King Dollar

National Labor Relations Board - Board Decisions

Oct 26, 1966

161 N.L.R.B. 471 (N.L.R.B. 1966)

WICKLAND OIL COMPANY 471
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board 's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-2159.
Wickland Oil Company; and Freeway Oil Company d /b/a King
Dollar and Retail Clerks Union , Local 1364, Retail Clerks In-
ternational Association , AFL-CIO. Case ?O-CA-300. Octo-
ber 26, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner James R. Hemingway issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that thev cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents filed exceptions to
the Decision and a supporting brief, and the General Counsel filed
a brief ui support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner 's Recommended Order.]
These findings and conclu,ions are based, in part, upon the credibility determinations
of the Trial Examiner to which the respondent has excepted, alleging that the Trial
Examiner was biased and prejudiced After a careful review of the record, «e conclude that
the Trial Examiner's credibility findings are not contrary to the clear preponderance of
all relevant evidence. Accordingly, we find no basis for disturbing those findings, and we
reject the charge of bias and prejudice on the Pait of the Trial Examiner. Standard Did
Wall Ptoducts, Inc, 91 NLRB 544, enid 188 F 2d 362 (C.A 3).
DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge was filed by Retail Clerks Union Local 1364, affiliated with Retail
Clerks International Association, AFL-CIO, herein called the Union, against Wick-
land Oil Company on May 21, 1965, and an amended charge was filed by the
Union against Wickland Oil Company and Freeway Oil Company, d/b/a King Dol-
lar, on September 15, 1965, alleging violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, as amended, 29 U S.C., Sec. 151, et seq., herein
called the Act. Upon said charge and amended charge a complaint duly issued on
September 24, 1965.
161 NLRB No. 39.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In substance, the complaint alleges that Respondents interrogated employees
about their union membeiship and activity, threatened them with discharge unless
they abandoned their union membership or activity, and granted a wage increase to
induce them to abandon their union membership or activity; refused to reinstate
two employees who made unconditional application to return to work following an
allegedly unfair labor practice strike, and refused to bargain collectively with the
Union, on request, although the Union allegedly represented a majority of the
employees in a certain appropriate unit. The Respondents' answer, filed on Octo-
ber 3, 1965, denied the commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner James R. Heming-
way at Redding, California, between January 25 and 28 , 1966 . At the close of the
hearing, the parties waived oral argument but requested time in which to file briefs.
Time was fixed and was later extended. Within such time briefs were filed with
the undersigned by both parties.'
From my observation of the witnesses and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Wickland Oil Company hereafter called Wickland Oil, is a California corporation
engaged in the wholesale sale and distribution of gasoline, automotive supplies and
accessories, and sporting goods, among other things. It is the sole owner of the
stock of Olive City Service, Inc., which operates a truck and automobile fueling
station in Corning, California. Freeway Oil Company, doing business as King Dol-
lar, herein called, when referred to individually, Freeway, is a California corpora-
tion engaged in the retail sale of gasoline, automotive supplies and accessories,
sporting goods, and other miscellaneous items at four automobile service stations,
each with an adjoining store Freeway's stations are located one each in Redding
and Red Bluff, and two in Chico, California. These two corporations, Wickland
Oil and Freeway, are the Respondents herein. Respondents' answer admits that they
are affiliated businesses under the common ownership, management, and control of
John A. Wickland and that they constitute a single-integrated enterprise Actually,
the stock in each corporation is held by Wickland and his wife. For convenience,
these two corporations will be hereinafter called, in the singular, the Respondent.
Wickland and his wife also are the majority holders of all the stock in Sure Save
Stations, Inc., a California corporation, which also does business under the name
of King Dollar. It, like Freeway, operates four different automobile service stations
with adjoining stores, also under the trade name of King Dollar, one in Redding,
one in Red Bluff, one in Orland, and one in Paradise, California. No motion was
made to join Sure Save Stations, Inc., as a party. Respondent does, however, take
the position that the stations operated by Sure Save should be included in any
collective-bargaining unit which may be found to be appropriate Otherwise, this cor-
poration is of no concern here.
Freeway, in the course and condut of its business operations during the year pre-
ceding the issuance of the complaint, sold goods and services valued in excess of
$500,000, and, in the same period, it purchased goods valued in excess of $50,000,
from Wickland Oil, which goods Wickland Oil had received directly from points
outside the State of California.
On these facts, I find that the Board has jurisdiction and that it will effectuate the
policies of the Act to assert jurisdiction.
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership, among others,
employees of Freeway.
III. THE UNFAIR LABOR PRACTICES
The controversy heie arose out of activities exclusively at Freeway's station 21
in Redding, California. The issues presented are whether or not (1) the Respond-
ent violated Section 8(a)(5) of the Act by refusing to recognize the Union as
majority representative without a Board conducted election, (2) Respondent vio-
lated Section 8(a)(1) of the Act by certain interrogations, statements, and prom-
' Certain errors in the transcript of the proceedings having been noticed and ordered
to be corrected.
WICKLAND OIL COMPANY 473
ises of wage increases , and (3) Respondent violated Section 8(a)(3) of the Act
by refusing to reinstate two strikers at the conclusion of a strike Because these
issues are so interwoven , it will be necessary to consider all the facts first before
conclusions are separately drawn.
A. The facts
1. Chronology of events
a. Union organizations and effoils to gain recognition
On May 4, 1965, two of the employees, Rosella Black, a cashier in the store, and
Bruce Fraser, a station attendant, visited the Union's offices, signed applications for
membership, and asked the Union to organize the employees at Freeway's station
21. During the remainder of that day, Black and Fraser, assisted by two of the
Union's business agents, signed up all other employees.2 At this time, the station
manager was on vacation.
On May 5, 1965, Hartley Weingartner, the Union's financial secretary, composed
the following letter.
May 5, 1965
Wickland Oil Company
Orland
California
Dear Sirs:
We hereby request recognition as the Collective Bargaining Representative
for the employees of Wickland Oil Company King $ Stations, located at High-
way 44 and Hilltop Road, Redding, California.
Very truly yours,
H. L. Weingartner, Fin. Sec.
Retail Clerks Local # 1364
Recognition Granted by
Wickland Oil Co.
