My Store, Inc.

National Labor Relations Board - Board Decisions

May 25, 1964

147 N.L.R.B. 145 (N.L.R.B. 1964)

'MY STORE, INC. 145
WE WILL NOT threaten , coerce or restrain the aforenamed employer or any
other person engaged in commerce or in an industry affecting commerce , where,
in either case , an object is to force ,or require Light and.-Power Construction
Company to cease doing business with James Julian, Inc ., or with any other
person.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WoRnERs, LOCAL 313, AFL-CIO,
Labor Organization.
Dated------------------- By-----------------------------------------
(Representative) (Title )
This notice must remain posted for 60 consecutive days from the date of posting,
and must 'not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612 , if they have any question concerning this notice or'com-
pliance with its provisions.
My Store , Inc.. and United Retail Workers Union . Case No.
14-CA-3050. May 25, 1964 '
DECISION AND ORDER
On December 9, 1963 , Trial Examiner Phil W. Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action , as set forth in the attached Trial Examiner 's Deci-
sion. Thereafter , the Respondent filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief, and the Union filed cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed . The Board has considered the Trial
Examiner 's Decision , the Respondent's exceptions and brief, the
Union's cross -exceptions , and the entire record in this case,' and
hereby adopts the findings , conclusions , and recommendations of the
Trial Examiner with the following additions and modifications.
The Trial Examiner 's Decision found certain unfair labor practice
violations, but failed to recommend a fully appropriate remedy for
them. Without deciding whether the Trial Examiner had jurisdic-
tion to issue errata amending his Decision after it had issued and
the case had been transferred to the Board , we shall frame an appro-
priate remedy for the violations found.
'The Respondent has requested oral argument . The request is hereby denied; the
exceptions and the briefs adequately present the issues and positions of thenarties.
147 NLRB No. 16.
756-236-65-vol . 147-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
We shall " order, the Respondent' to offer the-unfair labor , practice
strikers, whose unconditional application for reinstatement was un-
lawfully rejected on or about July 11,1963, immediate and full rein-
statement, to their former or "substantially equivalent positions,
without prejudice to their seniority and other rights and,privileges,
discharging, if necessary, any replacements in order to provide work
for such, strikers. We shall also order that the Respondent ,make
whole, for' any.loss of pay that they may have suffered by reason of
the-Respondent}s ,discrimination against them, by paying to each of
these employees a sum of money equal to the amount that he normally
would have earned as wages from the date of his unconditional ap-
plication for reinstatement to the date of the Respondent's offer of
reinstatement , less his net earnings during said period. The amount
of backpay due shall be computed according to the Board's policy
set forth in F. W. Woolworth Company, 90 NLRB 289. Payroll
and other records in possession of the Respondent are to be made
available to the Board, or its agent, to assist in such computation and
in determining the right to reinstatement. Interest on backpay shall
be computed in the manner set forth in Isis Plumbing and Heating
Co., 138 NLRB 716. Similarly, we shall order the Respondent to
make whole the employees whose hours of employment were, dis-
criminatorily reduced from February 1, 1963, until they joined the
strike on May 2,1963.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, My Store, Inc., Taylorville, Illinois, its officers, agents,
successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in United Retail -Workers Union,
or in any other labor organization of its employees, by reducing hours
or refusing to reinstate any of its employees because of their concerted
or union activities, or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of
employment.
('b) Refusing to bargain-collectively in good faith with the Union
as the, exclusive bargaining representative of all employees of the
Respondent in the appropriate bargaining unit described herein.
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
form, join ," or assist labor organizations , including the above-named
Union, to bargain collectively through representatives of their own
MY STORE, INC. 147
choosing, to engage in concerted activities for the purpose of collec-
tive bargaining, or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as amended by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with United
Retail Workers Union as the exclusive representative of all em-
ployees of the Respondent's store at Taylorville, Illinois, including
part-time employees, but excluding the store manager, all profes-
sional employees, guards, and supervisors as defined in the Act, with
respect to rates of pay, wages, hours of employment, and other con-
ditions of employment, and, if an understanding is reached, embody
such understanding in a signed written agreement.
(b) Offer to the employees who on or about July 11, 1963, made
unconditional request for reinstatement, immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges.
(c) Make whole the employees whose hours of employment were
discriminatorily reduced, and also the employees whose application
for reinstatement was discriminatorily rejected, in the manner set"
forth above, for any loss of pay each may have suffered by reason
of the Respondent's discrimination against him.
(d) Preserve and, upon request, make available to the Board or
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 reinstatement rights
and amounts of backpay due under the terms of the Order.
(e) Post at its store in Taylorville, Illinois, copies of the attached
notice marked "Appendix." 2 Copies of said notice, to be furnished
by the Regional Director for the Fourteenth Region, shall, after
being duly signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for a period of at least 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered
by any other material.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words " a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order." -
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
(f) Notify said Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with United Retail
Workers Union, as the exclusive representative of all employees
in the following unit with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and, if an
understanding is reached, embody it in a signed agreement. The
unit is :
All employees of our store located in Taylorville, Illinois,
including part-time employees, but excluding the store man-
ager, all guards, professional employees, and supervisors.
