Lees Shopping Center, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1972

198 N.L.R.B. 507 (N.L.R.B. 1972)

LEE'S SHOPPING CENTER, INC. 507
Lees Shopping Center, Inc. and Meat Cutters' Union,
Local No. 88, a/w Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO
and Retail Store Employees' Union, Local No. 655,
a/w Retail Clerks International Association,
AFL-CIO
Lees Shopping Center, Inc., and Lees and Associates,
Inc., and W. Glenwood Lees d/b/a Lees Service
Station and Retail Store Employees' Union, Local
No. 655, a/w Retail Clerks International Associa-
tion , AFL-CIO. Cases 14-CA-6211-1,
14-CA-6211-2, and 14-CA-6211-3
July 28, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On March 29, 1972, Trial Examiner Harold X.
Summers issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, and findings,2 and conclusions3 and to adopt
his recommended Order as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified herein
and orders that Respondents Lees Shopping Center,
Inc., Farmington, Missouri, Lees and Associates,
Inc., and their officers, agents, successors, and
assigns, and W. Glenwood Lees, d/b/a Lees Service
Station, Farmington, Missouri, and his agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order, as
herein modified:
1. Delete the period at the end of paragraph 1(b)
and insert thereafter: "their shopping center in
Farmington, Missouri."
2. Substitute the following for paragraph 2(b):
"(b) Offer to Rosemary Blum, Wanda Blum,
Katherine Beard Burnia, Sandra Ely, Stephen Hager,
Patsy Hendon, Lena Johnson, Elvie King, Alberta
Racer, Vern Westenhoefer, Nancy Zavala, Donald
Blum, and Jewell Gibson reinstatement to their
former or substantially equivalent positions at the
restaurant and/or gas station if the Respondents
reopen either of them at their shopping center at
Farmington, Missiouri; otherwise offer the said
employees reinstatement at the existing operations at
the said shopping center in any jobs for which they
may be qualified, without loss of seniority or other
rights or privileges, dismissing, if necessary, any
persons hired after the discharge of the above-named
employees and distributing available positions with-
out discrimination against any employee because of
union affiliation or activities, following the system of
seniority, if any, customarily applied in the conduct
of the Respondent's business; and create a preferen-
tial hiring list containing the names of any employees
above named for whom there are not sufficient job
openings and, as job openings occur thereafter, offer
reinstatement to said employees to any jobs for
which they may be qualified."
3. Substitute the following for paragraph 2(d):
"(d) Make such individuals whole for any loss of
earnings suffered by reason of the discrimination
against them from the date of the termination of
their employment until the fulfillment of the obliga-
tion imposed in paragraph 2(b), above, in the manner
set forth in the section of the Trial Examiner's
Decision entitled `The Remedy.' "
4. Substitute the attached notice for the Trial
Examiner's notice.
i The Respondents have requested oral argument This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties
2 The Respondents have excepted to certain credibility findings made by
the Trial Examiner it is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
We adopt the Trial Examiner's recommended bargaining order as an
appropriate remedy for the Respondents' flagrant, widespread unfair labor
practices in violation of Sec 8(a)(l) and (3), N LR B v Gissel Packing
Company, 395 U S 575, 615, and therefore find it unnecessary to consider or
pass upon his finding that because they did not doubt the Union's majority
the Respondents unlawfully refused to bargain with the Union
3 The Trial Examiner recommended that the discriminatees be reinstated
if the Respondent should institute any restaurant and/or service station and
that meanwhile they be placed on a preferential hiring list for any further
vacancies in Respondent's existing operations in jobs they are capable of
performing However, reinstatement to restaurant and/or service station
jobs should properly be limited to such operations at the shopping center at
Farmington, Missiouri, but in view of the findings herein, we deem
appropriate that the discrimmatees be offered immediate reinstatement in
any jobs for which they may be qualified in the existing operations without
loss of seniority or other rights or privileges, and that the Respondents be
required to dismiss any persons hired in any such jobs after the unlawful
termination of the discriminatees, and shall so order
198 NLRB No. 73
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Amalgamated Meat Cutters, Local 88 or in Retail
Clerks. Local 655, by discriminating in regard to
hire, tenure, or other condition of employment.
WE WILL NOT close down any of our operations
because employees in those operations may
choose to be represented by a labor organization
and in order to discourage the unionization of
any of our other employees.
WE WILL NOT refuse to bargain collectively
with Retail Clerks, Local 655, as the exclusive
bargaining agent of all nonsupervisory restaurant
and food-dispensing employees in any restaurant
or food-dispensing service which we may operate
in the future at our shopping center in Farming-
ton, Missouri.
WE WILL NOT ask employees about their
contacts or acquaintanceship with, or their
knowledge as to activities of, union representa-
tives; ask employees to report the presence of
union representatives on our premises; give
employees the impression that we are watching
them with respect to their union activities or that,
if they should choose a union to bargain for them,
prounion employees might be subjected to special
surveillance; imply to employees that if they
choose a union as their bargaining agent there
might be layoffs or discharges; threaten employ-
ees that we would or might close any of our
operations if they choose a union as their
bargaining atent, or grant any wage increases in
order to induce employees to resist becoming
organized by a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to organize; to form, join, or
assist a labor organization; to bargain collectively
through a bargaining agent chosen by them; to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection; or to refrain from any such
activities except as the right to refrain may be
limited by the lawful enforcement of a lawful
union-security clause.
WE WILL offer Rosemay Blum, Wanda Blum,
Katherine Beard Burnia, Sandra Ely, Stephen
Hager, Patsy Hendon, Lena Johnson, Elvie King,
Alberta Racer, Vern Westenhoefer, Nancy Zava-
la, Donald Blum, and Jewell Gibson reinstate-
ment to their former or substantially equivalent
positions at the restaurant and/or gas station if
we reopen either of them at our shopping center
at Farmington, Missouri; otherwise WE WILL
offer the said employees reinstatement at the
existing operations at the said shopping center in
any jobs for which they may be qualified, without
loss of seniority or other rights or privileges,
dismissing, if necessary, any persons hired after
the discharge of the above-named employees and
distributing available positions without discrimi-
nation against any employee because of union
affiliation or activities, following the system of
seniority, if any, customarily applied in the
conduct of our business; and WE WILL create a
preferential hiring list containing the names of
any employees above named for whom there are
not sufficient job openings and, as job openings
occur therefafter, offer reinstatement to said
employees to any jobs for which they may
qualify.
WE WILL pay the above-named employees for
any loss suffered because of our discrimination
against them, for the period from the closing of
their respective operations until we offer them
reinstatement or place them on a preferential
hiring list for any openings on jobs they can
perform, or until they procure substantially
equivalent employment elsewhere, whichever
occurs first.
LEES SHOPPING CENTER,
INC., LEES AND
ASSOCIATES, INC., AND
W. GLENWOOD LEES,
D/B/A LEES SERVICE
STATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 210 North 12th Boulevard, Room
LEE'S SHOPPING CENTER, INC. 509
448, St . Louis, Missouri 63101, Telephone
314-622-4142.
TRIAL EXAMINER'S DECISION
HAROLD X. SUMMERS, Trial Examiner: In this proceed-
ing, the General Counsel of the National Labor Relations
Board (herein called the General Counsel and the Board,
respectively) issued a complaint' alleging that Lees
Shopping Center, Inc. (referred to herein as Respondent
Center), Lees and Associates, Inc. (referred to here as
Respondent Associates), and W. Glenwood Lees, d/b/a
Lees Service Station (referred to herein as Respondent
Station) had engaged in and were engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act (herein called the Act),
which complaint was amended in certain respects at the
hearing herein. The answer to the complaint, as amended,
admitted some of its allegations and denied others; in
effect, it denied the commission of any unfair labor
practices. Pursuant to notice, a hearing was held before me
at St. Louis, Missouri, on August 23 and 24, 1971; all
parties were there afforded full opportunity to call,
examine, and cross-examine witnesses and to argue orally
and thereafter to submit briefs.
At issue were questions as to (1) whether the three
Respondents constitute a single employer for the purposes
of the assertion of jurisdiction, of unfair labor practice
liability, and of responsibility for remedying any unfair
labor practices found; (2) whether the Respondents, jointly
or severally, independently interfered with, restrained, or
coerced employees in the exercise of self-organizational
rights guaranteed them by the Act; and (3) whether the
Respondents, jointly or severally, discontinued a restau-
rant operation and a service station operation, thereby
terminating the employment of a number of named
individuals, because those individuals had joined or
assisted one of the two Unions who filed unfair labor
practices charges herein and/or to discourage other
employees from joining or assistang this Union or any
other union. At issue also were questions of (4) whether
one of the Charging Unions represented a majroity of the
employees in an appropriate bargaining unit; and (5)
whether, under the circumstances, an order upon any or all
of the Respondents to bargain with this Union is an
appropriate remedy.
Upon the entire record in the case,2 including my
evaluation of the witnesses based upon my observation of
their demeanor, and upon due consideration of briefs filed,
I make the following:
FINDINGS OF FACT
1. THE EMPLOYER(S)
At the outset-because it cuts across questions of
jurisdiction, liability for any unfair labor practices, and
I The complaint was issued on June 21, 1971 The unfair labor practice
charges initiating the proceeding, Cases I4-CA-6211-1 and 14-CA-6211-2,
were filed on April 23, 1971, and an additional charge, Case 14-CA-6211-3,
was filed on May 20, 1971, and amended on June 16, 1971
2 By order issued December 1, 1971, 1 made certain corrections in the
transcript
remedy, if one is called for-the issue of whether or not the
three Respondents herein constitute a single employer
must be dealt with.
The General Counsel contends that, at all times material
herein, the three Respondents have operated affiliated
businesses with common ownership, officers, and manage-
ment, they have constituted a single integrated enterprise,
and their officers and management have formulated and
administered a common labor policy-in short, that they
should be regarded as a single employer for purposes of
this proceeding.
The Respondents, jointly and severally, deny that they
have operated affiliated businesses with common owner-
ship, officers, and management, that they have constituted
a single integrated enterprise, that their officers and
management formulate and administer a common labor
policy. They deny that they constitute a single employer
for purposes of the Act. They contend, on the contrary,
that theirs are separate enterprises, with separate boards of
directors insofar as the two corporate Respondents are
concerned, and that, for all purposes of this Act, the three
are and should be considered to be separate employers.
In 1955, with W. Glenwood Lees as its president,
Respondent Center was incorporated for the purpose of
operating a supermarket and a locker plant. The corpora-
tion purchased property at 1014 St. Genevieve Avenue, in
Farmington, Missouri, property on which the supermarket
building was located; in addition, land to the west of the
building, owned by Lees and his wife, was leased from
them by Respondent Center to be used as parking space
for customers of the market.
The locker plant operation3 led the supermarket into the
sale of freezers and, eventually, of other appliances. In
1957, television sets were adeed to the line, and the health
and beauty aids section expanded into a pharmacy
department. At or about this time , the building was
enlarged, on additional ground purchased by Respondent
Center from Mr. and Mrs. Lees; it then assumed its present
size, approximately 154 by 156 feet.
During or about 1958, it was decided by Lees and his
associates to go into additional businesses at the shopping
center location-a restaurant and automobile service
station-and, for this purpose, Respondent Associates was
formed, again with Lees as its president. A 25 by 40-foot
space was partitioned off within the supermarket building
for the restaurant; likewise, a small area was partitioned
off for the office of the service station, and gas pumps were
placed outside the office. Thereupon, Respondent Associ-
ates took over the responsibility for these two new
operations.
The only relevant change during the ensuing l l years4
was the fact that, in 1961 or 1962, the rentals charged for
the restaurant and the service station were reduced.
In October 1969, by a resolution of its board of directors,
Respondent Associates discontinued its operation of the
service station, and Respondent Center looked for some-
3 This record does not reveal further details about the locker plant The
use of the past tense in certain answers given on the witness stand indicates
that Respondent Center no longer operates the plant
4 Within this period, Lees had financial interests in other enterprises,
e g, Great Western Wholesale Meat Company and Des Loges Appliances,
which are not involved herein
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one else to lease the space. In January 1970, an unrelated
partnership leased the space and operated the service
station. Three months later, the partnership sold its
merchandise to one Len Hammers and worked out an
arrangement for Hammers to take over its lease; he
operated the station for approximately a year and then,
because he could not pay his bills, he went out of business.