However, he did not mail the letter Instead, he waited until May 10, 1965, when
the station manager returned from his vacation. Then Weingartner, accompanied
by two business agents, took the letter to the station and handed it, in a sealed
envelope, to the manager , Oliver (Sid) Lee. According to Lee, all that Weingartner
or his companions said was that they would be back for his answer in a few days .3
However, Weingartner and Norman Stevenson, one of the two business agents with
Weingartner, testified credibly that Weingartner told Lee that the Union had signed
up a majority of the employees at the station and wanted recognition , that Wein-
gartner had signed cards in his pocket, and that, if proof of majority were asked,
he would submit the cards to a distinterested person such as a judge or minister, to
be checked. They testified that Lee said he did not have authority to act on the
Union's request and would have to refer it to someone higher up in the Company.
Weingartner asked if he could do this in the next few days and let him know. Lee
said he thought that would be possible. According to Lee, he did not open the letter
to read it until after the union representatives had left and then he put the letter
in his desk. Having heard nothing from the Respondent by May 14, Weingartner
returned with Stevenson and asked Lee if he had "shown the letter," i.e., referred
it to his superiors Lee told Weingartner that he had lost the letter. Although Lee
spoke with the head office of the Respondent in Orland every day by telephone or
radio phone, and, at the station about once a week with the operations manager,
when the latter would visit there, Lee testified that he had not mentioned the letter
to his superiors because he had mislaid it. I find it incredible that the station man-
ager would have failed to disclose the visit of the union representatives and the pur-
port of the letter even if he had mislaid the letter itself. Lee did, however, on
May 14, 1965, give Weingartner the telephone number of Respondent's office in
,Orland.
On the day after Weingartner' s second conversation with Lee, Saturday, May 15,
Lee testified he found the letter and drove with it to Chico, where the operations
I It does not appear whether or not the attendant who was acting as manager in the
latter's absence signed a card . This employee left Respondent's employ on May 9, 1965,
before the Union presented its request for recognition.
8 1 attribute Lee's abbreviated memory to a possible lack of familiarity with the functional
steps normally taken in a request for recognition , even though he had once been a member
of another union.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager lived, and delivered the Union's letter to James Williams, the Respondent's
operations manager. The latter testified that the letter rested on his radio from then
until May 21, 1965, when President Wickland returned from a trip to Texas which
he had begun on May 15, and that he then remembered the letter and delivered it
to Wickland.
Meanwhile, on May 14, after Lee had given him the Respondent's telephone
number, Weingartner returned to his office and called the Respondent's office. Some-
one there told Weingartner that Manager Fred Sammis was in Paradise , California,
and gave him Sammis' telephone number there. Weingartner telephoned Sammis
in Paradise, and the latter agreed to a meeting to discuss recognition on Monday,
May 24, which would follow the date of Wickland's expected return.
At the appointed time, Wickland and Sammis , accompanied by Lee Lopez, a
Redding attorney, went to the Union's office in Redding and met with a sizable
group of representatives of the Union, including Weingartner, Stevenson , Jack Hal-
pin, who was the Union's attorney, along with a representative of the Central Labor
Council and one from the Northern District Council of Lumber and Sawmill Work-
ers. At the opening of the meeting, Weingartner or Halpin stated that the Union
had application cards signed by a majority of the employees at the station located
on Route 44 and Hilltop Drive and that it was asking Respondent for recognition.
Lopez asked if the Respondent could see the cards. Lopez was familiar with labor
relations law and procedure, and I infer that he fully expected a refusal. Halpin
did refuse to show them at that time, but suggested that the cards be examined by
a neutral person . Lopez said that that was not satisfactory. Halpin then said that the
Union would show the Respondent the cards if the Respondent would agree in
advance to recognize the Union in the event that the cards showed a majority.
Lopez asked for a caucus and the Union's representatives left the room.4 When the
Union's representatives returned to the meeting room, Halpin presented Lopez with
a handwritten recognition agreement conditional on a showing of cards signed by
a majority of the employees. Lopez said that the Respondent desired a 24-hour period
in which to decide. The Union agreed to such an extension on condition that neither
side would communicate with the employees in the interim. This was agreed When
the meeting broke up, the union representatives led the Respondent's representatives
through a room in which were visible to Lopez and Wickland a number of picket signs
with the name King Dollar on them
Following this meeting, Halpin caused to be prepared typed copies of his hand-
written recognition agreement and had them delivered to Lopez.
Before the deadline the next day, Lopez telephoned Halpin to say that the
Respondent had decided not to recognize the Union as bargaining representative and
that he was sending over a letter. Halpin testified (and Lopez denied ) that Lopez
told Halpin in this conversation that he had advised his client that it would be a
good idea to sign the recognition agreement. I found Lopez to be a credible witness
and find that, if Lopez said anything about his advice to his client, Halpin misun-
derstood him 5 Lopez' letter , delivered by hand to Halpin on the afternoon of
May 25, 1965, concluded with the paragraph:
We do not feel that you represent a majority of the employees at King Dol-
lar Sure Save and we are not interested in the card check procedure as we feel
that card checks are so notoriously unreliable, and we are only interested in a
NLRB election.
' Several of the Union's representatives testified that during the first part of the meet-
ing, Wickland expressed curiosity as to the kind of contract that the Union had in mind
and that Weingartner sent Stevenson out to select copies of several contracts in the iner-
chandising or retail field that would have comparable terms. Neither Lopez nor Wickland
recalled any reference to a contract, to anyone's leaving the room to get copies, or to any
discussion concerning contract terms I find it unnecessary to resolve the apparent con-
flict because , in any event , I am satisfied that the parties did not reach the point of engag-
ing in bargaining.
6I do not intend , by this finding , in any way to impugn Halpin's veracity . Where honest
witnesses differ , their memories probably have recorded external sights and sounds differ-
ently. The chance of inaccuracy in memory of spoken words is dependent not only upon
a correct interpretation of what is said, but also upon an accurate initial recording of
what is said . Therefore , the chance for misunderstanding an oral communication 1s great.
Such a misunderstanding could, in this case have occurred if Lopez had said that he had
told his client that it "wouldn 't be a good idea to sign" the recognition agreement. I find
that even expert listeners like court reporters often fail to hear such a contracted negative.