WE WILL offer the employees, who on July 11, 1963, made un-
conditional request for reinstatement, immediate and full rein-
statement to their former positions, without prejudice to seniority
and other rights and privileges.
WE wiLL make all employees whole for any loss of pay suffered
as a result of refusing to reinstate them or reducing their hours.
WE WILL NOT discourage membership in United Retail Workers
Union, or any other labor organization of our employees, by
reducing hours, or refusing to reinstate any of our employees
because of their concerted or union activities, or in any other
manner discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
Union or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in
concerted activities for the purpose of collective bargaining, or
other mutual aid or protection, or to refrain from any or all of
such activities.
All of our employees are free to become or remain, or to refrain
from becoming or remaining, members of any labor organization,
except to the extent that this' right may be affected by an agreement
in conformity with Section 8 (a) (3) of the Act, as amended. We will
MY STORE, INC. 149
not otherwise discriminate in regard to hire or tenure of employment
against any employee because of membership in, or activity on behalf
of, any labor organization.
MY STORE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the employees to be reinstated, if presently
serving in the Armed Forces of the United States, of their right to
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Train' iiig and Service Act of
1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 4459 Federal Building, 1520 Market Street, St. Louis, Missouri,
Telephone No. Main 1-8100, Extension 4142, if they have any ques-
tion concerning this notice or if they have information that its pro-
visions are being violated.
TRIAL. EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard by Trial Examiner Phil W. Saunders at Taylorville, Illinois,
on September 10, 11, and 12, 1963. The General Counsel and My Store, Inc.,
herein called the Respondent or the Company, were represented by counsel and
all parties participated fully in the hearing. The parties also submitted briefs which
have been duly considered by me in arriving at my findings and recommendations
herein.'
The amended complaint alleges that on certain dates the Respondent , in various
ways, interrogated and threatened employees , rescinded privileges , granted wage
increases, and reduced hours of employment of eight employees who are speci-
fically named-all because of union activities . It is also alleged that the Company
refused to bargain collectively with the Union, and that on May 2, 1963,2 16 em-
ployees went on strike-caused by the unfair labor practices of the Company. It
is alleged that all such conduct is violative of Section 8(a)(1), (3), and (5) of
the Act.
Upon the entire record, and from my observations of the witnesses, I hereby
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein the Respondent has maintained a retail store in
Taylorville, Illinois, and is therein engaged in the sale and distribution of meat,
dairy, - grocery, and related products. (The Taylorville store is the only retail
store of the Company involved in this proceeding.)
Annually the Respondent sells and distributes products the gross value of which
exceeds $500,000, and annually the Company receives products valued in excess
of $50,000-transported to its place of business in Taylorville, Illinois, in interstate
commerce, directly from States other than Illinois. I find, therefore, that the
Respondent is engaged in commerce as defined by the Act.
i This case came up for hearing on a charge dated May 8, 1963. The original complaint
is dated July 17, 1963, a first amended complaint is dated August 29, 1963, and the com-
plaint was also amended at the outset of the hearing on September 10.
2 All dates are 1963 unless specifically stated otherwise.
150 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
IT. THE LABOR ORGANIZATION INVOLVED
United Retail Workers Union, herein called the Union, is a labor organization
as defined in Section 2(5) of the Act. '
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The factual events
In -December 1962, -employee James- Cooper contacted the Union expressing a
desire to organize the Company, and during January 18 and 19 the Union secured
signatures from Respondent's employees. On January 24 a petition for an election
was filed by the Union, and shortly thereafter the Respondent's president, Pasqua
Podeschi, was contacted by a representative of the Board's Regional Office in
St. Louis, advising Podeschi that the petition had been filed-supported by author-
ization cards. Podeschi then had employee Edward Poor and his son, Marcel
Podeschi, assist him in asking each of the Respondent's employees whether or not
they had been contacted by the Union and had signed cards .3 Employee Don
Spindel credibly stated that Podeschi asked him if he had been contacted by union
representatives, if he had signed a card, if Spindel knew who would have started
the union efforts, and that on this occasion Podeschi also inquired if Spindel would
help to find out who started the union activities. Employee Wiggs was also asked
by Marcel Podesci if union representatives had attempted to get him to sign a card,
and Podeschi asked Wiggs if he knew who was behind the Union-Podeschi then
informed Wiggs that he thought Spindel and Cooper were the employees behind
the union efforts.
Podeschi then had each employee sign his name and address on a slip of paper,
so their signatures could be taken to the Board's Office in St. Louis and compared
with the signatures on the authorization cards .4
This record further shows that on January 31, a conference was held at the
Board's Regional Office in St. Louis. Podeschi asked that the 49 slips of paper be
checked agtinst the authorization cards, and after comparisons were made Podeschi
was then advised that the cards contained valid signatures. A question was also
raised at this conference relative to the eligibility of several employees who were
working for the Company under a program in connection with Taylorville High
School.5
On February 1, Podeschi, called his employees together for ia meeting in the
store, at which time he stated,that the employees had gone behind his back in getting
a union and that they should have come to him. Podeschi then went on to tell the
employees that he was tired of playing "Santa Claus," that they could no longer
get haircuts on company time and could no longer use the battery charger or
cables, that coffee breaks would be without talking or argument, and that there would
be no congregating in the store kitchen. At this meeting Podeschi also further
inquired of several employees if representatives of the Union had contacted them
about signing cards, and then stated that he could cut off 15 jobs if he wanted to.
