Rasco 5-10-25 Cent

National Labor Relations Board - Board Decisions

Oct 7, 1970

185 N.L.R.B. 894 (N.L.R.B. 1970)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rasco Olympia , Inc. d/b/a Rasco 5-10-25^ and
Retail Clerks Local No. 309, Retail Clerks Interna-
tional Association , AFL-CIO. Case 19-CA-3187
October 7, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On December 5, 1966, Trial Examiner William
E. Spencer issued his Decision in the above-entitled
proceeding finding that Respondent, Rasco Olympia,
Inc., d/b/a Rasco 5-10-25t, had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief
and the Charging Party filed a memorandum in oppo-
sition to Respondent's exceptions and cross-exceptions
to the Trial Examiner's Decision, and the Respondent
filed a reply to the Charging Party's cross-exceptions.
In its cross-exceptions to the Trial Examiner's Deci-
sion, the Charging Party contended that the remedy
recommended by the Trial Examiner was insufficient
and sought an expansion of that remedy to include
some form of compensatory relief for employee losses
incurred as a result of Respondent's alleged unfair
labor practices.
On May 26, 1967, the National Labor Relations
Board, because of the novel and important issues
posed by the compensatory remedy sought by the
Charging Party, granted oral argument in this and
three other cases involving the same or related issues'
and consolidated the four cases for purposes of oral
argument. The Board granted a number of motions
for permission to file briefs amicus curiae and invited
certain other interested parties to file briefs and to
participate in the oral argument which was conducted
on July 12 and 13, 1967.2
' Ex-Cell-O Corporation, 185 NLRB No 20, Herman Wilson Lumber
Company, 185 NLRB No 125, Zinke's Foods, Inc, 185 NLRB No
109
2 Briefs were received from the Chamber of Commerce of the United
States, the National Association of Retail Merchants , The American
Federation of Labor and Congress of Industrial Organizations , and the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, all of whom participated in the oral argument
Briefs were also submitted by the National Association of Manufacturers,
Preston Products Company, Inc., and the NAACP Legal Defense and
Educational Fund, Inc
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs of
the parties and those submitted amicus curiae, the
oral arguments made before the Board, and the entire
record in the proceeding, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial
Examiner.
The facts are fully and accurately set forth in
the attached Trial Examiner's Decision. Briefly,
Respondent and Charging Party were parties to a
contract which expired in June 1965. Upon the expira-
tion of that contract, one bargaining session was
held on July 13, at which time Respondent's chief
negotiator, Selvin, announced that the Respondent
did not believe it was subject to the jurisdiction
of the National Labor Relations Board and that it
had decided not to recognize or negotiate with the
Union. Selvin immediately informed the employees
of this decision and added that the employees would
retain all benefits derived from union representation
without having to pay union dues.' The Charging
Party was unable to achieve another meeting with
the Respondent until it filed charges of unfair labor
practices against Respondent and a settlement of those
charges was executed and approved by the Regional
Director on October 4, 1965.
Following the settlement agreement, the Charging
Party sent its contract proposals and attempted to
arrange a bargaining conference, but Respondent
repeatedly either failed to reply or delayed replying
to the Union's bargaining requests, and the only
meeting occurred on December 8. However, the
Respondent's chief negotiator, Selvin, did not attend,
and at no time did she meet face to face with the
Union across the bargaining table. Further, the repre-
sentative sent by Respondent to that meeting was
not empowered to commit the Respondent or to
do more than report back to Selvin. The Charging
Party also sought the aid of the State mediation
service, but the Respondent failed to appear at a
meeting scheduled by that service. We agree with
the Trial Examiner, for the reasons stated by him,
that the Respondent violated Section 8(a)(5) and (1)
of the Act.
I Selvin also told the employees that in the event of a stoke they
would have to cross any picket lines in order to retain their jobs
185 NLRB No. 110
RASCO 5-10-250 895
As noted above, the Charging Party seeks a compen-
satory remedy requiring payment to employees for
probable losses resulting from the unlawful refusal
to bargain. In Ex-Cell-Corporation,4 the Board set
forth fully its reasons for concluding in that case
that a reimbursement remedy such as is sought in
the instant proceeding was not warranted. Those rea-
sons are equally applicable to the case now before
us. Accordingly, we shall not order such a remedy
herein, but shall adopt the Remedy recommended
by the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner and orders
that the Respondent, Rasco Olympia, Inc., d/b/a
Rasco 5-10-25t, Olympia, Washington, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
' Supra.