WICKLAND OIL COMPANY 475
On the morning of May 25, Lopez communicated with a San Francisco lawyer
to have him procure forms for an RM petition, intending to have the Respondent
sign them after he had filled them out. The forms were sent to Lopez from San
Francisco on May 26, but were never filled out because the Respondent chose to
employ the services of the California Association of Employers and terminated
Lopez' services The date of this change is not in evidence . On June 14, 1965, the
afoiesaid Association, on behalf of the Respondent, filed an RM petition with the
Boards
On the morning of May 25, while the Union was waiting for Respondent' s deci-
sion as to whether it would sign a recognition agreement conditioned on proof that
the Union had cards signed by a majority of the employees , the Union called the
employees to a meeting to vote on whether or not to strike if the Respondent should
fail, by 3 p.m. that day, to agree to recognize the Union. The vote was unanimous
to strike
The General Counsel does not rely on the foregoing facts, alone, to prove that
the Respondent in bad faith refused to bargain with the Union. He asserts that the
evidence shows that the Respondent engaged in conduct designed to dissipate the
Unions majority. Although the Respondent raises an issue concerning the appro-
priateness of the unit in which the Union claimed a majority, I shall defer consid-
ei ation of the appropriate unit as unnecessary to decide unless the evidence first
supports the General Counsel's contention that the Respondent acted in bad faith.
If the General Counsel has made out a case of bad faith, the question of the appro-
priate unit may then be considered.
b. Questioning and pioniues of wage increases
Rosella Black, who, with Bruce Fraser, initiated the union organization , was ter-
rninated on May 17, 1965. On May 20, 1965, between 9:30 and 10 p.m., Fraser
approached Lee, who was just driving in to the station to do some work on the
books, and, according to Fraser, said to Lee, "Sid, you and I have been friends for
a long time, could you tell me something?" Lee answered, "Yes, what is it?" Fraser
asked `Did you fire Roce because she joined the Union7" Lee replied, "No, she is
in bad health " Fraser testified, and Lee denied, that Lee then said, "Now we have
been friends for a long time and will you tell me did you get this Union thing
started around here?" Fraser testified that he then told Lee that he and Black had
gone to the Union "to see the people about it." Fraser quoted Lee as continuing.
You iealize that you are not even old enough to vote in the Union," and as adding
that the Respondent would contest the election and that it would be thrown out
because two-thirds of the employees were not old enough to vote. Fraser also
quoted Lee as saying that the Union had hurt him "while he was a shop stewaid
or c.omething to do along thuse lines up at a mill, a sheet mill in Burney," and that
the Board had gone behind the lines and organized the scabs that were working in
there and that Halpin (the Union's attorney) had sold them down the river for a
bundle of money "after working on the strike" for 9 months. Fraser quoted himself
as saying, "I don't see how it [meaning either the Union at Burney or the Union's
organization of the Respondent's station I hurt you. It would probably have
improved your position somewhat." He quoted Lee as saying that it [meaning again
uncertain ] had cost him his job and that he was going to have to go. Fraser tes-
tified that he left Lee to wait on a car and that then Lee had again asked him if he
were old enough to vote, that there ensued a lot of words during which Fraser lost
his temper, threw down his keys and stamps, telephoned his brother, presumably
to come for him, and went home after telling Lee that he was quitting.
Lee conceded that he had had a conversation with Fraser on May 20, 1965,
which had commenced with Fraser's question about Black's discharge, as testified
by Fraser. From that point on, however, Lee's version of the conversation was quite
dissimilar. Lee's testimony portrayed the conversation, after Fraser' s question and
Lee's reply. as an aigument in which Fraser had claimed a right to a small bonus
(75 cents) for the sale of a tire.? He denied that he had asked Fraser if Fraser had
"got this union thing started", Fraser had told him that he and Black had gone to the
Union; telling Fraser that he was not old enough to vote; saying that the Respondent
would contest the election because two-thirds of the employees were not old enough
6 Case 20-RDI-754.
T Fraser was not asked , when he was on the witness stand, whether or not there had
been any conversation about this bonus.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to vote ; saying that Halpin had sold the Union down the river after getting a bundle;
saying that the Board had gone behind the lines and organized the scabs at Burney;
saying that the Union had fired him when he was shop steward; and he had, in fact,
been a steward at Burney, although he admitted that he had worked at the mill at
Burney,and that he had been a member of the Union there.. Although the Union filed a charge of discrimination against the Respondent based
on the terminations of both Black and Fraser, their terminations were not alleged
in the complaint to be violations of the Act. Fraser's testimony was offered solely
in support of the allegations of interference, restraint, and coercion. In resolving
the conflict in testimony as to what was said by Lee, I have considered the circum-
stances of Fraser's quitting and' the possibility that his testimony might have been
slanted because of resentment toward Lee. I have, however, rejected this as a reason
for supposing that Fraser might have indulged in any fabrication in his testimony.
Fraser, a young man of self-assured manner, appeared to be careful in most of his
testimony. His testimony of his conversation with Lee was given at length without
questioning about meaning and it lacked complete lucidity. Beyond this, it is fairly
obvious that Fraser's memory had recorded a somewhat garbled version of certain
of Lee's statements to him, resulting, in all probability, from Fraser's lack of fa-
miliarity with the subject matter and from Lee's manner of speech, which tended to
be rapid. On Fraser's testimony, I am unable to reconstruct accurately what Lee
may actually have said to Fraser, but the tenor of Lee's words was plain The argu-
ment about the tire sale bonus, as testified by Lee, might have entered the conver-
sation, but I find that Lee, in substance, spoke to Fraser as the latter testified. In
other words, Lee asked Fraser if he had been instrumental in getting the union
movement started, and when Fraser admitted it, Lee, in effect reproved Fraser by
intimating that he was too young to have good judgment.
Earlrer.on the day of Lee's conversation with Fraser, May 20, 1965, the Respond-
ent had hired William Morris to be Lee's successor as manager of station 21, effec-
tive on June 1. During the, intervening period, Morris, who had been employed by
the Respondent previously, was learning changes that had meanwhile been made
in procedures or practices while he was away from the Respondent, and Lee
remained in charge.
