Sawyer Stores, Inc.

National Labor Relations Board - Board Decisions

May 28, 1971

190 N.L.R.B. 651 (N.L.R.B. 1971)

SAWYER STORES, INC.
Sawyer Stores, Inc. and Retail Clerks International
Association , Local No. 102, AFL-CIO. Case 27-
CA-2926
May 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On December 23, 1970, Trial Examiner James R.
Webster issued his Decision in the above-entitled pro-
ceeding, finding that Respondent 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. The
Trial Examiner further found that Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint and recommended dismissal as to
them. Thereafter, the General Counsel and the Charg-
ing Party filed exceptions to the Trial Examiner's Deci-
sion, with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the Trial
Examiner's findings and conclusions and recommenda-
tions.'
' In adopting The Trial Examiner's finding that prior to July 3 the applica-
tion for reinstatement of the unfair labor practice strikers was not uncondi-
tional, Member Fanning rejects the Trial Examiner's interpretation of the
facts recited by him and relies solely on the uncontradicted record tes-
timony of President Hammerstrom, not mentioned by the Trial Examiner,
that the Union was adamant in its position that no strikers would return to
work unless all were reinstated Member Fanning therefore finds it unneces-
sary to consider or pass upon any of the other factors discussed by the Trial
Examiner in this connection.
Member Brown agrees that prior to July 3 the application was conditional,
but he so finds solely because the strikers would return only if the Respond-
ent immediately began negotiations for a new contract Member Brown
would not find conditional an application requiring that all or none of the
unfair labor practice strikers be reinstated, nor would he deem the alleged
misconduct of unfair labor practice striker Overman, even if it had occurred,
sufficient to warrant finding the application conditional or to justify denying
him reinstatement
ORDER
651
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Sawyer Stores, Inc., Casper, Wyoming, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar is it includes allegations
of unfair labor practices not found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner. This case, with all
parties represented, was heard in Casper, Wyoming, on Octo-
ber 13 and 14, 1970, on complaint of the General Counsel and
answer of Sawyer Stores, Inc., herein referred to as Respond-
ent. The complaint was issued on May 6, 1970, and amended
on August 13, 1970, on charges filed April 9 and June 12,
1970, and alleges that Respondent has refused to bargain with
the Union since about December 10, 1969, and made unilat-
eral changes in wages of employees in March 1970, and that
Respondent has thereby engaged in violations of Section
8(a)(1) and (5) of the National Labor Relations Act, herein
called the Act; the complaint further alleges that a strike of
employees from April 10 to July 9, 1970, was an unfair labor
practice strike and that Respondent's refusal to reinstate em-
ployees after an offer to return to work on June 3, 1970,
constituted a violation of Section 8(a)(1) and (3) of the Act.
Briefs have been filed by the General Counsel and the
Respondent and these have been carefully considered.
Upon the entire record and my observation of the wit-
nesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Montana corporation engaged in the
retail sale of grocery and related products. In the operation
of its business in the State of Wyoming, Respondent has had
a gross volume of business in excess of $500,000 annually and
purchased and received goods and materials valued in excess
of $50,000 directly from points located outside the State of
Wyoming.
I find that Respondent is an employer engaged in com-
merce and in an operation affecting commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association , Local No. 102,
AFL-CIO, herein referred to as the Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the Union gave Respondent timely notice of its
desire to reopen their collective-bargaining agreement for fur-
ther negotiations.
2. If not, whether Respondent's meeting with the Union on
December 10, 1969, constituted a waiver of the contractual
reopening requirement.
190 NLRB No. 129
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Whether the collective-bargaining agreement contem-
plated and authorized Respondent to give wage increases
above the minimum amount set forth in the contract during
the life of the contract and without notification to and bar-
gaining with the Union.
4. Whether the strike which began on April 10, 1970, and
ended on July 9, 1970, was caused by any unfair labor prac-
tice of Respondent.