Podeschi further informed employee Frank Sartore that he would not need his son
Lonnie any more except possibly on weekends, and also stated to the employees on
this occasion that he could sell the store any time, and then produced a postcard
which he indicated was an offer to buy the store.6
'Podeschi testified that out of all employees contacted-only three admitted any activi-
ties for the Union.
a Each of the 49 employees signed such a slip of paper. Podeschi explained that this
was done because when the employees were questioned, as aforestated, only three of them
had admitted any union affiliation. When employees were asked to sign the slips of
paper-some were told that the Company thought someone had been hired to turn In
names for a union or that the cards submitted by the Union bore forged signatures.
' This program is known as the "D.E." or "D.O" program, and in essence the students
Involved work at the store part time while also attending school classes, and then received
grades as to both. -
6 In the separate conversation with Frank Sartore-Podeschi asked Sartore how he
would like to work for a week's salary on a clerk's wages-and also how he would like
to have his hours cut. Sartore had a total employment of 16 years Podeschi also in
February inquired of employee Wiggs if he knew who was behind the Union, and then
Informed Wiggs that he thought Cooper, Walker, Spindel, Garmon, and the "school kids"
were the ones.
MY STORE, INC. 151
Thikredord`'shows that prior- to February, the, Respondent's employees Wefe 'not
formally -scheduled to work, as such. Most employees worked regular hours;'how-
ever, and approximately 63-to 65 hours pr week. On or about February 5 ',or 6,
the Company started a program whereby each employee was scheduled Tot definite
working hours, and in furtherance of this program a schedule was given to each
employee. General Counsel's Exhibit No. 16 shows that the eight employees named
in the complaint suffered a reduction in the number of hours they worked, and
which reduction commenced in the week beginning February 3?
- On February 21, a consent election was conducted by-the Board,8 and when the
vote was announced Podeschi asked whether he could lay off 15 to 17 employees.
He was advised by the Union that he should take no action until such a time when
the matter could be discussed between the parties .9
This record further reveals and shows that on March 1 the Union sent a letter to
the Respondent, in which it requested certain information concerning names of em-
ployees on the payroll at that time, the employees'-hiring dates and job classifications,
the employees' current rates of pay and their average number of hours worked per
week for the last 3' months, benefits provided by Respondent for the employees, days
and hours during which Respondent's store was open for business, the store ^ volume
of sales by month for each' department, and job duties required of employees away
from the store premises. On March 12 the Company sent the Union some of the -re-
quested information, and included in this was information relative to wages paid to
employees. There is no question-and it'is admitted-that this -information was in-
correct. As far as I can ascertain, the correct information concerning wages has
never been furnished to the Union.
On April 4 the second negotiation meeting was held. During this meeting, the
union proposed contract (General Counsel's Exhibit No. 5) which had previously
been submitted to the Respondent was discussed in detail. While discussing the rec-
4 Cooper,- who had worked as many as 74 hours per week prior to that time, had his
hours reduced: first, to 48 hours per week, then to 46 hours per week, then to 23 hours
per week, then to 20 hours per week, bottoming at 193/2 hours in the week ending April 11,
1963. Ginger, who had averaged approximately 40 hours per week prior to February 1963,
had his hours reduced: first, to 31 hours per week, then to approximately 24 hours per
week, then to approximately 181/2 hour's per week ; bottoming at 8 hours in the week
ending April 4. Mahan, who had averaged approximately 39 hours per Week prior to
February, had his 'hours reduced, `so that for the months of February, March, and April
he averaged 21 hours per week, and worked as few as 101/2 hours during'the week ending
April 4. Reed, who had averaged approximately 401/2 hours per week prior to February
1963, worked as many as 46 hours per week during the week ending Tanuary 3. How-
ever, commencing in February his hours were reduced, so that his average number of hours
worked per week during the months of February, March, and April was 19, reaching lows
during the week ending March 28 of 3 hours, and during the week ending April 4 of
8 hours. Lonnie Sartore, who had averaged approximately 27 hours per week prior to
February, had his hours reduced so that his average number of hours worked per week
was- 9% . Spindel, who bad averaged approximately 62 hours per week prior to February,
had his hours reduced so that during the months of February, March, and April he worked
only an average of 38 hours per week, reaching a low of 32 hours per week during the
weeks ending March 7 and 14. Shanks who had averaged approximately 64 hours per
week prior to February, had his hours reduced, so that during the months of February,
March, and April his average number of hours worked per week was approximately 41.
Florence Walker, who had averaged approximately 42 hours per week prior to February,
had her hours reduced, so that during the months-of February, March, and April her
average number of hours worked per week was 29.