Thereafter, starting on March 20, 1971, Glenwood Lees
took upon himself (as Respondent Station) the operation
of the service station.
On May 19 and 21, 1971, respectively, the restaurant and
the service station were closed down, under circumstances
with which, among other things, this case is concerned.
During the period pertinent herein, March, April, and
May 1971, the complex at St. Genevieve Avenue was the
location of the main offices and principal operations of all
three Respondents' enterprises.5 W. Glenwood Lees was
president of Respondent Center, and its other officers were
Donald K. Cheesebrough (Lees' brother) and Mary Louise
Lees (his wife); Lees owned 99 percent of the stock in the
corporation, and the remainder was owned by Cheeseb-
rough and Mrs. Lees. With respect to Respondent
Associates, Lees was president, R. F. Stoker was vice
president, and Donald Cheesebrough was secretary-treas-
urer, the three also constituting the board of directors; 6
Lees owned five-sevenths of the stock of the corporation
and the remainder was owned by Stoker and Cheeseb-
rough. As has been indicated, Glenwood Lees was the sole
proprietor of Respondent Station.?
The parties introduced testimony as to a number of
factors bearing upon the relationship between the three
Respondents. Although there was a substantial amount of
interchange of duties among the nonsupervisory employees
within the supermarket, there was no such interchange as
between the supermarket, the restaurant, and the service
station.8
The picture with respect to the interchange or overlap-
ping of supervision is somewhat more mixed. Lees, in
addition to his various capacities above described, was and
is general manager of the supermarket, among other things
exercising the powers of hiring and discharging its
employees and of deciding upon wages paid. Under him,
there were a number of department heads, in groceries,
produce, pharmacy, and meats. The first three, under Lees'
supervision, did most of the buying in their respective
departments; because the meat department head was
comparatively new, Lees did most of the buying for that
department, and he himself bought all the television sets
and most, if not all, of the other appliances sold in the
5 It also housed the main offices of Southern Acceptance Corp, Inc , a
corporation formed in 1955
6 Stoker is not related to Lees, nor is he involved in the daily operations
of any of the enterprises at the shopping center He is president of Great
Western Wholesale Meat Company, an enterprise in which Lees had but no
longer has a financial interest
° During the same period, Lees was also president of Southern
Acceptance and of its several wholly owned subsidiary corporations whose
principal offices were elsewhere There is no contention or evidence that,
except for the coincidence of Lees' financial interest, the Southern
Acceptance corporations should be linked with the Respondents for
purposes of this proceeding
B 1 do not regard as exceptions to this statement the fact that, after the
restaurant closed down under circumstances with which this case is
supermarket. The head of the meat department was
Donald Cheesebrough, who has been mentioned as an
officer of Respondent Center and as an officer and
director of Respondent Associates. In his day-to-day
activities, he had nothing to do with the operation of the
restaurant.
George Keown was the operating manager of the
restaurant, responsible, under Lees, for its day-to-day
operations. This was a full-time task; in addition to
supervising directly the employees of the restaurant, he did
all of its buying, and he performed no duties for the
supermarket. Lees, who spent 50 to 70 percent of his
working hours in the supermarket, would, on occasion, go
into the restaurant and operate the cash register for 15 or
20 minutes at a time; while in the restaurant, he might tell
an employee to do something, but this was the exception
rather than the rule. On the other hand, on the basis of
testimony with respect to the giving of a wage increase to
restaurant employees in April 1971, I find that Keown had
to clear with Lees with respect to the granting of wage
increases. Finally, I note that Lees, along with Cheeseb-
rough, signed checks for Respondent Associates, while
Keown did not. As for the service station, Lees was its only
supervisor.
All dealings between the three entities were, on the
surface, at arm's length. The restaurant made some of its
purchases on the outside, but it bought almost all of its
food items from the supermarket. The actual buying would
be done by Keown or, on occasion, by one of the
restaurant employees designated by him. He, or his
designee, would go through the supermarket picking out
needed items. As for many purchases, his price was the
same as that to the public; as for others, the same quantity
discounts were given as were given to outside restaurants
who made purchases at the supermarket. Items would be
paid for in cash at the checkout counters or, in the case of
certain purchases of meat or produce, would be charged to
Respondent Associates on a short-term basis.9
The restaurant maintained its own cash register, bank
account, and books. The books were kept by employees
who worked in offices on the mezzanine of the supermar-
ket building and who were employed by Respondent
Center; these same employees maintained the records of
the service station.1° Lees, testifying at this hearing, said he
did not know whether there was an allocation of costs for
the bookkeeping services rendered for companies other
than Respondent Center, and no witness called by
Respondents testified to the contrary; moreover, in the
various profit-and-loss statements in this record, there is no
concerned, the manager of the restaurant for the preceding 7-1/2 years
became a general clerk in the supermarket , nor the fact that one individual,
Donald Blum, worked for all three enterprises within a period of 45 days
9 In former years , there had been an indefinite - term running account of
financial dealings between Respondent Center and Respondent Associates,
but the amount owed by the latter became so great that the board of
directors of Respondent Center discontinued the practice Thereafter,
Respondent Associates paid cash for most of its purchases, settled its meat
and produce charges weekly, and paid its rental monthly
io In addition, these employees have, through the years, kept the books
for other of Lees' interests-Des Loge Appliances, Great Western
Wholesale Meat Company , and the rentals for the various parcels of real
estate he owned
LEE'S SHOPPING CENTER, INC. 511
mention of this item. Consequently, I find that there were
no charges made for such work. On the other hand, most of
the time of these clerical employees was occupied by
services for Respondent Center; the rest of their work was
"negligible."
In its advertising, in newspapers and on billboards, the
products and services of all three enterprises were offered
to the public without relevant differentiation. Indeed,
outsiders regarded the entire complex as comprising the
"Lees Shopping Center." Respondent Associates' tele-
phone was an extension of that of Respondent Center, and
phone calls would be answered by the greeting "Lees
Shopping Center". (The pharmacy has a separate tele-
phone line.) There was no telephone at the service station.
The business hours of the supermarket were 8 a.m. to 8
p.m. The restaurant closed at the same hour, but it opened
earlier-at one time, at 6 a.m., but, beginning in January
1971, at 7 a.m. Customers of the restaurant included
supermarket employees, supermarket customers, and out-
siders, in proportions which, according to the testimony
herein, do not lend themselves to quantification. Entrance
to the restaurant (or to the office of the service station, for
that matter) could be effected either from the outside
parking area or from the front area of the supermarket
"outside" the checkout counters.
In passing upon the "singleness" of the three Respon-
dents herein, we must start with the fact that, on paper at
least, Respondent Center, Respondent Associates, and
Respondent Station are set up as three separate entities.
Each of the two corporations has its own charter, officers,
and board of directors; the individual proprietorship, of
course, has none of these. In line with the manner in which
the three enterprises have been set up, there is no formal
intermingling of such things as books, records, and bank
accounts; and each employee, in the discharge of his
duties, performs work only for the employer by whom he is
being paid.
One cannot, however, ignore the interlocking aspects. W.
Glenwood Lees is the titular head of all three companies,
and his financial interest amounts, respectively, to 99, 71.5,
and 100 percent of the total capitalization of each. As for
the two corporations, the other officers/directors of
Respondent Center are Lees' brother and his wife. The
former also is a director of Respondent Associates, in
which we find the only officer/director "outside the
family," a 14.3-percent stockholder whose primary interest
is in an enterprise with which Lees was formerly associat-
ed.
The interlocking character of the three Respondents
carries over into the identity of those involved in the day-
to-day management of the three enterprises. Although the
manager of the restaurant confined himself to that job (lust
as do the department heads in the supermarket),)) there is
no doubt that Lees himself actually "ran" all three
operations. His personal supervision was limited only by
the time available to him; even so, he retained final
authority for such things as the giving of wage increases.
The nature of the rental arrangements, throughout the
years and at the time of the commission of the alleged
unfair labor practices, tells something about the relation-
ship of the Respondents. Respondent Center leased the
parking space serving the complex-at a rental unmen-
tioned in this record-from Lees and his wife; and
Respondents Associates, although its customers used the
same parking space, assumed no share of the rental. The
rents paid by Respondent Associates to Respondent
Center for its restaurant and service station were originally
fixed at $200 each, a figure which, for each parcel, was
voluntarily cut to $100 in 1961 or 1962 and was never
raised thereafter. This rental, on Lees' own testimony,
differed from that which was charged to intervening
"outside" operators of the service station, was substantially
less than would have been charged to other outsiders for
either space, and was lower than square foot rentals
prevailing in Farmington. After Respondent Associates
discontinued its operation of the service station in October
1969, it paid no rent whatsoever to Respondent Center for
the station space, although it kept its inventories there for
at least 3 months. And, finally, when Lees himself took
over the operation of the service station (as Respondent
Station) he worked on a "verbal leasing arrangement" with
Respondent Center, at a rental not revealed by this record.
As I have found, the public regarded the entire complex
on St. Genevieve Avenue as an integrated enterprise; and I
do not believe that this conception was confined to the
public. Asked at the hearing the "primary purpose for
having all these corporation," Lees testified that
The first purposes . . . is to operate either a related
business or in a related location. . . . We, I mean
myself and my associates in business, thought it might
be wise to go into the restaurant business and also the
service station business but we felt that was more
different operations than should be handled in one
corporation... .
In a single sentence, he has demonstrated that he regards
the enterprises as "related" and that there is an identity of
decisional authority as between the different enterprises.12
In summary, based upon these factors and those recited
earlier herein, I find that regardless of the formal
arrangements W. Glenwood Lees was the dominant force
in all three enterprises, that he bears almost the entire
financial risk with respect to their operations, that his was
the dispositive voice with respect to all decisions of
substance made by the three Respondents-among other
things, those involving labor relations policy-and that
each decision with respect to any of the three enterprises
was made with due regard to the well being of the other
two. I find and conclude that, for all purposes of the Act,
Respondent Center, Respondent Associates, and Respon-
dent Station have constituted and constitute a single
employer (which, when referred to as such hereinbelow,
will be called the Joint Respondent).
11 Of passing significance is the fact that one of these department heads testified that "we" knew about an organizing campaign among the
was authorized to sign checks for restaurant expenses employees of the supermarket but "we" were unaware of any such
12 At other places in his testimony, he uses the pronoun "we" in referring campaign among the restaurant employees
to management of one or another of the Respondents For example, he
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. JURISDICTION
Respondent Center is, and has been at all times material
herein, a Missouri corporation engaged in the operation of
a supermarket at which groceries, appliances, drugs, food,
and related items are sold at retail. During the calendar
year 1970, which is a representative period, Respondent
Center, in the course of its operations, sold merchandise
valued at in excess of $500,000, and, during the same
period, it received merchandise which came directly from
points outside the State of Missouri valued at in excess of
$50,000. Respondent Center concedes, and I find, that it is
an employer engaged in commerce within the meaning of
the Act.
At all times relevant herein, until on or about May 19,
1971, Respondent Associates, a Missouri corporation, was
engaged in the operation of a restaurant. Although some of
the products it used cross state lines-its coffee purchases
alone exceeded $250 per month-its total activities did not
and do not meet any of the standards set by the Board for
the assertion of jurisdiction under the Act; the General
Counsel concedes, and I find, that, taken alone, Respon-
dent Associates is not an employer engaged in commerce
within the meaning of the Act. From on or about April 1,
1971, until on or about May 21, 1971, Respondent Station,
an individual proprietorship, was engaged in the retail sale
of gasoline and related petroleum products. Its own
activities did not and do not meet any of the standards set
by the Board for the assertion of jurisdiction under the
Act; the General Counsel concedes, and I find, that, taken
alone, Respondent Station is not an employer engaged in
commerce within the meaning of the Act.
Having found, however, that the three Respondents
constitute a single employer for all purposes under the Act,
I find that the three of them collectively, the Joint
Respondent, are an employer engaged in commerce within
the meaning of the Act.