' While dissenting from the Board's withholding of this remedy in
Ex-Cell-0 Corporation , supra, Member Brown, concurs in rejecting such
remedy in the present case, for he would limit that remedy to initial
bargaining situations
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM E. SPENCER, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
herein the Act, was heard in Olympia, Washington, on
September 6, 7, 8, 1966, pursuant to due notice. The
complaint, issued July 12, 1966, pursuant to a charge
and amended charges filed respectively on July 29 and
September 21, 1965, March 11 and July 11, 1966, alleged
in substance, and Respondent in its duly filed answer denied,
that Respondent violated Section 8(a)(5) of the Act by
refusing to bargain with the union herein, the duly designat-
ed representative of its employees in an appropriate unit,
and by the said and other specified conduct violated Section
8(a)(1) of the Act.
Upon the entire record in the case, my observation of
witnesses, and consideration of briefs filed with me by
each of the parties, I make the following:
$50,000. Respondent's gross sales for the same period were
less than $500,000 in value.
Rasco Kennewick, Inc, Rasco Port Angeles, Inc., and
Rasco Sunnyside, Inc., hereinafter, Kennewick, Port Ange-
les, and Sunnyside respectively, Nevada corporations operat-
ing retail variety stores in the State of Washington, in
common with Rasco Olympia, Inc., and in common with
each other, shared an identity of officers and were commonly
called joint ownership stores Rasco Associates, Inc., also
a Nevada corporation and with the same officers as the
operations previously listed except that Giles W Mathews,
secretary-treasurer of Olympia, Sunnyside, Kennewick and
Port Angeles, is its vice president as well, was formed
for investment only Founders, Inc , a Delaware corporation,
before its merger with Gamble-Skogmo in January 1966,
had Mathews as its assistant secretary and J H McCormick
assistant treasurer, each being officers of the previously
listed Rasco operations
Rasco Associates and Founders together owned a substan-
tial majority of stock in the several Rasco operations previ-
ously described. Founders' Rasco 5-10-25 0 division, herein-
after Rasco, operated various retail stores in California
and other States. It had an agency agreement with Respond-
ent and the other Washington Rasco operations appointing
it their exclusive purchasing agent, permitting them to
use Rasco's store name and bound them to promote such
merchandise as it recommended, putting into effect merchan-
dising programs, promotion plans, store layouts, advertising
programs, and other store operational methods according
to Rasco's suggestions and recommendations. Employees
of Respondent, Kennewick, Port Angeles, and Sunnyside
are all covered by the same group insurance policy provided
by Rasco, and management operations manuals dealing
in part with personnel policy govern the operations of
each.
On the basis of the foregoing and the entire record
in the matter I find that the operations of the Respondent
and the other Washington Rasco retail variety stores,
through their common officers and substantial control by
Rasco Associates, Inc., and Founders, Inc ,' are sufficiently
integrated that the gross sales of Rasco Olympia, Inc.,
Kennewick, Port Angeles, and Sunnyside, in excess of
$500,000 annually, may be combined for purposes of deter-
mining whether the Board's jurisdictional formulae have
been met Were this not true, however, the Board having
legal jurisdiction because of Respondent's annual $50,000
out-of-State purchases, I would urge that the Board assert
jurisdiction in this case because of Respondent's refusal
to furnish records, in response to the General Counsel's
subpoena, or permit access to them, which would show
Respondent's gross sales for the years 1964 and 1965.
FINDINGS OF FACT
I JURISDICTION
Rasco Olympia, Inc., the Respondent, is a Nevada corpo-
ration engaged in the operation of a retail variety store
in Olympia, Washington. In the calendar year 1965 goods,
materials, and supplies were shipped to Respondent's Olym-
pia operation from points outside the State in excess of
iI. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Local No. 309, Retail Clerks International
Association, AFL-CIO, is a labor organization within the
meaning of the Act.
