K Mart Corp.

National Labor Relations Board - Board Decisions

Jun 7, 1979

242 N.L.R.B. 855 (N.L.R.B. 1979)

K MART CORPORATION
K Mart Corporation' and Truckdrivers and Helpers
Local Union No. 696, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Cases 17-CA-7337,
17-CA-7600, 17 CA 7701, 17-CA-7760, 17-CA-
7838, and 17-CA-8061
June 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLI.O
AND TRUESDAI.E
On December 15, 1978, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, Respondent, the General
Counsel, 2 the Charging Party, and the Intervenor3
filed exceptions and supporting briefs. Respondent
and the General Counsel filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, 4 and
I The complaints in these proceedings were amended to reflect Respon-
dent's current name. Respondent was formerly known as S. S. Kresge Com-
pany.
2 On March 6, 1979, the General Counsel filed a motion to correct the
exceptions and brief in support of the exceptions to the Administrative Law
Judge's Decision. As the requested corrections involve merely typographical
errors and no opposition has been filed, we hereby grant the motion.
I The Administrative Law Judge granted a motion to intervene on behalf
of Carol Estes and 166 other persons employed at Respondent's warehouse
in Lawrence, Kansas, but their participation was limited to defending
against the allegations that Respondent unlawfully sponsored a decertifica-
Lion petition.
' Respondent, the General Counsel, and the Charging Party excepted to
certain credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's reso-
lutions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for reversing
his findings.
I We agree with the Administrative Law Judge's finding that the settle-
ment agreement in Case 17-CA 7337 was inappropnately set aside and we
find that it is still in effect.
In affirming the Administrative Law Judge's finding that union represen-
tatives were not improperly excluded from certain disciplinary interviews, we
agree with his reliance on Amoco Oil Company, 238 NLRB 551 (1978). In
Amoco, where an employer called an employee into an office for the express
purpose of invoking discipline against that employee and the employer's
representative denied the employee's requests for union representation, the
Board found no violation because following the employee's requests for
union representation the employer's representative "confined himself to a
single sentence informing [the employee} of his suspension; he made no at-
tempt to question him, engage in any manner of dialogue, or participate in
any other interchange which could be characterized as an interview." (238
NLRB at 552.) We agree that in each of the disciplinary sessions herein
Respondent did not go beyond informing the employees of the disciplinary
measures that had been decided upon prior to the session, and thus did not
engage in any other type of interchange which could be characterized as an
interview.
conclusions 5 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, K Mart Corporation.
Lawrence, Kansas, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN. Administrative Law Judge: These
consolidated proceedings were heard in Kansas City. Kan-
sas, on various dates between December 12, 1977. and Feb-
ruary 23, 1978. Thereafter, pursuant to leave given the par-
ties, briefs were filed with the Administrative Law Judge on
behalf of the General Counsel, Respondent.' and Charging
Party.
Upon the entire record in these cases2 and from m5 ob-
servation of the witnesses and their demeanor. I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
K Mart Corporation, herein sometimes called the Com-
pany, operates a retail merchandise business and maintains
a distribution center, or warehouse, in Lawrence. Kansas,
which is the facility involved in these proceedings. Respon-
dent's annual revenues are in excess of $500,000 and annu-
ally it purchases goods and materials valued in excess of
$50,000 which are shipped to its Lawrence facility through
channels of interstate commerce from suppliers located out-
side the State of Kansas. I find that Respondent is an em-
ployer as defined in Section 2(2) and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truckdrivers and Helpers Local Union No. 696, affiliated
with International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, herein called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
I The complaints in these proceedings were amended to reflect Respon-
dent's current name. Respondent formerly was known as S. S. Kresge Com-
pany.
I At the hearing a motion on behalf of Carol Estes and 166 other persons
employed at Respondent's warehouse in Lawrence. Kansas, to intervene in
these proceedings was granted, but their participation was limited to defend-
ing against the allegations that Respondent unlawfully had sponsored a
decertification petition.
242 NLRB No. 140
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
t11. THE ALLEGED U'NFAIR .ABOR P'RA('I'I(.S
A. The Pleadings
Following an election conducted by the Board on April
29, 1976, and consideration of objections to the election
filed by Respondent which were overruled, the Board on
October 18, 1976, in Case 17-RC-7951, certified the Union
as the exclusive collective-bargaining representative for:
All warehouse employees of the Company at its Law-
rence, Kansas, distribution center, including ware-
housemen, security cage employees, checkers, mainte-
nance employees, regular part-time employees, plant
clerical employees (traffic employees, merchandise
checkers, claims employees, O.S. & D Clerk, file clerk,
dispatchers, company store employees, case pack ad-
justment clerks), but EXCLUDING all office clerical
employees (data processing employees, data processing
manager, front office adjustment clerks, merchandising
or receiving clerks, payroll employees, receptionist and
switchboard operator, assistant to the merchandising
manager), secretaries, confidential employees, general
manager, distribution or personnel manager, merchan-
dise manager, warehouse departmental manager,
night-shift manager, assistant managers, professional
employees, guards and other supervisors as defined in
the Act.
Thereafter. commencing on November 9, 1976, the par-
ties met for the ostensible purpose of negotiating a collec-
tive-bargaining agreement. Although 14 formal negotiating
sessions were held and there was an exchange of numerous
letters between the parties, as of January 10, 1978. the date
of the parties' last meeting, they were nowhere close to
agreement. Respondent generally was circumspect in its
dealings with the Union and only grudgingly acknowledged
the Union's representative status and then only to the de-
gree that it deemed was necessary to comply with the Act.
This is reflected by Respondent's attitude towards the
Union away from negotiations, as well as at the bargaining
meetings. Respondent considers the Union to be weak, un-
able to call a strike, or exercise other effective economic
pressure upon it. Respondent believes that, as it has the
greater economic strength, it is entitled to adopt a hard
negotiating stance and to refuse to make any substantial
concessions to the Union. While such approach does not
comport with the Act's policy of"encouraging the practice
and procedure of collective bargaining," it does not mean
that Respondent's bargaining conduct necessarily was un-
lawful. These proceedings largely arise from the Union's
frustration because of its inability to obtain even a mini-
mally acceptable collective-bargaining agreement. The
principal allegations in these complaints are that the Com-
pany has failed to "confer in good faith" and has failed in
other areas to accord to the Union the representative status
to which it is entitled pursuant to the Board's certification.
All the charges in these proceedings were filed by the
Union. The issues as framed by the pleadings, in summary,
are as follows:
Case 17-CA-7337: The charge was filed on October 13,
1976. Based thereon a complaint dated November 15, 1976,
was issued alleging violations of Section 8(a)(l) and (5) of
the Act. In substance, the allegations are that during the
period between the dates of the election and the certifica-
tion in the representation proceeding referred to above Re-
spondent made changes in the terms and conditions of em-
ployment of the employees in the bargaining unit "without
first bargaining with the Union" in respect thereto. The
complaint in separately numbered subparagraphs describes
10 such changes. Respondent filed an answer on November
22, 1976, and an amended answer on December 23, 1976,
wherein it denied that it had engaged in the alleged unfair
labor practices. Thereafter, the parties entered into an "in-
formal" settlement agreement,? approved on January 21,
1977, pursuant to which Respondent agreed that it:
Will not grant benefits, eliminate jobs, or make other
unilateral changes in the wages, hours, or other work-
ing conditions or our employees without first bargain-
ing with [the Union] ....
Will not unilaterally establish a quota system without
first bargaining with the Union.
Will post job openings and will not unilaterally change
our job bidding procedure without first bargaining
with the Union.
Will interpret our leave of absence policy in accord-
ance with the leave of absence policy as set forth in the
employees handbook.
Subsequently, on June 9, 1977, the Regional Director by
letter informed Respondent that he had determined that
there was not substantial compliance with the terms of the
settlement agreement and that he would withdraw his ap-
proval thereof.
Cases 17-CA-7337 and 17-CA-7600: These cases were
consolidated by an order of the Regional Director dated
June 14, 1977. A charge of unfair labor practices, an
amended charge, and a second amended charge were filed
in Case 17-CA-7600 on April 6 and 25 and June 1, 1977,
respectively. Based thereon and on the charge filed in Case
17-CA-7337, a consolidated complaint, dated June 14,
1977, was issued alleging violations of Section 8(a)(1) and
(5) of the Act. The complaint was amended on July 27,
1977, and further amended during the hearing. As finally
amended, in substance, the consolidated complaint alleges:
I. The settlement agreement in Case 17-CA-7337 "pro-
vided that the Respondent would remedy the unfair labor
practices alleged in the . . . complaint [issued in said case]
and would not engage in violations of the Act .... On June
9, 1977, based upon meritorious unfair labor practice alle-
gations in Case No. 17-CA-7600, the Regional Director
withdrew his approval of the above-mentioned settlement
agreement."
2. Since May 1976 Respondent unilaterally changed
terms and conditions of employment of employees in the
certified collective-bargaining unit without giving sufficient
prior notice to the Union; the consolidated complaint lists
12 such changes. Of the 12, only the following 4 allegedly
occurred after the date of the settlement agreement:
A provision of the agreement is that 'bly signing this agreement the
Respondent does not admit that it has violated the National Labor Relations
Act."
856
K MART CORPORATION
(a) Changing job-bidding procedures to provide
that employees would have to submit transfer sheets to
the production manager prior to the time the job was
opened for bids-March 24. 1977.4
(b) Eliminating the Christmas Remembrance Pro-
gram-March 24. 1977.
(c) Discontinuing the employee discount-March
24, 1977.
(d) Discontinuing the third shift-April 4. 1977.
3. Since November 9, 1976, Respondent failed to provide
the Union with information regarding the existing em-
ployee benefits and refused adequately to identify wage
rates in effect at other facilities of Respondent.
4. Since November 9, 1976, Respondent engaged in sur-
face bargaining by, among other things:
(a) Refusing to make any offer concerning wages of
the unit employees, although requested to do so by the
Union.
(b) Refusing to permit the Union to participate in
any grievances regarding unit employees, although re-
quested to do so by the Union.
(c) Refusing to negotiate concerning the Union's
participation in a grievance procedure until a final
agreement between the parties was reached, although
requested to do so by the Union.
(d) Informing employees on the Union's negotiating
committee that they should process their grievances, if
any, directly with Respondent.
(e) Insisting upon an overly broad management
rights clause.
5. On February 10 and March 24 and 30, 1977, "Re-
spondent informed the Union's representatives and employ-
ees that Respondent would not permit the Union to pro-
cess, or in any way become involved regarding, grievances
of Respondent's employees."
6. Since February 10, 1977, Respondent has refused to
discuss with the Union any grievances concerning employ-
ees in the certified unit.
7. Since April 27, 1977, Respondent has refused to per-
mit union representatives "to attend and participate in any
meetings held between the Respondent and any unit em-
ployees arising out of grievances concerning said em-
loyees."
8. By its agent, Floyd Holland, the assistant manager of
the repack department, Respondent (a) on November 15,
1976, interrogated employees about their union activities;
(b) on November 16, 1976, engaged in surveillance of em-
ployees' union activities; (c) on January 26, February 23,
and March 1, 1977, created the impression of surveillance
of its employees' union activities: (d) on March 22, 1977,
threatened employees with elimination of the third shift if
said employees continued to engage in union activities: (e)
on January 26 and March 1, 1977, threatened employees
with written reprimands if they continued to engage in
union activities; and (f) by Personnel Director James
Dickey, Respondent in late June 1976 interrogated employ-
ees about their union activities and told them it would be
futile to support the Union.
4 An identical violation also is alleged to have occurred in early July 1976.
Respondent filed an answer to the consolidated com-
plaint on June 22, 1977. Thereafter, it filed an amended
answer on June 24, 1977. and a second amended answer on
December 10, 1977. The second amended answer was fur-
ther amended on February 7. 1978. by motion made and
granted during the hearing. Respondent's answer as finally
amended generally denies that it has engaged in the alleged
unfair labor practices. More specifically, Respondent denies
that the settlement agreement provides that Respondent
would remedy the unfair labor practices alleged in the com-
plaint in Case 17-CA-7337 or that the settlement agree-
ment provides that Respondent would not engage in viola-
tions of the Act except to the extent specifically set forth in
the settlement agreement; and Respondent affirmatively al-
leges that it fully has complied with the terms of the settle-
ment agreement. In addition, Respondent sets forth four
separate affirmative defenses, as follows:
I. The complaint is barred by the statute of limitations
provisions of Section 10(b) of the Act.
2. The Regional Director's withdrawal of his approval of
the settlement agreement and the reissuance of the com-
plaint in Case 17-CA-7337 constitute abuse of discretion as
a matter of law.
3. On November 8, 1977, certain employees within the
certified unit filed a decertification petition in Case 17-RD-
667, the Regional Director issued an order dismissing the
decertification petition, a request for review thereof is pend-
ing. and Respondent believes that the decertification peti-
tion was accompanied by an evidentiary showing that an
uncoerced majority of Respondent's employees in the certi-
fied unit no longer desired to be represented by the Union,
and Respondent further believes that the Union has threat-
ened and coerced Respondent's employees in an effort to
maintain its majority status. This affirmative defense was
dismissed at the hearing.
4. On August 31, 1976, the Union filed a charge of unfair
labor practices in Case 17-CA-7278 which in material part
alleges: "Since May 1, 1976, and continuing to the present,
the employer has made changes in working conditions in-
volving job bidding, transfers, leaves of absence, quota sys-
tems, overtime, and job assignments in reprisal for their
employees engaging in union and protected concerted ac-
tivities." On October 15, 1976, the Regional Director re-
fused to issue a complaint in said case on the ground that
the evidence was not sufficient to show that the changes
were motivated because employees affected thereby en-
gaged in union or other protected, concerted activities.
Therefore, the matters alleged in Case 17-CA-7337 were
fully litigated and finally disposed of in Case 17-CA-7278,
and the relevant paragraphs of the consolidated complaint
accordingly are without merit.
Case 17-CA-7760. By an order dated September 14,
1977, this case was consolidated with Cases 17-CA-7337
and 7600. The charge was filed July 7, 1977, and was served
on Respondent on the same day.' Based thereon a com-
plaint, dated September 9, 1977, was issued alleging viola-
tions of Section 8(a)(1) of the Act. In substance, the com-
plaint, as amended at the hearing, alleges that:
I The complaint erroneously alleges that the charge was filed and served
on August 16, 1977.
857
I)ECISIONS OF NATIONAL LABOR RELATIONS BOAR[)
I. On April 27, 1977. Frank Patee, assistant manager of
the repack department, threatened employees with dis-
charge if they engaged in protected activities in support of
the Union and told employees that Respondent was with-
holding benefits from them because of the Union.
2. Gary Spreer, manager of the repack department, on
October 6, 1977, threatened employees with discharge if
they engaged in protected activities in support of the Union
and on October 14. 1977, promoted and sponsored em-
ployee support of efforts to have the Union decertified as
collective-bargaining representative.
3. On December 14. 1977, Plant Manager R. C. Fisher
interrogated an employee regarding the testimony the em-
ployee would give in these proceedings. Respondent filed an
answer dated September 15, 1977, generally denying that it
has engaged in the alleged unfair labor practices. It is
deemed to have denied the amendments to the complaint.
Case 17 CA -77()1: The charge of unfair labor practices
was filed on May 27, 1977. Based thereon a complaint,
dated October 13, 1977, was issued alleging violations of
Section 8(a)(1) of the Act. In substance, the complaint al-
leges that Respondent on the occasions described below re-
fused to permit its employees to have union representation
at meetings with Respondent when the employees had rea-
sonable grounds to believe that such meetings could (and
did) result in Respondent taking disciplinary action against
them. The incidents referred to occurred as follows:
(a) May 25-meeting where employees Kenneth A.
Pontius, Jon Lowe, Mike Blevins, David Guthrie, and
Richard Hibner were issued written reprimands by
Robert Coffelt, repack department manager.
(b) June 7-meeting where employee Kenneth A.
Pontius was issued a written reprimand by Ken John-
son, warehouse manager.