The Union won the election by four votes and on March 4 was certified. It is noted
In this regard that the certification was not challenged before the Board after the elec-
tion was conducted, and that Respondent does not contend in this proceeding that the
certification was invalid.
s On February 26, the Union filed its first unfair labor charge against the Company
(Case N. 14-CA-3008-General Counsel's Exhibit No. 13). At the first negotiating meet-
ing between the parties on the next day, the Union agreed to hold this charge in abeyance,
and the Company agreed there would be no further reduction in hours or in the working
force, that a discharged employee would be reinstated , and that the status quo would be
maintained pending further contract negotiations. Following this meeting , Cooper was
reinstated and this charge was dismissed by the Board's Regional Office. The charge
upon which the complaint in this case is based was filed on May 8 , as aforestated.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ognition clause, which indicated that the Union represented part-time employees,
Podeschi stated that perhaps the Union did not represent the employees, because there
was still a question in his opinion as to whether the Union should be representing his
people, based on the D.E.-D.O. students ' voting in the election, and that he had
written to Washington about the matter and if the answer came back that the,
D.E.-D.O. students should not have voted, the Union would not be negotiating with
the Respondent at all. The record shows that in discussions dealing with job classi-
fications or departments in the store, the Union pointed out that the questionnaire it
had received from many of the Respondent's employees indicated that the employees
had specific job duties and generally worked in a department; i.e., grocery, meat, or
carry out. However; Podeschi took the position that all the employees in his store
were interchangeable and that no employee was assigned to work in any particular
department. It was the Union's position that the Respondent had individuals work-
ing in the produce department, the meat department, and as carryout boys. In the
Union's proposed contract a 3-year duration was also discussed, and Podeschi stated
that 1 year is all he wanted because there would then be an election and then "the
Union won't be here anyway." The Company refused to post a work schedule on
part-time employees and nothing definite was reached on this matter. After a dis-
cussion between the parties on a lunchroom in the, store, the Company conceded
that the employees could eat at the store if they received permission from Podeschi.
The,Union also brought up the possibility of employees getting credit for previous
experience, vacation period, pregnancy leave, and layoffs, but these proposals were
either turned down by the Respondent or no comment was made on them. Podeschi
also flatly refused the proposed clause relative to a union shop.'°
. Another negotiating meeting between the parties was held on April 11: Podeschi
again stated that when his answer.from Washington came back relative to the "D.C."
and "D.O." students the "whole thing" would be concluded. At this meeting the
Union also requested certain information relative to the Respondent's insurance
plans." A Federal mediator was also present at this meeting, but no progress was
made on major contentions under discussion such as the union-shop provision, de-
partment heads, and the term of the proposed contract. By April 11 the Company
had not submitted any counterproposal.
Union Representative Burki testified that at the meeting on April 22, very minor
progress was made, and all parties concluded that it looked like an impasse had been
reached.12 On or about April 28 or 29, a meeting was held of all the Union's mem-
bers in the Taylorville area, including 21 individuals who were in the employ of
Respondent, and about 30 individuals who were in the employ of other retail stores
in the area. During this meeting, the problems which the Union had been con-
fronted with in its negotiations with Respondent were discussed. The members were
informed that the purpose of the meeting was to tell them of the current problems in
the negotiations, including a full discussion on the items of disagreement between
Respondent and the Union. During this meeting, the unfair labor practice charges
which had been filed with the Board on February 26, as aforestated, were read in
their entirety, and each charge was explained to the members present. It was also
explained that the reduction in the hours or the withdrawal of the privileges which
they had previously enjoyed; i.e., using the telephone, using the oil changer, grease
rack, or other things, were, in the opinion of the business representatives of the
Union, illegal, and that the Board would see that these things were corrected. With
respect to the contract, 27 separate items were detailed, each of which was con-
sidered by the Union more than just a minor item which was a point of disagreement
between the parties. Respondent's lack of cooperation in submitting the information
which had been requested was also detailed for the members. After discussions on
these points, all individuals present agreed that a strike vote should be taken by
secret ballot. Such a vote was taken, and of the 50 individuals who voted all were
in favor of the strike.
10 Podeschi stated that if the employees gave him money he would remit it to the Union.
n The information on insurance was not received until July and the Union had to renew
its request for this information at each negotiation meeting. Even then, it was incomplete
in that it failed to list the employees by name and the coverage which they had, as
requested.
12Burki further related` that the only way -the Union could make their 'desires known
more forcefully was to discuss what had transpired at the meeting with their members-
and then let them make a decision on what the Union' should do.