III. THE UNIONS
The Charging Party in Case 14-CA-6211-1, Meat
Cutters' Union, Local No. 88, a/w Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO (hereinafter called the Meat Cutters), and the
Charging Party in Cases 14-CA-6211-2 and
14-CA-6211-3, Retail Store Employees' Union, Local No.
655, a/w Retail Clerks International Association, AFL-CIO
(hereinafter called the Retail Clerks), are labor organiza-,
tions within the meaning of the Act.
13 The Meat Cutters was granted recognition when it claimed that a
majority of the meat department employees had signed bargaining
authorization cards, but this record contains no evidence as to how the
Retail Clerks achieved its bargaining status nor does it further define the
unit which had been represented by that organization
14 Three or four of the clerks had approached Lees and, saying that they
did not like the representation they were getting from the Retail Clerks,
asked what they could do to get rid of the organization He advised them
that they would have to file a petition with the Labor Board and ask for an
election As a result of this conversation , two of them went to the Board's St.
Louis offices and filed the necessary forms
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, Setting, and Chronology of
Relevant Events
Commencing during or about 1958, certain employees of
Respondent Center had been represented for collective-
bargaining purposes by one or the other of the labor
organizations involved herein. The Meat Cutters and the
Retail Clerks were recognized by Respondent Center as the
exclusive bargaining agents of the meat department
employees and of the rest of the supermarket employees,
respectively.13 During 1961, one or more of the supermar-
ket nonmeat-department clerks filed a "decertification
petition" with the Board 14 and, in the ensuing election, the
Retail Clerks was ousted as the clerks' bargaining agent. In
1964 or 1965, a decertification petition was filed with
respect to the Meat Cutters,15 but, before any formal
action could be taken, the Meat Cutters voluntarily
disclaimed its right to represent the meat department
employees and it was decertified.
Thereafter, for a number of years, none of the employees
at the shopping center was represented by a union, and,
insofar as is revealed by this record, no union made any
organizing attempt among them.
As of the beginning of 1971,16 Respondent Center
employed approximately 20 persons in the supermarket, a
figure which included 4 in the meat department, and
Respondent Associates employed approximately 12 in the
restaurant. As earlier noted, the service station, at this time,
was not yet being operated by Respondent Station. ,
Late in February, in the course of the ratification of a
collective-bargaining contract between the Retail Clerks
and a competitor of Respondent Center, some of the
individuals there involved informed agents of the Retail
Clerks that employees at Lees shopping center had
expressed an interest in representation by a union. Officials
of the Retail Clerks met with their opposite numbers in the
Meat Cutters to discuss the possibility of making a new
organizing effort at Lees', and it was decided that a joint
campaign would be launched-the Meat Cutters would
seek to interest meat department employees in unioniza-
tion, and the Retail Clerks would work among the other
employees.
Sometime that month, a representative of the Meat
Cutters made contact with Ed Gibson, an employee in the
meat department at the supermarket.17 Gibson was
persuaded to sign a union authorization card, and he took
other cards for use by the other three meat department
employees. Insofar as is revealed by this record, he was
successful in procuring the signature of but one individual.
On March 8, two representatives of the Retail Clerks
15 At that time, there were only three employees in the meat department
Glenwood Lees asked one of them, Ed Gibson, if he knew that the Meat
Cutters' contract had expired and if he had heard anything from the union
Gibson said he had heard nothing and he asked how the meat department
employees could get rid of the union Lees told Gibson what the grocery
clerks had done and, shortly thereafter, the decertification petition was filed
i6 Unless otherwise indicated, all dates hereinafter referred to fall within
the year 1971
17 Gibson had been working in the meat department during the period of
the Meat Cutters prior representation of Respondent Center's meat
department employees See fn 15, supra
LEE'S SHOPPING CENTER, INC. 513
went to the restaurant at Lees' shopping center. By change,
they engaged Nancy Zavala, a waitress, in conversation;
they told her who they were and what they were trying to
do, and they suggested that if she or anyone else was
interested in representation by a union, they would be glad
to make house calls. That night, they went to Zavala's
home and met with Zavala and Sandra Ely, a dishwasher
at the restaurant. They explained what they were trying to
do and they produced bargaining authorization cards.
Both of the employees signed, and Zavala, agreeing to help
in the organizing campaign, accepted some blank authori-
zation cards.
Although it had been the original plan of the Retail
Clerks to attempt to represent all nonmeat-department
employees in the Lees' complex, they decided, at this time,
to concentrate first on the restaurant; organizing these
employees, they believed, would be less difficult than
organizing the supermarket employees.
As has been indicated, Zavala and Ely signed Retail
Clerks cards on March 8 at Zavala's home. Thereafter,
Zavala spoke to employees of the restaurant about joining
the Retail Clerks. Mainly as a result of her efforts,
Katherine Beard Burnia, a waitress, signed a card on
March 9; Alberta Racer, a waitress, signed on March 20;
Rosemary Blum, a grill cook, signed on March 29; and
Wanda Blum, a dishwasher, signed on May 3. Additional
restaurant employees also signed cards-Lena Johnson, a
grill cook, on March 9; Elvie King, a cook, on March 30;
and Donald Blum, cleanup boy, on April 15.
From March 9, during the next 8 plus weeks. Zavala also
spoke to five or six supermarket employees about repre-
sentation by the Retail Clerks. From among them, it
appears that she persuaded one to sign an authorization
card.
Meanwhile, Glenwood Lees had become aware of the
existence of a union organizing drive in the shopping
center; the fact became a subject of common conversation
not only among employees but between employees and
Lees himself. There is some question as to the detailed
extent of his knowledge-I find, on his credited testimony,
that he originally thought that the movement was confined
to the supermarket employees and -was not aimed at those
in the restaurant-but there is no doubt, from events which
I find to have taken place (details infra) that he learned of
the general campaign early in March. Thereupon, he
engaged in a series of conversations with employees which,
the General Counsel contends, constitued interference with
and restraint and coercion of employees in the exercise of
their self-organizational rights. Subsequently, Restaurant
Manager Keown also spoke to certain employees, as to
which conversations the General Counsel makes the same
claim. The details of these conversations appear below.
On March 20, Lees (as Respondent Station) took over
the operation of the service station, with two employees.
(He regarded the step as a stop-gap, to last until someone
else could be found to take over.) During the period
relevant herein, no service station employee, as such,
signed a union card.18
On or about April 19, a wage increase was given to
employees of the supermarket, followed, a week later, by a
wage increase among restaurant employees. The General
Counsel contends (see infra ) that the giving of these
increases, in context constituted interference with and
restraint and coercion of employees in the exercise of their
self-organizational rights.
By letter dated May 13, the Retail Clerks claimed to
represent a majority of certain employees of Respondent
Associates and asked for recognition as their bargaining
agent, and, on the 18th, its representatives made clear that
only the restaurant employees were involved in their
request. At or about this time, Lees conducted an
investigation of sorts as to the desires of the restaurant
employees with respect to union representation. On the
19th, the Retail Clerks request for bargaining was rejected,
and, on the same day, Respondent Associates closed the
restaurant. Two days later, Respondent Station closed the
service station. These facts-details of which appear
below-constitute the bases for the General Counsel's
contentions that the Joint Respondent has unlawfully
refused to bargain with the bargaining agent of the
restaurant employees and has unlawfully terminated the
employment of the employees of both the restaurants and
the service station.
B. Management Talks to Employees
As found earlier, Glenwood Lees 19 became aware of a
union organizing campaign among employees at the
shopping center early in March. According to his testimo-
ny at this hearing, it was a "common thing" for an
employee in the supermarket not only to talk to fellow
employees, but to talk to him about a visit from a union
representative on the previous night; this happened on a
number of occasions and it was treated as "a joking
matter. . . . I may have asked employees if they had
talked with the union representatives [but] I never went
beyond that."
Lees conceded, however, that he did tell a number of-
employees of the supermarket about experiences encoun-
tered during the period in which the Retail Clerks and the
Meat Cutters had previously represented employees there,
some 10 years earlier. He explained at the hearing that he
felt that those bargaining relationships created a number of
problems, and that he believed that his present employees
ought to be aware of this fact. In substance, he testified, he
told the employees with whom he discussed the subject
that, prior to the period in question, the employees of the
shopping center had worked together "like a family"
without any problems of "attitude" or customers relations,
and the business had grown every year; after the unions
came in, however, there was complete change: there was a
lack of cooperation and, indeed, there was friction between
employees in the different departments-for example, if an
employee from one department made a suggestion to one
from another department, he was told to mind his own
business-and employees, to a point of rudeness, refused
to perform special services for customers. These were the
'" Donald Blum, who had signed a card when he was working in the
restaurant, later went to work in the service station
1e I find Lees, at all pertinent times , to have been acting as agent for the
Joint Respondent
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
things-Lees' testimony continued-that he told employ-
ees during March and April 1971; aware from his previous
experience with unions, he "carefully refrained" from
telling any employee that he could not join a union or that
he would suffer reprisals for joining a union.
To the extent Lees' above testimony stands uncontradict-
ed, I credit him. Specifically, I find that he did speak to
employees in the supermarket,20 telling them, along the
lines indicated above, of problems which arose during the
unions' period of prior representation of employees of the
supermarket.
Carol Petty, an employee who worked in the meat
department 4 days a week and in the produce department 1
day,21 testified that, on or about March 8, Lees came up to
her and said that he wanted to make her aware of some of
the problems arising when a union had been in the store.
During that period, he told her, employees could not
perform any job except that to which they were assigned
"under the union"; therefore, he continued, if a union
came in now she probably could not work her day in the
produce department. In the same conversation, he told her
about a young employee who had been working in the
supermarket at the time the union was in. "I guess
evidently he was against me, he was for the union."
Continuing, Lees said that "this boy" thought he could not
be fired for not doing his job as long as there was a union,
but (he told Petty) "Everyone can make a nustake"-and
he could watch such a person-and the boy did make a
mistake and he was fired.
Lees did not testify with respect to this specific
conversation. (In response to a question as to whether he
had told an employee of the restaurant that that employee
was either for him or against him, he denied that he ever
used "any phraseology of that nature." Obviously, this
testimony does not directly meet Petty's.) At any rate, I
credit Petty.
Dennis Bayless, a stock clerk in the supermarket,22
testified that on or about March 16 Lees spoke to him: (1)
Lees said that a union had been in the market on a
previous occasion and had not worked out-there had
been conflicts because employees had to be "specialized in
certain fields," like the meat department; (2) Lees went on
to say that, since wages would have to be competitive with
others in the area, employees would not be able to work for
a full 8 hours because "We don't have that much business
going on"; and, finally (3) Lees asked Bayless if he had
talked to any union representatives, or if he had heard
about them, to which questions he was given a negative
answer. I credit Bayless' testimony.
Grace Thurman, an employee in the meat department,23
testified that in the latter part of March Lees told her that a
union had been in the store some time in the past and that
there had been problems; among other things, he said he
20 At this early stage, as I have found, Lees was unaware of any
organizing efforts among the restaurant employees
21 And who had signed an authorization card for the Meat Cutters 5
days earlier
22 Who had signed a Retail Clerks card on March 10
23 Who had not signed a union card
24 Thurman testified that , in the same conversation , she told Lees that
Ed Gibson , of her department , had informed her that , if she and another
meat department employee did not sign union cards they would be laid off
Lees assured her, she testified, that there was nothing to this
had laid off people at the time because he could not afford
to pay union wages to people who were doing extra work.24
I credit the testimony of Thurman, who struck me as being
reluctant to testify on behalf of the General Counsel.
The testimony of Petty, Bayless, and Thurman was
presented in support of certain specific allegations of the
complaint, allegations that the Joint Respondent, through
Lees, implied in a conversation with an employee that if
the- union got in he might have to lay off or discharge
employees in order to pay the union's scale of wages, told
an employee that he would discharge employees if they
failed to support him in the union's organizational
campaign, told an employee that he might have to reduce
employee working hours if the union were recognized, and
questioned an employee about contacts with and knowl-
edge of union representatives.