5. Whether the Union made an unconditional offer to re-
turn to work on June 3, 1970.
6. Whether Respondent was justified in refusing reinstate-
ment to Reid Overman because of strike misconduct.
B. The Notice to Reopen the Contract
Since on or about September 24, 1968, the Union has been
the bargaining representative of the employees of Respondent
in the following appropriate unit: All grocery clerks, check-
ers, bakery salesgirls and courtesy boys employed by the
Respondent at its Casper, Wyoming, store but excluding all
other employees, guards, and supervisors as defined in the
Act.
On January 6, 1969, Respondent and the Union became
signatory to a collective-bargaining agreement effective "be-
ginning 12.01 a.m. on the Sixth (6th) day of January, 1969,
and shall remain in full force and effect until midnight, 12:01
a.m , January 5, 1970, and shall be automatically renewed
year after year thereafter , unless either party desires change
or termination at the expiration of said Agreement. In such
event, the party desiring such change or termination shall
notify the other party in writing sixty (60) days prior to the
expiration date, specifying the changes desired. Changes in
the Agreement shall be limited to those outlined in writing.
Promptly following such notification, and during such sixty
(60) days period, the parties hereto shall meet and engage in
such negotiations."
By letter dated November 4, 1969, Lila Miller, secretary-
treasurer for the Union, notified Roger Hammerstrom, presi-
dent of Respondent, of the Union's desire to reopen the con-
tract and to have a meeting on the matter as soon as possible.
Enclosed with the letter was a complete contract proposal.
The Union's letter was sent by certified mail and was post-
marked in Casper, Wyoming, in the post meridien of Novem-
ber 5, 1969. The envelope was addressed to Roger Hammer-
strom at post office box 2516 in Billings, Montana. The
envelope is stamped, "notified Nov. 6, 1969." At between
7:30 and 8:00 a.m. on Friday morning, November 7, Ham-
merstrom picked up the mail from the post office box and
observed the post office notification of certified mail, which
he left in the box. The post office was not open at that time,
and Hammerstrom departed the city by air that morning at
8.15 a.m. He did not actually receive the Union's letter until
Monday, November 10, 1969.
The Board has strictly construed provisions which forestall
automatic renewal clauses. The Board has held that the
timeliness of such notices is governed by the "date of receipt"
rather than the date of mailing and that such notice is re-
ceived when it is deposited at the adressee's post office box or
office or residence as the case may be.'
Thus, for Respondent to have had timely notice, there
would have to have been a 60-day period between November
6, the date of receipt of the registered letter in Respondent's
post office box, and the expiration of the contract. The con-
tract by its terms expired on "midnight, 12.01 a.m., January
' Vapor Recovery System Company, 133 NLRB 580, enforcement denied
on grounds that Union's letter was misdirected and not actually received
timely, 311 F 2d 782, Koenig Brothers, Inc, 108 NLRB 304
5, 1970." Counting back from that hour, there are 4 days in
January 1970, 31 days in December 1969, and 25 days in
November 1969, giving a total of 60 days at 12:01 a.m.,
November 6, 1969. A 60-day notice would had to have been
deposited in Respondent's box prior to midnight, 12:01 a.m.,
November 6, 1969. As the notification was not placed in
Respondent's post office box until after that hour and at some
time on November 6, 1969 , a 60-day notice was not given.
The contract was effective from 12:01 a.m. on January 6,
1969, and expired at 12:01 a.m., January 5, 1970, which is 1
day less than a full year. Whether this was inadvertent or not
was not shown, and the contract is very explicit as to the
exact time of expiration. I find therefore that timely notice
was not given by the Union to Respondent and therefore the
contract automatically renewed itself.
C. The Meeting of December 10, 1969
Respondent did not answer the Union's letter of November
4, 1969, and about the middle of November, Lila Miller called
Hammerstrom in Billings , Montana , regarding a meeting.