Donald Street, a station attendant who had worked for the Respondent at the
station here involved from August 28, 1964, until the time of the strike on May 26,
1965, testified that on May 21, 1965, the day after Lee's conversation with Fraser,
Lee asked him to join him in a cup of coffee at the drive-in restaurant across the
street from the station. There, Street testified, "Well, we got talking about when
the three of us had to go to Red Bluff to work that station because of the contest
we had between all the stations," 8 and that Lee said he had told Bill Morris, who
was to replace him as manager, that Street would have a year's [week's] vacation
coming up in August and that Lee also said that he had put Street in for a raise to
take effect the first of June. Lee denied that he had told Street that he had told
Morris that Street would have a vacation coming up in August, and he denied that
he had told Street in May that he had put in for a raise for him. He testified that
he had told Street about the raise he had put in for him before he had left on his
vacation in April. Lee testified that he tells all new employees that they will get a
week's vacation after a year and that he had so told Street when he hired him.
But even if he had forgotten, at the time he hired Street, to tell him of his vacation
benefit, I doubt that-a man could have worked for Respondent for almost 10
months and not have learned of Respondent's vacation policy from someone It does
not appear logical that Lee would have considered it necessary to say anything to
Street at that time about a vacation unless he was attempting to review the bene-
fits Street was entitled to. I am not convinced that Lee was correct in testifying that
it was in April that he had told Street he had put in a raise for him I notice that
in instances where a manager's recommendation of a raise is approved by the
respondent, it can become effective as early as the next payday. Lee did not tes-
tify that he - had recommended that Street's raise be deferred from mid-April to
June I .- The lapse of time , if Lee 's testimony were to be taken as accurate , suggests
that the recommended raise might have been disapproved . In Respondent's practice,
recommendations for wage increases are made by managers in writing. Lee's recom-
mendation of a'raise for Street should therefore , have been in Respondent 's files and
9 The stations competed with each other to make the most sales in a contest , with the
employees of the winning station being awarded a steak dinner. While the employees of
the winning station were at that dinner , employees of the losing station had to operate the
winning station.
WICKLAND OIL COMPANY 477
its production might have dispelled doubt of the date Lee's recommendation of
Street's raise was made. However, it was not produced by Respondent. Such pro-
duction could have settled the issue .9 It might also show whether it had been
approved or disapproved. In view of the improbability that the recommendation for
Street's raise would have remained in limbo for so long as well as of the fact that
I have found Lee's testimony not reliable in other respects, and the fact that one
topic of conversation (the incident, just past, when three employees from station 21
had had to operate the Red Bluff station) as related by Street, helped to fix the
date of this conversation as May 21, I credit Street's testimony of the date of the
admitted conversation between him and Lee concerning his raise and I find that
Lee on May 21, 1965, told Street that he had made a recommendation for a raise
for him at that time.
Dalene Thompson Linebarger testified that she had been in Respondent's employ
in the store at station 21 (known then as Dalene Thompson and hereinafter called
Thompson) during the peiiod from September 1964 through May 1965. Thompson
testified that on May 24, 1965, Lee walked up to her in the store and asked her if
she was going to walk out on him that day. When she said that she did not know,
Lee told her that he knew of only one other employee who was going to walk out-
naming Don Street. Thompson then quoted Lee as saying that he knew all about
the Union and that it did not have a leg to stand on, and also as saying that he
(Lee) had "put in" for a raise for Street, Willey, and herself. With respect to the
foregoing testimony, Lee testified that he had not asked Thompson if she were going
to walk out on him but that, before the strike, she had remarked to him, as he was
walking out the door, that she did not know whether or not to walk out and that
he had told her that she had a mind of her own and should make up her own mind.
Lee denied the rest of Thompson's testimony of what he said to her.
It is obvious that Thompson was confused about the date of the occurrence she
testified to since May 24 preceded even the strike vote, but this confusion about
dates is not exceptional with witnesses, and Thompson did testify that Lee had
spoken to her (about walking out) after the strike vote meeting had taken place.
As this had been on the morning of May 25, that must have been the date of Lee's
remarks, if made.
In assessing Thompson's testimony, I have given consideration to the fact that,
although Lee's remark, according to her testimony, that he knew only one other
employee who was going to walk out (Don Street) suggests that Lee had already
questioned all the other employees and had learned that only Street was going to
walk out, yet not one other employee who testified was asked if he had been so
questioned by Lee. Failure to question other witnesses, of course, was not Thomp-
son's fault, and, of course, Lee could have received the impression that Street would
walk out through rumors or from overhearing speculative talk between other
employees; so he need not have gained his belief if he actually had it, concerning
the expected strike from questioning other employees. Actually, Willey was the only
one who failed to join the strike; so, if Thompson's testimony was coirect, Lee was
either making a false representation to her or his information was inaccurate.
Thompson's testimony that Lee had told her that he had put in for a raise for
Street, Willey, and herself is credible because it was conceded by Lee that he had
put in a recommendation for a raise for Street, and Willey had not only, in fact,
later received more pay but, as of June 15, 1965, he was promoted to service man-
ager (the equivalent of assistant manager) on a salary. At one point in his testi-
mony, Lee testified that he did not have any intimation that the employees were
going to go out on stiike until they actually went out. Yet he had, on direct exam-
ination, already testified, as heretofore related, that, before the strike, Thompson
had said to him that she did not know whether or not she would walk -out; and,
from the reply he made to her, according to his own testimony, that she would have
to make up her own mind, he could not very well claim that he had not understood
what she meant by "walk out." Hence, I find that Lee had advance notice of a
strike and erroneously denied knowledge thereof. Even if I could excuse Lee's con-
flicting testimony as unintentional, I should find it difficult to believe that Thompson
would have volunteered to Lee, completely out of the blue, that she did not know
whether or not she would walk out, under the circumstances testified to by Lee. Tak-
ing all the evidence into account, and from my observation of the -witnesses, I ,credit
O Because the General Counsel was relying on the testimony of his witness rather than
upon a written document, and because that document -would have been in possesssion of
the Respondent, it seems more logical to expect the document to be produced 'by Respond-
ent if it would have been favorable to it. I presume , therefore, that It was not.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thompson's testimony. Lee's mention of wage raises in conjunction with his remark
that the Union did not have a leg to stand on, marks the assurance of a wage
increase as designed to act as an inducement to Thompson to forgo further interest
in the Union.
c. The strike and further offers of wage increases
On Wednesday, May 26, most of the employees went on strike. Of those who
had signed cards for the Union, only Willey failed to strike. The strikers took turns
on the picket line, assisted by Fraser and Black, whose employment had been pre-
viously terminated. On the morning of May 29, 1965, employees Sills and Freed
were picketing one side of the station. They called Manager Morris over to them
and asked him if they could talk with him. When Morris went over, Sills and Freed
asked if they could have their jobs back if they returned then. Morris said they
could. Sills, at the same time, asked Morris about the possibility of their getting a
raise. Morris told them both to come in at 2 p.m. and he would talk to them.
