that the Respondents ' unilateral
action exceeded the authority conferred by the new methods clause of the contract then
In effect. In the circumstances we cannot find that the Respondents failed to bargain in
good faith with respect to the installation of automatic machinery In the meat department
and the layoff of employees See Motoresearoh Company, 138 NLRB 1490, 1493.
In agreeing with the Trial Examiner that the January 1965 solicitations to employees
Buckley and Brecht to withdraw from the Union constituted 8(a) (1) interference , restraint,
and, coercion ; we note the timing of these conversations shortly after the-unit had been
cut from four to two by the economic layoffs of Couch and Manuel , as well as the fact that
the suggestions ' were made, respectively , by managerial personnel who had hired the em-
ployee solicited.
3 The address for Region 31, appearing at the bottom of the notice attached to the
Trial Examiner 's Decision , Is amended to read : 215 ' West Seventh Street, Los Angeles,
California 90014, Telephone 688-5850.
TRIAL EXAMINER 'S DECISION -
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M . Singer at Bakersfield, Cali-
fornia, on November 2, 1965, pursuant to charges and amended' charges filed on var-
ious dates between April 27 and August 25, 1965 , and, a complaint issued August 31,
1965 . The complaint alleged that Respondents violated Section 8(a)(1), (3), and
( 5) of the Act . Respondents have denied the commission of the alleged violations.
All parties appeared and were afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce relevant evidence . All filed briefs.
Upon the entire record in the case,' the briefs , ' and' my observation' of the wit-
nesses , I make , the following: '
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENTS
Justesen 's Food Stores, Inc. (herein called ' Justesen's); is a- corporation engaged in
the retail sale of groceries, produce, and meats at its store located • at 2800 River
Boulevard , Bakersfield , California ( herein called . the River store ). During the calen-
dar year 1964 , Justesen 's had a gross volume of business in excess of $50,000. Dur-
ing the, same period, it had an, indirect inflow, in interstate commerce , of goods in
excess of $50 ,000 from outside the State.
At the hearing the parties stipulated that from on or about April' 1 to August 31,
1964, Justesen 's and Agerton ( the individual respondent ) operated as a' partnership
the meat department in a store located at 10595 Rosedale Highway, Bakersfield, Cal-
ifornia (herein called the Rosedale store ). The parties also stipulated that at all times
i As corrected by my order dated March 14, 1966.
JUSTESEN'S FOOD STORES, INC. 689
material, until at least around August 31, 1964, Justesen's and Agerton were a single
employer engaged in commerce within the meaning of the Act. It was further stipu-
lated that from September 1, 1964, until February 1, 1965, Justesen's owned and oper-
ated the River and Rosedale stores as a single employer within the meaning of the
Act.
Justesen's Rosedale, Inc. (herein called Rosedale), incorporated on February 10,
1965, has operated the Rosedale store since approximately that date. Anton J. (Bud)
Justesen, William S. Glick, Wanda Justesen (Anton's wife) are president, vice presi-
dent, and secretary, respectively, of Justesen's Rosedale, Inc., and Justesen's Food
Stores, Inc. I find that at all times material the two corporations have- been a single
employer engaged in commerce within the meaning of the Act.
IT. THE LABOR' ORGANIZATION INVOLVED
Butchers Union Local 193, Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO ( the Union ), is a labor organization within the meaning
of the Act .2
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues in this case are:
1. Whether, by unilaterally installing automatic machinery in one of their stores
and consequently laying off two emloyees, Respondents violated Section 8(a)(5) and
(3) of the Act.
2. Whether Respondents also violated Section 8(a)(5) by refusing to meet and
negotiate with the Union after expiration of their existing collective agreement.
3. Whether Respondents violated Section 8(a)(1) by soliciting employees to with-
draw from the Union,
B. Background; contractual relations between Respondents and the Union 3
When Justesen's acquired the River store in 1959, the meat deartment employees
were already represented by the Union. On September 17, 1960, Justesen's and the
Union signed a new collective agreement covering those employees. The agreement,
effective (retroactively) from January 16, 1960, to January 15, 1965, provided that
the Union was to represent all meat department,employees "performing work under
the jurisdiction of Local 193" in all existing or future meat markets of the employer.