Hammerstrom told her that he was tied up with something
else and could not get down to Casper, Wyoming, at that
time. On November 24, 1969, Miller wrote Hammerstrom
requesting that he attend a meeting with the Casper area
merchants on December 5, 1969, to discuss contract negotia-
tions. She did not receive any reply to this letter and in the
latter part of November or early December, she called him
again . A meeting was scheduled for December 10, 1969.
On December 3, 1969, Hammerstrom wrote the Board's
Regional Office in Denver, Colorado, seeking an opinion as
to whether or not the contract had been properly reopened,
as follows:
We have a contract with Retail Clerks' Local # 102,
Casper, Wyoming which states in part, "-shall remain
in full force and effect until midnight 12:01 a.m. January
5, 1970, and shall be automatically renewed year after
year thereafter unless either party desires change or ter-
mination at the expiration of said Agreement. In such
event, the party desiring such change or termination
shall notify the other party in writing sixty (60) days
prior to the expiration date, specifying the changes
desired."
The undersigned received a list of changes desired by
the Union on November 10, 1969 by certified mail. Do
you consider this a proper reopening under the terms of
our contract?
We request an opinion and reply at your earliest con-
venience.
By letter dated December 8, 1969, Allison E. Nutt, assis-
tant to the Regional Director for Region 27, answered Ham-
merstrom as follows.
I am sorry that I cannot provide an opinion on the
question presented in your letter of December 3 that
would be binding on either party My initial reaction is
that the union's notice may not have been timely even
though it might be adequate otherwise to forestall
renewal of the contract.
Hammerstrom did not receive this letter until after his
meeting with the Union on December 10, 1969. The meeting
was held at the Union's office in Casper, Wyoming, and in
addition to Hammerstrom and Miller, Homer Francisco, in-
ternational representative for the Retail Clerks Union, was
also present. At the meeting, Francisco asked Hammerstrom
what he thought of the Union's proposal. Hammerstrom
stated that it was way out of line. Francisco asked what part
he did not like. Hammerstrom stated that the boxboy rates
were too high. Francisco asked Hammerstrom if he had
brought any proposal, and Hammerstrom replied that he had
SAWYER STORES, INC
not. Then Hammerstrom stated that he he did not have to
negotiate anything as the agreement had not been properly
reopened. Francisco asked Miller if she had sent the notice
to reopen the contract. She produced a copy of her letter
dated November 4. Hammerstrom stated that he did not get
it until the 10th of December, although he knew on the 7th
that it was in the post office. He asked for their opinion as to
how the matter on the notice could be resolved-whether
they could get a determination from the NLRB or from the
Union's international headquarters. Francisco stated there
was no problem on this point and started talking about some
of the Union's proposals. During this discussion, Hammer-
strom asked about the inclusion of bakery managers and
bakery employees in the recognition article of the new
proposal. Francisco stated that the bakery manager could be
changed to head sales clerk and that the bakery employees [as
distinguished from the bakery sales clerks] could be removed
from the proposal. Hammerstrom stated that the bakery was
not doing very well and he asked what they thought about it
being replaced with a snack bar. Miller stated that she
thought a snack bar would do pretty well Hammerstrom also
asked about the proposed change in the checkoff provision of
the contract and asked if the present provision was not satis-
factory. Miller replied that it was. Hammerstrom stated that
it would make too much paperwork to change it and that it
should continue as it is.
Francisco pointed out that the proposal contained changes
in the rates on health and welfare and on pensions. Francisco
stated that he knew Respondent could not pay the top rates,
and that the Union could adjust the rates for the courtesy
boys and would prepare another proposal for Hammer-
strom's consideration. Hammerstrom asked Francisco to
send him a copy of their Cheyenne, Wyoming, contract when
negotiations on it were completed. The participants then
agreed to a "tentative date of December 19th" for their next
meeting. Francisco stated that the Union would try to get to
Hammerstrom another proposal before that date. Hammer-
strom testified that his discussion about getting together for
another meeting was to determine the issue on the notice to
reopen the contract, as he was then waiting for a reply from
the Regional Office of the Board on this matter. He did not
mention to the union representatives, however, that he had
written to that office on this issue, although he did suggest
that this would be one way to get a resolution of it.