' Founders, Inc, merger with Gamble-Skogmo in 1966, does not
materially affect the assertion of jurisdiction in this case
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Postsettlement Bargaining
Stemming from a charge and amended charge filed by
the Union, alleging, inter alga, a violation of Section 8(a)(5)
of the Act by the Respondent, a settlement agreement
was executed by the Respondent on or about September
28, 1965, and approved by the Board's Regional Director
on October 4, 1965. By this settlement agreement the
Respondent agreed to bargain upon request with the Union
as the exclusive representative of its employees in a stipulated
bargaining unit. Respondent's counsel is correct in stating
that if a preponderance of the evidence does not establish
that Respondent violated the terms of this settlement agree-
ment, the allegations of 8(a)(1) and (5) violations in the
present complaint cannot be sustained on the basis of
matters occuring prior to the date of the agreement 2 We
look then to Respondent's postsettlement conduct to deter-
mine if it has discharged its duty to bargain in good
faith with the Union, there being no allegations of other
postsettlement violations
Following the execution of the agreement, the Union,
by letter dated October 18, requested a bargaining conference
in Olympia on October 26 Failing to get a response to
this request, the Union, by letter dated October 26, excepted
to Respondent's failure to reply to its October 18 request
or to meet with the Union as requested in that letter,
and asked for a meeting on November 2. On November
I Respondent wired the Union that Respondent's labor
consultant, Mrs. Edwin Selvin, whose office is in Los Ange-
les, was ill and unable to meet the Union's representatives,
and requested that the Union send its contract proposals
to Selvin in Los Angeles On November 2, the Union
forwarded copies of its contract proposals to Selvin. By
letter dated November 12, Respondent wrote from its Los
Angeles office that it had considered the Union's proposals
and was enclosing copies of Respondent's counterproposals.
By letter dated November 18, the Union advised Respondent
that due to the differences between its proposals and
Respondent's counterproposals, it was requesting a face-
to-face meeting with Respondent to be held in Olympia
on November 30. Respondent's negotiator, Selvin, replied
by letter dated November 22, that it would be impossible
for her to meet with the Union but that Respondent's
John H. McCormick, then its vice president, later its
secretary-treasurer, would meet with the Union in Olympia
on December 8. This meeting occurred.
The Union was represented at this meeting by Kenneth
R Dellit, then its secretary-treasurer, Frank Cassidy, and
Bob Jones; the Respondent by McCormick and Hal Corns,
its district manager At the outset of the meeting McCormick
requested that Respondent be allowed to make a tape
recording of the meeting inasmuch as Selvin, its labor
consultant, was ill and could not attend the meeting'
The Union initially objected and then withdrew its objections
when McCormick made known the purpose of the recording.
' This is not to say, of course, that presettlement conduct may not
be applied where necessary to clarify or construe postsettlement conduct
The Union 's proposal and Respondent 's counterproposal
were then discussed and it appears that a tentative agreement
was reached on most but not all crucial issues. At the
conclusion of the meeting, according to Dellit , McCormick
said he would "take back the information to Mrs. Selvin"
and would be in contact with Dellit "in a week or two"
to give him "their answer on what they would actually
agree to and would not agree to."
Having heard nothing further from Respondent , Dellit
on January 10, 1966, directed a letter to Selvin, the text
of which follows-
After our meeting with Mr . McCormick on December
8th, 1965, he assured me that we would hear from
you in a week or two in reference to that meeting.
Since he appeared at the meeting with no authority
to reach an agreement without first consulting you,
we agreed
It now appears that this was only a delaying tactic,
with no intention to negotiate in good faith, as we
have not heard from you.
With the numerous differences we are confronted with,
it is the union 's opinion that any further attempt
to negotiate by mail will be an indication that you
do not intend to negotiate in good faith The Union
is willing to meet with you any day of the week,
any time of the day you desire, in Olympia If you
will inform me when and at what time you wish
to begin negotiations , I will make myself available.