(c) June 14 meeting where employee Kenneth A.
Pontius was discharged by Robert Coffelt.
Respondent's answer, dated Octoboer 21, 1977, generally
denies that it has engaged in the alleged unfair labor prac-
tices and as a separate affirmative defense alleges that the
Regional Director in Case 17 CA-7760 on August 31,
1977, issued a decision refusing to issue a complaint in rela-
tion to charges that the Company had discriminatorily ter-
minated Kenneth A. Pontius and other employees and the
Regional Director's decision subsequently was affirmed by
the Office of Appeals by telegraphic order dated September
26, 1977.
Case 17-CA -7838. Charges of unfair labor practices and
amended charges were filed on August 16 and October 1I,
1977, respectively. Based thereon a complaint, dated Octo-
ber 13, 1977, was issued alleging that Respondent has en-
gaged in violations of Section 8(a)(1) and (3) of the Act. In
substance, the complaint alleges that Respondent refused to
permit its employee, John Albers, to have union representa-
tion at meetings with Respondent on June 6, and August 1.
1977, when Alberts had reasonable grounds to believe that
such meetings could (and did) result in Respondent taking
disciplinary action against him; and that on August 1, 1977.
Respondent discharged John Alberts because of his interest
in, and activities on behalf of, the Union. Respondent filed
an answer dated October 18, 1977. generally denying that it
has engaged in the alleged unfair labor practices.
By order dated November 25, 1977, Cases 17-CA-7337,
7600, 7701, 7838, and 7760 were consolidated.
Case 17 CA 8061. Charges of unfair labor practices and
amended charges were filed on January 12 and 25, 1978.
Based thereon a complaint, dated January 25, 1978, was
issued alleging violations of Section 8(a)(1) of the Act. In
substance, the complaint alleges that Respondent refused
employees union representation at meetings with Respon-
dent when the employees had reasonable grounds to believe
that such meetings could (and did) result in Respondent
taking disciplinary action against them. The alleged inci-
dents occurred as follows:
(a) December 7 meeting where employee Robert
Verlezza was issued a written reprimand by Bob Larra-
bee.
(b) December 21 meeting where employee Scott
Montgomery was discharged by James Dickey.
(c) December 2--meeting where employee Rose
Noll was issued a written reprimand by Bob Larrabee.
(d) December 27 meeting where employee Robert
Verlezza was discharged by Bob Larrabee.
Respondent's answer, dated February 6, 1978, generally de-
nies that it has engaged in the alleged unfair labor practices.
By motion made and granted at the hearing, this case was
consolidated with the other cases then before the Adminis-
trative Law Judge.
B. The Negotiations
Following issuance by the Board of its certification in the
representation proceeding on October 18, 1976, the Com-
pany and the Union scheduled their first collective-bargain-
ing meeting for November 9, 1976. Prior thereto the
Union's attorney, Robert L. Uhlig, who also was the
Union's principal spokesman during the negotiations, by
letter to the Company requested:
I. Complete list of names, home addresses, job clas-
sification, rate of pay and description of duties of all
employees in the bargaining unit.
2. List of any and all fringe benefits currently in
effect for all bargaining unit employees.
3. Any and all changes in terms and conditions of
employment since April 29, 1976, and reasons for such
changes.
Peter Palmer, the Company's labor counsel and chief
spokesman during the negotiations, responded on Novem-
ber 16, 1976, as follows:
Enclosed herewith please find a list of employees at the
Lawrence Distribution Center indicating name, ad-
dress, classification and rate of pay as well as an expla-
nation of the following employee benefits: Pension
Plan, booklet attached, also page 8 of Employee Hand-
book; Blue Cross-Blue Shield, booklet attached and
page 7 of Handbook; Sickness and Accident (Aetna),
booklet attached and page 7 of Handbook; Non-Con-
tributory Life Insurance (company paid), booklet at-
858
K MART CORPORATION
tached and page 7 of Handbook: Contributory Life
Insurance, booklet attached and page 7 of Handbook:
Paid Vacation, page 4 of Handbook; Paid Sick & Per-
sonal Days, page 5 of Handbook: Paid Holidays, page
6 of Handbook; Christmas Remembrance. page 6 of
Handbook; Stock Purchase Plan, page 8 of Handbook:
Savings Bonds, page 8 of Handbook; Paid Leaves of
Absence--Funeral, page 8 of Handbook and Jury
Duty page 9 of Handbook; Unpaid Leaves of Ab-
sence-Personal, page 9 of Handbook: Illness. page 9
and Military, page 10 of Handbook. I enclose copies of
the Employees Handbook pages listed above.,
November 9, 1976, meeting. The first collective-bargain-
ing meeting was held on this date. The Union was repre-
sented by Robert Uhlig, Bill Moore, assistant business
agent, Jon Lowe, the principal employee representative,
and other members of the Union's bargaining committee.
Uhlig and Lowe attended all the negotiating sessions, other-
wise the composition of the Union's negotiating committee
varied from session to session. Present for the Company
was Peter Palmer, who attended all the bargaining sessions,
and, in addition, there were Plant Manager Richard Fisher,
Personnel Director James Dickey, and others. At this ses-
sion the Union submitted its initial draft of a proposed con-
tract.' The Company's representatives reviewed the Union's
proposals, and the parties discussed, in particular, the pro-
posals for a hiring hall and for maintenance of standards.
The Company objected to a hiring hall on the ground that
such procedure was not appropriate to its operations, and
the Union agreed to withdraw the proposal. The Company
also objected to the proposed maintenance-of-standards
provision. The clause reads as follows:
The Employer agrees that all conditions of employ-
ment in his individual operation relating to wages,
hours of work, overtime differentials and general work-
ing conditions shall be maintained at not less than the
highest standards in effect at the time of the signing of
this Agreement, and the conditions of employment
shall be improved whenever specific provisions for im-
provement are made elsewhere in this Agreement.
The Company's position in regard to this proposal was that
it desired the agreement clearly to spell out the benefits,
work rules, and working conditions that the Union wanted
I Despite the information furnished the Union on November 16. 1976, the
consolidated complaint in Cases 17 CA 7337 and 7600 alleges that "Islince
on or about November 9, 1976, and continuing to date, the Respondent has
failed and refused, and continues to fail and refuse, to provide the Union
with information regarding the existing benefits" for employees In the certi-
fied unit.
The Company made no response to the Union's request for "laIny and all
changes in terms and conditions of employment since Apnl 29. 1976. and
reasons for such changes." However, the complaint in Case 17 CA 7337,
dated November 15, 1976. alleges that the Company unlawfully had made
various changes in the terms and conditions of employment of the employees
in the certified unit.
The transcript of the testimony in these proceedings is more than 1.200
pages and the exhibits received in evidence are even more voluminous. It is
not possible to summarize the more significant exhibits in this case such as
the various contract drafts which were exchanged by the parties during the
negotiations without making this Decision, which is not short, burdensomely
long. Nevertheless, in order to appreciate fully the nuances. postures, and
tactics of the negotiators, it is necessary to read these documents in their
entirety.
maintained Uhlig stated that the Union wished to retain
all existing benefits and requested "a complete list of all
privileges and benefits in effect at the Distribution Center.'
Palmer answered that "he would not provide such a list
because he did not know what the benefits [were] and that
they changed from time to time." On November 16. in re-
sponse to Uhlig's letter of November 5. Palmer mailed to
Uhlig copies of the various employee benefits in effect at
the Lawrence facility. General Counsel's position, as re-
flected by the consolidated complaint in Cases 17 CA-7337
and 7600 is that the Company's November 16 response was
inadequate. If Uhlig's oral request on November 9 for "a
complete list of all privileges and benefits now in effect at
the Distribution Center" was related to his letter of Novem-
ber 5, then the Company's response of November 16 de-
scribing all the employees' fringe benefits constituted full
and satisfactory compliance therewith. On the other hand.
if the November 9 request was related to the Union's main-
tenance-of-standards proposal, then the request for infor-
mation was vague an uncertain. It is not likely that Uhlig
was requesting information in regard to "wages, hours of
work or overtime differentials." As to wages, a request for
such information was made on November 5 and was corn-
plied with on November 16. As to hours of work and over-
time differentials, the evidence is that there was no uncer-
tainty as to what they were: the employees had the
information, and if the Union wanted the information from
the Employer directly it undoubtedly would have requested
it in Uhlig's letter of November 5. Accordingly, if the alle-
gation of the complaint quoted in footnote 6, supra, has any
meaning, it would seem that the complaint contends that on
November 9 Uhlig had requested the Company to furnish a
complete list of the "general working conditions" in the
plant. However. everything concerning the plant and its op-
erations is included within the term "general working con-
ditions." There is no practical way that a request for a de-
scription of general working conditions can be complied
with. Thus. absent any greater specificity, Uhlig's request
was meaningless. I shall recommend that the complaint be
dismissed insofar as it alleges that Respondent failed to pro-
vide the Union with information regarding the existing em-
ployee benefits.9
8 Phillip B. Carter. a specialist in the field of labor law who was a witness
for the Respondent, testified that employers usually object strenuously to the
inclusion in a collective-bargaining agreement of any such maintenance-of-
standards clause "Iflor the reason that the employer does not know unless
these things are spelled out in the agreement. what things might later be
argued as being contained and protected within that provision. So the nor-
mal [employer's] response is if you want something and if you want it bad
enough, let us put it in the contract so that we both know that you have it."
9 Lowe testified that the Union's assistant business agent. Bill Moore. who
attended the November 9 meeting, asked if he could visit the plant and look
around in order to better represent the employees and Palmer replied that
"there was no way he would ever consent to a union man coming inside the
warehouse." Palmer denied making such statement. While I believe Palmer
did not make such a bald comment, the Company's position throughout the
negotiations (until December 5. 1977) was that it would not give the Union
visitation privileges. As the Company's position had been firmly articulated.
Lowe's testimony fairly describes the substance of what Palmer said with
perhaps less delicate phraseology than was used by Palmer. On December 5.
1977, the Company in its last contract proposal included a provision to the
effect that it would provide "a tour" of its Lawrence facility for one union
representative and the Union's attorney by "the General Warehouse Man-
ager." This proposal was a minuscule gesture towards compromise with e-
spect to the Union's contract request fior isitation privileges. The pnncipal
(Continued)
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 17, 1976: Robert Uhlig mailed to Peter Palmer
a revised contract proposal. It includes the same mainte-
nance-of-standards clause set forth in the Union's initial
draft and adds the following, which did not appear in the
initial draft:
Existing Privileges and Fringe Benefits
All existing privileges and fringe benefits currently in
effect and not touched upon by this agreement shall
not be altered by the company unless agreed to by the
company and the Union in writing.
The hiring hall provision of the original draft is eliminated
and in its stead is the following:
When the employer needs additional persons he shall
give the Union an equal opportunity with all other
sources to provide suitable applicants.
December 7, 1976 meeting. The Company presented its
draft of a proposed agreement omitting, however, any wage
proposal. (The Union had proposed an across-the-board in-
crease of $1.75 per hour.) Of particular concern to the
Union was an extremely broad and all encompassing man-
agement-rights clause and a discharge and discipline clause
which sets forth as "just cause" for discharge or other disci-
pline 15 items including such things as "tardiness," "failure
of employees to properly perform their jobs in accordance
with company standards," "negligence on the job,"'0 and
"misrepresentation of any material fact concerning employ-
ment or pay."
In his brief General Counsel argues, "Respondent's pro-
posal embodied a diminution in the terms and conditions of
employment in effect for the unit employees in many re-
spects-including the lengthening of the probationary pe-
riod, a shortening of the vacation and non-paid leave time
benefits and a conversion of overtime work to a mandatory
basis." Except for these items and subjects relating to union
representation, the Company's proposal is generally a re-
statement of the then current conditions of employment. As
to the probationary period, the Company in its contract
draft proposed 60 workdays, whereas the practice then was
for employees to serve a probationary period of 60 calendar
days. This change did not perturb the Union because there
was no discussion of the subject during the negotiations and
the Company in its December 5, 1977, contract proposal
reverted to 60 calendar days. As to mandatory overtime,
the Company proposed that "Center-wide overtime is man-
datory for all employees on each shift." The Company's
explanation was that from time to time it is required to
operate the distribution center on Saturdays and usually is
reason a union desires visitation privileges is in order that its representatives
are able to speak with the employees more promptly, more conveniently, and
more understandably in connection with grievances and other matters relat-
ing to conditions of employment. Inspectior of the plant premises with no
opportunity to consult with the employees is substantially less important and
less helpful to the Union. The Company's object during the times relevant
hereto was to accord the Union only the minimum recognition required by
law and the employees only minimal opportunity to observe union represen-
tatives acting on their behalf. The reason, based upon all the evidence, I find
is that Respondent wished to impress upon its employees that they gained
little or nothing by the selection of a collective-bargaining representative.
10 Ultimately Respondent agreed to delete "negligence on the job" but
otherwise throughout the negotiations insisted upon its discharge and disci-
pline clause as originally drafted.
unable to obtain enough volunteers to adequately staff the
facility. In regard to "shortening of the vacation and non-
paid leave time benefits," the Company's proposal did not
include any change in its vacation plan. However, the Com-
pany gives employees with 12 months' service 40 hours of
paid sick or personal leave" plus 80 hours of unpaid per-
sonal leave per year. Its proposal was to reduce the 80
hours of unpaid leave to 40 hours and in lieu thereof to
reward employees whose attendance is regular by giving
them one additional day off with pay for every 90 consecu-
tive days of work without an absence.2 I find that the three
changes referred to by General Counsel in his brief do not
constitute a substantial diminution of the terms and condi-
tions of employment.
In connection with the Company's management-rights
proposal, Lowe testified that "Palmer said that the com-
pany was going to have all rights that they had before the
union came in the warehouse." Palmer denied that he made
such statement. I believe that Palmer was too careful a ne-
gotiator to have made as bald a statement as was attributed
to him by Lowe. However, as the Charging Party points out
in its brief, the "Management Rights clause and Discharge
and Discipline clause, did, in fact, give the company all the
rights they had before the union came in." That, of course,
was the purpose of these clauses and, while I believe that
Palmer did not make the specific statement attributed to
him, there is no doubt that he intended the union negotia-
tors to know that the object of the management-rights
clause was to enable the Company to operate its Lawrence
facility with only a minimal need to consult and deal with
the Union.
According to Lowe, at this meeting Palmer said that the
Company would not discuss wage rates until there was
agreement on all noneconomic issues. The Company's posi-
tion was more sophisticated; namely, it was not in a posi-
tion to make a wage proposal until it knew how much the
fringe benefits and other things being asked for by the
Union would cost. It is customary during collective-bar-
gaining negotiations for the parties to treat first with non-
economic issues before concentrating on the economic is-
sues and wage rates. However, the Company did not
present its proposal regarding wage rates until the July 27,
1977, meeting, and the position of General Counsel with
which I agree is that such long delay in the circumstances
here reflects its bad faith.'3
December 8, 1976, meeting: At this meeting the parties
reached agreement as to the following:
1. Recognition clause.
2. Right of a discharged employee to obtain from
the Company in writing the exact reason for his or her
termination and to file a grievance in respect to the
discharge-as included in the Union's proposal.
3. That the parties agree to cooperate in the mainte-
nance of harmonious and orderly relations-as in-
cluded in the Union's proposal.
" An employee with 3 months of service gets 16 hours and then 8 more
hours for each additional 3 months of service to a maximum of 40 hours.
12 This clause is awkwardly phrased, but testimony at the hearing indicates
that this is what was intended.
1 As of June 14, 1977, when the consolidated complaint in Cases 17-CA-
7337 and 7600 had issued, the Company had not yet submitted a wage
proposal to the Union.
860
K MART CORPORATION
4. Reporting pay as set forth in the Union's pro-
posal.
5. Lunch and rest periods as set forth in the Union's
proposal. (Still open was the question of a paid lunch-
break after 4 hours of overtime)
6. Bulletin board as set forth in the Union's pro-
posal.
7. Grievances-handling of complaints and arbitra-
tion. Certain paragraphs agreed to as set forth in the
Union's proposal.