The evidence as credited by me, while it may factually
support all or parts of these allegations, does not
necessarily add up, in every case, to interference with or
restraint or coercion of employees in the exercise of the
self-organizational rights guaranteed them by the Act. For
example, I do not perceive an unlawful threat of reprisal in
an employer's telling an employee that certain union
policies, if imposed, might bring about disadvantages (e.g.,
a shortening of work hours or confinement to one
department) for certain employees.25 I find no merit,
therefore, in the allegation that the Joint Respondent
violated the Act by Lees' telling an employee that he might
have to reduce working hours if the union were recognized,
nor would I find a violation in his implying that the union's
policy on "specialization" might result in a loss of work for
a two-department employee.
This reasoning, however, does not apply to Lees' telling
one or another employee that he might have to lay off or
discharge employees in order to pay the union' s scale of
wages. Here, the predicted result was not a "belief as to
demonstrably probable consequences beyond his con-
trol"; 26 clearly, he has omitted mention that he might be
able to resist union pressures for higher wages or that,
absent such resistance , he might be able to effect such
economies as to avoid layoffs or discharges.
As for Lees' telling-Petty about the prounion employee
he had watched and, upon finding a reason therfor, had
discharged, I do not believe that it comports with the
complaint's allegation that"he "told an employee he would
discharge employees if they failed to support him in the
union's organizational campaign." On the other hand, it
does clearly convey that, should a union come into the
store, prounion employees might be subjected to special
surveillance-a communication which, while not specifi-
cally alleged in this complaint as a violation, was fully
litigated.
And finally, in the context of the Joint Respondent's
25 "Thus, an employer is free to communicate to his employees any of his
general views about unionism or any of his specific views about a particular
union , so long as the communications do not contain a 'threat of reprisal or
force or promise of benefit' He may even make a prediction as to the
precise effects he believes unionization will have on his company [so long
as) the prediction [ is] carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably probable consequences
beyond his control " N L R B v Gisset Packing Co, 395 U.S 575, 618
26 Ibid
LEE'S SHOPPING CENTER, INC.
unfair labor practices hereinabove and hereinbelow found,
it is clear that Lees' queries of Bayless as to the latter's
contacts with or knowledge of union representatives were
unlawfully coercive.
In sum, I find that, in these three conversations, the Joint
Respondent, through Lees, interfered with, restrained, or
coerced employees in their exercise of self-organizational
rights in the following respects only: By implying that, if a
union became the employees' bargaining agent, the
necessity of paying union wage scales might bring about
layoffs or discharges; by implying that, if a union became
the employees' bargaining agent, prounion employees
might be subjected to special surveillance; and by
questioning an employee about contacts with and knowl-
edge of union representatives.
During the month of March, Lees had one or more
pertinent discussions with Keown, the restaurant manag-
er.27 According to his testimony, having learned from
employees of home contacts by organizers, he was curious
as to whether the organizers were coming into the shopping
center as well; also, he was curious as to who they were
and he wanted to know what they looked like. Therefore,
he asked Keown whether union organizers were coming
into the restaurant to eat. Keown said that he did not know
the answer to this question at that time. This, I find, led to
a number of conversations between Keown and restaurant
employees.
On or about March 16, according to the testimony of
Katherine Burnia, Keown approached her and Linda
Sales.28 He asked them if they knew anyting about a union
"trying to get in there." Burnia answered in the negative,
and he asked "Have you seen any union men in [here)?"
Both Burnia and Sales said that they wouldn't know a
union man if they saw one.29
In mid-April, according to the testimony of Lena
Johnson, a grill cook at the restaurant, she had a
conversation with Keown in the storeroom behind the
restaurant. She testified that he asked her if she "knew
anything about the union" and she said she did not; that
he then asked if she had seen any union men and she gave
the same answer; and that he closed the conversation with
the remark "Well, you know if the union comes in, you'll
be assigned to one job only. In other words, I think the
restaurant will close down if the union gets in."
Nancy Zavala testified that, on April 16, Keown spoke to
her at the rear of the kitchen. He asked her if she knew any
union men; she said she did not. Then he said, in the form
of a question, "You know that if the union gets in, Mr.
Lees will close the restaurant?" That ended the conversa-
tion.
Keown, testifying, conceded that he had discussed
"union activities" with employees of Respondent Associ-
ates. In view of the "rumors" to the effect that the union
was in the store, he became curious as to whether his
(restaurant) personnel "had been involved in any activity
or had been contacted by the union . . . so I asked them."
But he denied having told any restaurant employee that the
27 1 find Keown, at all pertinent times, to have been acting as agent for
the Joint Respondent
28 Burma had signed a union authorization card the week before
29 Sales, who went on leave of absence shortly after the date in question,
515
restaurant would be closed "if they engaged in union
activities," nor did he concede that he said anything to any
of them "that would imply that the restaurant was going to
be closed because of union activity." In resolving the
questions of credibility, to the extent they exist, in
connection with the conversations testified to by Burnia,
Johnson, and Zavala, I have given due consideration both
to the demeanor of the witnesses who testified thereon and
to the plausibilities inherent in the situation; I find,
thereon, that Keown did speak to these employees in
substantially the manner testified to by them.
The proof with respect to these conversations is intended
to be in fulfillment of allegations in the complaint that the
Joint Respondent, through Keown, questioned an employ-
ee concerning her acquaintance with the union and
knowledge of visits to the restaurant by union representa-
tives, asked an employee if she knew any union men, told
an employee that the restaurant would be closed if the
union came in, and asked an employee if she had seen any
representatives of the union.
On the facts surrounding these conversations as found
by me, I conclude that these allegations are supported by a
preponderance of the evidence and that, thereby, the Joint
Respondent interfered with, restrained, and coerced
employees in the exercise of self-organizational rights
guaranteed them by the Act.
There was testimony that, beginning on or about April
23, Keown became more explicit as to the consequences of
a union's success in organizing the restaurant employees.
I am convinced, and I find, that as of this time the Joint
Respondent had become aware that the Retail Clerks was
attempting to organize the restaurant employees as well as
others in the shopping center. I make this finding in the
face of Lees' testimony that the first he learned of any
organizing among the restaurant employees, was his
receipt, on May 15, of the Retail Clerks claim to represent
the majority of them-discussed infra; I base it on the
plausibilities inherent in the factual picture. Restaurant
Manager Keown,30 as earlier found, had, since mid-March,
questioned his (restaurant) employees about union matters,
had, since mid-April, continued in this course of conduct
and, in addition, in conversations with restaurant employ-
ees (including one with Nancy Zavala, the most active
union organizer in the shopping center complex), had
threatened that the restaurant would be closed should the
union's campaign be successful, and now, as hereinbelow
found, was about to intensify his efforts.
Nancy Zavala testified that, on or about April 23, a week
after their earlier conversation described above, she and
Keown had another conversation. Keown called her to the
grill in the front part of the restaurant and asked her if she
had seen any union men; she answered that she had not,
and then he said, "Well if you ever see any, would you
point them out to me?" Zavala tried to change the subject:
"George, why don't we ever receive a raise?" He merely
looked at her and said, "Mr. Lees will close the restaurant
if the union gets in." Once again, she asked about the raise,
did not testify
30 Who conceded that he was aware of union actrvnties "in the store"
without limiting his awareness to activities among supermarket employees
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and once again he merely repeated the statement he had
just made.
Next day, according to the testimony of Katherine
Burnia, Keown walked up to her near the ice cream
machine at the rear of the restaurant and said he wanted to
tell her something. He warned her to watch what she said
because "Walter"31 runs to Mr. Lees with everything. Her
answer was that she did not care if Lees knew or heard
what she said. He said "But I know about the union," in
response to which she denied having any such knowledge
herself. He closed the conversation with, "Well, if the
union gets in, Mr. Lees will close the restaurant."
I have noted earlier that Keown, on the witness stand,
denied ever having told any employee that the restaurant
would be closed for union-connected reasons. In this
respect, I have previously discredited him, and I do so here.
I find that conversations of April 23 and 24 took place as
testified to by Zavala and Burnia, and I find that the Joint
Respondent thereby interrogated an employee as to
whether she had seen any union representatives, asked her
to report to him if she did see any, threatened closure of
the restaurant should a union become the employees'
bargaining agent, and created an impression of company
surveillance of union activities,32 and consequently, inter-
fered with, restrained, and coerced employees in the
exericse of their self-organizational rights.
This record contains testimony as to two other conversa-
tions between Glenwood Lees and employees. Wanda
Blum, a dishwasher in the restaurant, had signed a union
authorization card on May 3. Shortly thereafter, according
to her testimony, she was approached by Lees while she
was in the kitchen. He asked her if she had signed a union
card and if she knew anyone else who did. Her answers to
both parts of the question, she testified, were in the
negative.
Donald Blum (brother of Wanda) testified that, at or
about mid-May, while he was working in the gas station, he
went to Lees' office to obtain the day's startup money.
There, Lees asked him if any union men had stopped by
the station to talk to him or if he knew anything about any
union cards. Having received a negative answer, Lees went
on to say, according to Blum's testimony, that a majority
of the people of the restaurant and service station had
signed union cards and "if it should go through" he would
have to close down the restaurantand the service station.
I credit both sister and brother33 and find that, in these
conversations, the Joint Respondent, through Lees, asked
an employee about conversations and contacts with the
Retail Clerks, asked an employee it union representatives
had spoken to him about joining I a union, and told an
employee that if in fact a majorit I of its employees had
signed union cards, the restaurant rid the service station
would be shut down.
The last pertinent conversation, according to the
testimony, took place on the afternoon of Tuesday, May
18. Vern Westenhoefer, the afternoon cook at the restau-
rant, testified about it. Keown would normally leave work
at 3 or 4 p.m., and she was responsible for the operation of
the restaurant from that time until 8 p.m. On this Tuesday,
he returned shortly after he had left, an unusual occur-
rence. He went to the kitchen, where she was working.
"What's going on around here?" she asked, to which
Keown replied, "Shut the door. I don't want you to say
anything about this, but I think the union wants to try to
come in here and if it does this place is going to be closed."
I find here another instance in which, as alleged in the
complaint, Respondent, through Keown, threatened a
closure of the restaurant if the union became the
employees' representative.
Summarizing, I have found that, on various occasions
between March 8 and May 18, 1971, inclusive, the Joint
Respondent, through agents, interrogated employees as to
their contacts or acquaintanceship with, or their knowledge
of activities of, union representatives; solicited an employ-
ee to report the presence of union representatives on the
premises; conveyed to employees the impression that the
employer was engaged in the surveillance of union
activities and that, if a union became the employees'
bargaining representative, prounion employees might be
subjected to special surveillance; implied to employees that
if a union became the employees' bargaining representa-
tive, there might be layoffs or discharges; and conveyed
threats to employees that, if a union became the employ-
ees' bargaining representative, it would close its restaurant
and its service station-each and all of these acts
constituting interference with restraint and coercion of
employees in the exercise of the self-organizational rights
guaranteed them by the Act. On the other hand, I have
found no unlawful interference, restraint, or coercion in
any other statements made by agents of the Joint
Respondent to employees.34
C. The Wage Increses
On or about April 19, the supermarket employees on the
payroll of Respondent Center received wage increases. The
complaint alleges that these increases were given in order
to induce the supermarket employees to refrain from union
activities.
The General Counsel put on two witnesses with respect
to certain circumstances surrounding the giving of the
increases. According to Carol Petty, meat department
employee, she received a 10-cent-an-hour raise; dissatis-
fied, she asked Lees if there was going to be another one,
and in response, he told her that there had been a mistake
and that another increase would be forthcoming.35 Grace
Thurman, also of the meat department, testified that, like
31 The record contains no further identification of this individual
32 The impression, I find, was created by his statement to Burnia that he
was aware of the existence of a union in the store, not as argued by the
General Counsel, by his statement that someone, unidentified in this record,
would report whatever was said to management
33 As noted, Donald Blum's testimony fixed Lees' conversation with him
as occurring "at or about mid-May " In context, because Lees did receive a
union claim of majority representation on Saturday, May 15 (see infra ), I
find that the conversation took place between that date and May 21, the day
the service station closed
14 In addition to those items which have been heremabove discussed and
found not to be violative of the Act, I note here that no testimony was
received in support of one or more allegations of the complaint-for
example, the allegation that, "On or about April 24, 1971, George Keown
told an employee that the Union would not get in because the restaurant
would be closed "
35 She did receive the second increase
LEE'S SHOPPING CENTER, INC.