By letter dated January 14, Respondent replied by letter
over McCormick's signature , to the effect that it was McCor-
mick 's understanding that all phases of a proposed contract
had been discussed at the December 8 meeting , and that
the only issues remaining unresolved were (a) Sunday pay
when the store was open for business , (b) union security,
and (c) "Settlement of Disputes"-Respondent 's proposal
for a grievance procedure With respect to (a), wrote McCor-
mick , Respondent would agree to pay twice the actual
straight time hourly rate on Sundays when the store was
open for business On (b) and (c) McCormick wrote-
Our position in this case , with respect to the two
remaining issues has not changed We believe that
our counter-proposal for these two issues is fair and
equitable and we believe that with all other issues
settled, which give greatly improved benefits to our
employees , an agreement could be signed providing
you can agree to include in the agreement the counter-
proposal we have made for these two remaining issues
You may consider that this is our last offer with respect
to these two matters. [Emphasis supplied.]
Respondent's counterproposal on union security was a
complete negative . Its counterproposal on "Settlement of
Disputes" required as step one of a grievance procedure
that the employee or group of employees affected should
discuss the matter with the store manager, within three
working days of the occurrence of the grievance , without
' Dellit testified "McCormick informed me he wanted to operate
a tape recorder to take down the discussion since it would be necessary
to take the information back to Mrs Selvin for any final approval on
negotiations that were done at that session
RASCO 5-10-25d 897
reference to their bargaining representative, and only in
the event this did not result in a satisfactory settlement
was the matter to be referred to the Union, the said
referral to be made within three working days after action
by the store manager, and in writing, one copy to the
store manager and the other copy to the Union. Thereafter
the Union was authorized to act for the employees in
prosecuting the grievance or grievances according to stipulat-
ed procedures
After receipt of the January 14 letter, Dellit requested
the assistance of the State mediation service in negotiating
a contract, and by letter dated February 15, Willard G
Olson, State Labor Mediator, acknowledging Dellit's
request, stated:
In an attempt to bring about a settlement of the
dispute, we would like to request a meeting of the
parties at 1 30 p.m., Tuesday, March 1, 1966, in the
small conference room, main floor, General Adminis-
tration Building, Olympia, Washington
Dellit met Olson on the date and at the place indicated
in Olson's letter of February 15, remained there for approxi-
mately an hour and a half, but no one representing Respond-
ent appeared.
At no time after receipt of Respondent's January 14
letter did the Union attempt to make direct contact with
Respondent for the purpose of requesting further negotia-
tions.
B. Conclusions on Postsettlement Bargaining
Upon the entire evidence in the matter, I am convinced
and find that the Respondent breached its obligation to
bargain in good faith with the Union following the settlement
agreement. This conclusion is based on several factors,
among them
1. Though Selvin was Respondent's chief negotiator, at
no time following the settlement agreement did she attend,
in person, a single bargaining session There was in fact,
only one face-to-face meeting, and while this was attended
by two company representatives, neither, I am convinced,
had the authority to make more than tentative agreement
on behalf of the Respondent McCormick, an otherwise
credible and cooperative witness, testified, in effect, that
he had the authority to make bargaining decisions, but
this testimony cannot be accepted at full value, for if
this were true there would have been no point in his
having made a tape recording of parts of the meeting.
His explanation that this was necessary in order to keep
Selvin abreast of negotiations, shows clearly that although
ill and unable to attend bargaining conferences, she retained
her position as chief negotiator Respondent's district manag-
er, Corn, testified in substance that it was for referral
to Selvin that the tape recording was made Under such
conditions, Dellit's testimony that follows is entirely credi-
ble:
As best I can recall there was no actual final agreement
on anything There were discussions of things that
could possibly be agreed upon if the total contract
could be agreed on in the end. This we could not
do at the meeting because Mrs. Selvin was not there
and she would have to get the information and then
I would hear within the next week or two what her
decision was
Bargaining by mail is not, except under rare and unusual
circumstances, an acceptable substitute for direct, face-
to-face bargaining at the conference table by the bargaining
principals While it is regrettable that Selvin was disabled
during this crucial bargaining period this did not qualify
her to continue in the capacity of chief negotiator or
justify the Respondent in retaining her in that capacity
Nor is the situation comparable to that in which it is
understood that contract terms agreed upon by the negotia-
tors are subject to final approval by their principals In
such instances the real negotiators meet face-to-face at
the conference table and are clothed with authority to
make decisions on bargainable issues even though those
decisions remain to be finalized by their principals. Here,
at the one face-to-face meeting accorded the Union, there
was at best a "stand-in" for Selvin who, after receiving
a report on the meeting and acquainting herself through
the tape recording, as chief negotiator would, from her
office in Los Angeles, make the decisions that should have
been made at the bargaining table.