8. Termination of contract. The language set forth
in the Union's proposal was agreed upon.
9.The parties achieved substantial agreement re-
garding the seniority clause using the Employer's pro-
posed clause as the model.
December 14, 1976. Uhlig wrote Palmer a letter in which
he stated that, because the Employer had rejected the
Union's existing privileges and fringe benefits proposal and
had insisted that all such matters be listed in the agreement.
in order for the Union to draft language in this regard it
required the fbllowing information:
1. A complete list of all benefits and privileges, if
any, that are not covered by your letter of November
16, 1976. to me.
2. A list of all rules and regulations that the Em-
ployer presently has that employees are expected to
abide by. A list of any penalties which may be assessed
for a violation of said rule.
Palmer, on January 5, 1977, replied, as follows:
I have enclosed herewith a copy of the Lawrence Dis-
tribution Center Handbook excerpts of which were in-
cluded in my correspondence of November 16, 1976.
This booklet, in conjunction with the other informa-
tion contained in my letter of November 16th, covers
all of the written policies as well as rules I am aware of
at the Lawrence Distribution Center.
Januay 26, 1977, meeting.- There was discussion of var-
ious noneconomic contract proposals then on the table be-
cause, as Palmer testified, he "had told Mr. Uhlig that [he]
had wanted to resolve as many of those as [he] could before
Ithey] got into the economic portions of the collective bar-
gaining agreement." The Union complained that the Com-
pany's management rights proposal was overly broad.
Palmer suggested that the Union propose specific clauses to
limit management rights (i.e., a clause which prohibits sub-
contracting or which prohibits subcontracting without first
complying with certain conditions) "rather than just to
make the blanket statement that the management rights
clause was overly broad." With respect to mandatory over-
time, Palmer explained that the reason for the proposal was
to o rcome the difficulty the Company had been experi-
encing in obtaining the attendance of a sufficient number of
employees when it was necessary to operate the distribution
center on Saturdays.
Februan' 10, 1977, meeting.: The Company presented
modifications to its job-bidding and seniority proposals.
The Company's management-rights proposal was discussed
without any change in position by either party. Also, the
Company's discharge proposal was discussed and the Corn-
pany deleted "negligence on the job" as one of the specific
items constituting just cause.
The Company expressed its opposition to the Union's
inspection and visitation clause stating that the grievance
procedure provided for ample representation of the em-
ployees by stewards selected by the Union'4 and that there
was no reason for full-time union representatives to visit the
premises.
The Company rejected the Union's proposal for checkoff
of union dues and initiation fees, stating that it did not want
to know which employees were members of the Union, that
it viewed a checkoff proposal as being inconsistent with the
right-to-work laws of the State of Kansas and that, under
its proposal, stewards were permitted to collect money for
the Union (but not on working time).
The parties reached tentative agreement that there would
be a safety committee composed of seven members repre-
senting the bargaining unit.
The Union submitted an interim grievance procedure.
The Companm refused to adopt such procedure. stating that
it did not desire to negotiate a contract on a piecemeal basis
and that grievances could be discussed at the bargaining
sessions.
A grievance on behalf of the Union's negotiating com-
mittee was discussed. The committee wanted time spent in
negotiating sessions to be counted as hours worked for pur-
poses of overtime. The Company rejected the grievance."
Februarl 11, 1977, meeting. There was further discussion
of the Union's request for an interim grievance procedure.
The Union contended that the denial thereof was an unfair
labor practice. The Company advised that it would re-
search the matter and respond. Palmer requested the Union
to prepare a comprehensive fringe benefits counterproposal.
The Union requested the Company to present a wage pro-
posal at the next bargaining session and the Company re-
sponded that it would try to accommodate.
The Company made a minor change in its no-strike/no-
lockout proposal.
The Union requested the Company to provide the wage
rates at the other company distribution centers and the
dates and amounts of the last increases at such facilities.
The Company agreed to review this request.
Februaro 15, 1977. By letter the Company informed the
Union that its research indicated that it was not required to
accept and implement the Union's proposed interim griev-
ance procedure pending negotiation of a collective-bargain-
ing agreement. It confirmed its rejection of overtime pay for
Saturday work for bargaining committee employees who
had not worked 40 hours in I week.
Alarch 1, 1977. Uhlig wrote to Palmer setting forth the
Union's proposals in regard to fringe benefits. The letter
concludes with the statement that Uhlig understands that
" It is questionable that Respondent's proposed gnevance procedure pro-
vides for ample representation of the employees by stewards because for a
unit of more than 300 employees It allows only one active steward on each
shift, who is subject to specified limitations, a maximum of 15 minutes per
day "on working time" to investigate, present, or process grievances unless
specific permission !o extend such time is given by the distribution center
manager "or such person as he may specifically and expressly designate to
give such consent."
Bs The same subject was included in unfair labor practice charges filed by
the Union on Apnl 6, 1977. but no complaint was issued thereon.
861
I) (ECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company will furnish the wage rates, job classifications.
dates, and amounts of the last wage increases given at the
other company facilities and also the C(ompany's wage pro-
posal for the Lawrence facility.
Palmer responded by letter on March 15 in which he set
forth the wage rates for the Company's five other distribu-
tion centers. However, he identified the centers by letters A
through ti and not by locations and did not furnish inftr-
mation regarding the dates and amounts of the most recent
increases given at those facilities. The letter argues that it is
the Company's position that its wage rates are determined
on the basis of local standards, and therefore the Compan
questions the relevancN of the information it is furnishing.
It states that the variation in the wage rates among the
distribution centers reflects the ('ompan' s philosophy of
gearing wages to local standards, and that the Compan
believes that the wage rates in the Lawrence area are more
relevant than the wage rates at the other company distribu-
tion centers. le enclosed the scale ofA ages for four coilpa-
nies in the l;awrence area.
The letter also points out that the difference in cost be-
tween the fringe benefits proposed by the Ilnion and those
proposed by the ompany is 26.2 cents per hour per person
and "Ii]n light of the fact that there is a significant variation
in cost between what the company has oflered and the
union has demanded it is not possible to prepare a wage
proposal at this time."
On March 1X UIhlig responded that he considered Pallm-
er's letter insufficient and indicative of lack of good faith on
the Compan)'s part. I hlig further wrote "First, ou stated
you would send us a wage offer upocl receipt of the Uinion's
proposal on fringe benefits. We sent such proposal on
March 1, 1977. Now your position is that it is impossible to
prepare a wage proposal at this date." The letter complains
that the Company's willingness to meet only once or twice a
month is not sufficient and the response to the Union's re-
quest for information regarding the other company distri-
bution centers was inadequate. UIhlig pointed out, "You
sent us five wage rates listed A, B, ', ), & E. 'This is not in
compliance with our request. You state comlnunity stan-
dards are involved but we do not know what community.
You have also fliled to state when and the amount of the
last wage increase was."
Palmer answered on March 25. Ile stated that "Ji]n re-
spect to a wage proposal it is the company's position that
unless we can show some movement in the area of contract
language where we would both have to agree there is sub-
stantial disagreement. it is not possible to reasonably deter-
mine administrative and actual costs of a contract. Addi-
tionally, in the area of fringe benefits as I pointed out in
my letter of March 15, there is a calculable difference of
some 26 [cents] betw een what the ('ompany has offered and
the u on has demanded. These differences make it irtu-
ally impossible to prepare a wage proposal at this time."
With respect to Uhlig's request that the five other distribu-
tion centers be identified and for the amount and time of
the last wage increase in each of these centers, Palmer re-
fused to furnish such information, saying only that "we in-
dicated that these wage rates were put into effect on or
before 1976 and were current on the date the information
was provided." Thus, Palmer pointedly refused to inform
the Union when wage increases were last given at the other
five distribution centers and the amounts of such increases.
This is of significance because no across-the-board wage
increase had been given to the employees at Lawrence since
before the April 29, 1976. election. If across-the-board wage
increases had been given to the employees in the other dis-
tribution centers during 1976 and if the increases were in
the area of 10 percent (the approximate rise in the cost of
living during this period), then Respondent's initial obdu-
racy about making anN wage proposal while the parties
were approximately 26 cents apart in their respective posi-
tions as to fringe benefits (the ('ompany offered no im-
provements in fringe benefits which would have a cost ef-
fect except for the proposed honus of I day of paid leave for
each 90 consecutive days of work without absence) l-
lowed bh the niggardly wage offers that the Company ulti-
matel 3 made would indicate that the ComnpanN was retali-
ating against its Lawrence employees for having selected a
collective-bargaining representative.'"
lrch 24. '1977, meeting. Ihlig inquired hether the
Co mnpan had a wage pr-oposal to offer as had been pro m-
ised. Palnler responded that the (CompanN would not ma;ke
a wage proposal at this time because the two sides were so
far apart i regard to fringe benefits and the administrative
pro isions of the contract that it was difficult to calculate
the cost fltctor. Palmer was asked whether the C(ompany
could base a proposal on existing agreements in the area
and Palmer replied that it could not. hlig renewed the
Inion's request for more detailed information concerning
the wage rates at the (ompans other distribution centers.
In addition to asking or identification of these filcilities he
asked for the dates and the amounts of the last wage in-
creases given at each of these facilities. Palmer replied that
he would not provide such information because it was not
relevant and that the (Company was going to negotiate an
agreement with the lnion on the basis of local community
standards. I:hlig also asked the (onlpan to provide the
classifications of elilplo\ees at its other distribution centers.
Palner replied that he would not urnish such information
because there was too milch I variainc.
At this meeting the ('ompanri announced that it pro-
posed to make certain changes. The Compan proposed to
discontinue the Christmas remembrance program. Plant
Manager isher explained that the amounts of the bonus
were small. that the employees were unilpressed b the
progrtam, that it was trouble to administer, and the mone!s
could he better applied to wages or the other fringe benefits.
[he U nion did not agree to the proposal and the Chrislltas
hb,nus was paid in D)ecember 1977.
Ihe (ompany also proposed to discontinue the employee
discount store which it maintained in its distribution center.
Ihe explanation or this proposal was that the onompany
operates a retail store in the Lawrence area so that there is
no need to maintain a store in the distribution center. This
proposal was not implemented.
I astl. the (Compan alnnounced that it intended to elimi-
nate the third shift. he Compan explained that the third
shift. which \was composed olf approximatel 20 employees,
\;as no longer required because of technological changes
It I he ,ther tive distrlhulion centers re nlnunion
862
K MART CORPORATION
which were made in 1976 involing the elimination of the
tow-veyor system. The Changes proposed that the third-
shift employees would he transferred to jobs on the first and
second shifts which had not been filled in anticipation of
the discontinuance of the third shift: that the jobs would be
posted so that the third-shift employees could bid for them:
that the third-shift employees would retain their warehouse
seniority and if transferred into the same department would
also retain their departmental seniority: and that if the ini-
tial transfer were to a different department but later the
employee was transferred into the same department, the
employee would regain his departmental seniority. Lowe
requested a list of the employees on the third shift, together
with their employment dates. Such list was furnished to
Lowe that evening.
Also at this meeting there was discussion of the job-hid-
ding procedure.
The General Counsel in his brief quotes with emphasis
the following testimony of Jon Lowe. According to l.ouwe
at this meeting "Uhlig said, 'The union has a complaint
because a member of management was discussing a collec-
tive-bargaining matter with an employee. The union is col-
lective bargaining agent for all emplovees and the union
requests the company not to negotiate or discuss collective
bargaining matters with individual employees.' Palmer said
he felt that everyone should have someone to talk to. and
since the company did not recognize stewards the employ-
ees could come directly to management with their prob-
lems." Palmer denied the foregoing and denied that at anM
time he said that the Company did not recognize ste ards.
Palmer was not otherwise questioned about this subject. I
credit Palmer's denials. The sparse summary in the record
of particular discussions makes it difficult to understand
exactly what was said by the parties. The likelihood is that
the question was raised as to whether or not employees had
a right to discuss grievances with management, and Palmer
replied that they did. Despite the emphasis placed on this
incident by the General Counsel, I find that whether
Palmer made the alleged statement has little hearing on the
issues in these proceedings because, regardless of what u;as
said, at all times the Company refused to deal with union
stewards in the plant and would discuss grievances with the
Union at first only at scheduled collective-bargaining meet-
ings and after July 27. 1977. in accordance with the limited
terms of the interim grievance procedure.
There was discussion of the Company 's management
rights and discipline and discharge provisions. Palnter
stated that the ('ompany remained tirm on its proposals
although it was willing to delete "negligence on the joh''" as
one of the enumera ted items constituting just ca use for dis-
charge.
With respect to the C(ompanv's proposal to eliminate the
third .,hift. the Company indicated that it was tirm in ts
intention to proceed with the plain nd in;las %willing tt) listen
to suggestions from the I':ion concerning the transter of
the individuals who would he affected hb the move.
:lMarch .30. 11''. micclia: IThe parties revieaed various
noneconomic subjects. The Union submitted a counterpro-
posal to the Compan's managemenit-rights clause. Inspec-
tion of the Inion's proposal will show that it is reasonable
and conciliator' and gives the ('ompan3 considerable lati-
tude in making operating decisions without first advising
and bargaining with the nion. However, the following
clauses included in the C(ompany's management-rights pro-
posal are omitted from the union counterproposal:
I. To discontinue operations in whole or in part.
2. To subcontract work.
3. To add to or reduce the number and starting and
ending times of shifts, the schedules or numbers of
hours to be worked, and the work force.
4. To lay off and recall employees.
5. The qualifications necessary for any of the jobs it
may have or may create in the uture.
6. To establish new classifications.
7. To assign work duties in accordance with the de-
termination of the needs of the job.
8. To transfer employees as its production requires.
9. To move, sell. close, liquidate, or consolidate the
distribution center in whole or in part.
10. To determine the number, location, and type of
distribution centers.
I. To relocate the existing distribution center and
any improvements thereof to an, location.
The Company's management-rights provision. if ac-
cepted, would effectivel bar the Ulnion from representing
the employees in the certified unit with respect to almost
aIn change the ('ompan might decide to make regardless
of its effect upon employ ment. \Vithout a contract the Coim-
pany, of course, would be guilty of unlawful refusal to bar-
gain collecti el1 were it to take unilateral action in regard
to anN oft the matters listed above as well as in regard to
other suhjects listed in the I nion's counterproposal to
which it was ailling to u;al\e prior consultation atil was
willing to permit the (Comlpan to act unilaterally. I)espite
the reasonableness of the I nion's counterproposal, Palmer,
nevertheless, indicated that he Was not inclined to modif
the ('Compa;ni's managenlent-rights clause in any respect.
Among other subjects discussed at this meeting was the
arbitration clause. Ihe nion wished the arbitrator to be
appointed hb the Federal Mediatior, and (Conciliation Ser-
vice whereas the Comp;lan! v:anted the appointing hod to
be the American Arbitration Association. There Uwas discus-
sion ot the lUnion's proposed maintenance of existing pri i-
leges and benetits clause. he parties restated their respec-
tive positions: the nion's position as that it uIanted such
clause because of the danger that something would be left
out, and the ('ompan's position was that all rights should
he spelled out in the contract. Also discusse d was the C(om-
pan's proposal t elimiiinate the emplosee discount store.
tihe (hristmas rmembrance program. and the third shift.
In the latter regard the (Conipanl ad ised the l'nion that it
had openings on the irst and second shifts into which the
third-shilft emploees w uould he transferred and these un-
Ihere Is it) anihigl \ll% inl thc (t inp.lnr , oriinl, I.llttgr lelt rigIls
prposa;l t. tIo helher nr.lillr r, rreid therchs u,i h iuhlIct t .Irbhtr.a-
tion When Ihe questtion u.s cearkri r.iseid, the rlp.ll , tIled h.at it u.rs
not it, Illentioin Iti den .arhltrilion i lth respec to the .Ipphlitlo oI t[he
(tlllpan's \ mrn.genenltrrightl plps.al llIt, cucr. 1 s (hrgling P.rtl pints
. s111 i II hriet,. he.lris 1A Ih h bredlh l .11 .d cope I I ( otp1.rlr1\ ITlal.lngeC
ment-right prprros.l is .1 pri:lctial malltter. the I nil o, uld he t recldor ed
Ironm Cintesting hrouigh in ritrhallrnont pr,.eedilg jtns iNtll.atcral chilnge the
Cornlpaln\ migh mIlllke in .illn term rl lon [1 cit riphlrnellnt 1i the cm-
pl,ee repre rienled h\ the I n rlil
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filled vacancies were interfering with efficient operations.