Although Morris was not yet officially the manager, Lee had turned over to Morris
the matter of hiring employees to keep the station operating.
At 2 p.m. that day, Freed, at least, returned and Morris spoke with him in the
store. Freed had been hired in February 1965, at $1.35 an hour, below the Respond-
ent's starting rate, and had made slow progress, so Lee had not yet raised him to
the $1.50 starting rate. Sills, who had started with the Respondent on May 1, 1965,
was still at the $1.50 starting rate. Morris told Freed that, "before the picketing had
even begun," Lee had put in for a 15-cent raise for him and that the matter was
on Sammis' desk at the time. Freed returned to work at once at the $1.50 rate.
Morris' and Sills' accounts, with respect to their bargaining and the time of it
differ According to Morris, Sills was with Freed at 2 p.m. on Saturday, May 29,
when he spoke to them about pay. According to Sills, employees Willey and Freed
came to his house on Sunday, May 30, and asked him to come to the station and
talk to Morris about returning to work. Whichever day it was, Sills went to speak
with Morris. He testified that Morris had asked him what he wanted in the way of
an increase, that he had said he wanted $2.00 an hour, that Morris had said that
that was out of the question ". . . how about a nickle raise?" that he had replied,
no, that he would like to have a little more, and that Morris had said, "How about
a dime? That's the best I can do." Sills agreed. Morris' testimony was merely that
he (Morris) had always favored paying a "graveyard" man 10 cents more an hour.
Sills accepted the offer of a 10-cent wage increase and returned to work. Although
Freed received his raise upon his return to work, Sills' raise was deferred by
Respondent for 2 weeks after Sills returned to work "because it might be interpreted
as an inducement to return to work."
If Lee had actually recommended a raise for Freed as Morris testified, before
Freed had abandoned the strike, the written recommendation might have established
its date, but here again it was not produced. Lee testified that he had made such
recommendation 2 months earlier but that it had not been acted upon. Freed, on
the other hand, testified that, about a week before the strike, he had asked Lee
about a raise and that Lee had said he would have to do some talking to get it, but
that Freed would have it for the next pay period. Lee testified that, although he
had recommended a raise for Freed, he never told Freed of this. If Lee was telling
the truth, I would infer that the Respondent had frowned upon Lee's recommenda-
tion, because more that 2 months had passed thereafter before it acted to give Freed
a raise, and this was upon his abandonment of the strike. If Freed was telling the
truth , the raise was requested for him after the question of recognition of the Union
was before the Respondent, but the raise was not granted until Freed had aban-
doned the strike.10 In either event, the raise given to Freed upon his abandoning
the strike would appear to have been offered as an inducement to abandon the strike
and the Union. Whether Sills' conversation with Morris occurred on May 29 or 30,
Sills' testimony, which I credit , makes it fairly obvious that, despite the postpone-
ment of Sills' pay increase for one pay period," his increase, likewise, was given as
an inducement to -Sills to abandon the strike and the Union.
"Morris' testimony that he had told Freed that Lee had put in a recommendation for
a raise for Freed "before the picketing had even begun" rather than "before the Union
organized the station" tends to corroborate Freed's testimony of the time when Lee told
him of the recommended raise.
11 The record of Morris' recommendation for a raise for Sills was dated June 29, 1965,
but he received the increase for the full period ending June 30.
WICKLAND OIL COMPANY 479
d. Termination of the , strike and refusal to reinstate Thompson . and Street
About May 30 or 31, 1965, when Thompson'(Linebarger) and Street came on
for picketing in the afternoon and discovered that only Black and Fraser were
picketing, they decided that too few of them were left and they went home.
Later, on May 31, both spoke with Weingartner at the Union's office. Weingart-
ner asked them if they wanted to return to work. They told him they did. He said
he would speak to the manager the next day about it. On June 1, Weingartner
went to station 21 and spoke with Morris. Weingartner told Morris that the strike
was over and that the Union wanted to see Thompson and Street put back to
work. Morris said he had hired new people to take their place and asked what
he was going to do with them .12 Weingartner told Morris to fire them and put
back the people that had had the job before. Morris said that he could not do that.
On June 7, 1965, the Union's attorney wrote to Lopez (the then last known
attorney for the Respondent) stating that the Union had ceased picketing, that it
took the position that it had been engaged in an unfair labor practice strike, and
that Dalene Thompson and Donald Street thereby were making an unconditional
offer to return to work.
Neither Street nor Thompson was thereafter offered reemployment although
Respondent added several new employees early in June and another one late in
June.13 It is apparent that the Respondent had not hired a full complement of
employees when it refused to reinstate Street and Thompson.
B. The refusal to bargain
1. The appropriate unit
The Respondent did not say anything about the appropriateness of the unit
claimed by the Union at the conference of May 24 nor subsequently until it was
raised in this case. I do not attribute the Respondent's dispute of the unit com-
position, by itself, as evidence of bad faith. It might have done the same thing
earlier had Lopez filed an RM petition for the Respondent. But Respondent's
failure to mention the unit at the conference of May 24 or in the letter Lopez
wrote to the Union on May 25, 1965, suggests that Respondent saw nothing
inherently inappropriate in a single station unit. Later, when the Union claimed
a right to recognition at two of the King Dollar Stations operated by Sure Save
Stations, Inc., Respondent's representatives took the position that the appropriate
unit should include the four stations operated by that corporation to the exclusion
of those operated by Freeway. Yet, in the instant case , Respondent contends that
the only appropriate unit would embrace employees of the stations of both Free-
way and Sure Save Stations , Inc. The foregoing merely tends to establish that even
the Respondent has, from time to time, recognized the fact that more than one
unit might be appropriate.
Respondent's evidence in support of its contention that employees of all eight
stations of the two operating corporations should constitute the appropriate unit
tends to establish the following:
1. The managers of all King Dollar stations are under the supervision of Wick-
land, as general manager . There is a single promotion display manager for all.
The general manager (Wickland) determines , with a single purchasing and distri-
bution supervisor in the employ of Wickland Oil Company, the prices at which
merchandise is to be sold at the eight stations . Wickland Oil places the orders for,
and pays for, gasoline , oil, and all merchandise to be sold at the station stores.