On December 19, Miller and Francisco met at the Union's
office in Casper, Wyoming, but Hammerstrom did not show
up for the meeting. Miller called the manager of Respond-
ent's store in Casper to inquire if Hammerstrom was in the
city.
On December 19, 1969, the Union prepared a counter-
proposal of changes in their initial proposal. On December
22, Miller wrote Hammerstrom that she was sorry he was
unable to attend the meeting on December 19, and suggested
another meeting be held on January 6, 7, or 8, 1970. She
stated therein that the Union's new proposal was enclosed.
Hammerstrom did not receive this letter nor the new
proposal of the Union. Miller had given this letter to a secre-
tary for typing and mailing.
By letter dated January 19, 1970, by certified mail, Miller
notified Hammerstrom of a meeting on January 29, 1970, at
the Henning Hotel on the matter of the Casper food contract.
He was asked to notify the Union when he could meet on this
agreement if he was unable to attend this meeting.
By letter dated March 2, 1970, Miller informed Hammer-
strom as follows:
I am writing you once again to try and set up a meet-
ing with you to negotiate the agreement on your store in
Casper. The termination date being January 5, 1970.
653
We will be available to meet with you March 9, 10, 12
13 or anytime during the four weeks in March 1970 or
anytime after these dates. If it is impossible for you to
come to Casper, perhaps we could come to Billings.
We would certainly like to know your intentions on
this matter so we can come to an agreement without
taking further action.
Hammerstrom made no reply to either of these letters. In
the early part of March 1970, a union representative called
him from Seattle, Washington. He suggested that Hammer-
strom get together with the union representatives and that he
would be glad to come to Casper and help in the negotiations.
Hammerstrom stated to him that he had a valid contract with
the Union and that it had not been reopened.
D. The Wage Increases
On March 1, 1970, two of Respondent's employees re-
ceived wage increases pursuant to the terms of a contract with
the Amalgamated Meat Cutters Union. Hammerstrom de-
cided that it was adviseable to give "merit increases" to the
rest of his employees, "in roder to keep them on the payroll
because ... the area contract had been signed and we were
afraid we were going to lose all our good people to all of the
other stores."
The last general increase given unit employees was in Janu-
ary 1969, when the contract with the Union became effective,
and the increase was given pursuant to the rates specified in
the contract. There is no evidence that Respondent has any
pattern or established procedure for granting wage increases.
On March 1, 1970, wage increases ranging from 10 cents
to 18 cents per hour, with one increase being in the amount
of 3 cents per hour, were given to 8 of Respondent's approxi-
mately 11 employees. No contact was made with the Union
on the matter, and Respondent contends that it was permit-
ted by the contract in view of the fact that the contract
specified "minimum wage scales" only.
E. The Strike
On the evening of April 7, 1970, Union Representative
Miller called a meeting of employees of Respondent. Ten of
approximately eleven employees in the bargaining unit at-
tended; the Union's regional coordinator, Vern Rinehart, also
attended. Miller told the employees that the Union could not
get down to negotiations with Respondent; that she had tried
many times to contact Hammerstrom to no avail; that Ham-
merstrom refused to set a date for a meeting. She asked them
if they wanted to try for a contract or just be the way they
were. Bonnie Bowden, head salesgirl in the bakery and also
union steward at Respondent's Casper store, testified that
"we discussed it and said that it was unfair not to have our
contract. We considered it unfair not to have our contract
negotiated and we also discussed the fact that some of us were
given raises and some were not and we thought that it was
unfair and we discussed pro and con of going on a strike and
what it might entail and so forth." Miller asked each of the
employees that received a raise how much it was, and told the
employees that since she was representing them, Hammer-
strom should negotiate with the Union before he had the right
to give certain employees raises; that this could result in an
unfair labor charge against Respondent. Bowden testified
that she knew before the meeting of April 7 about Respond-
ent's position on the reopening of the contract. She does not
recall whether or not it was mentioned at the meeting.