Petty, she had asked about (and eventually did receive) a
second increase. During her conversation with Lees about
the second increase, she further testified, he had told her
that he had recently been investigating the pay scales of
competitors and was ready to meet them, and, in the
course of the conversation, he mentioned that "the union"
had recently organized at Hecht's and at Jarvis Sons, both
competitors. I credit both Petty and Thurman.
According to Lees' testimony, he had spoken, during the
previous 30 days, to various competitors, and he concluded
that he would have to increase wages to meet those
prevailing in the community in order to keep his help; this,
he testified, was the sole reason for the increase.
In my opinion, the General Counsel has, considering the
Joint Respondent' s awareness of a union campaign then
being conducted among its employees and its union
animus as displayed in its agents ' conversations with
employees hereinbefore described, established a prima
facie case that the giving of the raise was indeed designed
to induce the supermarket employees to resist the unions'
organizing efforts. And it is my further opinion that the
Joint Respondent has not successfully negated the infer-
ence . The explanation that comparative wage rates in the
area had just been investigated is not convincing; the
investigation took place during the period of the organizing
attempt of which the Respondent was aware, and was
unaccompanied by, for example, any evidence that such
investigations had been made on a regular or other basis,
with or without a union presence. I am persuaded, by what
I consider to be a: fair preponderance of the evidence, and I
find, that the wage increase to the supermarket employees
was designed to induce them to refrain from union
activities and thereby interfered with, restrained, and
coerced them in the exercise of the self-organizational
rights guaranteed them by the Act.
The complaint also alleged, as interference with and
restraint or coercion of employees in the exercise of their
self-organizational rights, that, on or about April 26, 1971,
Keown told the restaurant employees that they were
receiving a raise and that there would be another one later.
The employees of the restaurant had never received a
general wage increase, insofar as is revealed by this record.
Nancy Zavala, for example, had worked there for 4 years
and had never received a raise although she had often
asked for one. Katherine Burnia had had no change in pay
during the 3-1/2 years of her employment. And Lena
Johnson, a 6-year employee whose seniority was exceeded
only by that of Keown, had received but one raise, early in
1970. In mid-March, a week or two after she had signed
her authorization card, Zavala raised the subject with
Keown, "How do you go about getting a raise in this
place?" At that time, he said that the girls would have to
sign some kind of a petition for Lees' approval; however,
he did not give specific details, and no action was taken in
that direction. But after the supermarket employees
received their increase , supra, the unhappiness of the
restaurant employees increased and one or more of them
brought the matter to Keown's attention. Keown took the
problem to Lees, recommending that a raise be given. Lees,
36 This is not to say that, even if it were not an unfair labor practice, the
giving of this wage increase might not shed light upon the subsequent
517
in effect, said that he could see no way in which a raise
could be given, considering the losses being sustained by
the restaurant, but Keown persisted, suggesting that a
small raise would make for a happier group. Thereupon,
Lees told Keown that he would leave it to him, but he
cautioned that an increase of more than 5-cent-per-hour
would put the restaurant in worse shape than it was
already.
On April 26, Keown called the employees of the
restaurant together and began by saying, "Well, I did it."
He said he had tried for 10 cents and had succeeded in
getting a 5-cent increase; and he said that he would try for
more later. Repeating, he conceded that this was not much
of an increase, but said tha !,there would be more in the
future. Zavala protested that she did not need the money
"later"-she needed it now-and this ended the group
discussion.
Although the matter is not free of doubt, I do not believe
that, in this instance, the General Counsel has demonstrat-
ed by a preponderance of evidence that the giving of this
wage increase and the promise of the further increase in
the future was designed to discourage union activities. I
believe that the action was a reluctant, but natural,
response to the discontent of the restaurant employees
upon learning that the supermarket employees had
received a wage increase and that it was not based upon
union-related considerations36
D. The Bargaining Request, the Refusal, and the
Closedown of the Restaurant and the Service Station
By letter dated May 13, the Retail Clerks, through Nick
Torpea, an organizer, advised "Mr. Glenwood Lee, Lee's
and Associates" that it represented a majority "of your
store employees in the restaurant and service station" and
requested recognition as their bargaining agent. Stating
that it was prepared to prove its majority status by a check
of its authorization cards, it asked that "everything remain
status quo in order to avoid any future problems" and
requested a conference to be held on Tuesday, May 18.
Having received this letter on May 15, Glenwood Lees
replied with a note saying that he would be available for a
meeting on Tuesday, May 18.
On Monday, May 17, Lees met with all but one of the
restaurant employees, either singly or in groups. Telling
them that a union had made a claim of having been
designated as their bargaining representative by a majority
of them, he said that he wished to have their signatures for
comparison purposes in order to check the claim. At this
request, they affixed their signatures to a sheet of paper
which he carried.
Katherine Burma was the one whose signature he did not
procure that day; instead, he saw her next day. Her
testimony as to this contact, which I credit, is as follows:
At or about 11 a.m. on the 18th, Lees asked her for her
signature, saying that his purpose was to verify her
signature on a union card. In the course of the conversa-
tion, he asked whether she had in fact signed a union card,
and she said that she had. He said that he had not realized
closing of the restaurant , and, in the discussion of that subject herembelow,
I shall give this circumstance due consideration
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that his help was dissatisfied with their jobs, upon which
she stated that the reason for the dissatisfaction was low
wages. He informed her that he had lost $950 in the
restaurant during the past year; Burnia said she did not
doubt this, but that, if it were so, it was because Keown
was a poor manager who permitted too much waste. She
then asked him if it was true that he was going to close the
restaurant if the union got in; in reply, he said he couldn't
"say too much" but that the Federal government was
"already on him," and "I have no alternative but to close
the restaurant if the union gets in." Continuing, he said he
had only kept the restaurant open as "a drawing card".
On the same day, Tuesday, May 18, two representatives
of the Retail Clerks, Kelly, its president, and Torpea, went
to the shopping center and met with Lees pursuant to
arrangements made by the exchange of correspondence.
After they reaffirmed their claim of majority status among
the restaurant employees,37 Lees asked whether he could
see the authorization cards; the request being refused, he
asked what, then, was the purpose of this meeting. Kelly
said that the cards would be shown to a disinterested party
such as a clergyman or a lawyer with no connections with
the company. Lees asked whether the cards would be
shown to his own lawyer, and he received an affirmative
answer. Thereupon he picked up the telephone and called
the office of David Colson (who acted as counsel for the
Joint Respondent in this matter). As he put in the call, he
said to the union representatives, "You fellows are really
wasting your time because, if you [do] have the majority,
I'm going to turn the key in the door." When the call was
put through, he learned that Colson was out of town, and
he made arrangements for the union representatives to
meet with Colson at the latter's office on the following
morning. He told the union representatives that he would
arrange for Colson to have the signatures of the employees
at that time, and he closed the conversation with the
remark, "Well I really wish you guys would have the cards
with you because I have a man coming in to measure the
department, because if you got the majority, I will turn the
key in the door."
Wednesday morning, May 19, Kelly and two other
agents of the Retail Clerks went to Colson's office. Very
early in the discussion, Colson excused himself to take a
telephone call. (The telephone call, according to Lees'
testimony, came from Lees himself. "Dave," he told
Colson, "You know we made this appointment with these
union people to bring these cards down, but I think we are
wasting everybody's time, because a decision has been
made to close the restaurant, and I see no point in going
into it.") Colson returned to his office and said, "I'm sorry,
gentlemen, you're wasting your time. Evidently, Mr. Lees
has had a change of heart and has decided to close the
store." In further explanation, he said that the restaurant
had been losing money and that the closing had been
uniter consideration for some time. Kelly said that this was
37 Subsequent to the sending of its May 13 letter , the Retail Clerks never
did press its request for recognition as agent for the service station employees
along with the restaurant employees As noted below , the sole bargaining
unit herein found appropriate for collective -bargaining purposes does not
include the service station employees
38 Neither the 8 nor the I I includes Donald Blum, who had , on April 15,
signed a Retail Clerks card when he was employed in the restaurant but
going to "create a problem," and Colson agreed. As the
union representatives left, Kelly flashed the authorization
cards in front of Colson, saying "I just want you to see that
we did have the cards."
From Colson's office, the representatives went to the
supermarket, where they wafted for Lees to finish talking
to a customer. Then, they told him what they had heard
from Colson, and Lees confirmed that he was going to
close the restaurant. To Kelly's remark, "You know you're
gonna have a problem," he merely said, "I don't care."
Later, the same day, the restaurant was closed down.
With this act, the employment of Rosemary Blum, Wanda
Blum, Katherine Beard Burnia, Sandra Ely, Stephen
Hager, Patsy Hendon, Lena Johnson, Elvie King, Alberta
Racer, Vern Westenhoefer, and Nancy Zavala was
terminated.
The Retail Clerks called a meeting of the restaurant
employees next day, Thursday, May 20. Those who
attended discussed the closing, and they unanimously
passed a "strike vote." Next day, Friday, May 21, the ex-
restaurant employees set up a picket line outside the
shopping center. At or about midday, Lees, having learned
that the picketing had cut down the business of the service
station to almost nothing, decided to end that operation;
and, while the picketing was still going on, the service
station was closed down. Thereby, Donald Blum and
Jewell Gibson became unemployed.
After 5 hours, the picketing, having been enjoined by a
state court, ended. Since that time, both the restaurant and
the service station have remained closed, and (except for
Restaurant Manager Keown, who became an employee of
Respondent Center) none of the restaurant or service
station employees has been reinstated or otherwise em-
ployed by the Joint Respondent.
In accordance with stipulations of the parties and the
related testimony thereon, I find that an appropriate unit
for collective-bargaining purposes in this matter consisted
of all restaurant employees employed by Respondent
Associates at the Lees shopping center in Farmington,
Missouri, excluding any office or clerical employees,
professional employees, guards, and supervisors as defined
in the Act, an excluding all nonrestaurant employees in the
shopping center.
As of the month of May, until and including May 19,
this unit consisted of the II employees who lost their
employment as a result of the closedown of the restaurant
on that day. On or before May 3, 8 of these 11 had signed
cards authorizing the Retail Clerks to act as their
representative for collective-bargaining purposes.38 There-
fore, on May 19, when, I find, the Joint Respondent
rejected the Retail Clerks request for recognition, that
organization had in fact been designated as bargaining
representative by a majority of the employees in an
appropriate bargianing unit 39
On May 18, when Lees met with representatives of the
who, subsequently, became an employee of the service station
is The complaint did not allege that there was a request or demand for
recognition apparently because of the inclusion of the service station
employees in the Retail Clerks original letter requesting recognition But. I
have found, the service station employees were omitted from the
confirmation of the request on May I8
LEE'S SHOPPING CENTER, INC. 519
Retail Clerks, he did not express any doubts as to the
union's claim of having been designated as bargaining
agent by a majority of the employees in the unit. Nor, on
the next day, when counsel, on behalf of the Joint
Respondent, formally rejected the Retail Clerks request for
recognition, was doubt as to the union's majority status
given as the reason; rather, the sole basis given for the
action was that the request was a waste of time in view of a
decision that the restaurant be closed.
At the instant hearing, Lees testified that, at the time of
the request, he did in fact entertain doubts as to the Retail
Clerks majority status; he would have been very surprised
if a majority of his employees had signed up with a union.