The delivery of gasoline and oil to the several stations is made by Wickland Oil
tank trucks. The merchandise is usually distributed to the several stores from a
central warehouse by Wickland Oil van trucks. Wickland Oil takes charge of all
advertising for the various station stores. The managers may make suggestions on
new products, services, promotions, advertising, procedure, or-policy that will
increase -the profit potential of his operation. Wickland Oil handles the maintenance
12 Don Arndt was hired on about May' 27, 1965. Ruth Tremper was hired on May 31,
1965.
' The record is not clear as to hiring dates, but it was stipulated that three new em-
ployees-Leo Brewer, Sandra Booth, and Travis Gallegos-worked during the 2-week pay
period ending June 15, 1965 . Another new employee, Ron Lane, appeared for the first time
on the payroll for the period ending June 30.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for all stations , determines policies 'and practices regarding labor and credit, pre-
pares paychecks from information furnished by station managers , and provides
bookkeeping, accounting, and . credit services for all. The operating budget is
determined by , the general manager, Wickland, who also determines shift flours.
All stations are connected by radio-telephone with 'the -Wickland Oil headquarters
in Orland, California.
2. Managers of "individual stations and store's' follow a common operations
manual.14- They can hire employees at rates within the basic scale approved by the
general manager. Before an employee is hired he makes out an, application form
which goes to Wickland Oil, who takes care of bonding the applicant. The man-
ager is not obliged to accept an employee sent, to him by Respondent's head-
quarters. He can recommend wage increases; he can assign employees-to different
shifts, and to work at the station or in the store, as the need arises; and- he can
summarily discharge employees' for specific 'types of causes. ,'In other `cases, he
would, consult with the operations manager. Sometimes the operations manager
attempts to save an employee from discharge which may stem from a personality
problem by having the employee move to another station. - -
3. The manager banks his receipts in an interbranch account and the credit
goes to a bank in Chico to the credit of Respondent. Withdrawals'are made from
this account only for Freeway's payroll or for' payment to Wickland Oil for
products and services. I infer that these withdrawals are charged against a budget
for each station for the purpose of determining the profit each station makes. The
manager is responsible for the profitable operation of his station, and, if he does
well, he participates in a bonus and profit-sharing plan. The operations manager
visits each station manager about once a week.
4. In an attempt to prove that there are frequent transfers and interchanges of
employees from station to station, Respondent introduced in evidence a list of
names of station personnel who had worked at more than one station in a 2-year
period. This evidence is inconclusive. The circumstances of the change of employ-
ment of the named personnel to different stations was not shown in most instances.
Some were apparently cases of promotion or of transfers of managers. Some were
employees who had quit and were later rehired at a different station. Furthermore,
there is no way of determining how many of the employees on the list were
changed from one station to another at their own request. It is in evidence that
sometimes employees have been transferred when they have had personality clashes
with managers. There is no showing that transfers are made with any degree of
frequency because of the exigencies of the business. I notice also that a large
number of the transfers shown on the list were made between stations in the
same city rather than transfers from one city to another.
5. There is a uniform vacation policy, and all employees are covered by an
insurance policy paid for by Wickland Oil.
The General Counsel, in support of his contention that a single station-store
unit is appropriate, relies on Sav-On Drugs, Inc., 138 NLRB 1032. In that case,
the Board, considered five criteria in its determination that a separate store in a
chain can constitute an appropriate unit: ,
1. Geographicl separation. As previously stated, Respondent Freeway operates
combination station-stores under 'the trade name of King Dollar in Redding, Red
Bluff, and Chico, California. Only in Chico does it operate more than one. There
are two in that city. The other four King Dollar stations, one-in Redding, one in
Red Bluff, one in Orland, and one in Paradise, California, are' operated by Sure
Save Stations, Inc., which was not made a party to these proceedings. Although
Respondent alleges that all eight King Dollar stations constitute the only appro-
priate unit, it did not move to join that corporation as an interested party, and the
latter might well object to an order combining, its stations with those of another
corporation in a bargaining unit without being formally notified in advance and
joined as a party. However, even if the nonjoinder would present no problem, I
see no satisfactory reason for saying, that the stations of Sure Save must be included
in any unit determined to be appropriate. Only in Redding and Red Bluff do sta-
tions of the two corporations coexist. No close relationship between-the stations
of each in Redding and Red Bluff is shown, so the mere physical' duplication of
14 The manual states : "The company has a long-range policy on bonuses and profit shar-
ing and expects each manager to accept the duties and responsibilities of station manage-
ment as if he were in business for himself, since he has a stake in the efficiency and prof-
itable operation of his store and station."
WICKLAND OIL COMPANY 481
stations there is not an element deserving special weight. The Redding station of
Freeway and that of Sure Save are more than a mile apart. Station 21, the Redding
station of Freeway here involved, is 32 miles from Red Bluff, about 70 miles from
Orland, where Respondent's main office, is located, 74 miles from Chico where
the other Freeway stations are located. Such distance is as much or more than
existed between individual stores in other cases where the Board found a unit of
one store of a chain to be appropriate.15
2. Bargaining history. There is no bargaining history at any of the King Dollar
stations and no labor organization is presently seeking a larger than one station
unit.16
-3. Local autonomy. It appears, that, although some centralized control is main-
tained at Orland over the several stations and stores, there also exists a sub-
stantial degree of autonomy in the day-to-day operations of each station, as pre-
viously shown. Although Respondent has some uniformity as to starting wages,
I deduce that there is no automatic increase on a progression based on length of
service. Each manager has authority to determine when to recommend an employee
for an increase, supposedly on merit, but since a manager receives a bonus meas-
ured by profit, he could well be disposed to give as few increases as possible.
4. Community of interest. As previously found, employees of one station have
little contact with employees of other stations. The nearest thing to such contact
apparently occurs when, after a merchandising contest, several attendants of the
losing station take over operation of the winning station for a short time while
employees of the latter are receiving their bonus dinner. Evidence of transfer of
employees between stations fails to show that Respondent transfers employees at
will to accommodate business needs, even though some employees have, for some-
times unrevealed reasons, worked at different periods of time at other stations.