After the discussion, the employees took an oral vote on
whether or not to strike and all 10 voted to strike.
The picket signs used had the following legend: "Strike.
Sawyer Stores refuses to negotiate with Local No. 102."
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union gave notice of its dispute to the Federal Media-
tion and Conciliation Service on April 14, 1970, but no notice
was filed with any State agency.
F. The Offer To Return To Work
On June 2, 1970 , Miller sent the following letter to Gil
Martin , store manager of Respondent 's Casper store, with
copy to Hammerstrom:
NXIE
Bonnie Bowden
Clarissa Burd
Robert Conley
11ildred Enderson
Ronald Galusha
Glenn Ilebert
Pauline 1lestas
Reid Overman
Slyvestor Sanders
14arsha Jones
On June 5, 1970, Hammerstrom sent Miller the following
letter:
This is to acknowledge receipt of your letter of June
2, 1970 which was addressed to our Casper store
manager. The letter has been forwarded to me.
We understand from your letter that this is an uncon-
ditional request for reinstatement or rehire of striking
employees to their former positions. Does this mean that
they would be allowed to cross the picket line in order
to come to work?
Since there has been no indication that you intend to
remove the pickets, we would question whether or not
the letter indicates good faith on the part of the Union.
Please be advised that we are not conditioning the return
to work on stopping picketing, but we are merely trying
to find out what your intention is in sending the letter
of June 2. Please clairfy this matter.
It is our understanding that several of the striking
employees have accepted other employment. We would
like to know whether or not all of those listed in your
letter wish to return to work in our store This strike has
so severely damaged our operation that it might take
many months to reestablish a volume of business that
could support as large a payroll expense as was previ-
ously possible.
Due to some of the very questionable activities of
some of your strikers during the strike, we would like to
discuss with you, at the proper time, the rehiring of some
of these people.
Please advise me of your intentions as soon as possible.
On June 10, 1970, Hammerstrom met with union repre-
sentatives in Casper, Wyoming, at the Holiday Inn to discuss
the proposed reinstatement of the employees and the ques-
tions raised in his letter of June 5 Present for the Union were
Bob Russell, an assistant director for the Retail Clerks, Inter-
national Representatives Homer Francisco and Rex Lacey,
and with Hammerstrom was Attorney Robert Burgess. Ham-
merstrom stated that he did not understand the Union's letter
and wanted to know whether or not there would still be
picketing if the people went back to work. Russell stated that
if the people were working, they could not be picketing. Ham-
Retail Clerks Union, 102, Retail Clerks International
Association hereby unconditionaly request, Sawyers
Thrift Mart to immediately return to work the em-
ployees, who are named below, to the former positions
or if not available to a substantial equivalent position
without loss of or interference with seniority rights or
other conditions of employment that they previously
enjoyed
ADDRESS
2829 E. 8th Street
1004 St John
1043 St John
2149 So. Jefferson
263 So. Jackson
1003 No. Washington
1031 No. Beech
840 St John
937 East L St.
2208 So. Poplar
Casper, Wyo. 82601
Casper, Wyo. 82601
Casper, Wyo. 82601
Casper, Wyo. 82601
Casper, Wyo. 82601
Casper, Wyo. 82601
Casper, Wyo. 82601
Casper, Wyo. 82601
Casper, Wyo. 82601
Casper, Wyo. 82601
merstrom stated that he could not possibly put all the people
back to work, and especially one. Hammerstrom and Burgess
stated that employee Reid Overman should be fired because
of misconduct during the picketing, and Russell said that he
did not think Overman was guilty of the charges that were
against him and he felt that Respondent should put all the
employees back to work and start negotiating right away with
the Union. Hammerstrom stated that because business had
gone down, it would be months before he could put all the
people back to work; that he had doubts about putting several
of them back to work, but mainly Overman. The meeting
lasted about 15 to 30 minutes. Hammerstrom and Burgess
were to talk the matter over and call Russell in Seattle and
let him know what they decided.