The Company further informed the Union that it wished to
give the third-shift employees two weeks' notice of their
transfers and therefore wished to announce on April 4 that
the third shift would be discontinued on April 18.
The Union again proposed an interim grievance proce-
dure pending the conclusion of the negotiations and the
Company rejected the suggestion.
April 20, 1977, meeting. The Company presented propos-
als with respect to nondiscrimination and jury duty and a
slight modification of its management-rights proposal;
namely, that it will not be used discriminatorily. Otherwise,
the parties talked about subjects previously discussed with-
out making any progress. The Union again requested an
interim grievance procedure, which the Company rejected.
The Union again asked for the dates and amounts of the
last wage increase put into effect at the Company's other
distribution centers and the Company again refused to fur-
nish such information. The Union asked for a wage pro-
posal, and the Company responded that it had none to offer
at this time because the parties were too far apart and it
was impossible to calculate the cost factors. The Union re-
quested the Company to calculate the cost of the current
fringe benefits and the Company agreed to provide the
Union with the information.l
May 10, 1977. The Company mailed to the Union the
cost of the employee benefits then in effect, as follows:
Oost per Month
1lue Cross & Rlue Shield $63.20
Sickness & Accident 5.67
Life & Accidental Death 3.57
Pension 37.14
racation 34.20
Holidays 30.00
Christmas PRmembrance 2.79
Breaks 46.88
Social Security Tax 45.58
Unemployment Capensation 10.83
Jury Duty 5.91
Death in the Family 5.80
Eftployee Purchase -?-
Sidec Days 15.00
$305.57 19/
According to the Company's computation the cost of the
listed benefits equals $1.76 per hour.
Is According to Jon Lowe., in connection with a discussion of the Compa-
ny's proposed management-rights clause Palmer said, "I do not know what
kind of companies you are used to dealing with, but the S.S. Kresge Com-
pany is non-union and we are going to have all the rights we had before the
union, in the contract." Palmer denied making such statement. In this, and
several other instances, according to Lowe, the Company used inflammatory
language to describe its position. I generally have not credited Lowe in re-
gard to the specific language attributed to Palmer by him because, in my
opinion, Palmer is too sophisticated and the Company's negotiating tactics
were too carefully planned for Palmer to have used language which might on
its fact indicate that the Company was pursuing an unlawful purpose. The
substance of what Lowe attributed to Palmcr is not in dispute. The manage-
ment-rights clause which the Company proposed is so broad that the Union
by accepting it would in large measure abandon its representative functions,
19 This figure includes the Employer's portion of the social security tax and
unemployment compensation tax and also the cost of breaks (presumably
coffee breaks and any other paid breaks), These items aggregate $103.29.
Usually they are not counted as wage equivalent items, i.e., fringe benefits
which can be abandoned so that the cost can be added to wages. Thus.
approximately one-third of the alleged cost of the employees' fringe benefits
are not wage equivalent items.
June 21, 1977, meeting. For the most part the parties
discussed the same subjects that were considered at previ-
ous meetings. The Union renewed its request for informa-
tion specifying locations of the other company distribution
centers, the classifications of the employees in such centers,
and the dates and amounts of the last wage increase put
into effect at such centers. This request was again denied by
the Company. The Union again asked for an interim griev-
ance procedure which was rejected. The management-rights
proposal was discussed but no compromise was reached.
Before the meeting ended, Palmer said there was a possibil-
ity that the Company would have a wage proposal at the
next meeting. He asked the Union to designate those job
classifications which the Union deemed skilled and war-
ranted premium pay in order to facilitate the preparation of
the Company's wage proposal.
July 6, 1977: By letter from Robert Uhlig the Company
was informed that the Union proposed premium pay for
the following skilled maintenance employees: electricians,
welders, forklift drivers, and the two air-conditioning and
heating specialists.
July 27, 1977, meeting: At this meeting the Company pre-
sented a comprehensive contract proposal, including wage
rates. In regard to wage rates, the Company has a progres-
sive pay scale which provides for regular increases begin-
ning 60 days after employment until the maximum of the
progression is reached at the end of 60 months. Under the
Company's proposal beginning August 1977, the starting
rate would be increased from $3.55 to $3.70; the rate after
60 days would be increased from $3.72 to $3.85; the rate
after 6 months would be increased from $3.82 to $3.95; the
rate after 18 months would be increased from $4.23 to
$4.25; and there would be no increase for employees with
longer service. Thus, under the Company's proposal, em-
ployees who have been working for the Company 18
months would receive an increase of 2 cents, and more sen-
ior employees would get nothing at all. Also, the proposal
reduces the number of wage progression steps from 13 to 8,
which means that some employees would actually suffer
temporary reductions in their wage rates. The Company's
proposed wage scale commencing August 1978 is similarly
lacking in generosity and reality. The starting rate would be
increased from $3.70 to $3.85 per hour; the increase for
employees with 18 months' service would be 5 cents; and
there would be no increase whatsoever for employees with
service of 60 months or more.
In its brief Charging Party correctly states that "anyone
with even a casual acquaintance with labor relations would
know no union, or group of employees could accept such a
wage proposal." The Company's contention during the ne-
gotiations was that it was negotiating on the basis of local
community standards. In that regard, the Company failed
to inform the Union the percentage wage increases which
were given in the local community b other industrial con-
cerns during 1976 and early 1977 and pointedly refused to
inform the Union what wage increase the Company itself
had given in its other distribution centers during the pre-
ceding year and a half. Absent any explanation for its nig-
gardly wage proposal, one of two or both inferences can be
drawn; namely. that the Company was challenging the
Union to go on strike. or that it was seeking to demonstrate
864
K MART CORPORATION
to its employees that they would gain nothing but would
lose by seeking union representation.
At this meeting the Union orally proposed an interim
grievance procedure, and after discussion an agreement was
reached.
The Union requested an updated list of the employees in
the bargaining unit, and the Company agreed to furnish
same. The Union renewed its request for information as to
the wage rates, job classifications. dates and amounts of the
last wage increases placed in effect by Respondent at its
other distribution centers, and identification of such cen-
ters. The Company stated that the information was irrele-
vant but that it would review the question.
August 4, 1977: The Company mailed to the t'nion a
letter identifying the five distribution centers referred to in
its March 15, 1977, letter, and included an updated list of
employees. It is noted that the Company failed to indicate
when increases were last given at the other distribution cen-
ters or the amounts thereof.
August 5, 1977. The Union mailed to the Company its
counterproposals to the Company's draft contract sub-
mitted on July 27. The Company replied by letter dated
August 16 in which it accepted a few unimportant clauses
in the Union's counterproposal but indicated no disposition
to compromise on any of the subjects which had been the
focus of discussion during the negotiations, such as man-
agement rights, maintenance of standards, maintenance of
benefits, and wages.
On August 22, Uhlig wrote to Palmer and clarified the
Union's wage proposal stating that the Union proposed an
across-the-board increase of $1.50.
September 27, 1977, meeting: The parties discussed open
issues such as management rights, the Company's discipline
and discharge proposal, the grievance and arbitration pro-
posals, and the wage proposals. The Union complained that
the interim grievance procedure was inadequate particu-
larly as the Company was denying the employees in the
plant representation by stewards. Palmer responded that
the Company did not wish any input from the Union before
it made its decision and after it made its decision it did not
have to talk to the Union, and if the Union were dissatisfied
with any decision it could file a grievance. The Company
refused to improve upon the grievance procedure agreed to
on July 27.
November 15, 1977, meeting. The Union presented an-
other counterproposal to the Company's management-
rights clause, but the Company rejected the proposal and
gave no indication that it would consider modifying its
management-rights clause in any respect.
Uhlig stated that the union people had heard rumors that
company employees at the other distribution centers had
been receiving raises, and employees at the Lawrence distri-
butio., center who were not in the collective-bargaining unit
also had been receiving raises. Uhlig said, therefore, the
Union requested a list of all wage and fringe benefits in-
creases put into effect at the Company's distribution cen-
ters. Palmer replied that he did not think the information
was relevant but he would review the request.
December 5, 1977. The Company mailed the Union a
revised draft of its contract proposal which it stated consti-
tuted its final proposal. This proposal contained a new
wage rate schedule, effective January 1978 instead of Au-
gust 1977, and added 5 cents to its July 27 proposal across-
the-board, except that it added 10 cents to the 24-, 36-, and
48-month progressions. It modified its earlier proposed
grievance procedure by providing, in substance, for the rep-
resentation of employees by stewards at step one. It added a
provision which permits an authorized full-time representa-
tive of the Union and the Union's attorney one tour of the
Lawrence facility under the guidance of the general man-
ager. It revised its sole and entire agreement provision to
emphasize that no past practices will be considered part of
the contract unless incorporated in the agreement by ex-
press language.
Jinuarv 10. 1978, mceting. On Januar 3 the Union
mailed to the Company additional counterproposals. These
were discussed at the meeting. The Union proposed an im-
mediate wage increase effective January 1, 1978, of 10 per-
cent. Its explanatory letter states:
\We have repeatedly requested the date and the amount
of the last wage increase given at your other warehouse
facilities in order to properly evaluate your wage pro-
posal and properly prepare our wage proposal. Since
this has been denied us, and we have no clear knowl-
edge of what an) normal wage increases to these em-
ployees ma' have been, we propose an immediate ten
(10) percent across the board wage increase effective
immediately. This is based on information we received
from the Department of Labor. A copy of the C.P.I.
and percentage increases e received orally are en-
closed.
The letter also includes counterproposals on management
rights and discipline and discharge.
The Union's counterproposal on management rights gave
the Company practically all the rights requested in its pro-
posed clause except that the Union's proposal required cer-
tain actions to be done for economic reasons or just cause
or that the Company act reasonably or exercise fairness.
As to the discharge and discipline clause, the Union re-
duced the enumerated items of contractual just cause for
discharge and discipline from the number the Company
had set forth to seven.
There has been a further exchange of letters between the
parties, but no progress towards reaching an agreement.
C. The Refusal To Furnish Information
At the February II negotiating session the Union re-
quested the Company to provide it with the wage rates at
the Company's other distribution centers and the dates and
amounts of the last increases given at each such facility. On
March 15 the Compan provided the Union with a sum-
mary of the wage rates at its five other distribution centers
but did not identify their locations or give the dates or the
amounts of the last increases at those centers. Despite re-
newal of the Union's request from time to time. it was not
until August 4. 1977, that the Company identified the distri-
bution centers whose wage rates had been furnished to the
Union on March 15. However. the Company steadfastly
has refused to inform the Union of the date or amount of
the most recent increase given at each of them.
865
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company's position is well described in its brief as
follows:
In summary, it is uncontradicted on the record
herein that Respondent has consistently maintained at
all times material herein that its wage and benefit
package at the Lawrence Distribution Center was
predicated solely upon local community standards, i.e.,
the standards of the Greater Lawrence. Kansas area. It
is uncontradicted that the Company voluntarily sup-
plied the Union early on in negotiations with a copy of
its wage survey upon which it was relying for the pur-
poses of the collective bargaining negotiations then in
progress. It is uncontradicted that the Union, at no
time material herein, has ever asserted, let alone dem-
onstrated, that the Company's survey upon which it
was relying was inaccurate in any respect whatsoever.
In view of the foregoing, it is patently absurd to sug-
gest that wage rates or other data concerning K Mart
Corporation's employees at its other distribution cen-
ters located far beyond the Lawrence, Kansas labor
market, each of which is in a separate and distinct la-
bor market, has any relevance whatsoever to the par-
ties' collective bargaining negotiations herein.
The error in Respondent's argument is that it asumes
that because it wishes to predicate employee wage rates and
benefits upon local community standards that the Union is
foreclosed from seeking to negotiate on the basis of other
factors. Even under Respondent's thesis. at the minimum, it
was required to furnish the wage rates for the other distri-
bution centers and to identift5 those centers in order to give
the Union an opportunity to check Respondent's assertion
that it bases employee wages and benefits on local commu-
nity standards. Respondent's delay in furnishing this infor-
mation from February II until August 4, 1977, tended to
impede negotiations and constituted a failure on the Com-
pany's part to meet its collective-bargaining obligations.
Further, and more importantly, Respondent's refusals to
furnish the Union with the dates and amounts of the most
recent increases given at each of the other distribution cen-
ters constitute a serious withholding of relevant inf'orma-
tion. The Lawrence distribution center is Respondent's only
warehouse where employees successfully were able to desig-
nate a labor organization as their representative. The hard
bargaining stance taken by Respondent during the negotia-
tions with the Union suggests not only that the ompany
was hoping to secure a very favorable contract, but also
that it was seeking to retaliate against the employees at the
Lawrence distribution center for having selected a collec-
tive-bargaining representative. If; regardless of local com-
munity standards, Respondent had given the employees at
the o'':cr distribution centers cost-of-living increases during
the years 1976 and 1977, that irformation not onl was
relevant but was vital to the Union in the furtherance of' its
negotiations, as Respondent's niggardly wage offer to the
Union, when finally made, was in the area of I to 2 percent
(depending upon how the offer is averaged, as very little
was offered to employees with less than 18 months' service
and even less to employees with greater employment ser-
vice). "Good faith bargaining requires full disclosure by the
parties of relevant information in order to produce in-
formed, effective negotiations."20
I find that by its delay until August 4 in identifying the
distribution centers whose wage rates it previously had fur-
nished the Union and by totally refusing to give the Union
information regarding the dates and amounts of' the last
wage increases given at those distribution centers, Respon-
dent has failed to fulfill its statutory collective-bargaining
obligations and has violated Section 8(a)( 1) and (5) of the
Act.
D. The Alleged Unilateral Changes
The consolidated complaint in Cases 17-CA-7337 and
7600 alleges that the settlement agreement in Case 17-CA-
7337, approved by the Regional Director on January 21,
1977, provided that "the Respondent would remedy the un-
fair labor practices alleged in the ... complaint and would
not engage in violations of the Act." The answer filed by
Respondent correctly denies these allegations of the com-
plaint. The settlement agreement2 is narrowly drafted and
Respondent therein agreed only that it would not take cer-
tain actions, specifically described in the settlement agree-
ment, without first bargaining with the Union. Accordingly,
if the settlement agreement was violated it could only be by
reason of actions taken in contradiction of the terms of the
agreement and not because Respondent may have engaged
in other violations of the Act. Thus, whether or not the
settlement agreement has been violated depends on whether
Respondent made unlawful unilateral changes in its em-
ployees' conditions of employment after January 21. 1977.
The complaint alleges four such changes.
Two of the alleged unlawful changes involved the elimi-
nation of the Christmas remembrance program and discon-
tinuance of employee discounts. What the record shows is
that the Company on March 24, 1977. at a collective-bar-
gaining session, proposed to eliminate both these benefits.
However, in fact, neither was eliminated. Accordingly,
these allegations of the complaint fall for want of proof.
The third alleged unlawful unilateral change involves the
elimination of the third shift. The subject was discussed at
several negotiating sessions. At the March 24. 1977, meet-
ing the Company informed the union representatives that it
intended to eliminate the third shift, which consisted of ap-
proximately 20 employees, 2 because certain technological
changes in the Company's operations rendered the third
shift unnecessary and uneconomical. The Company further
stated that the third-shift employees would be transferred
to the first and second shifts with no reduction in rates of
pay, would retain their warehouse seniority, would be per-
mitted to bid into vacant jobs and, as described more fully
above. would in some circumstances retain and in other
circumstances lose their departmental seniority. These
transfers would conform to prior compan3 practices. At
this time the Union merely requested a list of the employees
on the third shift with their respective seniority dates. Such
2" (ieneral Ele Cori< (. v. :\ L RB. 466 F.2d 1177, 1 183 6th (ir. 1972).