2. Respondent breached its duty to bargain when it
submitted what it termed its "last offer" and thereby broke
off negotiations on a contract. Respondent's nimble attorney
argues that "last offer" does not have the same connotation
as "final offer". It might be amusing to engage in a game
of semantics, but not, I'm afraid, very fruitful. In the
context in which Respondent's submission of its "last offer"
occurred the Union would reasonably assume that further
negotiations on a contract would be futile without the
intervention of a third and disinterested party. The Union
sought such intervention but was unsuccessful in bringing
Respondent again to the bargaining table. Having received
what Respondent chose to call its "last offer" it was not
incumbent on the Union but on the Company to initiate
further negotiations, and its failure to respond to the State
mediator's call shows that it did regard its "last offer"
as its final offer °
This is not to say that the duty to bargain requires
bargaining with the aid of a disinterested third party, in
this case the State mediation service. It is to say that
Respondent's failure to respond to the mediator's offer,
and its further failure to attempt to make further contact
with the Union, when considered in the light of its "last
offer", establishes that its last offer was indeed its final
offer, submitted on a take-it-or-leave-it basis.
I think it was not justified in breaking off negotiations
at this point It may well be that only two crucial issues
Respondent's counsel argues that there is no more than hearsay
evidence that Respondent received notice of the meeting from the State
mediation service This is true, but only in a limited sense At the
last bargaining conference, McCormick substituted for Selvm. It may
be assumed that notice of the meeting directed to or referred to Selvm
would come to McCormick's attention Therefore, if Selvin received
no such notice, McCormick would be in a position to testify that no
such notice was received, but this was not his testimony His testimony,
in substance, was that he believed Selvin received such a notice Further-
more, it is entirely unlikely that the State mediation service would
have summoned the Union to a meeting if it had not also addressed
a notice to Respondent of such a meeting
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remained to be resolved by the parties, and it may be
argued that an impasse having been reached on these two
issues, there was no need for further meetings `I do not
agree that this is the case. Dellit's credited testimony on
the December 8 meeting shows that bargaining on the
two most disputed issues had not as yet reached an impasse
and might have been resolved in the course of further
good-faith bargaining. Thus, McCormick indicated that a
modification of its proposal on grievance procedure was
open to further consideration and in the course of such
further consideration the Union might well have consented
to some modification of its proposals on union security
In short, the entire tenor of the December 8 meeting
indicates that there was no firm impasse on the two most
disputed issues such as would render continued bona fide
bargaining futile. In any event, it would hardly be said
that a bargaining impasse had been reached when the
Respondent's chief negotiator was absent from the bargain-
ing table.
3 Respondent's insistence on the Union's acceptance
of its proposal for grievance procedure, repeated in its
"last offer", was in itself a refusal to bargain in good
faith. It would be a rare instance in which any legitimate
labor organization would bind itself to forego its right
to present, in the first instance, grievances on behalf of
the employees it represented, or to deprive them of the
representation to which they were entitled While McCor-
mick indicated in the December 8 meeting that some modifi-
cation of its proposals on grievances would be considered,
Respondent's January 14 letter, which no doubt represented
Selvin's final work in the matter, shows that Respondent's
position in the matter was actually inflexible. Such a position
can hardly be said to be consonant with the duty to
bargain in good faith-which means, among other things,
an honest desire to reach an agreement on contractual
terms
C. The Appropriate Unit and the Union's Majority Therein
In the settlement agreement of September 28, the
Respondent bound itself to bargain with the Union as
the exclusive representative of its employees in a unit com-
posed of all Respondent's employees excluding fountain
employees, guards, and supervisors as defined in the Act.
