Moore Mill and Lumber Co.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 264 (N.L.R.B. 1974)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laila Moore d/b/a Moore Mill and Lumber Company
and Retail Clerks Union , Local 899, Retail Clerks
International Association , AFL-CIO. Cases 31-
CA-3764-I and 31-CA-3764-2
June 28, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On November 20, 1973, Administrative Law Judge
Herman Coreman issued the attached Decision in this
proceeding. Thereafter, the General Counsel, the
Charging Party, and the Respondent filed exceptions
and supporting briefs, and Respondent filed a brief in
response to the exceptions of the General Counsel and
the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
1. On May 19, 1973, in reaction to the Union's
previous request for recognition, Respondent distrib-
uted a notice to employees advising them that certain
changes would be made in their wages, hours, and
working conditions. We agree with the Administrative
Law Judge that, by announcing and effectuating
changes in employment conditions, Respondent
sought to punish employees for their union activities
and thereby violated Section 8(a)(1) of the Act.' How-
ever, we note that not all the rules announced in this
notice constituted deviations from past practice.
Thus, the announcement that personal calls would be
kept to a minimum and that permission would be
required for borrowing tools was merely a restatement
of rules which had been previously enforced. Accord-
ingly, we find that Respondent's reiteration of these
existing policies did not violate Section 8(a)(1) of
the Act. Similarly, we find that although the
Respondent's announcement that henceforth there
would be only two 10-minute coffeebreaks did not
represent an actual change in the existing rule, it did
constitute a threat to enforce the rule more strictly in
the future and thereby violated Section 8(a)(1).
2. We agree with the Administrative Law Judge's
i Having found these actions to be violations of Sec 8(a)(I), we find it
unnecessary to decide whether they also constituted violations of Sec 8(a)(3)
since the remedy would be the same in any event
finding that Respondent's extensive unfair labor prac-
tices affecting virtually all the employees in this small
unit were of such a serious nature as to make the
holding of a fair election impossible. Here the Re-
spondent coercively interrogated most of the unit em-
ployees, threatened them with plant closure, and
suggested that they seek employment elsewhere. In
addition, Respondent reacted quickly to the Union's
request for recognition by threatening more onerous
working conditions for its employees, withdrawing
certain of their existing benefits, and reducing their
hours of work. Furthermore, Respondent learned,
through coercive interrogation, that dissatisfaction
with the wage rates was a reason for the employees'
interest in the Union, and shortly thereafter granted
across-the-board increases in hourly rates of pay. By
thus attempting to foreclose any desire for collective
negotiations over wages through unilaterally confer-
ring a benefit in this principal area of employee con-
cern, Respondent has created a situation which
cannot be remedied by mere words. When considered
in combination with the other threatening and coer-
cive conduct here present, we see no practical hope
that a conventional notice posting requirement can
adequately dissipate the lingering effects of the
Respondent's acts. Thus no fair election can be held
with reasonable certainty that employees would vote
freely and without being substantially influenced by
the unlawful conduct above described. We therefore
find that the cards freely signed by employees, indi-
cating their support of the Union, provide in this con-
text a more reliable test of the employees' true desires.
Since a majority of employees, by that means, indi-
cated their desire for representation, we shall order
the Respondent, on request, to recognize and bargain
with the Union as the statutory representative of its
employees for the purposes of collective bargaining.'
3. We find, in agreement with the Union and the
General Counsel, that the employees should be reim-
bursed for any losses they may have incurred as a
result of the unlawful reduction in hours and elimina-
tion of a free meal for employees who worked on
Sundays.3 Therefore, we shall remedy the effects of
the Respondent's conduct as to these matters by pro-
viding the appropriate make-whole provisions in our
Order.