MY STORE, "INC. 153
On May Z Podeschi informed employee Spindel that whoever went out.on strike
could consider themselves fired unless he had a doctor's excuse, and that Podeschi
was going to drop the insurance on those who went on strike. About this same
time Podeschi told Garmon, Wiggs, and other employees that if they went out on
strike their insurance would not be any good, and he also mentioned to Garmon
that he would see that the high school boys did not get their diplomas. At mid-
night on May 1 employees went out on strike against the Respondent.13 This record
further reveals that starting in May several new employees were then hired, and the
Company had seven individuals as replacements on or about July 11.14
On,May 13 another meeting took place between the parties. At this meeting one
of the Respondent's negotiators was absent, and the Union was informed by the
Company that the absent individual had taken the notes in prior meetings, and those
who were present for the Respondent could not recall what had previously tran-
spired. The Company again denied that there was a meat department or meat-
-cutters in the store, and the Union had not received the Respondent's health and
welfare plan as had been promised. Among many other items there was still no
agreement on union security, overtime after 32 hours, and the lunchroom. The
Company had agreed on part-time holiday pay, closing -hours on certain holidays,
and also some agreement was reached on wages of employees, but there was never
any agreement on wages for those who were department heads, Podeschi merely
stated that he did not have any.15 On June 3 the parties met again, but made little
or no headway.
_ It was not until the July 11 meeting that the Company even deigned to make a
counteroffer, some 4 months after the Union had been certified and 3 months after
the first April bargaining session began.16 In looking the proposal over the Union
noticed that while there were some concessions there were also omissions in the
proposal of things that had been agreed upon long before. Rest period, for example,
was completely omitted.
On July 11 the Union, at the conclusion of the negotiations taking place that day,
made an unconditional offer, on behalf of the employees on strike, to return to work.
At that time, Respondent advised the Union that it would consider this offer and
advised the Union at a later date regarding Respondent's position with respect
thereto. On or about July 13, the Respondent contacted the Union and advised that
the Respondent would take back the striking employees two or three at a time on a
seniority basis, and, as the economic condition of the store warranted, would call
the strikers back as additional help was needed,. Respondent expressed no willing-
ness to discharge any of the seven striker replacements hired after May 2, 1963.
This offer by Respondent was confirmed by a letter which was received by the
Union on or about July 1517 In this letter, Respondent also failed to indicate that
it would discharge the individuals hired as striker replacements, while agreeing to
return the strikers to work on a piecmeal basis as economic conditions warranted.
This offer of Respondent was not accepted and the strike continued through to the
time of this hearing.'S
On July 23 another meeting was attempted by the Federal mediator. To expedite
this conference the Union prepared two lists, one, "Areas of tentative agreement"
(General Counsel's Exhibit No. 10), and the other, "Items requiring further nego.
tiation" (General Counsel's Exhibit No. 9). Review of these documents shows
that of the 13 items'listed as "tentatively agreed upon," only 6, pertaining to minor
points, were fully acceptable (call-in pay, lunchroom, funeral leave, time off for
union stewards, arbitration, and Christmas and New Year's Eve closing). Several
of the other items required additional modification before they could be accepted,
and related to more fundamental items, such as work schedules -and check off. Of
the items requiring further negotiation after 3 months, there were at least 23 on
which there had been no or very little agreement reached. At this meeting, however,
13 0 T. page 242.
14 General Counsel's Exhibit No. 16.
11 The timecards disclose that the Company was paying wages to several employees listed
in the meat department.
11 General Counsel's Exhibit No. 7.
17 General Counsel's Exhibit No. 8.
18 It is also noted that after the unconditional offer to return to work was made, the
Company hired at least five additional employees, and that these individuals, together
with the replacements who had been hired prior to July 11, as aforestated, were in the
Respondent's employ at the time of this hearing.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union agreed that it would not hold up negotiations on,the proposed clause
relating to previous experience , and the parties then agreed on clauses relating to
jury service, pregnancy leave, injury on the job , " access to company records, and
shop cards. On the balance, there were no concessions or agreements by the
Company,ia
B. Final conclusions
I do not think it necessary to prolong here any further detailed discussion as to
the 8 (a) (1) allegations of the complaint . The record is clear that after being
advised of the union activities, the Company took steps to find out the strength of
the Union and proceeded to ask each employee whether or not they had been
contacted , and whether each had signed an authorization card. Several employees
were asked if they knew who the supporters or leaders behind the union activities
were, and others were requested to assist by finding out who the individuals were
responsible for the union activities . Some employees , including Spindel, were
repeatedly asked whether'they had signed authorization cards for the Union. Cer-
tainly their interrogations and the signing of signature slips, as aforestated , showed
employees that the Company felt only adverse sentiments toward the Union. -Sub-
sequent to these events the Respondent then informed employes that many of their
prior privileges were being withdrawn, as heretobefore mentioned. The employees
on February 1 were also told by Podeschi that 15 jobs could be eliminated and that
the store could be sold.20 In Blue Flash Express, Inc., 109 NLRB 591, the Board
indicated that for a limited purpose an employer may interrogate employees, but
only after safeguards are taken in the form of assurances to them that no inter-
ference or coercion is intended and that the employees have a right to do as they
please. In the situation here the Company gave no safeguards whatsoever, and
furthermore the interrogations clearly revealed that the Respondent was dead set
against the Union, and would take whatever steps were necessary to defeat its
organization attempts . So regardless of whatever initial objectives were contem-
plated by the Company, and whether they were legal or illegal, the subsequent
implementations under these circumstances were clearly violative of the Act.