But he was not asked for, and he did not give, the basis for
his having entertained any such doubts.40
I am convinced, and I find, that the Joint Respondent
did not in fact doubt the Retail Clerks majority status
among the employees in the above-described unit at the
time it rejected the request for recognition.41
Under the circumstances, I conclude, the Joint Respon-
dent's refusal to recognize and to bargain with the Retail
Clerks as the exclusive representative of the involved
employees constituted both an unlawful refusal to bargain
and an interference with and restraint and coercion of said
employees in the exercise of their right to bargain
collectively through a representative of their own choosing,
a right guaranteed them by the Act.42
For purposes of possible remedy herein, the parties have
stipulated to the appropriateness, for collective-bargaining
purposes, of a unit of employees which, in ultimate effect,
consists of the unit above found appropriate and any
future successor thereto:
All nonsupervisory restaurant and food-dispensing
employees who may be employed by Respondent
Associates, Respondent Center, or Respondent Station
in any restaurant or food-dispensing service which may
be operated by any of them in the future.
On the basis of the parties' stipulations and the related
testimony thereon, I find this to be an appropriate unit for
collective-bargaining purposes.
The complaint alleges that the Joint Respondent discon-
tinued the restaurant and the service station operations,
and thereby terminated the employment of those employed
therein, because said employees joined or assisted the
Retail Clerks and/or with the intention of discouraging its
other employees from joining or assisting the Retail Clerks
40 In its arguments herein the Joint Respondent makes no claim that
Lees' doubts were based, in any respect, upon the restaurant employees'
answers to management 's inquiries into their union affairs (With but one
exception-Burma's May 18 "admission" to Lees that she had signed a
union card-all employees had denied any knowledge of, let alone any
interest in, a union's organizing attempt.) Needless to say, little reliance can
be placed on employees' responses to coercive interrogation
41 Interestingly enough, the Joint Respondent has not taken the position,
in this case, that it has any present doubts as to the Retail Clerks majority
As will be seen, it has expressed a willingness to recognize and to bargain
with the Retail Clerks for any restaurant or food-dispensing employees
should either Respondent Associates or any other constituent of the Joint
Respondent operate a restaurant or food-dispensing service in the future
42 The complaint did not allege that there had been an unlawful refusal
to bargain, apparently because of a supposedly defective bargaining request
But I have found that there was a valid request (and refusal) and the issue
was fully litigated. At any rate, in this instance, the refusal- to-bargain
finding is cumulative of the interference-with self-organizational rights
or any other labor organization. In support thereof, the
General Counsel argues that, on more than one occasion,
the Joint Respondent informed employees and Retail
Clerks representatives that the restaurant would be closed
and, on at least one occasion,' informed an employee that
the service station would be closed, if the Retail Clerks
were to represent the employees working in those opera-
tions. The facts, as I have found them, fully support the
argument, in the light of the collective-bargaining animus
of the Joint Respondent as displayed by the unfair labor
practices hereinbefore found and by other above-described
conduct of agents of the Joint Respondent which fell short
of constituting unfair labor practices, and particularly in
view of the timing of the closedowns, closely following, as
they did, the request for recognition and the rejection
thereof. Clearly, the General Counsel had made out a
prima facie case.
The Joint Respondent argues that union considerations
had nothing to do with the closings; that the restaurant
operation was terminated for economic reasons, in accord-
ance with a decision which predated the receipt of any
request for recognition. In essence, the Joint Respondent
claims that the restaurant operation was losing money for a
long period of time and that this was the sole basis for its
action. As for the closing of the service station, as I
understand the argument, the decision was triggered by the
substantial loss of business due to the picketing on May 21,
in an operation which, at best, was a "holding operation"
until/unless an outside operator could be brought in.
In support of its defense, the Joint Respondent intro-
duced testimony covering the operations of the restaurant
over a number of years. Glenwood Lees testified, basically
by reading from corporate minute books of Respondent
Associates,43 about the profit picture of Respondent
Associates in general and its restaurant in particular for a
number of years past:
At a meeting of the Board of Directors held on
February 1, 1965, consideration was given to the
statement of operations for the fiscal year ending
November 30, 1964,44 during which period, according
to the statement, the restaurant's operating profit45
amounted to $597.46
During the same period, the service station (then
operated by Respondent Associates) produced enough
finding See the section entitled "The Remedy" herein
43 In his brief, the General Counsel implies that the genuineness of these
minutes is subject to question ("These 'records' are maintained by Mr Lees
and are retained in his possession That portions of these could have
been substituted or altered prior to the hearing in this case is evident ") I
note that , in relevant detail, they are corroborated by the profit-and-loss
statements which were made part of this record While I shall give
appropriate consideration herein to questions of plausibility which may
exist with respect to the contents of the minutes and the interpretations to
be drawn therefrom, I am not prepared, on this record, to find that there
were any substitutions or alterations therein
44 Hereinafter, reference to the operations for a given year should be
understood to refer to the 12 months ending November 30 of that year
45 1 e , income , less operating expenses directly attributable to the
running of the restaurant Hereinafter , the operating profit or loss-whether
for the restaurant or for the service station-may sometimes be referred to
simply as the profit or loss, respectively
46 Mine are rounded-off figures
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
profit so that, combining the two operations and then
deducting "general and administrative expenses"47 the
corporation ended with a net profit of slightly over
$1,000. "A discussion was held as to what might be
done to improve the restaurant operation," read the
minutes, "and it was generally agreed that the lack of
volume was the principal cause of the loss. [Director]
Stoker suggested that the restaurant be closed and that
more attention be given to the operation of the service
station which was producing some profit. However, no
official motion was made to this effect and no action
was taken."
At the annual meeting held on Febuary 1, 1966, the
financial and operating statements for fiscal 1965
showed that the service station had had a small profit
[on cross-examination, Lees set the figure at $1,995]
but that the restaurant had had a loss of $1,785 and
that, after deduction of the general and administrative
expenses for both operations, the corporation had lost
$1,611. "President Lees reported to the Board that he
had discussed at. considerable length the restaurant
with his manager, Mr. George Keown, and that steps
were being taken to reudce expenses and that some
increases in prices had already been placed into effect
and that he felt that the current year's operation would
be substantially improved. A discussion was held as to
whether to continue the operation of the restaurant for
another year or whether to discontinue the restaurant
operation entirely. It was generally agreed to continue
the operation for another year and make an exerted
effort to reverse the trend and get the operation on a
profitable basis."
Some 6 months later, on August 18, 1966, the Board
met again .48 "President Lees reported to the Board that
a change of management was made in the service
station, that business had improved, and that it
appeared that the profits would be better for the year's
operation. He also reported that the restaurant opera-
tion looked better than in the previous year. The sales
were up and the expenses were being held at about the
same level. He stated that it looked as if a small profit
might be made in the restaurant operation for the
current year."
At the annual meeting held on February 1, 1967, it
was noted that, for fiscal 1966, the restaurant had
shown "some profit before general and administrative
expenses" and that the service station had a better year
than in 1965. The chairman (Lees) "called attention to
the fact that the corporation did have a small operating
profit for the year's operations."
The Board met on Feburary 1, 1968. For fiscal 1967,
according to the financial and operating statement, the
service station had shown a smaller profit than the
previous year but was still operating in the black. The
restaurant, however, showed a substantial loss-$3,632;
salanes and the cost of food sold had increased and
sales were down. After a discussion, a resolution was
passed to the effect that "the restaurant operation be
discontinued at the end of the current fiscal year,
provided the operation did not show a profit . However,
if the restaurant operation is able to produce a profit,
then it shall be continued in operation for an additional
year."
According to the minute of a meeting held on
Feburary 1, 1969, the service station experienced a
substantial loss during 1968; there was a discussion of
the change in personnel there and of Lees ' suspicion
that there had been some pilfering of merchandise by
employees . The restaurant , on the other hand, was
shown to have enjoyed "a small profit" [set in Lees
cross-examination at $246] before the deduction of the
general and administrative expenses ; after the deduc-
tion was made, the result was "a small loss . . . . After
a discussion of the financial situation of the corpora-
tion , it was generally agreed that the corporation could
not continue and operate indefinitely showing losses,
year after year, and that should such losses continue,
that the operation should discontinue business entire-
ly."
The Board met again on October 14, 1969. The
occasion was the fact that a substantial amount of
merchandise had been lost or stolen in the service
station and that, despite two or three changes in
personnel , the operation had deteriorated to the extent
that Lees advised closing the service station operation.
The Board passed a resolution to the effect that the
service station be discontinued , that its merchandise
inventory and other assets be sold to satisfy obligations
of the corporation, and that the property and equip-
ment be turned back to the lessor , Respondent Center.
The service station was closed , according to Lees'
testimony , within a day or two thereafter. Lees' testimony
with respect to the profit picture continued:
The next regular annual meeting of Respondent
Associates ' directors took place on Feburary 2, 1970.
Lees distnbuted copies of the financial and operating
statements for 1969 , which statements showed that the
service station, which had been closed in September
1969,49 had experienced a substantial loss and that the
restaurant again had experienced "a small
loss"-$5,100 and $1,800, respectively. Lees noted that
more attention could now be given to the restaurant
"and perhaps it could be converted into a profitable
operation ." A resolution was adopted to the effect that
"the restaurant operation should be continued for
another year but that should it show any loss for the
fiscal year ending November 30, 1970 that the
operation should be definitely discontinued."
The Board again met on October 12, 1970. Lees
reported that the firm's auditor would be unable to take
care of the corporation 's tax work until after the first of
the year and , therefore , was asking for an extension of
time to file tax returns with the Internal Revenue
Service. He further reported that , according to interim
47 Consisting of corporate officers' salaries and expenditures not directly
attributable to one or another of Respondent Associates' operations
48 The annual meeting of the Board normally took place at or about
February 1st, but meetings were held whenever they were thought
necessary
49 Actually, the service station closed down in October , within days after
a meeting of the directors held on October 12 Lees , testifying here,
denominated this as an error in the minutes
LEE'S SHOPPING CENTER, INC. 521
records, the restaurant was operating at about a break-
even point and would probably show a small loss; he
had conferred with Keown on several occasions and
had been told that every effort had been made to
reduce working hours and to increase volume. None-
theless, Lees told the others, it appeared to him that the
restaurant operation "was a losing battle." Thereupon,
the directors passed a resolution to the effect that "the
restaurant operation be continued until [the auditor]
has the opportunity to audit the company records. If,
on receipt of the final information following the audit
the restaurant has again shown a loss, then the
operation shall be immediately closed and the corpora-
tion shall cease doing business until further opportuni-
ties are presented."
The Board met again on February 1, 1971. Lees
reported that the auditor had not yet made the annual
audit but that it was expected shortly. Going on, he
said that it was evident to him that the corporation had
again lost money during fiscal 1970. Calling attention
to the fact that the corporation was renting space from
Respondent Center, he suggested that some notice of a
likely discontinuance of the operation ought be given to
the lessor. It was thereupon resolved "that notice be
hereby given to [Respondent Center] that the corpora-
tion would very likely discontinue using the space
rented by it for the restaurant operations some time
within 2 or 3 months."
the next directors' meeting about which Lees testified
was one of the board of Respondent Center. Using the
minutes of that corporation, he i testified as to a meeting
held on March 9: ,
Lees informed the other directors that Respondent
Associates had informed Respondent Center that it
"would most likely vacate the space occupied by the
restaurant because it had been operating at a loss for
some time"; a definite decision, the notice said, would
be made upon receipt of its auditor's report on or about
May 15. Lees then stated that, "for several years,
consideration had been given to the installation of a
furniture department but that such installation had
been postponed because of the lack of space. He
suggested that this space occupied by Lees and
Associates be utilized to set up a small furniture
department. A motion duly made, seconded, and
passed, the following resolution was adopted: Be it
resolved that W. G. Lees, president of the corporation
and Mary Louise Lees, secretary of the corporation,
begain immediately making contacts and placing
orders for furniture and that definite plans be made to
utilize the space which is to be relinquished by
[Respondent Associates], to be used as a furniture
display department."
Shortly afterward, Lees' testimony continued, he and his
wife met with a representative of Johnson Carter Furniture
Company in St. Louis and looked over their line of
furniture on display, and, within two or three days
thereafter, the Carter representative visited Farmington, at
which time Respondent Center placed orders for some
living room sofas and chairs and for some bedroom
furniture . The first shipment was received around May 10;
it was stored in a warehouse.