2 Chairman Miller and Member Penello for the reasons stated by the
majority in Steel-Fab, 212 NLRB No 25, do not adopt the Administrative
Law Judge's finding that Respondent violated Sec 8(a)(5) of the Act, but
rather enter this bargaining order as a remedy for the serious unfair labor
practices committed by Respondent herein Member Fanning, for the rea-
sons cited in his dissent in Steel-Fab case would adopt the Administrative
Law Judge's finding in this regard
7 We shall also order that the Respondent reinstate the practice of provid-
ing a meal to employees who work on Sundays or , if that is not convenient,
provide the monetary equivalent with which to purchase their own meals
212 NLRB No. 27
MOORE MILL AND LUMBER COMPANY 265
4. We adopt the Administrative Law Judge's find-
ing that the extraordinary relief requested by the
Union is not warranted in this case. But, in so doing,
we do, not rely on his finding that the unfair labor
practices resulted from Respondent's naivete.
ORDER-
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Laila Moore d/b/a
Moore Mill and Lumber Company, Lompoc, Califor-
nia, her agents, successors, and assigns, shall:
1. -Cease and desist from:
te(a) Coercively interrogating employees concerning
their union membership and sentiments; castigating
employees for joining the Union; threatening to close
down to obstruct union activity; reducing hours of
work and increasing wage rates to discourage union
activity; denying employees paid vacations or health
insurance coverage for the purpose of discouraging
union activity; more strictly enforcing coffeebreak
rules to discourage union activity; eliminating free
meals for employees who work Sundays to discourage
union activity; and inviting employees who have
joined the Union to quit Respondent's employment
for the purpose of discouraging union activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Make whole Barney Fish for any losses he may
have suffered by being deprived of health insurance
coverage after August 2, 1973, including the cost to
him of any premium payments he made in order to
retain equivalent insurance coverage, with interest at
6 percent per annum.
(b) Make whole employees for any monetary losses
they may have suffered as a result of the discriminato-
ry reduction in hours with interest at 6 percent per
annum.
(c) Reinstate the practice of providing a meal to
employees who work on Sundays or, if that is not
convenient, provide the monetary equivalent with
which to purchase their own meals, and make employ-
ees whole for any losses they may have suffered as a
result of the discriminatory elimination of this benefit.
(d) Upon request, bargain with the Union as the
exclusive representative of the employees in the ap-
propriate unit as set forth in the attached Decision of
the Administrative Law Judge and embody in a
signed agreement any understanding reached.
(e) Post at its establishment at Lompoc, California,
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the Re-
gional Director for Region 31, after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted.' Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint, as to all
allegations not found to be violations of the Act, be
dismissed.
4 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL bargain collectively , upon request, with
Retail Clerks Union, Local 899 , Retail Clerks
International Association, AFL-CIO, as the ex-
clusive representative of my employees in the
bargaining unit described below with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment and,
if an understanding is reached , embody such un-
derstanding in a signed agreement . The bargain-
ing unit is:
All full-time and regular part -time employees
employed by Respondent in its retail hardware
and lumber operations at Lompoc, California;
excluding guards, casual employees , sons of
management and supervisors as defined in the
Act.
I WILL make whole employees for any losses
they may have suffered as a result of the reduc-
tion in hours and discontinuation of Sunday din=
ners.
I WILL make whole Barney Fish for any mone-
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tary losses he may have suffered after August 2,
1973, because I deprived him of health insurance
coverage.
I WILL restore the benefit of Sunday dinners or
its monetary equivalent.
I WILL NOT coercively interrogate my employ-
ees concerning their membership in or feelings
toward the Union or concerning their reasons for
joining or adhering to the Union.
I WILL NOT threaten to close the plant for the
purpose of discouraging union membership or
activity.
I WILL NOT castigate or otherwise threaten em-
ployees with reprisals because of their union
membership or activity.
I WILL NOT change rates of pay or hours of work
for the purpose of discouraging membership in
the Union.
I WILL NOT threaten to strictly enforce coffee-
break rules to discourage membership in the
Union.
I WILL NOT deprive employees of earned paid
vacation or group insurance or discontinue Sun-
day dinners to workers for the purpose of dis-
couraging membership in the Union.
I WILL NOT in any like or related manner inter-
fere with, restrain, or coerce employees in the
exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to
refrain from any or all such activities.
LAILA MOORE d/b/a
MOORE MILL AND LUMBER
COMPANY
(Employer)
Dated By
(Representative) (Title)
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, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7352.
DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Administrative Law Judge: Upon
charges filed in the above-entitled matter on May 24, 1973,
by Retail Clerks Union, Local 899, Retail Clerks Interna-
tional Association AFL-CIO, and duly served on the Re-
spondent, Laila Moore d/b/a Moore Mill and Lumber
Company, the General Counsel of the National Labor Rela-
tions Board on July 18, 1973, issued a complaint alleging
that the Respondent had violated Section 8(a)(1), (3), and
(5) of the Act. An amendment to the complaint was filed
August 3, 1973. The Respondent filed an answer on July 31,
1973, and an amended answer on August 31, 1973, denying
that the Respondent had engaged in unfair labor practices.
The case came on for trial before me on September 6,
1973, at Santa Maria, California. The parties appeared and
were afforded full opportunity to be heard, to call, examine
and cross-examine witnesses, to produce evidence, to argue
orally on the record, and to submit briefs. Briefs submitted
by the parties have been carefully considered.
Upon the entire record in the case, my observation of the
witnesses , and consideration of the briefs, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The pleadings establish, and I find, that the Respondent
is a sole proprietorship with its principal office and place of
business located in Lompoc, California, where it is engaged
in the operation of a retail hardware store and lumberyard.
In the course of its business operations, Respondent annual-
ly receives gross revenues in excess of $500,000 and annual-
ly purchases goods valued in excess of $2,000 originating
outside the State of California. I find that the Respondent
is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local 899, Retail Clerks Interna-
tional Association, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Designation of the Union as Majority Representa-
tive
Union Business Representative Thomas Herndon met
with six of Respondent's employees at the Holiday Inn at
Santa Maria on the evening of May 10, 1973. There, the six
employees, who constituted a majority of Respondent's
work force, signed individual authorization cards reciting as
follows:
MOORE MILL AND LUMBER COMPANY 267
I hereby designate Retail Clerks International Associa-
tion, Local 899, as my agent for the purposes of collec-
tive bargaining. By so doing I have authorized Local
899 to negotiate with my employer for a signed collec-
tive bargaining agreement to provide for my compen-
sation and other conditions of employment.
The employees who signed cards on May 10 were P. L.
Cruz, John S. Dugas, Barney E. Fish, Jack R. Lara, Donald
F. Boddy, Jr., and Mark Goodrich. Other employees i em-
ployed by the Respondent were James Rudolph, Grethe
Bjorkland, Marjorie Davidson, and Nancy Randall. Em-
ployee Pilar signed a union authorization card on June 5,
1973.
B. The Request for Recognition and the Respondent's Reac-
tion
On May 17, 1973, Union Representatives Tom Herndon
and James Aaron called on Mrs. Moore at her place of
business. They carried with them the six signed union au-
thorization cards and a letter requesting recognition as ma-
jority representative. The letter read as follows:
This letter shall constitute official notice that Retail
Clerks Union, Local 899, has submitted evidence satis-
factory to Moore Mill and Lumber Company that Re-
tail Clerks Umon, Local 899, has been designated by
a majority of the employees as the exclusive bargaining
representative of all the employees employed by the
employer with the exception of supervisors employed
at the employer's store located at 320 North D Street,
Lompoc, California 93436.
It is understood and agreed that Moore Mill and Lum-
ber Company does hereby recognize -Retail Clerks
Union, Local 899, as the sole and exclusive bargaining
agent for its employees for the purposes of collective
bargaining in respect to rates of pay, wages, hours and
other conditions of employment.
Please execute a copy of this letter and return it for our
files.
Mr. Aaron was the spokesman. He introduced himself
and Mr. Herndon and explained to Mrs. Moore that they
were there to inform her that the Union represented a ma-
jority of her employees and to demand recognition. Mrs.
Moore asked for proof that the Union represented her peo-
ple. Mr. Aaron handed her the six signed cards which she
examined. At that time Mr. Aaron also handed her the
recognition letter for her to sign. Mrs. Moore read the letter
i I have not included Mrs. Moore's two sons who are also in her employ
because Sec. 2(3) of the Act excludes an individual employed by his parent
but refused to sign it. Mrs. Moore told the union representa-
tives-that they didn't have a majority, stating to them that
she had 12 people working and the Union had'only 6 cards.