A few days later, Miller called Hammerstrom and stated
that Russell reported he had not heard from Hammerstrom
and she asked if he had reached a decision. Hammerstrom
stated that he could not see putting them back to work until
after the trial. By the trial, he was apparently referring to the
hearing in the instant case which was initially set for June 16,
1970.
Hammerstrom objected to putting Reid Overman back to
work because of reports from two sources that Overman had
distributed about a pound of large-headed roofing tacks in the
parking lot of Respondent's Casper store during the picketing
in April 1970. He was told this by a man named Charles
Graham, who lives near the store, and by Al Meester, a
barber whose shop is directly across the street from the store.
Graham reported to Hammerstrom that he picked up the
nails and give them to the store manager ; he described the
person who distributed the nails and the description fit Over-
man. Meester identified Overman by name. Before talking
with Meester and Graham, Hammerstrom had been told by
the store manager that they had observed the incident.
On July 3, 1970, the Union notified Respondent by letter
as follows:
Retail Clerks Union, Local 102, Retail Clerks Interna-
tional Association hereby unconditionaly request, Sa-
wyer's Thrift Mart to immediately return to work the
employees, who are named below, to the former posi-
tions or if not available, to a substantial equivalent posi-
tion without loss of or interference with seniority rights
SAWYER STORES, INC. 655
or other conditions of employment that they previously This request is absolutely unconditionaly , not with-
enjoyed.
NA?IE
Bonnie Bowden
Clarissa B. Burd
Robert Conley
Mildred Enderson
Ronald Calusha
Glenn Ilebert
Pauline ilestas
Reid Overman
Slyvestor Sanders
?Iarsha Jones
On July 2, 1970, Respondent entered into an agreement
with Independent Wholesale Grocers, Inc., whereby the lat-
ter would take charge of Respondent 's grocery stores located
in Montana and Wyoming for the purpose of operating said
stores. This agreement recited as basis therefor that Respond-
ent was indebted to and unable to pay Independent Wholesale
Grocers and had filed a petition for bankruptcy in the United
States District Court . The authority given to Independent
was to be irrevocable until such time as an arrangement under
the National Bankruptcy Act had been approved and put into
effect or until the operations of Respondent were put under
the supervision of a receiver , referee in bankruptcy, or other
court appointed official . However, Independent Wholesale
Grocers had the right to cancel and terminate this agreement
and be released of any obligations by giving Respondent 3
days' notice.
Shortly thereafter , Union Representative Miller was ap-
proached by someone apparently connected with Independ-
ent Wholesale Grocers and asked how they could get the
picket line off. Following this and on Thursday , July 9, 1970,
Independent Wholesale Grocers and the Union entered into
a recognition agreement to run for the term of said em-
ployer 's management agreement with Respondent . Picketing
discontinued that evening and all employees who wanted to
return to work at the store were reinstated on Monday, July
13, 1970
standing previous conversation concerning all strikers or
none of the strikers.