Despite this agreement the Respondent now questions both
the appropriateness of the aforesaid unit and the Union's
majority. Whatever may be said of its bona fides in raising
such questions at this late date, a look at the evidence
will show there is no merit in its present contentions
The appropriateness of the unit is attacked because of
its exclusion of fountain employees. While Respondent's
latest contract with the Union, dating from June 1, 1962,
did not specifically exclude fountain employees, the Union
did not actually represent such employees and the undisput-
ed testimony is that at all material times they were represent-
ed by another labor organization. Obviously, the Respondent
was aware of this While the inclusion of fountain employees
in the bargaining unit might, under other circumstances,
be appropriate, under the circumstances aforestated their
exclusion was appropriate. Accordingly, it is found that
at all times material the appropriate unit was composed
of all Respondent's employees excluding fountain employees,
guards, and supervisors as defined in the Act.
The Respondent's last contract with the Union, executed
as of June 1, 1962, had an automatic renewal clause,
a lawful union shop clause,, and also provided.
Should agreement not be reached concerning -a new
or revised contract by the anniversary date hereof,
this contract is to remain in full force and effect
in its entirety pending completion of negotiations.
It appears that the union shop clause was being enforced
by the Respondent as late as the spring of 1965. Majority
status which rests on the enforcement of a valid union
shop clause cannot be said to be a coerced majority. On
this basis alone the Union's majority status as of July
13, 1965, when negotiations on a new contract began,
was, to Respondent's knowledge, unassailable. It further
appears, however, that as of July 13, 1965, eight unit
employees, a clear majority, were members of the Union
or had made application for Union membership. It is imma-
terial whether they were fully paid up members or were
in arrears on their dues payments: none had withdrawn
from or revoked their Union affiliation.
Any loss of majority after July 13, 1965, is attributable
to Respondent's unfair labor practices which date from
the start of negotiations on a new contract.
D. Presettlement Bargaining
At the first bargaining meeting after the expiration of
the 1962-65 contract, Respondent was represented by Selvin,
its chief negotiator, McCormick, and Duane Sorensen, store
manager; the Union by Dellit. There is some testimony
that Selvin questioned the Union's majority but, after Dellit's
affirmation of majority status, did not press the point.
Sorensen did not recall whether the Union's majority was
mentioned, admitted that he never gave the matter much
thought, and made no check to determine the extent of
Union affiliation There was brief discussion of the Union's
contract proposals and Selvin presented Respondent's pro-
posal of a grievance procedure, with remarks to the effect
that Respondent would execute no contract which did
not incorporate it. (Respondent's proposal on grievances
has been discussed, supra, in Conclusions on Postsettlement
Bargaining ) Dellit's credited testimony follows.
After I said that I didn't think it [Respondent's pro-
posed grievance procedure] would be acceptable, then
we would have to discuss the rest of the contract,
she [Selvin] said well, she had looked through our
contract and there were many things in there that
were unacceptable to her and the company, that it
did not appear that it would make any difference
anyway, that they just decided they were going nonun-
ion, and that was the end of the meeting.
McCormick testified that Selvin stated that "she believed
on information that [McCormick] had supplied her that
we were not under the jurisdiction of the National Labor
Relations Board, therefore, we did not feel that there was
any purpose in them meeting for that reason." The meeting,
as he recalled it, lasted some fifteen or twenty minutes
RASCO 5-10-25t 899
He did not recall any discussion about the Union's majority
representation of employees.
Following the meeting, Selvin met with groups of employ-
ees in Respondent's store, advised them in substance that
the store was going nonunion; that they did not have
to join the Union or continue their union affiliation; that
in event of a strike they would have to cross picket lines
in order to keep their jobs; and that the company would
give the employees the same benefits they derived from
union representation, without the necessity of their paying
union dues.'
Following the July 13 meeting, the Union was unsuccess-
ful in bringing Respondent again to the bargaining table
until after it had filed its charge and amended charges
of unfair labor practices and the settlement agreement of
October 4, 1965, had been executed.
E. Conclusions on Presettlement Conduct
The evidence of Respondent's presettlement refusal to
bargain is so conclusive that it requires no further comment.