When the union representatives responded that it was their
information that there were 11 employees, she replied that
there were 12, counting herself. At this moment Mrs. Moore
brought employee Jack Lara into the office. There she asked
Lara if the employees knew what they were doing by signing
the cards. She told Lara if the employees were not happy to
find other jobs, and she threatened to close down. Aaron
cautioned Mrs. Moore not to get into unfair labor practices,
and Lara left the office. According to the credible testimony
of Union Representative Herndon, Mrs. Moore asked
"what do they want what are they after-I pay good wag-
es-I give 3 weeks vacation-I have insurance-what do
they want." Aaron told Mrs. Moore they were not there to
negotiate; all they wanted at the moment was recognition.
They told her they wanted her to sign the recognition letter.
Mrs. Moore refused. She then brought employee Donald
Boddy to the office and said to him, "Do you know what
you signed," and he said, "Yes," and she said, "What did
these people promise you," and Boddy replied, "Nothing."
Mrs. Moore then asked, "Why did you sign it," and Boddy
replied, "Because I wanted more money." Mrs. Moore said,
"Well you'll recognize you'll make less money," and she
asked, "Did these people tell you you have to pay them
money," and Boddy replied, "Yes, about $7.00 per month."
At this point Union Representative Aaron again cautioned
Mrs. Moore about calling people in and talking to them.
Aaron asked Mrs. Moore to contact her attorney for advice.
Mrs. Moore went out and called employee Jack Lara in
again to the office and again asked him if he knew what he
signed and he said, "Yes." Mrs. Moore told Lara if he was
unhappy working there, "Why don't you get a job some
place else ." Lara replied that he was not unhappy working
there. Mrs. Moore then asked Lara why he signed a card
and he replied that he thought he deserved more money.
Mrs. Moore interrupted to state that Lara made more mon-
ey than her boys and he turned and left.2 Mrs. Moore then
said, according to the credible testimony of Union Repre-
sentative Herndon, "I think I'll fire the six of them-if
they're unhappy, I'll just fire all six of them." The union
representatives again cautioned Mrs. Moore to contact her
attorney before she took any action.
At this point Mr. Aaron asked for the return of the cards
and again asked Mrs. Moore to sign the recognition letter.
The cards were returned, but she again refused to sign the
letter acknowledging recognition of the Union as majority
representative. Union Representative Herndon credibly tes-
tified that Mrs. Moore said she didn't make any money-
she had the business going only for the employees-she
didn't get any money out of it, and if this was the way it was
going to be, she would just go out and close the gate and
lock the place up.
from the definition of "employee ." Foam Rubber City #2 of Florida d/b/a
Scandia, 167 NLRB 623.
2 The conversation between Boddy and Mrs. Moore recited above is in
accordance with the credible testimony of Umon Representative Herndon.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Further Interference with, Coercion, and Restraint of
Employees in the Exercise of their Section 7 Rights
Accompanying the employees' paychecks on May 19,
1973, Mrs. Moore enclosed the following notice concerning
their wages, hours, and working conditions:
Starting next week 5-21-73 you will be working 40
hours per week only.
There will be 2 to work on Sunday from 9:00-3:00.
One Sunday-worker will have Monday and Tuesday
off-the other Thursday and Friday. The balance will
have Wednesday off. John and Mark will work from
9:00 a.m.-6:00 p.m. each day worked. Pete and Jack
will work from 7:30 a.m.-4:30 p.m. each day worked.
Don and Barney will work from 8:00 a.m.-5:00 p.m.
each day worked. Sunday workers will bring their own
lunch and will be paid for the 6 hours worked only. If
they want to make up the other 2 hours, they may do
so during the week. Each one will punch a time clock
coming and going each day worked and will be paid
accordingly. If they leave the premise at any time, they
will punch the clock, haircuts or any personal matter
included. The driver will punch in the morning and
when leaving at night only. Personal telephone calls
will be at a minimum. The two working on Sunday will
be the same two for one month duration then changing
to a new crew-of 2 for 1 month. No one is to borrow
any tools from the lumber yard unless they get permis-
sion from me. Coffee breaks will be 10 min. in the
morning and 10 min. in the afternoon and no others
will be permissable. Vacation time will be figured June
to June and will be taken during the summer months
only unless I personally give them permission. You
must have worked 12 months continually in order to
receive a paid vacation. You have set up your own
schedule for a long time now and now it is my turn. If
there is any questions about the schedule, please feel
free to ask me.