On all the evidence, I find no such community of interest exists between employees
at different stations to make a single station inappropriate. While the circum-
stances are such that a unit of four or even eight stations might not be inappro-
priate I find that a unit of a single station is appropriate in view of evidence here-
tofore outlined.17
2. The Union's majority
In the appropriate unit, the Union had authorization cards signed by all
employees on May 4, 1965. The Respondent contends that two of these cards
were procured by misrepresentation by Fraser that the signer would get $2.375 an
hour if he signed the card. It is not logical that Fraser would attempt to speak
authoratatively about a specific wage. Furthermore, neither Sills nor Willey, the
two involved, appeared to me to be gullible enough to take any such representa-
tion as a fact. They did not sign at once upon such representation, if made, and
Fraser was not present when they signed. Willey in a later portion of his testi-
mony, disclosed the inaccuracy of the misrepresentation claim by indicating that
what Fraser had said was that eventually they would get that rate. I find that their
cards should be counted. In any event, even if the cards of Sills and Willey were
excluded, that would not alter the fact that the Union represented a majority of
the employees in the appropriate unit on May 10 and 14, 1965, when the Union
made its request to Lee for recognition, and it still had a majority on May 15,
1965, when Weingartner telephoned Sammis and requested recognition. I find that
at all times material hereto the Union represented an uncoerced majority of the
employees at station 21.
3. The request and refusal to bargain
Respondent's answer denied the allegation of the request to bargain contained
in the complaint, but Respondent's brief makes no reference to the request to bar-
15Merner Lumber and Hardware Company, 145 NLRB 1024, enfd. 345 F 2d 770 (C.A. 9),
cert. denied 382 U.S 942; Frisch's Big Boy Ill-Mar, Inc., 147 NLRB 551; J. W. Mays,
Inc., 147 NLRB 968; Primrose Supermarket of Salem, Inc, 148 NLRB 610, enfd. 353 F 2d
675 (C.A. 1), cert. denied 382 U.S 830.
'('For this reason, the case at hand differs from those cited by Respondent in its brief in
support of a company-wide unit : Meijer Supermarkets, Inc, 142 NLRB 513; Mary Carter
Paint Co., 148 NLRB 46.
17 McCoy Co., 151 NLRB 383 ; Sun Drug Co., Inc, 147 NLRB 669, enfd. 359 F 2d 408
(C.A. 3) ; Duluth Avionics, 156 NLRB 1319; John C. Stalfort & Sons, Inc., 156 NLRB
847; L. D. Caulk Company, 158 NLRB 423.
264-188-67-vol. 161-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain or to its sufficiency. I find that the Union's letter dated May 5, 1965, and
delivered to Manager Lee on May 10, 1965, with a claim of majority represen-
tation was an unequivocal request to bargain in an appropriate unit.18
In the absence of proof of unfair labor practices, the Respondent's rejection of
proof of the Union's majority by card check by an impartial person on May 24 and
25, 1965, and its expressed desire on May 25 for a Board-conducted election might
not have sufficed to constitute a refusal in bad faith to recognize the Union.19
However, here, both before and after the May 24 meeting , the Respondent under-
took to wean the employees from the Union by offers, promises, or assurances
of wage raises. The timing of these promises, after the employees had authorized
the Union to represent them, especially those to Street and Freed, for whom Lee
had earlier rejected requests for wage increases , taken in conjunction with Lee's
other expressions of concern over the union organization, make it reasonably
deducible that the wage increases were offered by Respondent to induce a change
in the employees' desire for union representation before the holding of an election.
A further example of undermining the Union is evidenced by Respondent's bar-
gaining individually wi'h Sills and Freed about their wages, whereby Respondent
succeeded in causing them to abandon the strike. Even though Sills and Freed
initiated the conversation with Morris about returning to work, it is obvious that
they were interested in returning to work only if they were assured of a wage
increase. Morris not only assured them of an increase but bargained individually
with Sills to the exclusion of his designated collective- bargaining representative,
the Union. By inducing Sills and Freed by assurances of wage increases to aban-
don the strike, the Respondent succeeded in breaking the strike. Such promises of
wage increases to the exclusion of the designated bargaining representative con-
stitutes interference, restraint, and coercion in violation of Section 8(a)(1) of the
Act.20 Considering the Respondent's refusal to recognize and bargain with the
Union in the light of such conduct, I find that Respondent's insistence upon an
election was not prompted by a good-faith doubt of the Union's majority, and as
pointed out before, Respondent's contest of the unit appears to have been an
afterthought. Accordingly, I find that the Respondent refused to bargain with the
Union in violation of Section 8(a)(5) of the Act21 Considering also Lee's unbe-
lievable testimony that he failed to notify his superiors of the Union's request for
recognition and other evidence tending to prove an effort to avoid a reply to the
Union, I believe that Respondent's refusal to bargain might well be dated from
May 10, 1965, although it was not expressed in words until May 25, 1965.
C. Discrimination
The Union's strike publicity established the fact that at least one of the reasons
for the strike at station 21 was the Respondent's refusal to recognize the Union as
the collective-bargaining representative of the employees there. Since I have found
that the Respondent committed an unfair labor practice in refusing to recognize the
Union, and that this was a cause of the strike, I find that the strike was an unfair
labor practice strike and that Street and Thompson had a right, at the end of the
strike, upon making an unconditional request for reinstatement, to reinstatement
whether or not they had been replaced during the strike.
However, even if the strike were found to be exclusively an economic strike, I
should not agree with the Respondent's contention that Street and Thompson had
been replaced before they made application for reinstatement. True, two employees
had been hired during the strike, but nothing marks those employees as specifically
filling the jobs of Street and Thompson-jobs that were not unique-any more than
it marks the new employees as filling the jobs of Fraser and Black, who had been
earlier terminated and who had not, apparently, yet been replaced. The very fact
that four additional employees were hired for station 21 during the month of June
1965, after a refusal to reinstate Street and Thompson, belies any claim that Street
18 Superior Rambler, 150 NLRB 1264; James Thompson & Co., Inc., 100 NLRB 456,
462; The Cuffman Lumber Company, Inc , 82 NLRB 296
19 John P. Serpa, Inc., 155 NLRB 99; Strydel Incorporated, 156 NLRB 1185; Aaron
Brothers Company of California, 158 NLRB 1077
20 Stark Ceramics, Inc., 155 NLRB 1258; Lincoln Bearing Company, 155 NLRB 1141;
Russell-Newman Mfg. Co., Inc, 153 NLRB 1312
21 Merrill Engineering Laboratories , 158 NLRB 1113 • Lake Butler Apparel Company,
158 NLRB 863, and cases there cited, llidioesie,a llanufactniing Company, Inc, 158
NLRB 1698.