It is noted that at the one bargaining session held after
the expiration of the 1962-65 contract, the appropriateness
of the unit which is now questioned was not questioned,
and if-this is doubtful-the matter of the Union's majonty
was raised at all, it was not pressed to the point that
any basis was formed for a good faith doubt Store Manager
Sorenson, if he did not in fact confirm Dellit's statement
that the Union represented a majority, obviously had no
doubts in the matter and, in his own words, gave it little
thought. I find that at no time from the start of negotiations
on a new contract did the Respondent entertain a bona
fide doubt as to the appropriateness of the unit or the
Union's majority representation therein.
Selvin's talks to groups of employees, following the brief
meeting on July 13, of itself constituted a refusal to bargain
for the obvious intent and purpose of her remarks was
to undermine and destroy the Union in its representative
status. Her remarks to the effect that the store was going
nonunion, that the employees could not profit through
union representation, and her unprovoked and unqualified
remarks' that in the event the Union struck, employees
not crossing the picket lines would lose their jobs, constituted
interference, restraint, and coercion within the meaning
of Section 8(a)(1) 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. Respondent is an Employer within the meaning of
Section 2(2) of the Act, 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.
' These findings are based on the credited testimony of employee
witnesses Selvin did not testify.
' I find that Selvin did not specify economic strikes in her picket
line remarks , and discredit testimony to the contrary
3 All Respondent's employees, excluding fountain
employees, guards, and supervisors as defined in the Act
constituted at all times material herein, and now constitute,
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
4. The Union is now, and has been at all times material
herein, the exclusive representative of all employees in
the aforesaid unit for the purposes of collective bargaining.
5. By refusing on and after July 13, 1965, to bargain
collectively with the Union as the exclusive representative
of employees in the appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
6. By the said refusal to bargain; by informing its employ-
ees that it was going "non-union" at a time when the
Union had representative status and that they had nothing
to gain through union representation; and by its unprovoked
and unqualified statement to its employees that in the
event of a strike they would lose their jobs if they refused
to cross a picket line, the Respondent has engaged in,
and is engaging in, unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to
Section 10(c) of the Act, it is hereby recommended that
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive representative of all its employees in the
previously described appropriate unit.
(b) Informing its employees that it is going "non-union"
and that they have nothing to gain through union representa-
tion; notifying its employees, without strike or threat of
strike and without qualification, that in the event of a
strike they will lose their jobs if they refuse to cross
a picket line
(c) In any other manner interfering with, restraining,
or coercing its employees in 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, and to engage
in concerted activities for the purpose of collective bargain-
ing 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 organization as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Upon request bargain collectively with the Union
as the exclusive representative of its employees in the previ-
ously described appropriate unit, with respect to rates of
pay, wages, union security, hours of work, and other condi-
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of employment and, if an understanding is reached,
embody such understanding in a signed agreement
(b) Post at its store in Olympia, Washington, copies
of the attached notice marked "Appendix "' Copies of
said notice to be furnished by the Regional Director for
Region 19, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent
immediately upon receipt thereof and be maintained by
them for 60 days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in writing,
within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith!
' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words
"the Recommended Order of a Trial Examiner " in the notice In the
further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for
the words "a Decision and Order "
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that-
WE WILL NOT refuse, upon request, to bargain collec-
tively with Retail Clerks Local No 309, Retail Clerks
International Association, AFL-CIO, as the exclusive
representative of all our employees in the appropriate
unit described below.
WE WILL NOT threaten our employees with state-
ments that our store is going nonunion, that they
have nothing to gain through union representation,
and that they will lose their jobs if there is a strike
and they refuse to cross picket lines
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to bargain collectively
through representation of their own choosing, to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act, as amended.
WE WILL, upon request, bargain collectively with
the above-named labor organization as the exclusive
bargaining representative of all employees in the follow-
ing unit with respect to rates of pay, wages, union
security, hours of work, and other conditions of employ-
ment and if an understanding is reached embody such
understanding in a signed agreement The bargaining
unit is:
All our employees, excluding fountain employees,
guards, and supervisors as defined in the National
Labor Relations Act.
All our employees are free to become, remain, or to
refrain from becoming or remaining, members in the above-
named or any other labor organization.
RASCO OLYMPIA, INC., d/b/a
RASCO 5-10-25t
(Employer)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan Build-
ing, 500 Union Street, Seattle, Washington 9 8 10 1,Telephone
583-4583.