During the period of the contract, Justesen's acquired a retail grocery and meat
store in Lamont, California. After selling that store, it opened the Rosedale store on
April 3, 1963. The parties applied the collective agreement to both stores. Thus, until
expiration of the contract on January 15, 1965, employees at Rosedale (as well as
Justesen's River store) were paid according to the contract; grievances were proc-
essed thereunder; and, contributions to the pension and benefit fund were made as
required by the contract.
The Rosedale meat department, originally operated by Justesen's, was operated
jointly by Justesen's and Nathan Magnesi as partners from October 1, 1963, to
March 28, 1964; Justesen's contributed the capital and handled the administrative
work, while Magnesi contributed his services. From April 1 to August 31, 1964, the
meat department was operated by a partnership, consisting of Justesen's and R. J.
Agerton. On dissolution of that partnership, Justesen's again operated the department
exclusively; however, Agerton remained as meat manager until he left around Jan-
uary 27, 1965. After incorporation of Justesen's Rosedale, Inc. (on February 10,
1965), that corporation operated the Rosedale meat department.
During the period here involved, the meat department force at Rosedale consisted
of R J. Agerton and Terry Buckley. The meat department employees at the River
I In its answer and at the hearing, Respondents contended that they had "no informa-
tion or belief" as to the status of the Union as a labor organization The very fact that
Justesen's and the Union had negotiated, and for almost 5 years (including the period
here material) operated under, a collective agreement governing the wages and working
conditions of Respondents' employees (members of the Union) establishes the Union's
status as a labor organization within the meaning of Section 2(5) of the Act
3 Unless otherwise indicated, findings in this and in succeeding sections are based on
substantially uncontradicted testimony or documentary evidence
257-551-67-vol. 1 G 0--45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store were Mattie Couch, Evelyn Manuel, and Edward Brecht; Vice President Glick
managed the River department. All, including Glick and Agerton, were union
members.
C. The automation of meat wrapping operations and layoff of two employees
In June or July 1964, Justesen's decided to purchase an automatic meat wrapping
machine for its River store. Due to delays in delivery, the Corley-Miller machine it
bought was not installed, however, until December 12, 1964 4 At the end of that day,
Company Vice President Glick called in the two River store meatwrappers, Manuel
and Couch, and told them that because of the Company' s "going automation" he
would have to let them go Glick explained that the Company lost close to $5,000 the
previous year and that, like other companies , it had to "modernize " and save labor
costs "or get out." Because the two girls had worked for the Company for over 5
years, Glick gave them a week's extra pay plus vacation pay. Neither had been pre-
viously advised that she "would possibly be replaced by this machine," although both
had heard "rumors" about "bringing in a meat wrapping machine." Nor had the
Union been notified in advance of Justesen 's decision to automate any part of the
meat operation or to lay off any employee. Glick's wife, Edith (not a member of the
Union), who had worked as a meatwrapper 1 or 2 days a week before the installa-
tion of the machine, thereafter worked 3 or 4 days a week to help the retained
employee ( Brecht ) operate it.fi
Article 3(e) of the collective agreement , governing the parties ' rights respecting
machine installation , provides:
It is further agreed that should the employer adopt any new methods of oper-
ations not presently in the industry , including any centralized system or method
of cutting , preparing , fabricating , or wrapping that would result in a substan-
tial change in the content of any job presently covered by this Agreement or
that would displace emloyees presently covered by this Agreement, the Union
shall be informed of such new methods and the matter of job classifications,
wages, and/or the disposition of displaced employees shall become a matter for
negotiations for at least sixty (60) days prior to the installation of such new
methods or displacement. At expiration of such sixty (60) day period, nothing
herein shall prohibit or in any way impede the employer from installing or effec-
tuating any such new methods , systems or equipment and the procedures set
forth below shall apply.