In essence, the changes made in wages and working con-
ditions were as follows: The number of Sunday employees
was reduced by one; employees' days off were changed; the
workweek for employees was cut from 48 to 40 hours per
week; the serving of dinner to employees who worked on
Sunday was discontinued; personal phone calls by employ-
ees were restricted; employees were admonished not to bor-
row company tools without permission and they were
limited to 10-minute coffeebreaks in the morning and af-
ternoon; vacations were limited to the summertime; and the
employees were notified that to be eligible for vacation, they
be required to have had 12 months' continuous employ-
ment. Although the notice recited that employees would
henceforth be paid only for 6 hours worked on Sunday,
contrary to the past practice of paying 8 hours for 6 hours
of actual work, Mrs. Moore did not in fact change the
practice of paying 8 hours' pay for 6 hours' work on Sunday.
Although the notice is silent on the matter, Mrs. Moore
increased the hourly rate of pay of _most employees 60 cents
per hour and increased Pete Cruz' hourly rate by 75 cents.
The reduction in hours from a 48- to a 40-hour workweek
was kept in force about 7 weeks, from May 21 to July 14,
when the 48-hour workweek was restored, but Mrs. Moore
let the increased hourly wage rate stand even though the
workweek was increased from 40 to 48 hours.
Other instances of unlawful interference engaged in by
Mrs. Moore are as follows: Mrs. Moore talked to employee
Mark Goodrich in the presence of the two union representa-
tives on May 17. She asked Goodrich if he signed a card.
When Goodrich replied, "Yes," Mrs. Moore told him if he
didn't like the place he could leave. That same afternoon,
in the presence of her son and employee Grethe Bjorkland,
Mrs. Moore again asked Goodrich why he signed the union
authorization card, what he was looking for in the Union,
and what benefits he wanted. Goodrich told Mrs. Moore
that he was looking for retirement and medical benefits.
Mrs. Moore replied that he had social security. At the time
Mrs. Moore issued the notice regarding certain wages,
hours, and working conditions, she told the group in her
office that before her husband had passed away, they had
resolved that if a union ever tried to come in, they would
cut back the hours of work. Goodrich testified credibly that
several times during this time period Mrs. Moore told em-
ployees that if she couldn't run her business, then nobody
was and she was going to close down. On the day following
the visit of the union representatives to the store, Mrs.
Moore posted a newspaper clipping which said "Retail
Clerks on strike," accompanied by her handwritten remark
"if that's what we wanted."
Employee Jack Lara testified credibly that on several
occasions following the visit of the two union representa-
tives, Mrs. Moore threatened to close down and close the
gates.
Employee Barney Fish credibly testified that on the same
day the two union officials visited the store, Mrs. Moore
told us "if we weren't happy that we should find other jobs,
and she asked us if we knew what we signed and we said
yes." Corroborating testimony from other employees, Fish
testified credibly that on at least 10 occasions Mrs. Moore
told employees that she might close the business. Fish testi-
fied that usually every time Mrs. Moore received a phone
call having anything to do with the Union, you would hear
the "threat to close down all day."
Fish testified credibly and without contradiction that on
August 2, 1973, having been employed 90 days, thereby
becoming eligible for inclusion in the Respondent's health
insurance plan, Fish asked Mrs. Moore if she was going to
sign him up for it. Mrs. Moore replied, "No," that she wasn't
giving anybody anything until the "union deal" was over.
Fish testified he therefore retained his existing Blue Cross
insurance which was costing him $44 every 3 months 3
Fish credibly testified further that on the day after the
union officials visited the store, Mrs. Moore told some of
the employees "we had stabbed her in the back-slapped
her in the face-that that we all had been one happy family
before that."