See also ('urtis-Wrighl (orporalln, 14 right 4terwliiutii/ Dtli, d.
A I R B. 347 2d 61 (3d (r. 1965)
T21 'he pertinent portions ot the settlement agreement are quoted abhoe.
22 Approximately 310 persons are employ ed in he bargaining unit
866
K MART CORPORATION
list was provided later the same day. At the March 30 nego-
tiating session the Company informed the Union that it
wished to proceed promptly with the elimination of the
third shift because the Company had not been filling vacan-
cies in the first and second shifts in order to have positions
available into which to transfer the third-shift employees.
The Company further advised the Union that it wished to
implement its decision on April 18 and to give the affected
employees 2 weeks' notice of the change, so that it intended
to announce its plan on April 4. Jon Lowe protested that it
was less than a week since the Union first had learned of
the Company's intentions and he had not had a chance to
talk to all the employees on the third shift. Palmer replied
that Lowe had better hurry. On April 3 Jon Lowe delivered
to Floyd Holland. the assistant manager of the repack de-
partment, the following handwritten instrument:
Unions position on managements proposal to elimi-
nate 3rd shift.
A collective bargaining agreement has not been
reached between the Employer and the nion. The
parties have agreed that individual portions of the
agreement ma) not he put into effect before a complete
agreement is reached. Managemlent has taken this po-
sition in regard to the Union's proposed interim grie,-
ance procedure. Until management reverses said posi-
tion the Union objects to management eliminating 3rd
shift before a collective bargaining agreement between
the parties is reached.
If Management makes this move unilaterally the
Union submits the following counterproposal for plac-
ing 3rd shift employees onto the other shifts:
3rd shift employees will be given the right to hump
into any shift or department that their seniority will
allow them to bump into.
3rd shift employees will indicate to their manager
which department and shift they wish to work in
and if their seniority is higher than the least senior
employee in that department they will bump into
that department and shift.
Such move will count as a management move and
the affected employees will retain department se-
niority equal to the total time they have worked pre-
viousl' in the department they will be bumping into.
This response was ignored by the Company, and on April 4
the Company announced its plan to eliminate the third
shift, which was done on April 18. and the employees on
that shift were transferred to other shifts in accordance with
the Company's announced plan.
The alleged unlawful action was a two-step process. The
first step was the effectuation of the decision to eliminate
the third shift and the second step was the manner bh which
the nployees on the third shift were transferred. he
Union objected to the Company's proposal to discontinue
the third shift not for any economic reason or foir other
reasons affecting the welfare of employees. hut only as an
expression of its petulant exasperation at the slow progress
of the negotiations. The Union in its letter stated that be-
cause the employer had refused to agree to an interim griev-
ance procedure it was objecting to the elimination of the
third shift. This response was neither a reasoned alternative
to the Company's proposal or a request on the part of the
Union to negotiate with the Company about its intention to
discontinue the third shift. Thus, I find that the Company
gave the Union adequate notice of its intention to eliminate
the third shift, and that the Union failed to make any rea-
sonable attempt to bargain with the Company about the
matter. In the circumstances. the Company's action in dis-
continuing the third shift was not unlawful.
The next question relates to the treatment of the third-
shift employees upon the discontinuance of the third shift.
As far as the record shows, once the third shift was discon-
tinued the Company followed its customary practices and
policies in reassigning the third-shift employees. Thus, the
Employer made no change in the terms and conditions of
employment of the employees in the collective-bargaining
unit. The Union. on the other hand. by its April 3 letter
sought to negotiate with the Company about instituting a
humping procedure where no bumping procedure had been
used previously. Thus, it was not the Company which made
a change in the terms or conditions of employment, but the
Union which sought to negotiate such change. ontrary to
General Counsel. I find that no unlawful unilateral action
was involved in the discontinuance of the third shift on
April IX and the transfer of the third-shift employees to the
first and second shifts.
The fourth alleged unlawful, unilateral change concerns
job-bidding procedures. This proposal involved a third
change within a period of 12 months. When Richard Fisher
became general manager of the distribution center in April
1976, the job-bidding procedure operated in the following
manner: When a job became available the Company posted
a notice of the job on the bulletin board for 3 days. The
employees who wished to be transferred into the ',acant joh
signed the notice with their clock numbers, and the job was
a arded to the most senior employee on the list. Fisher
considered this procedure cumbersome and inellicient be-
cause. upon transferring an employee into the aailable po-
sition. another joh hecanice ,acant and another 3-day post-
ing period becailme necessai ani in some instances a
succession of tralnsiers ls required. each preceded hb a 3-
day posting period. In July 1976 Fisher announced a
change in thejoh-bidding procedure. nder the new proce-
dure an emplosee at any lime could sign requests tor up to
three job transfers. Ihese requests were kept on file, and
when a job viacancy occurred tile most senior employee who
had a request on file tlr the job would be awarded the
position. If filling a position created another acancx. the
second job also would he tilled front the file of job requests.
Thus. all job vacancies in this chain procedure could be
filled at once rather than following succesive 3-da) inter-
vals. Hlowever, as result of the informal settlement agree-
ment approved on January 21I. 1977. the Company reverted
to the job-hidding procedure which had been in effect prior
to July 1976. General Manager Fisher continued to he dis-
satisfied with the operation of the original job-bidding pro-
cedure. At the March 24. 1977. negotiating session. he de-
scribed to the union representatives the reasons for his
dissatisfactioln. isher then requested the Union to give
consideration to reverting to the job-bidding procedure
which had been instituted in July 1976. The union repre-
sentative displayed sympathetic understanding of lFisher's
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
problem and after consulting among themselves agreed that
the Company could implement the job-bidding procedure
proposed by Fisher, provided, however, that job vacancies
would nevertheless be posted for 3 days in order to give all
employees an opportunity to learn about the job. The Com-
pany agreed to this modification of' its proposal. Based
upon the testimony of Fisher, which I credit, I find that the
change in the job-bidding procedure instituted after March
24, 1977, was made after consultation with the Union and
with the acquiescence of the Union and therefore does not
constitute an unlawful unilateral change.
I find that General Counsel has not proved that the Com-
pany violated the terms of the settlement agreement entered
into in Case 17-CA 7337 and has not proved that after the
date of the settlement agreement the Company made any
unlawful unilateral changes in the terms or conditions of
employment of the employees in the certified collective-bar-
gaining unit. Accordingly, I find that the Regional Director
was not justified in withdrawing his approval of the settle-
ment agreement in said case. I therefore shall dismiss the
allegations in the consolidated complaint in Cases 17 CA
7337 and 7600 relating to the alleged unlawful unilateral
action on the part of Respondent.?l Further, the allegations
in the consolidated complaint in Cases 17 CA 7337 and
7600, that Personnel Director James Dickey in late June
1976 interrogated employees about their union activities
and told them it would be futile to support the Union, de-
pend upon the viability of the charge filed in Case 17 CA
7337 in order to be within the 10(b) statute of limitations.
As I find that the Regional Director had no valid reason for
setting aside the settlement agreement in Case 17-CA
7337, the charge filed in said proceeding is ineffective to
support any allegations of unfair labor practices in these
proceedings. The earliest charge filed in Case 17 CA 7600
was on April 6, 1977, and the incidents involving James
Dickey occurred more than 6 months earlier; therefore,
they are outside the 10(b) period of limitations and I shall
recommend dismissal of those allegations in the consoli-
dated complaint.
E. Tile Disciplinary Interviews
1. May 25, 1977
On Wednesday, May 18, 1977, about 12 to 15 employees
met together at which time they agreed that :hey would
engage in a slowdown beginning on Monday, May 23.
Among the employees who attended this meeting, who ad-
mittedly engaged in the slowdown beginning May 23, and
who received written warnings from the Company for their
low production on May 23 and 24, were Jon Lowe, Michael
Blevins, David Guthrie, Richard Hibner, and Kenneth A.
Pontius. Based upon observations made by supervisors,
company management concluded that these employees'
production was substantially deficient and Robert Coffelt.
repack department manager, decided to issue a written
warning to each of them. In reaching this decision, neither
Coffelt nor any other supervisor interviewed any of the em-
ployees. Coffelt prepared the warning notices and then
called the employees into his office individually for the pur-
1 Hollywood Roosevelt Hotel ('o., 235 NLRB 1397 (1978).
pose of serving each of them with a warning notice. Each of
the employees requested that a union steward be called and
each was advised that he was not entitled to the presence of
a union steward. In support of the allegation of the com-
plaint that the denial of representation by union stewards
during these interviews constituted a violation of the Act,
General Counsel and Charging Party rely primarily upon
Certified Grocers of California, Ltd., 227 NLRB 1211 (1977).
Charging Party further argues:
These employees requested, and were denied a union
steward. The Charging Party contends such conduct is
violative of the Act. The company contends that where
the decision to discipline is already made, the em-
ployee is not entitled to a union steward. The Charging
Party also contends that the Respondent has taken the
position that the decision to discipline was already
made was a method used to deny these employees any
effective representation . ... The practice of making
the disciplinary decision prior to calling these employ-
ees in was merely a method to deny these employees'
Section 7 rights.
Further emphasizing this point, Charging Party adverts to
certain testimony by company supervisors, specifically the
testimony of Coffelt upon cross-examination, that "My in-
structions is from Mr. Fisher and Mr. Johnson that the
people are not entitled to a union steward and that is all I
know about the matter." and the testimony of Myron Rex
Hart, who was assistant manager in the repack reserve area,
that the Company does "not recognize any union stew-
ards." However, this testimony does not have the incrimi-
natory connotation suggested by Charging Party. Until an
interim grievance procedure was agreed upon on July 27,
1977, Respondent took the position that, although employ-
ees' grievances were subjects of negotiation and it was will-
ing to negotiate about them, pending the adoption of a for-
mal grievance procedure it would not deal in the plant with
union stewards or union representatives. While such ap-
proach may have been uncooperative, it was not unlawful.
Absent a grievance procedure, the Company lawfully could
insist that grievances would not be discussed in the less
formal plant environment rather than during the more for-
mal negotiating sessions.
The facts with respect to each of the interviews, in sum-
mary, are as follows:
(a) Michael Blevins was summoned to Coffelt's office
and, when he arrived, asked what it was about. Coffelt re-
plied that it had to do with a writeup. To this Blevins re-
sponded, "Well, Bob, if you are going to write me up I want
my union steward here, Jon Lowe." Coffelt responded that
"we don't allow stewards up here, we have not in the past
and up to this point we are not doing it." Coffelt informed
Blevins that his production had been low and, as described
in Charging Party's brief, then "Coffelt said we are giving
you a written reprimand. Blevins said you told me in the
past you would talk to the person first, then give a written-
verbal warning. Coffelt merely replied he didn't have to do
it that way."
(b) As set fbrth in Charging Party's brief: "Kenneth Pon-
tius was also called in the office on May 25, 1977 ....
Coffelt started talking about his production. Pontius inter-
rupted ... and said he wanted union representation at this
868
K MARlI CORPORATION
meeting. Coffelt intformed Pontius. 'no, the company does
not recognize the Union. we won't deal with ou this way."'
Pontius then received a written warning for low produc-
tion."
(c) With respect to Richard llibner, as set forth in
Charging Party's brief: "As ibner walked in the office he
asked Coffelt if' this was about a write-up. Coffelt said it
was. Hibner immediately asked fir union representation.
Coffelt said the company does not recognize the Union.
Hibner said the NLRB said we could ask for fellow em-
ployees to represent us. Coffelt said, 'no.' Hibner then got
up and said. 'Well, I guess I don't recognize the Company'
and started to walk out. Coffelt warned Hibner if he walked
out he would be fired for insubordination. Hibner returned
to his seat. Colfelt told Hibner it was obvious he had joined
in the slowdoswn. iibner stated he didn't know for sure ift
there were a slowdown. CoRcilt pushed a written ,airning
notice over to Hihbner and asked him to sign it. Iliticr
refused. The notice \as lfor low production."
(d) The testiilon with respect to David (iutithric is that
when he was summoned to) ('ofliel's fticC and entrel the
door he asked it' he could be represented b a union stev-
ard, either Jon owe or Fred Stebbins. ('offelt denied the
request and gave Guthrie a written warning for low produc-
tion.
(e) When Jon Lowe was called into ('offelt's office. he,.
too, asked for union representation which was denied.
Lowe protested to C'offelt that his production had not been
low on May 23 and 24 and asked to see the master produc-
tion sheets. C'offelt denied the request and gave Lowe a
written warning. Ilowe then entered into a discussion with
Coffelt about whether the Company was violating the set-
tlement agreement. and in that connection Manager Fisher
was called into the meeting. Fisher refused to discuss the
subject with Lowe and told Lowe to include those com-
plaints in any unfair labor practice charges that he might
file.
Since the hearing in these proceedings closed, the Board
has reconsidered the application of Certified Grocers and in
.4Amoco Oil Compatl'. 238 NLRB 551 (1978), has distin-
guished Cernflied Grocers. I am of the opinion that the facts
herein more closel3 resemble those in .4m0oco than those in
('ertiied rot'r. and accordingly shall dismiss the allega-
tions of the complaint that Respondent violated Section
8(a)(1) of the Act by denying the five employees named
above union representation when they were gfien warning
notices on May 25. 1977.
2. Mary Rose Noll
The incident involving Noll is tairly summarized by
Charging Party as follows: On the night of l)ecember 2.
1977, she was called into the office of Night Operations
Manager Robert arrabee. "Larrabee told her it had been
called to his attention she had been talking excessively
throughout the warehouse. Larrabee handed her a pink slip
and asked her to sign it. Noll said she would like to have a
I do not credit Pontius' testimons that (offell said that the ('ompian,
does not recognlce the tnmon \s ao M.la 25, 1977. the ('impans as en-
gaged in collectise-h.arglining negoiirons with the nin[i ( ofleli proh.lbhl
informed Pntius that the ('oriean woiuld niot permit himll I h:ie uinin
representative present during the intersleu
union representative present. Larrabee said if she talked to
the union they would verify that she did not need one. Noll
refused to sign the warning slip." On these facts and for the
reasons stated in .4Amoco Oil (o., sura, I find that this inci-
dent does not constitute a violation of the Act.
3. Kenneth Pontius
The substance of the complaint in regard to Kenneth
Pontius is summarized in General Counsel's brief as fol-
lows: "On June 7, Respondent issued another warning to
Pontius in another meeting and again denied his request for
the attendance of, and representation by, a union steward.
On June 14, Respondent terminated Pontius following a
meeting with him where Respondent again denied his re-
quest Ifor the attendance of' and representation by. a union
stew;ard." FIor the reasons stated in A.4 oco Oil (;'o.. supra I
find that these incidents do not gi\e rise to any unfair labor
prictices.
4. Robert Verle.za
Robert Verlezza was given disciplinary notices on De-
cember 7 aind 27. 1977. On December 7 Verlezza was sum-
moned to Robert L.arrabee's office. According to (bharging
Party: "l.arrabee told Verlezza he had been late five times
in the month of November. Verlezza asked foir a union
stewiard. Larrabee said he did not need one this was only a
warning. Verlezza asked if this was a writeup and if three
writeups would mean his termination. l.arrabee said that
was right. Verlezzl again asked for a steward. L.arrabee told
him he didn't need one and he didn't even know who they
were. Verlezza was given a warning slip." Subsequently,
according to Respondent's brief': "On December 27. 1977.
Verlezza was called into Production Control Manager
Ken] Johnson's office. Johnson informed Verlezza he had
gone over the fraction of' hours allowed him under the 80-
hour rule. Verle7zza asked tor a union steward if he was
entitled to one. Johnson did not respond. Verlezza said he
realized this was a nloot point since the company was not
recognizing the union. erlezza then tried to explain the
circumstances regarding his being late. Verlezza was termi-
nated." Again for the reasons stated in Amoco Oil ('o., su-
p'a, find these incidents do not constitute violations of the
Act.