WICKLAND OIL COMPANY 483
and Thompson were already replaced. At least three of those new employees hired
in June were hired shortly enough after the refusal to reinstate 'Street and Thomp-
son to warrant an inference that the Respondent actually needed employees when
Street and Thompson were being denied employment.22
Although Respondent apparently takes the position that the unconditional applica-
tion for reinstatement was defective because Street and Thompson did not make
personal application, I find that the Union was -their authorized representative and
that the Union made unconditional application for their reinstdtement, both by
verbal demand made to Manager Morris and by written letter sent to Respondent's
last legal representative, and that a personal application was unnecessary.23
I conclude and find that , by refusing to reinstate Street and Thompson, the
Respondent discriminated in regard to their hire and tenure of employment in vio-
lation of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By questioning employees about their union activities and by offering them
wage increases at a time when Respondent was under obligation to bargain with
the Union, the Respondent has interfered with, restrained, and coerced its employ-
ees in the exercise of their rights guaranteed by Section 7 of the Act, in violation
of Section 8(a)(1) of the Act.
4. By discriminating in respect to the hire and tenure of employment of Dalene
Thompson (Linebarger) and Don Street, the Respondent has discouraged member-
ship in a labor organization in violation of Section 8(a)(3) of the Act.
5. All employees at Respondent's Highway 44 station and store (station 21) in
Redding, California, excluding guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
6. On May 4, 1965, and at all times material thereafter, the Union has repre-
sented a majority of the employees in the unit described in paragraph 5 above, and
by virtue of Section 9(a) of the Act has been the exclusive representative of all
said employees for the purposes of collective bargaining since that date.
7. Although on May 10, 1965, and continuing thereafter, the Union has requested
the Respondent to bargain collectively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, the Respondent at all
times since May 10 , 1965, has refused and continues to refuse to recognize the
Union or to bargain with it as the representative of all the employees in the unit
hereinabove described, thereby violating Section 8(a)(5) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
I recommend an order that Respondents Wickland Oil Company and Freeway Oil
Company d/b/a King Dollar, their officers, agents , successors , and assigns, shall:
1 Cease and desist from:
(a) Interrogating employees with respect to their union activities and from offer-
ing employees wage increases or other benefits as inducement to forgo union mem-
bership or activity.
(b) Discouraging union membership in Retail Clerks Union, Local 1364,
Retail Clerks International Association, AFL-CIO, or any other labor organization
of its employees, by discriminating against any of its employees in regard to hire,
tenure of employment, or any term or condition of employment except as author-
ized in Section 8(a)(3) of the Act.
(c) Refusing to bargain collectively with Retail Clerks Union, Local 1364,
Retail Clerks International Association, AFL-CIO, as the exclusive representative
of all employees at Respondent's Highway 44 station and store (station 21) in Red-
ding, California, excluding guards and supervisors as defined in the Act.
22 See Marydale Products Company, Inc., 133 NLRB 1232.
21 N.L.R.B. V. I. Posner, Inc., 304 F.2d 773 (C.A. 2) ; Mooney Aircraft, Inc., 132 NLRB
1194; Elmira Machine & Specialty Works, Inc., 148 NLRB 1695.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
join or assist Retail Clerks Union, Local 1364, Retail Clerks International
Association, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Don Street and Dalene Thompson immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges and make them whole for any loss they may
have suffered as the result of discrimination by paying them an amount equal to
that which they would have earned in Respondent's employ between June 1, 1965,
and the date of Respondent's offer of reinstatement, less the net earnings of each
during said period, the backpay to be computed on a quarterly basis in the same
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
and said amount to accumulate interest at the rate of 6 per cent per annum as pre-
scribed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
(b) Notify each of the above-named employees if presently serving in the Aimed
Forces of the United States of America of his right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to an
analysis of the amount of backpay due under the terms of this Recommended
Order.
(d) Upon request, bargain collectively with Retail Clerks Union, Local 1364,
Retail Clerks International Association, AFL-CIO, for the unit herein found appro-
priate, and, if an understanding is reached, embody such understanding in a signed
agreement.
(e) Post at its station and store on Highway 44 at Hilltop Road (station 21) in
Redding, California, copies of the attached notice marked "Appendix A." 24 Copies
of said notice, to be furnished by the Regional Director for Region 20, after having
been duly signed by Respondent's representative shall be posted immediately upon
receipt thereof, and be maintained by Respondent for 60 consecutive days from the
date of posting, in conspicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken to ensure that such
copies of the notice are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondent has taken to comply
herewith 25
21 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
=In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Retail Clerks Union, Local 1364,
Retail Clerks International Association, AFL-CIO or in any other labor organi-
HESMER FOODS, INC. 485
zation, by discriminating in regard to the hire or tenure of employment of any
of our employees or in regard to any term or condition of employment.
WE WILL NOT in any manner interfere with , restrain , or coerce our employ-
ees in the exercise of their right to self -organization , to join or assist said
Union or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in any other concerted activ-
ities for the purpose of collective bargaining , or other mutual aid or protection,
or to refrain from any and all such activities except to the extent that such
right may be affected by an agreement made in conformity with Section
8(a)(3) of the National Labor Relations Act, as amended.
WE WILL offer to Don Street and Dalene Thompson (Linebarger) imme-
diate and full reinstatement to their former or substantially equivalent position
without prejudice to their seniority or other rights and privileges , and WE WILL
make them whole for any loss they may have suffered as the result of the dis-
crimination against them.
WE WILL bargain upon request with Retail Clerks Union, Local 1364, Retail
Clerks International Association, AFL-CIO, and if an understanding is reached
WE WILL embody such understanding in a signed agreement.
WICKLAND OIL CO. & FREEWAY OIL CO., D/B/A KING DOLLAR,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees , or either of them , if pres-
ently serving in the Armed Forces of the United States of America of their right
to full reinstatement upon application in accordance with the Selective Service Act
and the Universal Military Training Service Act, as amended, after discharge from
the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco , California
94102, telephone 556-3197.
Hesmer Foods , Inc. and Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO. Case 25-CA-2354.
October 26, 1966
DECISION AND ORDER
On May 6, 1966, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief and the General Counsel
filed a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
161 NLRB No. 45.