Employee John Dugas credibly and in corroboration of
similar testimony by other employees testified that on the
3 I find that by declining to include Barney Fish in the health insurance
plan when he became eligible on August 2, 1973, the Respondent violated
Sec 8(a)(1) and (3) of the Act
MOORE MILL AND LUMBER COMPANY 269
morning after the union representatives visited the store,
and in the presence of Barney Fish, Mrs. Moore told them
that we stabbed her in the back, tht there wasn't anything
worse we could do to her. Dugas replied to Mrs. Moore that,
"I didn't feel it was that way, that it was a betterment for
ourselves, and for our jobs, and that I felt that the paycheck
I picked up every week was like a knife in my back." Dugas
also testified credibly and in corroboration of similar testi-
mony of other employees that in the first week Mrs. Moore
said, "that her husband had always said that's what he
would do if they went union; he would set a 40-hour work-
week . Dugas also testified in corroboration of other testimo-
ny in the record that Mrs. Moore, after receiving a phone
call, would say "I'm going to close it up boys; I'm going to
close it up."
Dugas also testified credibly that following the visit of the
two union representatives, Mrs. Moore called him into the
second office and shut the door and asked him who had
made the initial contact with the Union. Dugas told her he
had made the initial phone call which resulted in the
Union's invitation to the employees to meet with them, and
that he had passed this information on to the other employ-
ees. Mrs. Moore expressed her desire to Dugas, "that we all
quit."
Peter Cruz, employed by the Respondent for 27 years,
testified credibly that on the same day the two union repre-
sentatives visited the store , and after they left; Mrs. Moore
mentioned installing a timeclock. When Cruz asked Mrs.
Moore for a vacation, she told him he couldn't take a vaca-
tion until "this union thing was settled." Cruz, like others,
heard Mrs . Moore remark several times that she was going
to close the business and on several occasions , like other
employees, heard Mrs. Moore say, "if we weren't happy we
could leave." Cruz testified that only 2 days before he testi-
fied he heard Mrs. Moore say, "you're going to pay for an
attorney-she wasn't going to pay for it-we were going to
have to pay for it."
I am not persuaded by the Respondent's contention that
the reduction of the workweek from 48 to 40 hours was
based on business considerations , namely, that business had
slacked off; a lumber shortage had developed and the price
of lumber had increased; or that the Respondent was over-
staffed with employees due to increased working hours of
employee Mark Goodrich. On the contrary, I am persuaded
that the change was motivated by Mrs. Moore's policy,
passed on to her by her departed husband in his lifetime,
and expressed by Mrs. Moore at the time that the workweek
was reduced on May 19 to 40 hours, and that she and "her
husband, before he passed away, discussed this, and if a
union ever tried to come in, that they would cut back the
working hours." Moreover, Mrs. Moore admitted that the
union representatives' visit to her plant on May 17 "proba-
bly helped a lot" in her decision to issue her May 19 notice
to the employees announcing changes in wages , hours, and
working conditions. Aside from the fact that Respondent
produced no records to show a substantial business decline,
Mrs. Moore's hire of Barney Fish on April 30 refutes her
testimony that she had decided in April to reduce hours of
work; for if she had decided to reduce hours for lack of
work, she would not have hired Fish on April 30. I am
persuaded by the timing of the announcement of the change
in working conditions only 2 days after the Union had
demanded recognition; by the substance of the other
changes announced in the May 19 notice; by the substantial
hourly wage rate increase that accompanied the announce-
ment ; and by the accompanying threats by Mrs. Moore
made in the same time frame, to close down ; that the em-
ployees had stabbed her in the back; and that they could
quit and go elsewhere if they were unhappy-that under all
the surrounding circumstances the May 19 changes in wag-
es, hours, and working conditions were instituted to dis-
courage and defeat unionization and therefore violated
Section 8(a)(1) of the Act.
C. The Appropriate Unit
The General Counsel's complaint` alleges the appropriate
unit as follows:
All full-time and regular part-time employees em-
ployed by Respondent in its retail hardware and lum-
ber operations at Lompoc, California; excluding
guards, casual employees, relatives of management and
supervisors as defined in the Act.