5. Scott Montgomery
Scott Montgomery was discharged on December 20,.
1977. by Personnel Manager James Dickey. According to
Charging Party: "When Montgomery entered the office.
Dickey said, 'Scott I thought you were going to make it.'
Montgomery asked why he was being fired. Dickey said he
had gone over his time. Montgomery stated he was never
told this rule and wanted to see it. Dickey pulled out a rule
book. At this point. Montgomery asked to see a union rep-
resentawtie. Dickey said he did not know a union represent-
atie. Montgomer asked why he never got the rule book.
Dickey said the company w\as in contract talks with the
union anid they were out of rule books and it would be too
expensive to reprint the old rule books. Montgomery asked
who wsere the union representatives to get ahold of. Dickey
869
D8DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
said he didn't know any union representative." Again for
the reasons stated in Amoco Oil Co., supra. I find this inci-
dent does not constitute a violation of the Act.
-'. Discharge o John A4lhers
John Albers was employed by Respondent from June 18,
1973. until his discharge on August 1, 1977. According to
Respondent. Albers was terminated pursuant to its uniform
practice of discharging any employee who receives three
written warnings within a 12-month period. The General
Counsel and Charging Party contend that Albers was dis-
charged because of his union activities and, further, that on
two of the three occasions when he received written warn-
ings he was unlawfully denied union representation. There-
fore, they contend, Albers' discharge on the third occasion
was unlawful under the doctrine enunciated in Certified
Grocers, supra.
John Albers openly and actively supported the Union. In
addition, he testified adversely to Respondent in a prior
unfair labor practice proceeding reported at 229 NLRB 10
(1977). In that proceeding it was found by the Board that
preceding and subsequent to the April 29, 1976. representa-
tion election the Company unlawfully discharged employee
Ronda Miller because of her union activities and engaged
in other discriminatory acts and in other conduct constitut-
ing unlawful restraint and coercion of employees in the ex-
ercise of their statutory rights, by, inter alia, unlawful inter-
rogation of employees and threatening employees with
discharge and other reprisals because of their union activi-
ties.
The first of' the three written warnings issued to Albers
was on August 16, 1976. His offense was that he permitted
his timecard to be punched by another employee.
The second written warning given Albers was on June 6,
1977. It read: "Willful destruction of company property.
Cut rear tire and tube on Larrabee's bike." The circum-
stances leading to the issuance of this warning were de-
scribed by Production Control Manager Ken Johnson. The
latter, whom I credit, testified that Dennis Wedel, a plant
guard, reported to him that Albers had slashed the tire of
the bicycle used by l.arrabee. 6 After satisfying himself that
the report was correct, Johnson prepared a warning slip
and sent for Albers. When Albers arrived in his office, ac-
cording to Johnson, "I told him I was issuing a warning
notice for willful destruction of company property. He said
he did not do it, that he would like a union steward. I said.
'this is not an investigation. This is discipline. You are not
entitled to a union steward.' "'7 Charging Party it its brief
argues that the fact that guard Wedel had not seen Albers
in the act of slashing the bicycle tire and that Albers was
12 T,s policy is known to the employees and is set forth in the "andbook
for Distribution Center Personnel" in the following language: "A total of
three warnings of any type, within a 12-month period is cause for termina-
tion."
16 Dennis Wedel, who was called as a witness by Respondent. corrobo-
rated Johnson's testimony
? Albers' version of his June 6 conversation is more colorful than John-
son's but is not substantially different except that Albers attributes certain
inflammatory statements to Johnson, among which was "[Wle don't need a
damn union in this warehouse." Johnson. whom I credit in this respect.
denied making such statement.
not questioned about the matter before the decision was
made to issue him a warning slip "clearly reveals an inten-
tion on the part of' this employer to get rid of Albers. I hey
were just looking for an excuse to give him three writeups
so they could terminate him." In other circumstances this
might be a persuasive argument. However, on May 27,
1977, the Union in Case 17 CA 7701 filed unfair labor
practice charges which included the allegation: "On or
about May 25, 1977, the Employer denied its employees the
right of union representation during disciplinary interviews
in violation of Section 8(a)(I) and 8(a)(5)." As the Com-
pan' did not wish to deal with the Union in connection
with the investigation of misconduct on the part of employ-
ees and presumably wished to avoid unfair labor practice
charges, during the times relevant hereto in the conduct of
such investigations, the Company did not interview the ac-
cused employees and reached its decisions regarding disci-
pline without giving the employees the opportunity to de-
fend themselves. While this may have been unfair, it was
not unlawful. I find, contrary to the General Counsel and
Charging Party, that there is no substantial evidence prov-
ing that the warning notice issued to Albers on June 6,
1977. was motivated by his union adherence and that, for
the reasons stated in Amoco Oil Co., .. supra, denying Albers
union representation during his meeting with Johnson on
June 6 was not a violation of the Act.
The third warning issued to Albers was on August 1,
1977. It read: "Insubordination. Refused a work assign-
ment given by his asst. mgr." About 9 a.m. that morning
Supervisor Myron Rex Hart told Albers that in Albers'
spare time he should break down boxes.28 Albers replied
that he doubted that he would have spare time and more-
over "it was a shitty job." About 10 a.m. Hart returned and
instructed Albers that he would have to do the breakdown
of the boxes. Albers refused and demanded to speak with
Robert Coffelt and a union steward. Later that morning
Albers was summoned to meet with C(offelt and Ken John-
son. When Albers arrived in the office he asked for a union
steward, which request was denied. Then, according to Al-
hers, Coffelt "asked if I had an thing else to say and I
noticed a writeup slip on his desk. a writeup pad on his
desk, and said, 'Well, it looks like you have already made
up your mind no matter what I say.' He said, 'Yes,' and
turned over the writeup pad which was filled out stating the
fact that I was written up for insubordination. He asked if I
would sign the writeup slip. I said, 'No.' He then informed
me that this was the third write up and that I was termi-
nated."
I find, for the reasons stated in mnoco Oil Co., s.upra, that
Respondent did not unlawfully deny Albers union repre-
sentation during Albers' exit interview on August 1. I fur-
ther find that the third writeup issued to Albers on August
I was for cause and not because of his union activities and
that Albers was discharged on August I for cause: namely.
receiving three writeups within a 12-month period, and not
because of his union adherence or activities. I shall there-
fore dismiss the complaint insofar as it alleges that Albers
was unlawfully discharged.
21 Remove the contntents Irom large shipping cartons.
870
K MART CORPORAIION
G. Ech.sion o the nior From G(rievanc ' Procedures
The consolidated complaint in Cases 17 CA 7337 and
7600 contains the fllowing allegations:
On or about February 10. 1977 and March 24 and
30. 1977, Respondent informed the LUnion's represen-
tatives and employees that the Respondent would not
permit the Union to process. or in any way become
involved regarding, grievances of the Respondent's em-
ployees.
Since on or about November 9. 1976, and continu-
ing to date, the Respondent has failed and refused, and
continues to fail and refuse, to bargain in good faith
with the Union . by engaging in surface bargaining
including . . . the following acts and conduct:
(b) Refusing to permit the Union to participate in
any grievances regarding unit employees. although re-
quested to do so by the Union:
(c) Refusing to negotiate concerning the Union's
participation in a grievance procedure until a final
agreement between the parties was reached, although
requested to do so by the Union;
(d) Informing employees on the Union's negotiating
committee that they should process their grievances, if
any, directly with the Respondent ....
The evidence General Counsel relies upon to support
these allegations of the complaint is summarized in his brief
as follows:
Respondent, on numerous occasions occurring both at,
and away from, the bargaining table, repudiated the
statutory right of employees to have union representa-
tion relative to disputes arising over working condi-
tions. Respondent's unlawful rejection of this statutory
right took various forms-including a refusal to com-
ply with the Union's demand on February 10 for the
institution of an interim grievance procedure: a refusal
to allow stewards to attend and participate in any dis-
cussions with management arising out of employee
complaints over working conditions; a refusal to grant
employee requests for union representation in inter-
views called by Respondent where, as reasonably an-
ticipated by those employees, disciplinary action was
taken against them; and a repudiation of stewards as
having any status as agents or representatives of the
Union.
With respect to the first of the stated items. General
Coun.el argues further that "Resondent, from February
10 until July 27. refused to accede to the Union's demand
for the institution of interim grievance procedures." How-
ever, on July 27 the parties did reach agreement on the
implementation of an interim grievance procedure pending
satisfactory conclusion of the negotiations. The terms
thereof are as follows:
(a) Any employee could present a grievance on a written
form to be provided by the Union to a steward.
(h) I he steward would then present it to Plant Manager
Fisher.
(c) Fisher and the Union would then schedule a meeting
at which time the union representative. the grievant. and a
management representative would discuss the subject mat-
ter of the grievance.
'Ihe contention is that it was unlawful for Respondent to
have delayed more than 5 months in reaching such interim
agreement. I find no merit to this argument. At the Fehru-
ary 10. 1977. negotiating meeting Union Attorney Uhlig
insisted that the parties devise a temporary grievance proce-
dure to be implemented pending final agreement on a con-
tract. ('ompany spokesman Palmer responded that the
Company was prepared to discuss grievances at the bar-
gaining table but was reluctant to enter into a series of
piecemeal contracts with the Union. Palmer further ex-
plained that bargaining unit emploxees who had grievances
could speak to management directly as theN had done in the
past or could refer their grievances to the Union for discus-
sion during the collective-bargaining sessions. Uhlig con-
tended that the Company's refusal to agree upon an interim
grievance procedure constituted an unfair labor practice.
The same subject was raised at successive collective-bar-
gaining meetings with neither party receding from its re-
spective position until the July 27. 1977, meeting when
agreement was reached upon an interim grievance proce-
dure. Thus, contrary to the contention of General Counsel,
the ('Company did not refuse to negotiate concerning the
subject of an interim grievance procedure. The Company
did refuse to agree upon an interim grievance procedure for
a period of more than 5 months, but I know of no precedent
and none has been cited by the General Counsel or the
Charging Party holding that it is unlawful for an employer
to refuse to adopt an interim grievance procedure while
negotiating a first collective-bargaining agreement as long
as the emplover as was the case here -- as willing to ne-
gotiate about grievances as part of the collective-bargaining
process .2
The second item referred to by General C(ounsel. i.e.. "a
refusal to allow stewards to attend and participate in any
discussions with management arising out of employee com-
plaints over working conditions" refers to an incident which
occurred on May 25. 1977. On that day seseral employees
approached Assistant Manager Coffelt and advised him
that they had been elected as a committee by the employees
in the repack department and requested a meeting with
Plant Manager Fisher to discuss complaints about the fans
the bathrooms, and the drinking fountains. Cofelt re-
sponded that he would consult Fisher about their request.
Shortly thereafter C(oflelt informed Michael Blevins. one of
the members of the group, that Fisher would not meet with
the so-called "elected committee" of employees and that
Fisher recommended that they bring the matter up at the
next collective-hargaining meeting between the Company
and the Union. I find that this incident does not constitute
proof of any unfair labor practice on the part of the ('om-
pan).
'Ihe third point referred to by the General Counsel. i.e.,
"a refusal to grant employee requests for union representa-
tion in interviews called by Respondent where, as reason-
"2 See ( r,,n ( ',a'h ('lorprautn. 155 NItRB 625. 631 632 ( 19h51
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably anticipated by those employees, disciplinary action
was taken against them" has been treated at length above.
The fourth and last point made by the General Counsel
is that conduct on the part of Respondent constituted "a
repudiation of stewards as having any status as agents or
representatives of the Union." In further explanation of this
contention, General Counsel argues:
The clearest expression of Respondent's complete re-
pudiation of the status of stewards as representatives of
the Union is to be found in the following statement
made by Fisher in a supervisors' meeting, as shown by
the testimony of supervisor Coffelt. "As far as if' we are
approached. I believe, we have situations where we are
approached on the floor whenever somebody asks for a
union steward just tell the people that they are not
entitled to a steward."
I find that this incident does not constitute evidence of any
unfair labor practice. While Respondent was required to
bargain collectively with the Union about grievances, it was
not required to negotiate with the Union on plant premises
during working hours and thus was not required to deal
with union stewards during working hours. (Under the
principles of N. L. R. B. v. J. Weingai ten, Inc., 420 U.S. 251,
(1975), an employee has a statutory right to refuse to sub-
mit without union representation to an investigatory inter-
view with his employer which he reasonably believes may
result in the imposition of discipline.)
Although the incidents discussed above do not constitute
separate and independent unfair labor practices, neverthe-
less, they do show that Respondent in its dealings with the
Union and its representatives was willing to accord them
only the barest mininmum of opportunity to act on behalf of
the employees they represent. During the times covered by
these proceedings, Respondent refused to deal with the
Union or its representatives at any time or place other than
during the formal negotiating sessions and it would not per-
mit day-to-day representation of the employees in the plant
in connection with the myriad complaints that arise 3?" This
attitude is consistent with an intention on Respondent's
part to impress upon its employees that they have little or
nothing to gain either by way of more satisfactory adjust-
ments of their grievances or by improvements in their
wages and other conditions of emplo ,ment through the se-
lection of the Union as their representative and in the long
run they would be losers.
H. Coercion, Reslraint. ,and Iner,rence
The complaints allege various acts on the part of Respon-
dent's supervisory personnel constituting violations of Sec-
tion 8(a)( I) independent of other alleged violations of the
Act. Involved in various such incidents are Floyd Holland.
assist nt manager of the repack department: Garry Spic.l,
repack manager; Frank Patee, rpack assistant manager:
and Plant Manager Fisher.
Employee Nancy Lopez testified that in mid-Noxcnmber
1976 "Mr. Holland came up to me and asked me i I had
attended the union meeting the Saturday before. I said that
3 The interim griesance procedure adopted on Jul, 27. 1977. dtoecs not
require grievance meetings to take place during nornial working hours or ill
the warehouse, and there is no evidence that ny did
I had. He asked me if there were a lot of people at the
meeting. I said that I thought there were quite a few people
there." After some further conversation, according to Lo-
pez, Holland said that "he didn't see why we needed a
union anway with a man like Mr. Fisher because an em-
ployee could go to Mr. Fisher at any time with their prob-
lems and that we didn't need a union to solve the employ-
ees' problems." Holland denied having had any such
conversation with l.opez. In regard to this conflict in testi-
mony, the General Counsel argues: "While Holland, in his
testimony,. denied the occurrence of this cons ersation, the
General Counsel respectfullsy submits that I.opez' forthright
and factually detailed testimon wvas more reliable. Hol-
land, when cross-examined. demonstrated an absence of
candor or command of the pertinent events underlying his
testimony." I do not agree with this assessment of witnesses'
credibilitv. I.opez' testimony is brief (regarding the incident
in question t occupies less than a page of the transcript of
record) and is not factuallN detailed. On the other hand. I
disagree with General Counsel that "Holland. when cross-
examined, demonstrated an absence of' candor or command
of the pertinent events underlying his testimony." Holland
testified directly and without equivocation, on cross-exami-
nation as well as direct examination. and impressed me fa-
vorably. It is noted that Lopez was discharged b the Com-
pany prior to the hearing in these proceedings and her
claimi lor unlemplony me1nt compensation was denied. I am of
the opinion that lolland was a more reliable witness than
l.opez and I credit his denial of the incriminatory state-
ments attributed to him by Lopez.
tlmployees Jon I.ove and D)ebra Ilattemer testified
about an incident involving Holland which occurred about
I p.m. on March 1. 1977. I.owe and Hattenmer were then
working on the third shift. \t that time the first 2 hours of
the third shift overlapped the last 2 hours of the second shift
so that for those 2 hours the employees on both shifts were
at work at the same time. According to l.owe, "Mr. Hol-
land came up and said that he did not w\ant me talking with
second shift employees an vlore.... I said I had been
allowed to talk iii the past and I always exceeded far abo e
my work quota aind this ha;ld never happened before. I
asked HIolland wh I should not cltinue talking with these
employees? olland said. 'Because I told ou so.' I said.