The foregoing instances that have been credited and attributed to the Respondent
include unlawful interrogations to ascertain which employees signed union authoriza-
tion cards , which employees started the organizational efforts for the Union, and
inquiries and convassing into sentiments , attitudes , and sympathies of other em-
ployees; threats to sell the Respondent 's business , to reduce hours of employment and
wages, and to eliminate jobs and employees ' insurance . This conduct on the part of
the Company constitutes violations of Section 8(a) (1) of the Act, and I so 'find 21
As related herein, this record establishes that long enjoyed 'employee benefits were
also rescinded by the Company because of union activities . This is discrimination in
conditions and terms of employment , and a clear violation of 8 (a) (3) and (1) of
the Act. - The principal 8(a) (3) allegation involved here, however, is the cutting of
the hours of eight employees 22 Cooper was openly identified by Podeschi as one
of the "ring leaders" in the organizational efforts for the Union and was a union
observer at the election. Frank Sartore admitted to the Company that union repre-
sentatives had been to his home to discuss the Union , and from these associations
with the Union , Lonnie Sartore, Frank Sartore's son , was also identified with the
Union. Employees Mahan, Ginger, and Shanks, were or had been under the "D.E."
or "D.O." programs, and their status to participate in union activities had been con-
tinually objected to, as aforestated. Spindel, Cooper, and Shanks attended some or
all of the union meetings , and some of these meetings were also attended by relatives
"Around September 2, the Union was informally advised over the telephone by the
mediator , after the amended complaint in this case had issued , that the Company would
make some additional concessions , but no formal offer on these was ever received by the
Union. Supposedly these concessions related to certain pay rates and status on part-time
employees , overtime , seniority, and split shifts.
20 To illustrate these points Podeschi then told employee Sartore that his son would not
be needed-with the possible exception of weekends.
21 The only witness the Company placed on the stand , other than technical witnesses,
was Podeschi himself. For the most part Podeschi did not try to deny many of the
8(a)(1) allegations . Accordingly , this record stands unchallenged in several of these re-
spects, and it is replete with instances of the-Company's overt hostility to the Union and
to the exercise by its employees of their rights under the Act.
22 The eight employees so named in the amended complaint are: Cooper , Ginger; Mahan,
Reed, Lonnie Sartore, Shanks , Spindle, and Florence walker.
MY STORE, INC. 155
of the Respondent's president, Podeschi. For the reasons given here and from the
overall evaluation of this record, it appears clear to me that-the eight discriminatees
listed in the complaint were, in fact, active supporters of the Union; that the
Company either had specific knowledge of their union activities or they were thought
to be behind the Union; and that they all suffered sizable reductions in the number
of hours they worked, immediately of shortly after the Company became aware of
their union activities. As previously pointed out herein, the Company- engaged in
a very complete and detailed survey, investigation, and canvass on several occasions
for supporters of the Union, and this also lends weight to my finding that the Re-
spondent had knowledge 23
In the periods of time heretofore related-this record shows that Cooper went
from 74 hours to 19 hours; Ginger was reduced from 40 to 8 hours; Mahan went
from 39 hours in February to 10 hours in April; Reed from 40 to 3 and 8 hours;
Lonnie Sartore from 27 to 9; Spindel from 62 to 32; Shanks from 64 to 41; and
Walker from 42 hours to 29. The Respondent argues that the reduction of hours
was necessary due to economic conditions24 The Respondent's accountant, Ribordy,
testified that the Company had a sales volume high in December 1962, and that by
March 1963 the volume had dropped 31 percent, and that the labor hours dropped
21 percent. Ribordy also stated that the falling off of sales volume and labor hours
was also true in like periods for the years 1959, 1960, 1961, and 1962.25 As far as
I am able to ascertain, General Counsel's Exhibit No. 15 shows that there were
neither separations nor any sizeable reductions in the number of hours of work for
employees in the first quarter of 1962. While there were a few instances of reduc-
tions in hours from the first pay period in January 1962, in the last pay period in
March 1962, most of the individuals then working for the Company enjoyed more
or less constant hours of employment during this quarter of 1962.26 It further
seems to me that the two graphs submitted, as conclusionary of the Respond-
ent's tabulations, also lack probative value in support of their contention. In
preparation of the graphs, the accountant admittedly did not take into consideration
the fact that the Respondent has several operations outside of the one store involved
in these proceedings, and on frequent occasions individuals, while on the payroll
of the store, are assigned work away from the store, and which operations produce
no income for the store. Furthermore, this record shows that several of the discrimi-
natees in this proceeding had at least some seniority in employment over at least
three other employees not involved herein, and while this aspect of the case was not
fully developed, it tends, in my opinion, to add some additional support- to, the
General Counsel's case. It is also interesting to note that several employees who
were not at least directly involved with union efforts, or who did not go out on
strike-Perry Corogill, Shirley McArdel, Coady, et al.-all retained constant hours
of work each week, and in one or two instances their initial employment was dated
subsequent to the employment of Spindel, Shanks, Mahan, and Cooper.
In accordance with the above, I find that the Respondent selected and then reduced
the hours of employment of the eight discriminatees named herein because of their
union activities, and was, therefore, violative of Section 8(a)(3) of the-Act.