Article 3(f) provides that if agreement is not reached in the 60-day negotiation
period, "there shall be" no strike or lockout, "but the matter may be referred to
arbitration by either party"; and that the findings of the neutral arbitrator selected
"shall be binding upon both parties." Article 8 prescribes the "grievance and arbi-
tration procedure" for resolving "any controversies involving the interpretation of
any provisions" of the collective agreement. Article 10 of the agreement, the "man-
agement prerogative" clause, provides:
The management of the business of the Company and the direction of its work-
ing force, the type, and variety of products to be handled, the work scheduled
and methods and means of handling or processing, are prerogatives of Manage-
ment, subject to and where not in conflict with this Agreement.
The record shows, and I find, that Corley-Miller wrapping machines have been
used in the Bakersfield-Los Angeles (California) area since at least June 1957,6 the
first such machine having been shipped to Bakersfield itself in February 1961.7
Although there have been technical improvements in the machine since 1957, it has
remained basically the same "one man operation" device since its inception.
Couch and Manuel reported their layoffs or discharges to Hodson, the Union's
representative, on Monday, December 14, 1964. Hodson instructed them to obtain
' Unless otherwise indicated, all dates hereafter refer to July 1964-April 1965.
B Whenever he was free , Brecht also helped Glick cut meat
6 Four such machines were installed in Los Angeles and nearby areas in 1957 , three in
1958 , and one in 1959 The record does not disclose how many similar machines (e g,
"Super Wrapper" models ), manufactured by companies other than Corley -Miller, had
been installed ( or already were in use ) in that area
7 Two Corley -Miller machines were shipped to Bakersfield facilities in 1961 and 1962,
none in 1963 , and six ( including Justesen's) in 1964
JUSTESEN'S FOOD STORES, INC. 691
in writing from the Company the reason for their discharge. The employees did so
and turned over to Hodson the Company's written statements explaining that
although the employees' work had been "completely satisfactory" they had to be ter-
minated "because of automation." Hodson at no time thereafter discussed the dis-
charges with the Company, although, as hereafter related, he communicated with the
Company on several occasions (and once met with it) regarding contract renewal
negotiations. Nor did he or the employees file any grievances on the discharges.
D. The contract renewal negotiations
In accordance with article 31 of the collective agreement, Union Representative
Hodson wrote Justesen's on November 6, 1964, requesting a meeting to negotiate
modifications and changes in that agreement. On November 12, Company Vice Pres-
ident Glick answered that the Company elected to terminate the agreement and was
giving notice to that effect pursuant to article 31. On January 11, the parties met at
Freddie's Top of the Hill restaurant to discuss a new contract. Hodson and another
business agent represented the Union; Respondents were represented by Glick, Anton
Justesen, and Archie Taylor.8 The parties discussed the Union's proposed contract
terms and agreed to meet again after the Company "examined the proposals."
Respondents' representatives undertook to notify Hodson of the next meeting date a
week later.9
Shortly thereafter, Agerton, manager of the Rosedale meat deartment, told Rose-
dale employee Buckley that Glick wanted both of them to write letters telling the
Union that they "did not want them to represent us anymore." (As previously noted,
Agerton and Glick belonged to the Union, even though they were managerial offi-
cials.) However, Buckley refused to resign. Around the same time, Glick discussed
with Brecht, his nephew, the fact that he (Brecht) was the only union employee left
at the River store (after the layoff of Couch and Manuel). Later, on January 15,
the Union received a letter from Brecht stating his "wish" to withdraw from the
Union as of that date. (January 15, 1965 was the expiration date of the collective
agreement.) Glick also resigned from the Union at that time.'°
On January 28, 1965, Hodson wrote to Justesen's requesting a meeting in early
February to continue negotiations. The letter was returned "unclaimed." On Febru-
ary 11, Hodson again wrote the Company, suggesting a meeting in the first week of
March. Hodson reminded the Company that at their last (January 11) meeting "you
stated that you would notify me one day during the following week as to the time
for our next meeting so that we could continue our negotiations."