I agree with the General Counsel's description of the
appropriate unit, with this modification that the "relatives
of management" to be excluded from the unit should be
limited to Mrs. Moore's two sons who are excluded from the
term "employees" by Section 2(3) of the Act. I have con-
cluded in agreement with the Respondent, however, that
Mrs. Moore' s niece , Nancy Randall, who was hired July 14,
1973, and works as a billing clerk, and Mrs. Moore's sister-
in-law, Marjorie Davidson, who clerks and checks sales
tickets, do not enjoy special status by reason of marriage or
blood relationship to Mrs. Moore and therefore should
properly be in the unit. Fresno AG Hardware, 185 NLRB
412. It is clear, and I find, that the entire enterprise of the
Respondent consisting of the yard, mill, salesroom, and
office is under the sole supervision of Mrs. Moore, and its
employees constitute a homogenous group with overlapping
functions who are in daily contact with one another, are
paid by the hour, and enjoy substantially the same fringe
benefits,4 and no other labor organization aeeks to represent
them on a different unit basis.
It is well established by Board precedent that the single
establishment is presumed to constitute an appropriate unit,
where no labor organization seeks a different unit. Golub
Corp., 159 NLRB 503. Moreover, all parties are in agree-
ment that the appropriate unit is an establishment wide unit.
D. The Union Majority
I find contrary to the Respondent's position that the
Union's request for recognition is a sufficient request to
bargain. As the Respondent refused to grant recognition, a
further request to, bargain would be futile.5 On May 17,
4 Part-time employees do not have health insurance
5 N L.R B v Barney 's Supercenter, Inc., 296 F.2d 91 (C.A. 3, 1961); also
NL RB. v. Burton-Dixie Corporation, 210 F.2d 199 (C.A. 10, 1954)
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,1973, the date of the Union's demand for recognition, there
were 10 employees in the unit ,6 6 of whom had signed union
authorization cards, as I have previously noted above in
paragraph III,A. The duties and functions of the various
employees are as follows:
1. John Dugas (a card signer) clerks, waits on customers,
and marks and stocks merchandise as well as other miscella-
neous duties.
2. Jack Lara, (a card signer) sweeps out the shop, loads
trucks, and waits on customers.
3. Mark Goodrich (a card signer) clerks and marks mer-
chandise as well as other miscellaneous duties as required.
Is a regular part-time employee during the school year and
works full time during summer vacation.
4. Don Boddy (a card signer) repairs screens and win-
dows, makes picture frames, waits on customers , and loads
and unloads trucks.
5. Barney Fish (a card signer) is the local delivery truck-
driver.
6. Pedro Cruz (a card signer) is a millman who repairs
doors, cuts wood , makes picture frames , helps customers,
and loads trucks.
7. Pilar Lara (a card signer who signed on June 5) is'the
regular part-time janitor who works 2 hours a day and as a
regular part-time employee belongs in the unit. Callahan-
Cleveland, Inc., 120 NLRB 1355, 1357; Bachmann Uxbridge
Worsted Corporation, 109 NLRB 868. His son , Danny, helps
him occasionally, but only Pilar, the father, is on the
Respondent's payroll.
8. Grethe Bjorkland is primarily a bookkeeper but also
waits` on customers.
9. Marjone Davidson (Mrs. Moore 's sister-in-law) clerks
and checks sales tickets.
10. Nancy Randall (Mrs. Moore's niece, who was hired
July 14, 1973) was working 40 hours a week engaged in
bookkeeping functions, adding up sales, and getting out the
bills. She will work part time while attending college.
I find that on May 17, the date the Union requested
recognition, it held valid authorization cards from six em-
ployees, which constituted a majority of the employees in
the unit which I have herein found appropriate.? I find that
the unfair labor practices engaged in by the Respondent
have made a free and fair election impossible, and under the
circumstances the cards will serve to establish the union
majority.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
6I find that Jimmy Rudolph is a "causal employee" who does not have
a sufficient community of interest with the other employees , and it therefore
excluded from the unit. Mr Rudolph is a school teacher who works part time
at his own pleasure and determines his own hours , computing inventory He
He does no other work and comes and goes when he pleases . In 1973 he
worked a total of approximately 80 hours in the first 3 months of the year
and will not return to work again until late in 1973 or early 1974. M & M
Charter Lines, 173 NLRB 605, 607.