According to Lees' further testimony , he finally received
Respondent Associates ' 1970 financial reports , along with
a Federal tax return for his signature , on Saturday, May
15, 1971, the same day he received a recognition request
from the Retail Clerks . He opened the union 's letter first
and, as earlier indicated , sent off a reply. That afternoon,
his testimony continued , he opened the auditor 's letter and,
affixing his signature to the tax return, he put it into the
mails addressed to the Internal Revenue Service.
Lees testified , in passing, that the actual operational
figures of the restaurant for fiscal 1970, as reflected in the
reports received on May 15, 1971, were actually worse than
had been expected at Respondent Associates ' directors'
meeting of February 1-a number of expense items had
not been anticipated . The operating loss amounted to
$1,184.02 ; deducting general and administrative expenses
of $2,393. 59 and adding income from the sale of service
station assets of $2,586 . 84, the net loss for the corporation
amounted to $990.77. And, he further testified , but without
annotation , since November 30, 1970, the restaurant was
"still sustaining losses."
At any rate , on the day after the 1971 financial
information was received , i.e., on Sunday , May 16, the
directors of Respondent Associates met. The meeting was
held out of town , since Director Stoker could not come to
Farmington . Lees testified from the minutes:
The chairman [ Lees ] notified the other directors of the
1970 financial figures. "After a discussion , during
which discussion reference was made to the minutes of
the Board meeting held on February 2, 1971, which
minutes had recorded [ the resolution earlier quoted
herein] ," a resolution was adopted : "Be it resolved that
the restaurant operation be closed on Wednesday, May
19, 1971 since that day is the normal pay day for
employees , and that all business activities of [Respon-
dent Associates ] be concluded on that date."
Lees went on to testify that , thereupon , the restaurant
was closed down on the 19th , that its fixtures were put up
for sale , 50 and that, " in June," he and Mrs. Lees visited the
Merchandise Mart in Chicago and placed additional
orders for furniture, which furniture was scheduled to be
delivered in September . Meanwhile , as of the dates of this
hearing, the restaurant space was being remodeled into a
display room for furniture.
The above testimony , the Joint Respondent argues, fully
supports its defense-that the restaurant operation was
terminated for economic reasons unrelated to union
considerations , in accordance with a decision which
predated its receipt of any request for recognition. Indeed,
it argues further, and offered Lees' testimony to this effect,
that it was unaware of the existence of any union campaign
among the restaurant employees until the receipt, on May
15, of the union's claim. I am not convinced.
For one thing, if my prior findings herein are correct,
Lees' awareness of the existence of a union campaign
among the restaurant employees did in fact predate his
50 For some time, he said, the fixtures were kept in place, the better to
attract buyers; finally, on an unnamed date, the unsold fixtures were put
into storage
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt of the Retail Clerks request for recognition on May
15. The Joint Respondent became aware of such an effort
at least by April 23.
Secondly, in his meeting with the Retail Clerks represent-
atives on May 18, Lees did not inform them that, unrelated
to union considerations, a decision to close the restaurant
had been made. On the contrary, his only related reference
was to a possible closing specifically tied up with union
considerations. This, despite the fact that supposedly the
decision had long been in the making, had been condition-
ally implemented at the February 1 directors' meeting, and
had been formalized only 2 days earlier.
While I am not prepared to find that the corporate
minutes from which Lees read at this hearing are not
genuine,51 this does not mean that I must find that their
contents support the Joint Respondent's defense.
There is no doubt that the restaurant operation did
sustain a net loss for the period from fiscal 1964 through
fiscal 1970. Also, accepting Lees' testimony unsubstantiat-
ed by financial records, I find that it sustained a further
undetermined loss between November 30, 1970, and the
date of the closing of the restaurant. But a dispositive issue
in this matter is-was the closing of the restaurant
occasioned by these losses?
The General Counsel argues strongly that the nature of
the operation demonstrates that the restaurant was utilized
principally as an instrument to attract customers to the
supermarket and that, therefore, the Joint Respondent did
not really believe that it had to make money in order to
justify its existence. Just as strongly, counsel for the Joint
Respondent argues that the restaurant was treated as a
separate operation and that neither the Act nor any other
law requires an employer to operate indefinitely at a loss.
I have already found that the restaurant operation was
closely related to and was but one part of the Lees'
shopping center complex and that, as such, any decision
affecting it was made with due regard to the well being of
the rest of the complex. I note that, in his May 18
conversation with Katherine Burnia, supra, Lees referred to
the restaurant as a drawing card; and that, in similar vein,
Lees testified at the hearing that, although, for example,
the electric sign outside the shopping center cost money, he
felt that a "certain amount" of expenditures for advertising
was necessary to promote business. I find that the Joint
Respondent was willing to sustain a "certain amount" of
loss in the restaurant and still keep it open.
I would not, if I could, substitute my business judgment
for the Joint Respondent's as to whether, at the time of the
51 I do regard it as passing strange that Respondent Associates' minutes
of the May 16 meeting makes no note of the Retail Clerks demand for
recognition received I day earlier Lees, on the witness stand, conceded that
the subject might have been mentioned at the meeting but said that(1) it
would have been omitted from the minute at any rate because the Joint
Respondent's corporate minutes recorded only "official acts" or discussions
leading up to same , and (2) this was "no big issue because it had no bearing
on the decision to close the restaurant" As for (I), an examination of the
prior minutes from which Lees testified reveals them to contain much
material other than official acts or discussions leading up to official acts,
moreover, it strains my credulity to be asked to believe that the subject
would not have been considered important enough to have constituted a
basis for discussions leading up to formal action, one way or another As for
(2), if it was true that the advent of the union, as dramatized by its 1-day old
request for recognition, was not considered important because a decision to
close the restaurant had already been made, I would have thought that, at
closing, it had reached the limit beyond which it was
willing to sustain losses in the restaurant; but I must
examine all the circumstances in order to determine
whether the Joint Respondent had indeed arrived at that
judgment.
The original investment in Respondent Associates back
in 1958 when it was founded was $3,500, $2,500 of which
was contributed by Lees, and no additional stockholders'
contributions have since been made. During the first 8
years of its existence, the corporation, which operated both
the restaurant and the service station during that period,
made money some years and lost it other years, but,
according to Lees' testimony, that period ended with
neither a surplus or a deficit. Thereafter, his testimony
continued, the financial picture deteriorated until, at the
time of this hearing, there was a deficit of approximately
$18,000, which deficit consisted basically of sums owed by
Respondent Associates to Respondent Center.52 If there
was such a deficit, the cost to the Joint Respondent of
operating the restaurant was approximately $1,633 per year
throughout the period of its existence or, if this deficit was
incurred since 1966, $3,600 for each of the last 5 years.
In point of fact, there is some reason to doubt that there
was an $18,000 deficit as a result of the last 4 or 5 years'
operations preceding the closing of the restaurant. During
fiscal 1964, when the closing was first discussed, the
restaurant had netted an operating profit of $597. There-
after, its fortunes varied: In 1965 it lost $1,785; in 1966 it
made $1,995; in 1967 it lost $3,632; in 1968 it made $246;
in 1969 it lost $1,805; and in 1970 it lost $1,184.53
The General Counsel points out that the loss during the
last year was less than that of any year in which a loss was
incurred.54 His argument is loud and clear-having
tolerated a losing operation for these many years, why did
the Joint Respondent take action in a year in which things
were looking up? His answer-because a union entered the
picture.
Considerable light is shed on the question by the
numerous statements, as found above, made by agents of
the Joint Respondent, both to employees and to union
representatives, as to their intention about closing the
restaurant operation, and, in one instance, the service
station as well, for union-related reasons. Significantly, no
such conversation contained within it the statement that
the potential closing would be a result of economic
conditions, in whole or in part.
Both Lees and Keown testified that they had spoken to
employees about the possibility of the restaurant's closing
the very least, this fact would have been recorded in the minutes
52 In view of my findings as to the interlocking relationship of the
respondents herein, I find, contrary to the testimony of Lees at this hearing,
that a repayment of the $18,000-if that is an accurate figure-would, in
effect, amount to a payment by Glenwood Lees to Glenwood Lees, and that
a failure to repay it would, in effect , constitute a failure by Glenwood Lees
to pay Glenwood Lees
Ss Lees' reference, in his May 18 conversation with Burnia , to a $950 loss
in 1970 is explained, presumably, by his having adjusted the figure above
indicated by making allowances for the general and administrative expenses
($2,394) and for the income from the sale of service station assets ($2,587)
54 But he fails to point out that, in at least 3 of the last 7 years, the
restaurant made a profit To put the argument in its proper focus, then, one
must correct the General Counsel's statement During the last year, the
restaurant lost less than 3 of the preceding 6 years but lost more than the
other 3 years
LEE'S SHOPPING CENTER, INC. 523
because of lack of profitability . Lees could not recall
names or dates and places, but he estimated that he talked
to employees along these lines probably 8 or 10 times over
the entire period-since 1958?-and , during the 5 years
preceding this hearing , 2 or 3 times ; after January 1, 1971,
he conceded , he did not tell this to any of the employees
because "he did not feel that it was their business." Pushed
for details , he said that he had had such conversations with
Nancy Zavala, Ruby Martin, and Linda Sales. Keown
insisted that , Mary Bauman and Linda Sales that the
Restaurant might be closed because it was not making a
profit.
Ruby Martin , Linda Sales, and Mary Bauman did not
testify ; each of them had left the employment of the Joint
Respondent prior to the closing of the restaurant. Zavala,
who did testify , denied that Lees had spoken to her about
the possibility of the restaurant 's closing because of its
losing money ; she did say that, 2 or 3 years before the
hearing , Lees told her that things were not going as well as
he had hoped and that there would have to be changes in
food portions , food prices , and workhours in order to make
up the difference ; and, in February or March 1971, she
testified , Keown had said something about the possibility
of Lees' converting the restaurant into a cafeteria without
any cut , however , in the number of employees . Others who
testified , Johnson, who had worked in the restaurant for 6
years; Vern Westenhoefer , who was, in effect , second in
charge and who had not signed a union card; and
Katherine Burnia , who was present at discussions concern-
ing food portions , denied that either Lees or Keown had
ever said anything about the possibility that the restaurant
might be closed for financial reasons. On, this evidence, I
find that agents of the Joint Respondent never did tell
employees that the restaurant would or might be closed for
financial reasons.
Some light on the problem is also shed by Lees'
testimony that the restaurant was busy only during the
breakfast and the lunch hours, that , had the closing hour
been pushed forward to 2 or 2:30 p.m ., the losses might
have been cut, but that no consideration was given to this
move when it was finally decided to close the restaurant.
Finally , I think it significant that , less than 3 weeks
before the decision finally to close the restaurant was
made , a wage increase was given to the restaurant
employees . Although , I have found , this was not motivated
by union considerations , it does reflect upon the Joint
Respondent 's willingness to sustain further losses in the
operation.
I am persuaded , and I find , that the closings of the
restaurant on May 19 and of the service station on May 21
were not motivated by financial considerations . I find and
conclude instead , on the basis of what I consider to be a
fair preponderance of the credible evidence , that the
closings were bottomed upon union considerations.
These findings, of course, constitute a rejection of the
Joint Respondent 's defense and necessitate some explana-
tion of ( 1) the fact that Respondent Associates ' corporate
minutes for some years prior to the beginning of the
unions' campaign made mention of discussions and actions
having to do with a possible closing of the restaurant
because of financial losses and (2) the fact that, over 2
months prior to the receipt of the Retail Clerks demand for
recognition as the restaurant employees' bargaining agent,
Respondent Center initiated plans to install a line of
furniture at the supermarket , in the space up to then
occupied by the restaurant. As for (1), the possibility that
the Joint Respondent , as a reasonable employer, would
keep close watch upon a "losing operation"-even an
operation on which it was willing to undergo some
loss-just as it would have kept close watch upon an
inefficiently expensive electric sign is just as valid an
explanation as that put forth here by the Joint Respon-
dent; for example , the directors ' concerns as reflected in
the minutes, could well have been constantly voiced if only
to keep the restaurant manager ever looking for ways and
means to cut losses . As for (2), it is significant that the first
mention of using the restaurant space for a furniture
operation, on March 9, postdated the Joint Respondent's
becoming aware that a union campaign was being
organized at the shopping center complex ; this awareness,
I have found, came before that date.