There is a sharp dispute as to whether the Company thereafter arranged for a
meeting with the Union. Glick testified that after receiving the Union's February 11
letter-he could not recall the date-he instructed his secretary to call Hodson to tell
him to meet him at Freddie's Top of the Hill restaurant (where they met on Janu-
ary 11). He further testified that he waited for him at the bar but Hodson failed to
appear. Glick admitted, however, that he never checked why Hodson failed to show
up, and acknowledged that he made no further attempts to contact the Union. Nor
did Respondents produce (or explain their failure to produce) Glick's secretary to
corroborate Glick. Instead, Respondents called as their witness "an acquaintance" of
Glick (Pocius), who testified that he met Glick at that restaurant one evening at the
end of February or early March; that he saw Glick imbibe "a couple of highballs";
8 Taylor, like Glick and Justesen, was an official of the two companies involved in this
proceeding
9 Glick could not recall whether the Company or the Union was to take the initiative in
arranging the next meeting. I credit Hodson's more definitive recollection
10 On the basis of the foregoing and the entire record, I infer that Glick sought to induce
Brecht's as well as Buckley's withdrawal from the Union, succeeding as to the former but
failing as to the latter. My finding respecting the inducement of Buckley is based on that
employee's credited testimony, in part corroborated by Agerton The latter testified that
Glick also asked him to write to the Union "telling them that I personally didn't want
to be represented by Local 193 any longer" ; Agerton was "not sure" if Glick asked him
to induce Buckley's withdrawal also Glick admitted personally talking to his nephew
Brecht about the impending expiration of the contract, but he was evasive as to whether
he asked him to withdraw when asked if he did not tell his nephew that "he might think
over the fact that he was the only Union member" at the store, he stated that lie could
not recall the words used . When pressed further he admitted that he "could have said"
something similar.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he heard him mention that "he was waiting for someone from a labor
union." Hodson denied receiving any communication from the Company, directly or
indirectly, at any time after January 11, 1965. He specifically denied receiving any
message about a meeting allegedly arranged by Glick through Glick's secretary.
Called as a corroborating witness, the Union's office girl (Martin) testified that she
could not recall any telephone call from Glick's secretary arranging any meeting
between Hodson and Glick. -
I do not credit Glick's testimony concerning the arrangements he allegedly made
to meet with Hodson after receiving the Union's February 11 letter. I have already
commented adversely upon Glick's testimony on another material point (supra, foot-
note 10). His testimony and that of his supposed corroborating witness on the mat-
ter in issue is vague and evasive. Furthermore, if, as Glick testified, the purpose of
the meeting was to discuss contract negotiations, it is strange that he went to it with-
out the Company's other officers (Anton Justesen and Taylor) who attended the Jan-
uary 11 meeting. Moreover, if he was seriously desirous of negotiating, why did he
not attempt to contact the Union to inquire into Hodson's reasons for not having
been present? Finally, Glick's testimony, even if credited, suggests that he only sum-
moned Hodson to meet him, without checking on Hodson's ability to make the
appointment on the short notice given him.
On April 2, Hodson wrote his final letter to Justesen's. After adverting to his
previous letter of January 28 (which the Company "refused to accept") and to his
letter of February 11 (which it ignored), Hodson requested an early meeting to
resume negotiations. The Company did not reply.
E. Conclusions
1. The appropriate unit and the Union's majority status
At the hearing the parties stipulated that until February 1, 1965, the appropriate
bargaining unit consisted of the meat department employees employed at both the
River and the Rosedale stores; that until the December 12, 1964, layoff, three River
store employees (Brecht, Couch, and Manuel) and one Rosedale store employee
.(Buckley) were in the two-store unit; and that the question whether the two laid-off
employees remained in the unit after that date turned on whether the layoff was dis-
criminatory. In their brief, Respondents now assert "doubt" as to whether the appro-
priate unit is a one-store or two-store unit.