'71hat is not a good enough reason lfor me. I have a feeling it
is connected with my uInion activities.' IHollind said that it
was not and I said that I ditidn't see atty other reason for it.
Hollandl said that he had heard a lot of strike shit going
around lately and he knew where it was comi!ng from. So I
said, 'So it is connected wvith my unin acti ities.' lie sail.
'No it isn't.' lie turnedl to )ehbic who had been standing
[nearby . aind said. 'I doT't aant sou lalking Aith second
shift employees. either.' She said. Well, wh1at are you going
to do about it'?' lie said. I will write ilou up.' She said.
'Well go ahead.' I saidl. 'Yes, go ahead. \ly attorne is
going to file some more unfair labh pl).iCtice chalrges ad i'
().1 wrre uis up wec ill just have o Iticiudc this Ole.' IHol-
land said. 'Well, yol both heard \xhat I said ' Ihenl he left.''
Ilattemer. who testified briefl'. corroborated owue's ver-
sion of the incidentll. O() clrIss-exalllaltion. Loa\e testified
that quite oftetn lie hadil been ailmonishell abolut talking
while ait uork anid had been told "to go ahead anld work, or
872
K MART CORPORATION
break it up." Holland testified that he instructed both Lowe
and Hattemer to stop talking to second-shift personnel and
explained that the reason was that by talking to the other
employees they were interfering with production. Holland
denied making the remark that he had heard a lot of strike
talk and knew from whom it was coming. I find that Hol-
land's admonishments to Lowe and Hattemer to stop talk-
ing with second-shift personnel was not unlawful as it was
prompted by a legitimate business reason, and the evidence
does not establish that the instructions were given in order
to inhibit the employees' exercise of their protected rights.
With regard to whether Holland also said that he knew
where the strike talk was coming from, which General
Counsel contends unlawfully created the impression of sur-
veillance, there is a conflict between the testimony of Lowe
and Hattemer on one hand and Holland on the other. Hat-
temer testified for only a very short time. and based thereon
I was unable to form any impression regarding her reliabil-
ity as a witness. Lowe, who was General Counsel's princi-
pal witness in these proceedings, gave extensive testimony. I
believe him generally to have been a truthful witness. How-
ever, he tended to use colorful expressions in order to give
greater impact to his testimony. This did not affect the over-
all reliability of his testimony but does put in question the
accuracy of some statements he attributed to Respondent's
supervisors and representatives. With respect to the incrimi-
natory statement attributed to Holland by Lowe, Lowe be-
gan to engage Holland in a debate as to whether Holland
was justified in admonishing him about speaking with sec-
ond-shift personnel, and Lowe accused Holland of picking
on him because of his union activities, which Holland de-
nied. In this context the incriminatory remark attributed to
Holland could well have been an interpolation on the part
of Lowe rather than an exact recital of what Holland had
said. Holland denied making the statement in question. As
Holland impressed me as a truthful witness, I credit his
denial and find that the incident of March I described by
Lowe and Hattemer does not establish an unfair labor prac-
tice.31
Roger Borland testified about several incidents involving
Holland. According to Borland, on or about January 26,
1977, "Floyd Holland told me that he was tired of seeing
me leave my area and talking to people and I asked him
what he was referring to and he said. as an example, Jon
Lowe. I said well Jon l.owe and I have onil talked for
about 30 seconds and we were working at the time. tHe said
Jon Lowe is no person to be talking to and I asked are ou
'J Charging Party calls attention to the fac that in S S rs'sgc ('onmpliuv.
229 Nl.RB 10 (1977). Administrative Law Judge Stone credited .owe over
Holland The specific finding is as follows:
Lowe testified to facts which support the allegation of unlawful con-
ducl. Johnson and Holland denied in effect that such unlawful conduct
occurred. I liund Lowe o appear to be a frank. Iorlhright, oblJetLive.
at honest appearing witness. I found him and his tesIin) ll more
believable than I did that of Johnsor. and lolland I credit I owe's
testimony as to this event over the testimony o Johnson and lolland
1229 NLRB at 11-12.1
I do not disagree with Administrative I.iaw Judge Stone that .owe appeared
to he an "honcst appearing witness." Iowever. Adminls.lirlse La.w Jhudge
Stone does not explain why he l;flnd that lowe was mliore credible than
Ilolland. My iew. based upon their rspective tslimons in these proceed-
ings. is to the contrary. Whereas I find no reason foir dlscreditlng IlmHolland. as
I explained ahboe. I have a basis lir finding that I we's tctimon? regarding
specific details was not always reliable
referring to his union activities? He mumbled somethin
that I could not quite make out then he said IJon Louwe was
no person to be hanging around with and no person to he
talking to . . .. [H]e said, next time I will have to rite (,i
up, if I catch you out of your area again." On cross-cam;ti-
nation Borland acknowledged that Holland had also told
him to stick to his work and that on prior occasion ttS Ho1-
land had admonished him for being awa, from hi,, uork
area. Holland testified that Borland had the habit oif w\\an-
dering out of his work area, talking to second-shift person-
nel, and holding up production. and that on the occasion in
question he warned Borland that he would give Borland a
"write-up" if he caught Borland out ot'f his work area. Hol-
land denied saying to Borland that Jon Low e was no person
to hang around with or talk to.
Borland further testified that on February 23. 1977. he
had a conversation with Floyd Holland in the repack otlice.
According to Borland. "Floyd Holland said he did not
want me to speak to anymore second shift personnel. I
asked him whs. he said there was tooI mIuch talk abhout
strike votes and that he was not taking anlnmore chances.''
Borland testified that another similar conversation took
place on March 22. 1977. in which. according to Borland.
"I asked Mr. Holland. I heard that thes \its consilderilge
closing third shift. He said it is true. That i they keep tak-
ing strike votes, that third shift will be shut tou ni and that
they were already considering it."
Holland denied making the incriminator rema rks attrih-
uted to him by Borland. Borland testified suhstanitiall\
longer than Holland. His answers to the questiois put to
him for the most part were direct and unLeCqui occl. On the
other hand, some of his answers were argurnlCntalliel dl-
fensive particularl \hen he was cross-ex.liined atioUtl iil
production record. hile I (1o not consider Borland ,an tin-
truthful witness. I heliee hini to be a less reliable iillness
than Holland. I'hereflre. I credit Holland's dlenials aid linl
that Borland's tcstlltlnm regarding con ersations ith l lo!-
land do not prosc a ll unfair labor practices.
Borland also testified abi hot tso ncidents inolin
Repack Maniager (jars Spreer. TIhe lirst incident took place
on October 6, 1 7. 977 he clda before. on October 5. Sprecr
and Assistant Repack Manager Oeschlager spoke illh 3Bor-
land about his low prioduction during the prc lus ,s cek.
Borland remonstrated that he did not like to he cormplied
to a speed freak and an old lads that is scatIed fit her jih.
referring to employees Charlene IHickock and "var, Burl,,in.
two women in their mid-tirties. and insisted tha;1 the (nm-
pany's production rep, rt was incorrect atlIt
1 that his (oVwl
records. which he had at homne. would show hat his pro-
duction was not low and that he would hring the records i
the next dals lor Spreer's inspectionl T he tnextl n11trII
about 9 a.m. Spreer asked Borland uhether he had hrou.lil
in his records. Borlandl replied that lie uais going io tt!tll
thein over to Jon I.owe Spreer sail that lie uituldl not talk
to l.ouwe ahout Borland's prod!iction. Sprcr thetll uatncil
Borland that as far tas Spreer w.is cinceirned Borliadll's or',-
dluction was low illld hc shotull ilnprtt e Spir'ci s.tdl tilt
one iof the reasons rilantid's prlndllctiln i;s low slas tlh.lt
at quitting time ie aits aluwa;!s sttandinlt h\ the Icll illciad
of being in his section aorki oln an order.1 \ccordlin c
Borland. during ti cxersalt(in. '"I said. well. I aippears
571
DEC'ISIONS OF NATIONAI. LABOR RELATIONS BOARD
to me like you like to operate this department off of ear
tactics ... he started getting mad and madder.... Anyway.
he said, oh, by the way, I'm getting tired of seeing you up
there by the time clock every day, just before the bell goes
off. At that point I seen Dave Hubbell coming around the
corner through the racks and I asked for him to be my shop
steward, which I was immediately denied.... Gary Spreer
said you know the company policy on shop stewards, we
don't recognize them. and that we don't allow shop stew-
ards." According to Borland, Spreer also said, "I am getting
awful tired of the way you union people are acting and we
are going to start weeding you union bastards out. I said
that is my whole point, you like to operate this department
off of fear tactics. At that point he said you will see about
fear tomorrow night. You will see about what fear is tomor-
row night when you leave from work." The next night a
group of people were at the front gate distributing cards on
behalf of "Employees for Right to Work" which were re-
lated to an attempt to decertify the Union.)2 Spreer denied
making the alleged incriminatory statements attributed to
him by Borland.
Borland further testified that on or about October 14,
1977, "I approached Gary Spreer, and I told him that I had
heard Dick Causer was handing out cards for decertifica-
tion of the union and I thought that the company had a no-
soliciting rule, and that I thought that Dick Causer ought to
be disciplined or stopped. Or, if they didn't do that, then I
thought that a shop steward ought to have equal time to
argue the union's side. Gary Spreer told me that Dick
Causer had permission from Mr. Fisher. that if he was
working for the company that he could talk all he wanted
to, and . . . this was the company's warehouse and they
could do with the employees what they wanted. At that
point I asked for a shop steward. Mr. Spreer told me again,
you know our policy on shop stewards, we don't recognize
the Union. We don't recognize shop stewards. I believe you
have wasted enough of my time and I want you to get back
to work." Spreer denied having any such conversation with
Borland. I am of the opinion that Spreer was a more reli-
able witness than Borland and I credit his denials of the
incriminatory statements attributed to him by Borland and
find that the incidents described by Borland do not support
any of the unfair labor practice allegations of the com-
plaint.
Renee Hurst, who was discharged by the Company prior
to the hearing in these proceedings, testified that in April
1977 she had a conversation with Frank Patee, assistant
manager of repack reserve on the second shift. According to
Hurst, "I went up to him and asked him if we had a union
out there . . . He said, no, we don't have a union out here.
They are trying to get one in and they have not accom-
plished it yet. He said, in my own opinion I don't think we
need a union, because they are not good for anything be-
sides :king your money. I said, well, why do the employees
want them in here and he said that nobody here wants the
union except for the smart aleck s.o.b.'s that already know
the rules and know how to get around them. He said if it
was not for the union trying to get in, it would take only
three years to get up to the $5.02 pay rate. That it takes five
years now to get up there." Patee acknowledged that he had
s Robert King. a rebuttal witness for the General Counsel, in part. cor-
roboraied Borland's testimony
had a conversation with Hurst in which she raised the ques-
tion of the Union. He testified that "tlhe only thing I re-
member for a fact in the conversation is when she told me
. . . that she did not like unions and she did not think a
union was necessary at the warehouse.... I told her that I
agreed with her. That is the only thing in the conversation I
remember for a fact." Patee specifically denied that he told
IHurst that the Company did not have a union or that the
employees were trying to get one in and had not accom-
plished it. He also specifically denied that he said to her
that nobody here wants the Union except for the smart
alecks that already know the rules and know how to get
around them. He further denied that he told her that if it
were not for the Union trying to get in it would take only 3
years to get up to the top rate and denied saying that if the
Union decided to strike, the people who went on strike
would be fired." I am of the opinion that Hurst's testimony
is unreliable and I credit Patee's denials. Accordingly, I find
that the General Counsel has not proved any violations of
the Act by reason of the incident described by Hurst.
The final incident occurred on December 14, 1977, dur-
ing the hearing in these proceedings. According to the Gen-
eral Counsel, "Plant Manager Fisher questioned employee
Terrance Berry regarding the subject matter of his impend-
ing testimony as a witness for the General Counsel." I
credit Fisher's version of the incident against a slightly dif-
ferent version testified to by Berry. According to Fisher,
during one of the recesses in the hearing, "Terry was getting
ready to leave the room, I stood up and kind of stretched.
He came past and said something to the effect that it has
been a long day, these make a long day sitting in this hear-
ing room, something to that effect. I said, 'Yes and there are
a lot of us here, are you just observers or are you going to
be a witness?' He said he understood that he was supposed
to tesitf to something, and with that he passed on by me
and out into the hall."'4 I find that this incident does not
prove any unfair labor practice.
I. Conclusions With Regard to the Suri/ce Bargaining
Allegations
On April 29, 1976, Respondent's employees, in an elec-
tion conducted by the Board, selected the Union as their
collective-bargaining representative. However, formal certi-
fication was delayed until October 18, 1976, while the
Board considered and then overruled Respondent's objec-
tions to the election. Although negotiations began on No-
vember 9, 1976, and continued through a total of 14 bar-
gaining sessions until January 10, 1978, they proved
fruitless.
When, as here, "the employer engaged in a lengthy series
of bargaining conferences, which got nowhere," the ques-
tion is "whether it is to be inferred from the totality of the
13 Hurst also testified that in her conversation with Patee the latter said
that it' the Union decided to strike, the people who went on strike would be
fired and they could only be paid $15 a day by the Union and it was not
worth it.
4 According to Bcir). Fisher asked him what he was doing in the hearing
room and he replied that he as supposed to give testimony. Fisher then
said, "Well, what are you supposed to give testimony on, does it relate to
anything that has been brought up in discussions so Iar here in the court-
room?"
874
K MART CORPORATION
employer's conduct that he went through the motions of
negotiation as an elaborate pretense with no sincere desire
to reach an agreement if possible, or that it bargained in
good faith but was unable to arrive at an acceptable agree-
ment with the union."' In resolving this question account
must be taken of the obvious "tension between the principle
that the parties need not contract on any specific terms and
a practical enforcement of the principle that they are bound
to deal with each other in a serious attempt to resolve ditl
ferences and reach a common ground."T6
Respondent's position, simply put, is that in taking full
advantage of its superior economic power it was engaged in
hard bargaining. That, of course, is not unlawful. However.
the destruction of the union is an incentive for an employer
to engage in surface bargaining and, as Professor Cox ob-
served, "[als long as there are unions weak enough to be
talked to death, there will be employers who are tempted to
engage in the forms of collective-bargaining without the
substance."" This, I find, was Respondent's purpose despite
its attendance at 14 negotiating sessions, its responses to the
Union's letters, the few understandings reached with the
Union, and its general attempt to maintain the appearance
that it was engaged in collective bargaining.
Respondent's initial comprehensive contract draft, which
was submitted to the Union at the collective-bargaining
meeting held on July 27. 1977.18 was of such character that
Respondent knew it would not and could not be accepted.
It offered no improvements in the economic value of the
fringe benefits and only a negligible wage increase limited
to employees with 18 months' service or less (employees
with longer service were offered no increase whatsoever). In
addition, the extremely broad management-rights clause
and the all-encompassing discharge and discipline clause
removed from consultation, discussion, and bargaining al-
most every problem that might develop between the em-
ployees and the Company. Therefore, although the Em-
ployer's contract draft includes a grievance and arbitration
procedure, it would be of little value to the Union and the
employees as the Company's management-rights and dis-
charge and discipline clauses leave almost nothing of sub-
stance that can be the subject of grievance or arbitration.
To cap these onerous provisions, Respondent included in its
draft a carefully phrased no-strike clause which gives the
Company extensive discretion to impose discipline not only
for participation in a strike but also for any interruption of
work or interference with production, and a clause seeking
to impose absolute liability upon the Union for the conduct
of its stewards and what approaches a zipper clause. With
this contract the Union and the employees would be in a
worse position than without any agreement. In addition.
Respondent advanced no business justifications lfor its bar-
" N. L. R. B. v. Reed d Prince Mfanufaciurilg Compan. 205 i:.2d 131 134.
(1st Cir. 1953), cert. denied 346 U.S. 887.
' N. i. RB. . Insurance Agents' International nion, .4 F. (10 P11ruden
tial Insurance Conpans' of Americal. 361 U.S. 477. 486 (1960
' ('ox, The Dury To Bargain In Good Faith. 71 Hars 1. Rev 1401. 1413
(1958).