7 A seventh union authorization card was signed by Pilar Lara on June 5,
1973, and it should be counted although the six cards establish the majority.
Area Disposal, Inc, 200 NLRB 350.
Respondent described in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1), (3), and
(5) of the Act, I shall recommend that the Respondent cease
and desist therefrom and from in any other manner infring-
ing upon its employees' Section 7 rights, and that it take
certain affirmative action designed to effectuate the policies
of the Act.
Having found that the Union was a majority representa-
tive of Respondent's employees in an appropriate unit on
May 17, 1973, and that the Respondent, by engaging in
unfair labor practices aimed at destroying the Union's ma-
jority, discloses a disposition to evade its obligation to bar-
gain, it is found that a simple cease -and-desist order would
not prevent Respondent from profiting from its unlawful
conduct, and that only a bargaining order can restore, as
nearly as possible, the situation which would have obtained
but for Respondent's unfair labor practices. See N,L P B. v.
Gissel Packing Co., 395 U.S. 575 (1959). Accordingly, it will
be recommended that Respondent bargain with the Union
as the collective-bargaining representative of its employees
in an appropriate unit and, if an agreement is reached,
embody such agreement in a signed contract.
The charging union, alone, and without the concurrence
of the General Counsel seeks a Tiidee remedy (Tiidee Prod-
ucts, Inc.,, 194 NLRB 1234). It requests that the Board order
the Respondent to mail the notice to employees to each of
the employees in the unit, allow the Union access to the
Respondent's bulletin board for the posting of its notice,
and order the Respondent to reimburse the Union and the
Board for their expenses of litigation in this matter.
The Respondent's enterprise is small and the employees
all live in Lompoc where Respondent's establishment is
located and where they can easily be contacted by union
representatives. The unfair labor practices engaged in by
Mrs. Moore, a widow carrying on the business of her de-
parted husband, were the product of her naivete rather than
the fixed and calculated conduct of a person sophisticated
in labor relations. Additionally, I do not find sufficient
evidence to support a finding that the Respondent's defen-
ses constituted frivolous litigation within the meaning of
Tiidee Products. Accordingly, I deny the Union's request for
a Tiidee remedy. See Walgreen Co., 206 NLRB No. 15 at
footnote 2; Heck's, Inc., 191 NLRB 886.
Upon the basis of the above findings of fact and upon the
entire record in the case, I reach the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrrogating employees whether they signed
MOORE MILL AND LUMBER COMPANY 271
union authorization cards and concerning their reasons for
so doing; by castigating the employees for having signed
union authorization cards; by threats to close the estab-
lishment because the employees selected a union to repre-
sent them; by telling employees who had signed union
authorization cards that they had thereby stabbed the Re-
spondent in the back; by reducing the workweek from 48
to 40 hours and by increasing wage rates 60 cents per hour
to defeat unionization; by rescheduling the workweek; by
denying employees paid vacation because of union organi-
zation; by announcing restriction on such privileges as cof-
feebreaks and personal telephone calls; by discontinuing
serving dinners to employees who worked on Sundays; by
denying health insurance coverage to Barney Fish; and by
inviting employees who had signed union authorization
cards to quit their employment, the Respondent has inter-
fered with, restrained, and coerced employees in the exer-
cise of rights guaranteed them in Section 7 of the Act and
has thereby engaged in, and is- engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. On May 10, 1973, and thereafter, the Union was the
exclusive representative for collective-bargaining purposes
of Respondent's employees in the following described unit:
All full-time and regular part-time employees em-
ployed by Respondent in its retail hardware and lum-
ber operations at Lompoc, California; excluding
guards, casual employees, sons of management and
supervisors as defined in the Act.
The aforesaid unit was, and is, a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. By refusing to recognize or bargain with the Union on
and after May 17, 1973, as the exclusive representative of
its employees in the unit herein found appropriate, with
respect to wages, hours, and working conditions, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
[Recommended Order omitted from publication.]