As already found, the meat departments of both stores have had common owners
and officers, and the employee wages and working conditions in both have been fixed
by the identical collective agreement . The record also establishes that the two stores
advertise jointly, display "Justesen's" signs, carry products with the exclusive "Big J"
trade name, and are only a 22-minute automobile drive (15 miles) away from each
other.
Although, as previously noted, the Rosedale store has been owned by a corpora-
tion (Justesen's Rosedale) since February 10, the officers of that corporation are the
same as those of the River store corporation (Justesen's Food Stores). There is no
substantial, credible evidence demonstrating any operational and policy changes since
then to warrant separating the two-store unit into two single one-store units. To the
contrary, there is credible evidence indicating that the manager at Rosedale now, as
before, is responsible to Glick, an officer of both corporations." I cannot agree with
Respondent's suggestion that "a reorganization of the Company into two separate
corporations," without more, justifies a "reorganization" of the appropriate unit. See
Meijer Supermarkets, Inc., 142 NLRB 513. Cf. N.L.R.B. v. Frisch's Big Boy Ill-Mar,
Inc., 356 F.2d 895 (C.A. 7).
I conclude that at all times material herein (before and after February 1) all
meat department employees employed by Respondents at the River store and the
Rosedale store (excluding all other employees, office clerical employees, guards,
and supervisors as defined in the Act) have constituted a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
"Thus, Rosedale store employee Buckley's credited testimony indicates that in March
or April 1965, the Rosedale store manager considered it necessary to obtain Glick's prior
approval before increasing the number of days Buckley was to work in that store.
JUSTESEN'S FOOD STORES, INC. 693
I also conclude that the Union at all times material herein was the exclusive
representative of all employees in the above-described unit.12
2. The unilateral installation of automatic machinery
and resulting layoff of two employees
The legal principles here applicable are clear. The duty of an employer to bar-
gain with the statutory representative of his employees includes the duty to bargain
about automation of operations, affecting jobs and working conditions of employ-
ees in the bargaining unit. Carl Rocket, etc. d/b/a Renton News Record, 136
NLRB 1294; Weston and Brooker Company, 154 NLRB 747. See also Fibreboard
Paper Product Corporation, 138 NLRB 550, affd. sub nom. East Bay Union of
Machinists, Local 1304, 379 U.S. 203. It is equally clear, however, that the bar-
gaining representative may surrender or waive its right to be consulted and to
bargain about such mandatory subjects of bargaining See Druwhit Metal Products
Company, 153 NLRB 346; General Motors Corporation, 149 NLRB 396, 399-400;
LeRoy Machine Co., Inc., 147 NLRB 1431, 1432; International Shoe Company,
151 NLRB 693. The waiver must, of course, be clear; it will not lightly be inferred.
Puerto Rico Telephone Company, 149 NLRB 950, 963.
Although Justesen's installation of the wrapping machine was a proper subject
for bargaining, the record establishes, and I find, that for the duration of the gov-
erning collective agreement the Union effectively bargained away its right to require
Respondents to negotiate regarding that matter, vesting in management the right
to determine that question. Article 3, section (e) of the collective agreement provides
that when the employer "adopt[s] any new methods of operations not presently
in the industry, including any centralized system or method of . . . wrapping .
the Union shall be informed of such new methods," whereupon the employer's
action shall "become a matter for negotiations." It is not disputed that if the
Corley-Miller wrapping machine, installed by the Company in December 1964, did
not involve "new methods of operations," that is, if it was used "in the industry"
at the time of execution of the collective agreement (September 17, 1960), the
Company's unilateral action was protected by the collective agreement. In my
view, the record amply supports Respondents' contention that the machine was in
use at that time, and, indeed, as far back as 1957. The fact that technical im-
provements have since been made in the machine did not alter its basic character
as an automatic wrapping operation, designed to displace employees. And although
the machine was not shipped into Bakersfield itself (the location of Justesen's River
store) until February 1961, several months after the signing of the contract, it
was in use in nearby areas in California (including Los Angeles, 113 miles away),13
certainly within the meaning of the broad term "in the industry" as used in the
contract.