13 At the December 7, 1976. meeting Respondent had submitted to the
Union a partial draft of a proposed agreement hich, among other things,
omitted an) wage proposal. Except for relatively unimportant clauses, the
July 27 contract draft represents no improvement (from the t;nion'S point o
view) over the December 7 draft.
gaining positions, particularly in regard to wages and other
economic benefits and management rights, which were the
primary subjects of discussion during the negotiations. Al-
though it is not unlawful for an employer to offer his em-
ployees' collective-bargaining representative an agreement
so unfavorable that he knows that it will not be accepted,
when he has no business justifications for so doing. the le-
gitimacy of his reasons is put in question. If Respondent's
early' contract drafts were only bargaining ploys, perhaps
they are not objectionable. However. Respondent thereafter
was unwilling to make any' meaningful modifications of its
principal proposals. In effect. Respondent was maintaining
"an attitude of 'take it or leave it' " which the Court in the
Insurance 4gents' case 3 condemned.
Further reflecting Respondent's attitude is that during
the times relevant hereto Respondent limited the Union's
exercise of its representative functions to the barest mini-
mum. With minor exceptions arising from the application
of the interim grievance procedure after July 27. 1977, it
refused to deal with the Union except at formally scheduled
and relatively infrequent collective-bargaining sessions. Its
objective has been to deny its employees effective union
representation, and achievement of this objective would be
guaranteed by its management-rights and discharge and
discipline clauses, because by their terms the Union waives
on behalf of the employees the right to representation in
almost every aspect of their relationships with the Com-
pany. Insistence upon such clauses by itself' is not unlawful,
but when it serves to frustrate the consummation of any
agreement then it is a factor to be considered with other
evidence in deciding whether the Company has bargained
in good faith.? At no time did the Company advance any
business (that is, arising out of its operations, as distin-
guished from philosophical or legal) justifications for its in-
flexible insistence upon such extreme management-rights
and discharge and discipline clauses. and the Company
showed no inclination to consider any meaningful compro-
mise. It even rejected without any substantive discussion
the Union's counterproposal advanced on January 3. 1978,
which was an all but complete capitulation to Respondent's
position.
Also indicating an absence of sincerity in its bargaining
positions is that the Company from the commencement of
the negotiations on November 9. 1976. until July 27, 1977, a
period of more than 8 months. refused to advance any wage
proposal. Its asserted reason was that it had to know the
cost of the fringe benefits to which it might agree and any
additional administrative costs of the contract before it
could give consideration to a wage increase. However. on
July 27, 1977. after more than 8 months of negotiations,
Respondent submitted a contract proposal which contained
no fringe-benefits improvements and which offered a wage
increase of minuscule proportions. No reason appears why
Respondent waited so long to inform the Union of its inten-
tions in this regard. This leads to the conclusion that the
Company was dallying with the Union. The wage increases
included in Respondent's contract draft of July 27 and in its
final contract draft of I)ecember 5. 1977, are so small that.
'9361 S at 485
4 See Shieer Surlae BRargainin The Prohilrn and a Proposed Solilion. 5
Toledo 1. Res. 656, 666 667 1974 i
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absent an explanation which was not forthcoming, they
give rise to the inference, which I make, that they were
retributive. This inference is reinforced by the fact that Re-
spondent, during all times material, refused to infbrm the
Union what increases it had given to the employees at its
other distribution centers and when those increases were
put into effect. Its reluctance to provide such information
suggests that company practice during the period involved,
1976-77, was to give wage increases in amounts which at
the minimum would offset the impact of inflation, and its
refusal to do that in its contract proposals to the Union was
in order to punish its Lawrence employees for having se-
lected a collective-bargaining representative.
These proceedings involve the subtle distinction between
"surface bargaining" and "hard bargaining." Each of the
terms, particularly "surface bargaining." has been defined
many times and in many ways and most often by entwining
the elements of the definition through the interstices of the
factual web so that the definitions have little meaning apart
from the settings which gave rise to them. My attention has
not been directed to any compelling authority which has
particularized the distinction between the two terms. In
most instances where the issue raised was whether there
had been surface bargaining or hard bargaining, the deter-
mination was that it was one and therefore was not the
other. The forums seldom attempted to balance the factors
indicating surface bargaining against the factors indicating
hard bargaining and explicating why their findings sup-
ported one rather than the other conclusion. Surface bar-
gaining, which is unlawful, and hard bargaining, which is
lawful, are mutually exclusive terms. Surface bargaining is
a veneer which imitates (sometimes successfully) hard bar-
gaining but lacks the solidity and substance of hard bar-
gaining. Hard bargaining, as I understand the term, refers
to a resolute negotiating attitude on the part of an employer
who recognizes the statutory right of his employees to rep-
resentation and who stands ready to deal with the repre-
sentative on behalf of his employees. Surface bargaining on
the other hand refers to the conduct of an employer who
neither recognizes the right of his employees to representa-
tion nor is willing to negotiate with their representative, hut
who engages in an exercise to disguise his true attitude hop-
ing thereby to avoid any statutory penalty. In any specific
case it may he difficult to distinguish between surface bar-
gaining and hard bargaining. and the near-term impact
upon the employees may not be very much different regard-
less of which it is. However, in the long term the difference
is significant. he employer who engages in surface hbar-
gaining not only seeks to avoid reaching an agreement dur-
ing the current negotiations but has no intention at any
time of bargaining with the labor organization or of accord-
ing to it the rights of a collective-bargaining representative.
The .,nployer who bargains hard is prepared and willing to
recognize and to deal with the representative then and in
the future. It may be that because of his position in the
current negotiations an agreement cannot be reached but,
unlike surface bargaining, it does not preclude an agree-
ment at a later time when circumstances may change. Fur-
ther, some employers, even while unable to reach an agree-
ment with a representative, will deal with the representative
in good faith with respect to grievances and changes he may
seek to make which would affect terms and conditions of
employment.
This somewhat simplistic distinction between the terms
"surface bargaining" and "hard bargaining" may be helpful
in resolving the issues here, despite the fact, as Respondent
properly points out in its brief, that reason, logic, and fair-
ness are not the standards against which to measure
whether a party has been bargaining in good faith, and "the
presence of economic weapons in reserve . . . is part and
parcel of the system that the Wagner and Taft-Hartley Acts
have recognized."" The party with the greater economic
strength who in reliance thereon seeks a better bargain than
it may be entitled to-assuming some abstract measure of
fair entitlement-has not necessarily failed to barga.n in
good faith. On the other hand, an employer who meets with
his employees' representative and who willingly discusses
the issues but intractably maintains his position because he
has the economic strength to do so may not be engaged in
lawful hard bargaining.
There is a duty on both sides to engage in negotiations
with a "sincere purpose to find a basis of agreement." 2
There is no necessary inconsistency between hard bargain-
ing and an effort to reach agreement. However, "the em-
ployer is obliged to make sonie reasonable eflfort in .;oilc
direction to compose his differences with the union, if'
§8(a)(5) is to be read as imposing any substantial obligation
at all.""4 The hard bargainer, while firm, not only will dis-
cuss but will vary the terms of his proposals so long as it
dosen't undercut his lawful objectives. This Respondent did
not. The only understandings Respondent reached during
the entire course of the negotiations was with respect to
unimportant subjects."4 Those agreements do not reflect any
spirit of compromise or desire to compose differences.
The employer who merely submits to the employees' rep-
resentative an agreement of his own composition, who is
altogether unwilling to vary its terms in any meaningful
way in order to reach an accommodation with the repre-
sentative, who advances no business justifications for his
inflexible positions, and whose contract proposals are retri-
butive, has not engaged in good-faith bargaining. This is
what occurred here. It waits not necessary for the Cornompan
to make a wage proposal that would appeal to the U nion: it
was not necessary for it to offer improvements in fringe
benefits: it was not necessary for the Company to agree lo a
checkoff or to forgo a broad management-rights provis on.
but where as here the Company offered almost nothing
whatsoever that was attractive to the Union. and offered
almost no economic benefits to the employees, and gave no
business justifications for its positions, then it was not seek-
ing to compose an agreement that the Union might accept.
It is not answer enough for the Company to assert that it
has the economic strength and therefore the Union must
.41 .L R.B. . Inlur AI r',,nl ' Inernlional L'nion,. A L (CIO Pru.t'n-
tial Insurance (e,.. 361 U.S 477. 489 (1960).
4 N L RB. v. Herman Sausge Comntpav, In.. 275 F.2d 229, 231 232 15th
Cir, 1960).
3 KA'ser-Rolth Hoiier) Conypnya, Inc . .L R.B 430 F.2d 701. 703 6(th
Cir. 1970): N LR.B. v. Reed d Prince Manufircturing Compan,. 205 F 2d
131. 134-135 (st Cir. 1953), cert. denied 346 U.S. 887.
" Even the interim grievance procedure, agreed to on July 27. 1977, repre-
sented very little more than what Respondent was required to do b law and
quickly prosed inaidequate to meet the emplo)ees' and the Ulnion's needs.
876
K MART CORPORATION
either accept the contract it composed or nothing at all. The
Act imposes a greater obligation on the Company. It must
make some reasonable effort to reach an agreement with
the Union. The negotiations here essentially were meaning-
less. Respondent's approach to the negotiations was to re-
duce its obligation to bargain in good faith to a mere for-
mality, to the observance of procedural requirements only.
Surface bargaining is the antithesis of collective bargain-
ing and is contrary to the Act's fundamental tenet of "en-
couraging the practice and procedure of collective bargain-
ing." Respondent's unlawful conduct in this regard was
aggravated by its refusal to furnish the Union, upon its
request, information which was relevant and necessary in
order for the Union to engage in effective negotiations. Re-
spondent's conduct "frustrates the policy of protecting the
exercise by workers of their rights of self-organization and
designation of representatives of their own choosing by ren-
dering futile the workers' exercise of those rights."4 Under-
lying Respondent's attitude towards the negotiations was
an intention to discourage the employees in their expecta-
tions that they would achieve improvements in the terms
and conditions of their employment through the representa-
tion of the Union and ultimately to free itself from the need
to deal with the Union at all. I find that by engaging in
surface bargaining and by failing to furnish the Union rel-
evant information requested by it, as described above, the
Company has violated Section 8(a)(l) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship 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.
v. THE REMEDY
Having found that the Company has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
I have found that the Company has refused to bargain
collectively in good faith with the Union as the representa-
tive, duly certified by the Board, of an appropriate collec-
tive-bargaining unit of its employees. In order to insure that
these employees will have the opportunity to enjoy the full
benefits that may be derived from their selection of a bar-
gaining agent as contemplated by the Act, I recommend
that the initial year of certification he deemed to begin on
the date that the Company commences to bargain in good
faith with the Union as the recognized representative of the
employees in the appropriate unit. See Mar-Jac Poultry
Company, Inc., 136 NLRB 785 (1962); Commerce Company
d/bla Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
's Shieber, "Surface Bargaining: The Problem and a Proposed Solution," 5
Toledo L. Rev. 656, 659 (1974).
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964):
Burnett Construction Company. 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (10th Cir. 1965).
For the reasons set forth in M. F.A. Milling Company, 170
NLRB 1079 (1968), enfd. 463 F.2d 953 (D.C. Cir. 1972).
shall recommend that Respondent reimburse the employee-
members of the union negotiating committee for the wages
lost, if any, while attending past negotiating sessions, with
interest thereon to be calculated in the manner set forth in
Florida Steel Corporation. 231 NLRB 651 (1977).'
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CON( LSIONS OF LAW
1. By failing and refusing to bargain in good faith with
the Union as the collective-bargaining representative of the
Company's employees in the appropriate unit described be-
low with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, the
Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
2. By the foregoing conduct Respondent also has inter-
fered with, restrained, and coerced its employees in the ex-
ercise of the rights guaranteed them in Section 7 and has
thereby engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in these proceedings, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER"
The Respondent, K Mart Corporation, Lawrence, Kan-
sas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Truckdrivers
and Helpers Local Union No. 696, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive collective-
bargaining representative of the employees in the following
appropriate unit:
All warehouse employees of the Company at its Law-
rence, Kansas, distribution center, including ware-
housemen, security cage employees, checkers, mainte-
nance employees, regular part-time employees, plant
clerical employees (traffic employees, merchandise
checkers, claims employees, O.S. & D. Clerk, file clerk,
dispatchers, company store employees, case pack ad-
justment clerks), but EXCLUDING all office clerical
' See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
"7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
877
I)EC(ISIONS OF NATIONAL LABOR RELATIONS BOARD
employees (data processing employees. data processing
manager, front office adjustment clerks, merchandising
or receiving clerks, payroll employees, receptionist and
switchboard operator, assistant to the merchandising
manager), secretaries, confidential employees, general
manager, distribution or personnel manager, merchan-
dising manager, warehouse departmental manager,
nightshirt manager, assistant managers, professional
employees, guards and other supervisors as defined in
the Act.
(b) Failing or refusing to furnish the Union. with reason-
able promptness information duly requested by it concern-
ing employees' wages and wage increases at its other distri-
bution centers which is relevant to the Union's collective-
bargaining duties.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates
of pay, wages, hours of employment, and other terms and
conditions of employment with Truckdrivers and Helpers
Local Union No. 696, affiliated with International Brother-
hood of Teamsters. Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive collective-bargaining repre-
sentative of all the employees in the appropriate unit
described above, and, if an agreement is reached, embody it
in a signed contract. The certification year shall extend I
year from the date such new bargaining negotiations begin.
(b) Make whole each employee-member of the negotiat-
ing committee of the Union for earnings they lost while
attending the past bargaining sessions, with interest
thereon.
(c) Post at its place of business in Lawrence, Kansas,
copies of the attached notice marked "Appendix."48 Copies
of said notice, on forms provided by the Regional Director
for Region 17. after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive 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.
(d) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that, except with respect to
the specific findings hereinabove made of violations of Sec-
tion 8a)(I) and (5) of the Act on the part of Respondent,
the allegations of the complaints alleging other unfair labor
practices be dismissed.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
Norl(E To EMPI.OYES
POSTED BY ORDER OF THE
NAII)NAI. ILABOR RELATIO)NS BOARD
An Agency of the United States Government
Wi: WIll. N fail or refuse to furnish the Union,
with reasonable promptness, information duly re-
quested by it concerning employees' wages and wage
increases at our other distribution centers that is rel-
evant to the Union's collective-bargaining duties.
WI WII.L NotI refuse to bargain collectively with
Truckdrivers and Helpers Local Union No. 696, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive collective-bargaining representative of
our employees in the appropriate unit described below.
WE Wll.l. NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act.
W WVILl.. upon request, bargain collectively con-
cerning rates of pay, wages, hours of employment, and
other terms and conditions of employment with
Truckdrivers and Helpers Local Union No. 696, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs. Warehousemen and Helpers of America,
as the exclusive collective-bargaining representative of
all the employees in the appropriate unit described be-
low and, if an agreement is reached, WE WILL embody
it in a signed contract. The Union's certification year
shall extend I year from the date such new bargaining
negotiations begin. The appropriate unit is:
All warehouse employees at our Lawrence, Kansas,
distribution center, including warehousemen, secu-
rity cage employees, checkers, maintenance employ-
ees, regular part-time employees, plant clerical em-
ployees (traffic employees, merchandise checkers,
claims employees. O.S. & D. Clerk, file clerk, dis-
patchers, company store employees, case pack ad-
justment clerks), but EXCLUDING all office cleri-
cal employees (data processing employees, data
processing manager, front office adjustment clerks,
merchandising or receiving clerks, payroll employ-
ees, receptionist and switchboard operator, assistant
to the merchandising manager), secretaries, confi-
dential employees, general manager, distribution or
personnel manager, merchandising manager, ware-
house departmental manager, night shift manager,
assistant managers, professional employees, guards
and other supervisors as defined in the Act.
WE WvILL reimburse employee-members of the union
negotiating committee for wages they lost, if any, while
attending past negotiating sessions with interest
thereon.
K MART CORPORATION
878