The statutory duty to bargain collectively imposes the obligation to meet and
"confer in good faith" with a view to the final negotiation and execution of an
agreement. Section 8(d) of the Act. To be- sure, the Act "does not require either
party to agree to a proposal or require the making of a concession" (N.L.R.B. v.
National Shoes, Inc., and National Syracuse Corporation, 208 F., 2d 688, -691
(C.A. 2)). On the other hand, there is no question that "surface bargaining"
(NL.R.B. v. Whittier Mills Company, 111 F. 2d 474, 478 (C.A. 5) ), or an em-
ployer's "failure to do little more than reject [union demands]" is "indicative of
a failure to comply with [the] statutory requirement to bargain in good faith."
23 There is well-established Board and court precedent that dircct knowledge of an em-
ployee's concerted .activities is not essential-for finding an S (a) (3) violation. The Board
has held that such knowledge may be inferred from the record as a whole. Wiese Plow
Welding Co., Inc., 123 NLRB 616.
24 The Company contended that their past history shows a decline in employment from
peaks in December to lower employment hours in January, February, and March.
2aAccountant Ribordy stated that his conclusions were ascertained from General Coun-
sel's Exhibit No. 15, which, was mainly compilation in 1962 of employees' timecards,
coupled with the sales ledger of the Company, and these factors and figures were the
basis of his testimony-all reflected in two graphs submitted by tthe Respondent, and
marked "Respondent's Exhibits Nos. 4 and 5."
26 The exhibits in this record do not contain employees' timecards for the years prior
to 1962.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N.L.R.B. V. Century. Cement Mfg. Co., Inc., 208 F. 2d 84; 86. (C.A. 2) "Collective
bargaining, then, is not simply an occasion for purely formal meetings between
management and labor, in which each maintains an attitude of 'take it or leave it';
it presupposes a desire to, reach ultimate agreement to enter into a collective bar-
gaining contract." . N.L.R.B. v. Insurance Agents' International Union, AFL-CIO
(Prudential Insurance Co.), 361. U.S. 477, 485. In accordance with these general
principles as applied to the factual circumstances and events in this case, I find that
the Respondent's whole, course of dealing with the Union clearly demonstrates that
it is .engaged in mere surface bargaining. In so finding, I rely particularly on the
following evidence of the Respondent's bad faith:
To begin with, it appears to me that the Company did not come to the bargaining
table with a sincere resolve to enter into a meaningful relationship with the Union.
It came with but one fixed idea-get the Union out of the store. * It came fresh from
discriminatorily cutting hours of its employees, fresh from rescinding several com-
pany benefits enjoyed by the employees, purely as a retaliation for their union
activities; employees had been interrogated as to union sympathies, threatened with
pay cuts, and the son of one employee told he was no longer needed. This was the
atmosphere within which the Company opened its bargaining, and any doubt that
it intended to continue its antiunion purpose was quickly dispelled by its refusal to
do anything but, stall and delay.
This record shows that on March 1 the Union requested various'information from
,the Company. In reply the Company 'admittedly furnished incorrect information
on current wages paid to employees, and subsequent to the discovery of the error
never corrected the mistake by an official written communication to the Union.27
At the meeting on April 4, Podeschi informed those present that perhaps the Union
.did not represent the employees because "D.C." and "D.E." individuals had voted.
As the credited testimony shows, this was constant needling on the part of the
Respondent. This issue had been settled by the parties in their agreement to the
consent election on February '21, and, therefore, the continual harassment on the
matter was not an expression of any bona fide doubt as to, the Union's majority
status, but rather, this objection persisted because the Respondent was opposed to
any bargaining at all. Likewise, the Respondent's position that once word was
received from Washington on the high school people, the Union would no longer
be representing the employees, is reminescent of the tactics denounced in N.L.R.B.
y. International Furniture Company, 212 F. 2d 431', 422 (C.A. 5), where the em-
ployer attempted to press the bargaining process out until the end of the certification
year when the union majority status could be challenged. In addition, I find that
no genuine impasse was reached on April 22, in view of the Respondent's bad-
faith bargaining as revealed by its entire course of conduct during the negotiations.
It is also noted here that at the May 13 meeting the Union was informed that
one of the Respondent's negotiators was absent-and that he was the one who had
taken the notes on the prior meetings , as aforestated, and as a result the Union had
to start the discussions all over again. The Respondent in this incident clearly
displayed a dilatory attitude and reluctance to, bargain in good faith. It is further
noted that it was not until July 11, some 4 months after the Union was certified, when
the Company'first submitted a counterproposal, and some 2 months after the em-
ployees had gone out on strike. Moreover, Respondent's counterproposal made no
mention of some items the parties had agreed to long before. Again dilatory
tactics.
This record shows that up to July 23-5 months after tbe'election-there were
still 23 items -on which there had been no or very little agreement reached. About
this time. the Union receded further and further from its original demands, and
progessively reduced or revised a great number of its initial requests in an attempt
to reconcile differences and reach ultimate agreement. It appears clear to me that
those agreements which were made were solely by reason of the Union's acceptance
of the Respondent's proposal as it stood. Likewise, this finding cannot be dis-
counted because the Company subsequently made some minor concessions to give
77 To be sure , the Union had no difficulty in eliciting promises to supply information-
comnany renresentatives assured the Union that certain data was in'preparation-but to
obtain complete and ndenuate information in sufficient time to be of use at the bargaining
table was quite another matter . The emnlovee benefits asked for (insurance and welfare
plans in usable form ) were not provided until months later. Such tactics are incon-
sistent with the obligation to supply the Union with proper information without undue
delay.