The Union's failure to object to Respondents' unilateral action lends weight to
this conclusion. Although apprised of the Company's reason for terminating the
two employees ("because of automation") within 2 days of its action, the Union
lodged no protest. It did not invoke the contractual grievance-arbitration machinery
to challenge the Company's conduct as it had the right to do. Nor did the Union
raise the issue in its contract-renewal negotiation meeting with Respondents on
January 11, 1965. It did not even cite the Company's unilateral action as the basis
for its Section 8(a) (5) refusal to bargain charges filed against Respondents on
April 27, 1965. (The Union's detailed charges pertained only to company delays
and refusals in setting dates for resumption of negotiations on the new contract.)
It was not until it filed its amended charges on June 7, 1965, that the Union raised
the issue of validity of Respondents' unilateral action. The Union's conduct sug-
gests that its present reading and interpretation of the collective agreement to bar
12 It is undisputed that the Union represented all of Respondents' employees until Jan-
nary 15, 1965 With the layoff of employees Couch and Manuel on December 12, only two
(Brecht at the River store and Buckley at the Rosedale store) remained in the unit.
Although Brecht withdrew from the Union on January 15, his withdrawal (as hereafter
found) was coercively induced by Respondents. Accordingly, Respondents cannot rely on
the Union's loss of majority on January 15 as justification for their refusal to bargain.
Franks Bros. Company v N L R B, 321 U S 702
1 Rand McNally & Co, Standard Highway Mileage Guide
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company's unilateral installation of the Corley-Miller wrapping machine was
an afterthought.
I conclude that Justesen's decision to install and its subsequent installation of
the Corley-Miller wrapping machine, without prior notification to and bargaining
with the Union, was not violative of Section 8(a)(5) of the Act.14
Since, as the record shows, the December 14 layoff of the two meatwrappers,
'Couch and Manuel, is attributable to the installation of the Corley-Miller meat-
wrapping machine, I further find that their layoffs were not discriminatorily moti-
vated, in violation of Section 8(a)(3) of the Act. Ador Corporation, 150 NLRB
1658 Although, as hereafter found, Respondents seized upon their nondis-
,criminatory decision to automate (resulting in a significant reduction in the size
of the unit) as an opportunity to oust the Union altogether, I cannot find, as
General Counsel would have me, that that illegal action also supplies the anti-
union motivation for the unilateral conduct It is to be noted that Justesen's deci-
sion to install the machine was made in June or July 1965, almost 6 months before
its implementation and the employees' termination. There is no evidence whatever
of the existence at that time of any union animus on the part of Respondents le
Insofar as it appears, relations between the parties under their 5-year contract were
amicable and harmonious. Nor is there any claim that the laid-off employees were
discriminatorily selected or in a manner contrary to the contract. Accordingly, I
,conclude that the layoff or discharge of Couch and Manuel on December 12, 1965,
was not violative of Section 8(a)(3) of the Act.
3. The refusal to meet and negotiate a new labor agreement; solicitation of
employees to withdraw from the Union
As found, on January 11 the parties met to negotiate a new contract to replace
the current one expiring on January 15. Respondents agreed to study the Union's
proposals and to contact the Union the following week in order to set the next
meeting date. Hearing nothing further, the Union wrote Respondents on January 28
to request a bargaining conference, but its letter was returned "unclaimed." The
Union again communicated with Respondents on February 11. Respondents ignored
the letter. On April 2, the Union again attempted to arrange a bargaining con-
ference, but Respondents again ignored the Union. Thereafter (on April 27) the
Union filed its charges alleging that Respondents had violated the Act by refusing
to meet and negotiate.
Respondents' conduct hardly squares with the statutory command of Section 8(d)
of the Act to "meet at reasonable times and confer in good faith." See Little Rock
Downtowner, Inc., 145 NLRB 1286, 1304-06, enfd. 341 F.2d 1020 (C.A. 8).