Recognizing the applicability of N.L. R.B. v. Darlington,
380 U.S. 263, the General Counsel here argued that the
Joint Respondent closed the restaurant and service station
not only because of the Retail Clerks apparent success in
organizing the restaurant employees but also in order to
"chill unionism" among the employees in the rest of the
complex . In the light of the unfair labor practices above
found, considering the fact that the two involved unions
were trying to organize supermarket employees as well, a
fact of which the Joint Respondent was aware , I conclude
that the chilling of unionism among the supermarket
employees was indeed one of the bases for the closing.
Upon the foregoing factual findings and conclusions, I
come to the following:
CONCLUSIONS OF LAW
1. Respondent Center, Respondent Associates, and
Respondent Station constitute a single employer, the Joint
Respondent , within the meaning of Section 2 (2) of the Act.
2. The Joint Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and W. Glenwood Lees and George Keown are
agents of the Joint Respondent.
3. The Meat Cutters and the Retail Clerks are labor
organizations within the meaning of Section 2(5) of the
Act.
4. All restaurant employees employed by Respondent
Associates at the Lees shopping center in Farmington,
Missouri , excluding any office or clerical employees,
professional employees, guards, and supervisors as defined
in the Act, and excluding all nonrestaurant employees in
the shopping center , constitute and at all times material
herein constituted a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
5. For purposes of this proceeding , the above bargain-
ing unit may also be described as consisting of all
nonsupervisory restaurant and food -dispensing employees
who may be employed by Respondent Associates , Respon-
dent Center, or Respondent Station in any restaurant or
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
food-dispensing service which may be operated by any of
them in the future.
6. On and after May 3, 1971, and up to and including
at least May 19, 1971, the Retail Clerks was the exclusive
representative of all employees in the aforesaid bargaining
unit within the meaning of Section 9(a) of the Act.
7. On or about May 15, 1971, as clarified on May 18,
the Retail Clerks requested of Respondent Associates that
it recognize the Retail Clerks as the exclusive bargaining
representative of the employees in said appropriate
bargaining unit, and, on or about May 19, 1971, the Joint
Respondent, through Respondent Associates, rejected this
request.
8. By thus rejecting the Retail Clerks request for
recognition, the Joint Respondent refused to bargain
collectively with the representative of employees in an
appropriate bargaining unit, within the meaning of Section
8(a)(5) of the Act.
9. On or about May 19, 1971, the Joint Respondent,
through Respondent Associates, closed down its restaurant
operation, thereby discriminating in regard to the hire and
tenure of employment by terminating the employment of,
and thereafter refusing to recall to employment, Rosemary
Blum, Wanda Blum, Katherine Beard Burnia, Sandra Ely,
Stephen Hager, Patsy Hendon, Lena Johnson, Elvie King,
Alberta Racer, Vern Westenhoefer, and Nancy Zavala
because they had selected the Retail Clerks as their
bargaining agent and in order to chill unionism among
other of its employees, thereby discouraging membership
in a labor organization; by such conduct, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
10. On or about May 21, 1971, the Joint Respondent,
through Respondent Station, closed down its service
station operation, thereby discriminating in regard to the
hire and tenure of employment by terminating the
employment of, and thereafter refusing to recall to
employment, Donald Blum and Jewell Gibson because the
restaurant employees had selected the Retail Clerks as
their bargaining agent and in order to chill unionism
among other of its employees; by such conduct, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
11. By the foregoing conduct, and, on various occa-
sions between March 8 and May 18, 1971, inclusive, by
interrogating employees as to their contacts or acquain-
tanceship with, or their knowledge of the activities of,
union representatives; by soliciting an employee to report
the presence of union representatives on the premises; by
conveying to employees the impression that the employer
was engaged in the surveillance of union activities and
that, if a union became the employees' bargaining
representative, prounion employees might be subjected to
special surveillance; by implying to employees that, if a
union became the employees' bargaining representative,
there might be layoffs or discharges; by conveying threats
to employees that, if a union became the employees'
bargaining representative, it would close its restaurant and
its service station; and by granting a wage increase to its
supermarket employees to induce them to resist a union's
organizing campaign. By each and all of these acts the
Joint Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed them in
Section 7 of the Act, in violation of Section 8(a)(1) thereof.
12. The aforesaid acts are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
13. Except for the foregoing, Respondent has commit-
ted no unfair labor practices under the Act.
THE REMEDY
Having found that the three respondents, as a single
employer, have engaged in certain unfair labor practices, I
shall recommend that they be ordered to cease and desist
therefrom and to take certain joint and several affirmative
actions in order to effectuate the policies of the Act.
With respect to the closedown of the restaurant and of
the service station, the General Counsel does not ask that
the Joint Respondent be ordered to reestablish either
operation; hence, he does not ask that the employees
whose employment was terminated as a result of the
closings be immediately reinstated. In fact, he does not set
forth what he considers to be the appropriate remedy. I
shall recommend that (1) these employees (a) be reinstated
to their former or substantially equivalent positions should
any restaurant or service station operation be instituted by
the Joint Respondent in the future, without prejudice to
their seniority or other rights and privileges, and (b)
meanwhile be placed upon a preferential hiring list for any
vacancies in the entire shopping center complex the duties
of which they are capable of fulfilling; and (2) they be
made whole by the Joint Respondent for their loss of
earnings suffered because of the Joint Respondent's acts,
for the period from their respective losses of employment
until (a) they be thus reinstated or placed on a preferential
hiring list, or (b) they procure substantially equivalent
employment elsewhere,55 whichever occurs earliest. Taking
into account net earnings elsewhere, backpay shall be
computed on a quarterly basis, with interest at the rate of 6
percent per annum in the manner heretofore established by
the Board.
It has been noted that the complaint did not allege that
the Joint Respondent had unlawfully refused to bargain
with the Retail Clerks for the restaurant employees;
nevertheless, the General Counsel seeks a bargaining
order56 "because of the monstrous unfair labor practices
committed by the Joint Respondent, as described above
under the 8(a)(1) and 8(a)(3) sections."57 I have found that
there was an unlawful refusal to bargain here and that the
issue was fully litigated; on this alone, I would recommend
the issuance of a bargaining order. In addition, I find that
the unfair labor practices herein found to have been
committed by the Joint Respondent were "so coercive that,
55 Darlington Manufacturing Co v N L R B, 397 F 2d 760, enfg 139 that the Court of Appeals for the Second Circuit, in N LR B v. Flomaac
NLRB 241. Corporation, 347 F 2d 74, enforced that Board decision in part but refused to
56 But he does not ask that the Joint Respondent be ordered to bargain enforce the order to bargain because it did not regard the 8(a)( 1) violations
about the closedown of the restaurant or about the effects thereof, as "serious enough."
51 He cites Flomatic Corporation, 147 NLRB 1304, but he fails to note
LEE'S SHOPPING CENTER, INC 525
even in the absence of a Section 8(a)(5) violation, a
bargaining order [is] necessary to repair the unlawful
effects" thereof.58 Moreover, even if this were a "less
extraordinary" case marked by "less pervasive" practices, I
would find, particularly in view of the fact that the
employyes in the involved unit are no longer employed
therein and have no likelihood of immediate employment
therein, that the traditional remedies would not ensure that
a fair election could be held; and, since, in fact, the Retail
Clerks did have a majority, I would recommend the
issuance of a bargaining order.59
I shall recommend that the Joint Respondent be ordered
to cease and desist from engaging in the conduct herein
found to have constituted unfair labor practices within the
meaning of the Act,60 and, since the unfair labor practices
committed by the Joint Respondent are of a character
striking at the roots of employees' rights safeguarded by
the Act, I shall recommend that the Joint Respondent
cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act. Finally, since any
notice to employees with respect to the unfair labor
practices found herein may not otherwise come to the
attention of the restaurant and service station employees, I
shall recommend appropriate publication thereof in addi-
tion to the usual posting requirements.61
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in the case,
I hereby recommend that the Board issue the following:
ORDER62
Lees Shopping Center, Inc. and Lees and Associates,
Inc., Respondents herein, and their officers, agents,
successors, and assigns, and W. Glenwood Lees, d/b/a
Lees Service Station, Respondent herein, and his agents,
successors, and assigns, shall:
1. Each cease and desist from:
(a) Discouraging membership in a labor organization by
discriminating in regard to hire, tenure, or other conditions
of employment.
(b) Refusing to bargain collectively with Retail Store
Employees' Union, Local No. 655, affiliated with the
Retail Clerks' International Association, AFL-CIO, as the
exclusive collective-bargaining representative of the em-
ployees in an appropriate bargaining unit composed of all
nonsupervisory restaurant and food-dispensing employees
who may be employed in any of the above respondents in
any restaurant or food-dispensing service which may be
operated by any of them in the future.
(c) Closing down any of its operations because the
employees therein choose to be represented by a labor
organization and in order to discourage unionization of
any of its employees outside such operations.
(d) Interrogating employees as to their contacts or
acquaintanceship with, or their knowledge as to the
58 N L R B v Gissel Packing Company, supra at 615
59 Ibid at 614, also see American National Stores, 195 NLRB No 3
60 But nothing herein should be construed as requiring the Joint
Respondent to rescind any wage increase already given
fii Summit Tooling Co, 195 NLRB No 91
62 In the event no exceptions are filed as provided in Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
activities of, union representatives; soliciting employees to
report the presence of union representatives on the
premises; conveying to employees the impression that the
employer is engaged in the surveillance of union activities
and that, if a union should become the employees'
bargaining representative, prounion employees might be
subjected to special surveillance; implying to employees
that, if a union should become the employees' bargaining
representative there might be layoffs or discharges;
threatening employees that, if a union should become the
employees' bargaining representative, it would close any of
its operations; and granting any wage increase to employ-
ees in order to induce them to resist a labor organization's
organizing campaign.
(e) In any other manner interfereing with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
any labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any
and all such activities, except to the extent that such right
to refrain 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. Each, jointly and severally, take the following
affirmative action which is necessary to effectuate the
purposes of the Act:
(a) Upon request, recognize and bargain collectively with
the above-named labor organization as the exclusive
representative of the employees in the above-described
bargaining unit if and when it should operate any
restaurant or food-dispensing service.
(b) (1) Offer to Rosemary Blum, Wanda Blum, Katherine
Beard Burma, Sandra Ely, Stephen Hager, Patsy Hendon,
Lena Johnson, Elvie King, Alberta Racer, Vern Westen-
hoefer, Nancy Zavala, Donald Blum, and Jewell Gibson
full reinstatement to "hirs"63 former position (or. if that
position no longer exists, to a substantially equivalent
position) in the event that it should institute any restaurant
or service station operation in the future, without loss of
seniority or any other employment rights or privileges, and
(2) meanwhile, place each of them upon a preferential
hiring list for any vacancies which should occur in any of
its existing operations in positions the duties of which
"heesh"64 is capable of performing
(c) Immediately notify any of the above-named individu-
als presently serving in the Armed Forces of the United
States of the right to employment, under the terms
described above, upon application after discharge from the
Armed Forces, in accordance with the Selective Service
Act and the Universal Military Training and Service Act.
(d) Make each such individual whole for any loss of
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
61 1 hereby offer a word needed by the language, meaning "his and her "
fi4 "he/she "
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnigs suffered by reason of the discrimination against
"hirm,"65 from the date of the termination of "hirs"
employment until fulfillment of the obligation imposed in
paragraph 2(b)(1) above or of paragraph 2(b)(2), above, or
until that individual procures substantially equivalent
employment elsewhere, whichever occurs first, in the
manner set forth in the section above entitled "The
Remedy."
(e) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms in this order.
(f) Post at its place of business at Farmington, Missouri,
copies of the attached notice marked "Appendix."66
Copies of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by its
representative, shall be posted immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(g) Mail to each of the individuals named above, at
"hirs" last known address, a copy of the above-described
notice, duly signed by its representative.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
heretofore remedied in this recommended Order.
65 "him/her " Order of the National Labor Relations Board" shall be changed to read
66 In the event that the Board 's order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals
United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board."