MT'" STORE, INC. 157
the appearances of bargaining, and while eventually there were apparently some
concessions made, it is clear to me that there was no real intent on 'the Respondent's
part to reach an agreement 28
In sum, the conditions which the Company imposed on bargaining, including the
unabated discriminatory hour cutting, threats to discharge' employees who, dared
considered going on strike, the statement by Podeschi on May 2 that he would see
to it that the high school employees would not get their diplomas, and a threat that
insurance benefits of those thinking of striking would be taken away, contribute
strong supporting evidence to my findings here, and is further evidence of the Re-
spondent's bad faith.
The last phase of this case deals with the contention by the Company to the effect
that the strike on May 2 was called only for economic reasons. The evidence
clearly indicates that Respondent had engaged in bad-faith -bargaining with the
Union, and had made certain other reprisals against its employees because of their
union -activities. And after a union meeting, as outlined in an earlier section herein,
during which Respondent's conduct' was fully detailed and explained, and during
which the union representatives detailed for those present all the "unfair labor
practices" which Respondent had committed and was continuing to commit, a strike
vote was taken. Clearly, the strike action taken as a result of the vote at this meeting
was in protest of Respondent's unfair labor practice conduct and was substantially
motivated by such factors, and in accordance therewith I so find.29 Under estab-
lished law the unfair labor practice strikers were entitled to reinstatement to, their
jobs upon unconditional application, and regardless of whether or not they had
been replaced. As aforestated, the employees-through the Union-made their
unconditional offer to return to work on July 11. I further find that the requirement
of the Company to the effect that strikers would be called back two or three
at a time as economic conditions warranted-with no willingness to discharge any
of the replacements hired after May 2- also constituted discrimination in violation
of Section 8(a)(3) of the Act. It is well settled that the imposition of such a con-
dition on returning unfair labor practice strikers is unlawful.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action which I find necessary to effectuate the policies of the Act.
I shall recommend that the Respondent offer employees James Cooper, William
Ginger, Richard Mahan, Kenneth Reed, Lonnie Sartore, Charles Shanks, Don
Spindel, and Florence Walker, and all the other unfair labor practice strikers im-
mediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, discharging, if
necessary, any replacements in order to provide work for such strikers. I shall also
recommend that the Respondent reimburse the foregoing employees for any loss of
pay they may have suffered by reason of the Respondent's discrimination against
them, by paying to each of these employees a sum of money equal to the amount
that he normally would have earned as wages from the date of his unconditional
application for reinstatement to the date of the Respondent's offer of reinstatement,
less his net earnings during said period. The amount of backpay due shall be com-
puted according to Board policy set forth in F. W. Woolworth Company, 90 NLRB
289. Payroll and other records in possession of the Respondent are to be made
available to the Board, or its agents, to assist in such computation and in determining
28 These concessions were mainly on items about which there was little, if any, real dis-
agreement between the parties. and in many instances it was the Union who made the
concession.
29 While it may be argued that the strike, in part, was for some economic motivations,
the record, on the whole, as indicated above, establishes that the strikers were unfair
labor practice strikers.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the right to reinstatement . Interests on backpay shall be computed in the manner
set forth in Isis Plumbing & Heating Co ., 138 NLRB 716. It is also recommended
that the eight employees specifically named above be made whole by paying each
a sum equal to that which he would have earned since February 1, 1963, to May 2,
1963 , absent the discrimination against him, less his net earnings during said
period.
Having also found that the Respondent has unlawfully refused to recognize or
to bargain with the Union as the representative of employees in an appropriate unit,
it will be recommended that the Respondent be required , upon request, to extend
recognition to and to bargain with the Union.
It will be further recommended , in view of the nature of the unfair labor prac-
tices the Respondent has engaged in, that it cease and desist from infringing in any
manner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
in engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By discriminating in regard to the hire and tenure of employment of the
foregoing named employees , thereby discouraging membership in a labor organiza-
tion , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
5. All employees of Respondent 's store located in Taylorville, Illinois, including
part-time employees , excluding the store manager , all guards, professional em-
ployees, and supervisors as defined in the Act, constitute , and have at all times ma-
terial to this proceeding constituted , a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
6. By refusing to bargain collectively in good faith with the Union as the ex-
clusive representative of the employees in the aforesaid appropriate unit, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
Cadet Records , Inc. and Aurelia Gonzalez . Case No. 21-CA-
5320. May 925, 1964
DECISION AND ORDER
On February 3, 1964, Trial Examiner David F. Doyle issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in his attached Decision. Thereafter, United Electrical,
Radio and Machine Workers of America, Local 1421, filed exceptions
to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Fanning].
147 NLRB No. 20.