Respondents apparently saw in the reduction of the size of the bargaining unit
(from 4 to 2 employees) as a result of their economic decision to automate, an
opportunity to oust the Union altogether. To this end, they sought to destroy the
Union's majority by soliciting the remaining two employees (Brecht and Buckley) to
withdraw from the Union.is To this end also, they procrastinated and obstructed
the scheduling of bargaining sessions.17
Respondents' contention in their brief that the Union no longer represents a
majority of their employees in an appropriate unit is without merit, since, as
found, it was Respondents' unfair labor practices (inducing employees to with-
14 In view of the foregoing conclusion, it is unnecessary to pass upon Respondents' addi-
tional contentions (1) that the "management prerogative clause" of the collecti%e agree-
ment also authorized its unilateral installation; (2) that, in any event, the question
whether it could properly take such action concerns a contract interpretation to he re-
solved through the contractual grievance-arbitration procedure and not by the Board
Ind (3) that if the Union had the right to bargain regarding the installation of the
machine, it waived such right by acquiescing in the Company's action and failing to re-
quest bargaining thereon.
151 do not regard Vice President Glick's action in increasing the part-time woik of his
wife after the layoffs (from 1 or 2 days to 3 or 4 (lays a week) as ei idencing discriminatory
motivation ; and General Counsel apparently makes no such claim
16 Respondents also sought to induce the resignation of Agerton, who (as a managerial
employee) was not part of the unit
ii According to the uncontioverted credited testimony of employee Dlanuel, Company
Vice President Glick told the two laid-off employees in the discharge interview that lie
"was not going to sign the contract" with the Union until a neighboirng market (Young's)
signed it This remark also reflected on Respondents' good-faith intentions in embaiking
on the negotiations.
JUSTESEN'S FOOD STORES, INC. 695
draw from the Union) that caused the Union's majority loss. Their further con-
tention that they are "not certain what the proper bargaining unit should be" (i e.,
whether it be a "multi- or single-store unit") is of no avail, even if the contention
implies that they entertained a good-faith doubt concerning the appropriateness of
the unit.i$ In any event, Respondents at no time gave the Union either ground
(alleged union majority loss or unit inappropriateness) as their reason for refusing
to meet with the Union. Their contentions are afterthoughts. See N.L.R.B. v. Biles-
Coleman Lumber Co., 98 F.2d 16, 22 (C A. 9); N.L R.B. v. Sunshine Mining Co.,
110 F.2d 780, 789 (C.A. 9).
I further find that Respondents' solicitation of employees to withdraw from the
Union constituted interference, restraint, and coercion within the meaning of Section
8(a)(1) of the Act. See Newberry Mills, Inc, 141 NLRB 1167, 1170, 1177;
N.L.R.B. v. Louisville Container Corporation, 209 F.2d 654, 655 (C.A. 6).
CONCLUSIONS OF LAW
1. Respondents constitute a single employer engaged in commerce within the
meaning of the Act.
2. Butchers Union Local 193, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, is a labor organization within the meaning of
the Act.
3. All meat department employees employed by Respondents at their River and
Rosedale stores (excluding all other employees, office clerical employees, guards,
and supervisors as defined in the Act) constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
4 At all times here material, the Union has been the exclusive representative
of all employees in the above appropriate unit, for purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5 By failing and refusing to meet and bargain with the Union after January 11,
1965, Respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the conduct above described and by soliciting employees to withdraw from
the Union, Respondents have interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
7. Respondents did not violate Section 8(a) (5) of the Act by unilaterally install-
ing an automatic meatwrapping machine.
8. Respondents did not violate Section 8(a)(3) of the Act by laying off or
discharging employees Couch and Manuel.
9. The unfair labor practices described in paragraphs 5 and 6, above, are unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondents have engaged in unfair labor practices violative
of Section 8(a)(1) and (5) of the Act, I will recommend that they cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act. Since I have found that Respondents unlawfully refused to
meet and bargain with the Union, the Recommended Order will require them,
upon request, to bargain collectively with the Union and, if an understanding is
reached, embody such understanding in a signed agreement.
The parties stipulated at the close of the hearing that since R. J. Agerton, the
individual Respondent, was not an owner of the meat department at either the
River or the Rosedale stores at the time of commission of the unfair labor prac-
tices, the order to be issued herein, if any, be directed only against the two corporate
Respondents. The order recommended herein will give effect to that stipulation.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
,entire record in the case, and pursuant to Section 10(c) of the National Labor
19 A good-faith doubt as to unit appropriateness does not justify an employer's refusal
to recognize a union, if the unit is in fact appropriate. Primrose Super Mar/et of Salem,
Inc, 353 F 2d 675 (C.A. 1) ; Florence Printing Co. v N L It B., 333 F 2d 289, 291, (C A.
4) ; Oklahoma Sheraton Corporation, 156 NLRB 681, footnote 1
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, it is recommended that Justesen's Food Stores, Inc.,
and Justesen's Rosedale, Inc., their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Butchers Union Local 193, Amalga-
mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the
exclusive collective-bargaining representative of Respondents' meat department
employees at their River store and Rosedale store, excluding all other employees,
office clerical employees, guards, and supervisors as defined in the Act.
(b) Encouraging or soliciting employees to withdraw their union membership
or affiliation from the above-named Union or any other union of their choice.
(c) In any like or related manner interfering with, restraining, or coercing their
employees in the exercise of rights guaranteed by Section 7 of the Act.
2 Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the above-named Union, as the
exclusive representative of all the employees in the appropriate unit set forth above,
with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and if an understanding is reached, embody the same in a signed
agreement.
(b) Post at their stores, 2800 River Boulevard and 10595 Rosedale Highway,
Bakersfield, California, copies of the attached notice marked "Appendix." 19 Copies
of said notice, to be furnished by the Regional Director for Region 31, after being
duly signed by an authorized representative of Respondents, shall be posted
immediately upon receipt thereof, and be maintained by them for 60 consecutive
days thereafter, in conspicuous places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps Respondents have taken to comply therewith.20
IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects.
19 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."
201n the event that this Recommended Order is 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 Respondents have taken to comply herewith"
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
Relations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Butchers Union Local 193,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, as the exclusive representative of all our meat department employees at
the River store and at the Rosedale store, excluding all other employees, office
clerical employees, guards, and supervisors as defined in the Act.
WE WILL NOT encourage or solicit our employees to withdraw their union
membership from the above-named Union or any other union of their choice.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed by the National
Labor Relations Act.
JUSTESEN'S FOOD STORES, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
JUSTESEN'S ROSEDALE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
PORAY, INC. 697
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, 17th
Floor, U.S. Post Office and Court House, 312 North Spring Street, Los Angeles, Cali-
fornia 90012 , Telephone 688-5850.
Poray, Inc. and Metal Processors ' Union Local No . 16, AFL-CIO.
Case 13-CA-6775. August 26. 1966
DECISION AND ORDER
On April 19, 1966, Trial Examiner Owsley VOSe issued his Decision
in the above entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
not engaged in certain other, unfair labor practices and recommended
that such allegations of the complaint be dismissed. Thereafter, the
Charging Party filed exceptions to the Decision and a supporting
brief. The Respondent filed cross-exceptions, and an answering brief
and brief in support of cross-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 [Members Fanning; Brown, 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 this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
[The Board dismissed the complaint insofar as it alleges violations
of Section 8(a) (5) of the Act.]
1 Frito -Lay, Inc., 151 NLRB 28 In , view of our holding herein that the Respondent had
reasonable grounds for believing that the Union had lost its majority status , we find it
unnecessary to pass on the Trial Examiner's additional finding that . the Union was re-
sponsiblo for discontinuation of negotiations, and that the General Counsel failed to prove
that the incumbent Union represented an uncoerced majority because the new checkoff,
authorizations were obtained by the Union through false representations
160 NLRB No. '61.