ADDRESS ZIP
2829 E . 8th, Casper 82601
1004 St. John , Casper 82601
1043 St. John, Casper 82601
2149 So. Jefferson , Casper 82601
263 So . Jackson , Casper 82601
1003 N . Washington , Casper 82601
1031 No. Beech , Casper 82601
840 St. John , Casper 82601
937 E. L St., Casper 82601
2208 So . Poplar , Casper 82601
G. Conclusions
I have previously found that the Union 's 60-day notice to
reopen its contract with Respondent was not timely, having
been received by Respondent on the 60th day, somewhere
between 8 and 17 hours late for the full 60-day notice spe-
cified in the contract .' Hammerstrom picked up the Union's
letter on November 10, and concluded and took the position
that the notice was not timely ; however, he was not certain
as to the accuracy of this position , and after the Union called
him for a meeting and a meeting was arranged , he wrote the
Board 's Regional Office for an opinion as to whether or not
the notice was timely . He did not receive a reply before his
meeting with union representatives on December 10, and he
raised the issue with them and suggested that it be submitted
to the Board or to the Union 's international office for resolu-
tion . The union representatives , with knowledge that the let-
ter was dated and deposited in a mailbox on November 4,
concluded that the notice was timely and proceeded to go
over the terms of the Union 's contract proposals . Hammer-
strom raised some objections to the Union 's proposals calling
for changes in the contract as to recognition, pay rate for
carryout boys and checkoff. He asked for a copy of their
Cheyenne area contract when negotiations on it were com-
pleted . He had no counterproposals to offer ; in fact, I find he
did not come to this meeting with any intent to arrive at a new
contract He made his objection to the timeliness of the notice
to reopen and he suggested that this issue be resolved; he
objected to certain provisions in the Union 's proposals and he
listened to their comments about the proposals . After he
received the letter dated December 8 from the Board's Re-
gional Office , he refused the Union 's requests for further
meetings . He repeated his position on the untimeliness of the
notice to the Union 's representative from Seattle when called
on the matter of negotiations in March 1970 ; and the Union's
steward testified that she and the employees were aware of
Hammerstrom 's position on this issue. I find that Respondent
did not ' waive the Union 's failure to give the required 60-day
notice by Hammerstrom 's meeting with the Union on
December 10 and by the discussion that took place on this
occasion.
Although the collective -bargaining agreement between Re-
spondent and the Union specified "the minimum wage
scales" to be paid employees during the first 6 months, the
second 6 months , the third 6 months, and thereafter, Re-
spondent was not relieved by the work "minimum " to make
other increases without bargaining with the Union on such
changes, even if such increases were "merit" wage increases.
In the instant case, although the increases of March 1 were
called "merit" increases, they were given for other reasons-
to keep from losing employees to other stores. I find that
Respondent , by failing and refusing to notify and bargain
with the Union on the matter of increasing wages of em-
ployees in March 1970 , thereby refused to bargain in good
faith with the Union.3
The strike that lasted from April 10 to July 9, 1970, was
caused by Respondent 's refusal to meet and bargain with the
Union. It was primarily because Respondent refused to meet
and negotiate for a new contract , and on this matter Re-
spondent had no obligation to meet , in view of the renewal
of their prior contract . But, Respondent had failed to meet
and negotiate with the Union over the wage increases given
' The post office notification regarding the letter from the Union did not
specify the hour on November 6 that it was placed in Respondent 's box, but
since normal business hours are from 8 a in to 5 p in , I base the conclusion
that the notice was between 8 and 17 hours late on this fact
' N.L.R B v Katz, 369 U.S 736
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on March 1, and here he did have an obligation to meet and
bargain with the Union, and this was part of the Union's
grievance and motive for striking. I find that the strike was
caused in part by this unfair labor practice of Respondent and
therefore was an unfair labor practice strike, and the em-
ployees did not lose their status as employees under Section
8(d) of the Act by the Union's failure to give timely notices
to the Federal Mediation and Conciliation Service and to the
appropriate State agency as specified in said section.'
The Union's letter of June 2 asking for the reinstatement
of 10-named employees included the name of Reid Overman.
Respondent objected to the reinstatement of Overman be-
cause of reports from two witnesses that they had seen him
scatter roofing nails in the parking lot of Respondent's Casper
store. At a meeting on June 10, the Union contended that all
of the 10 employees should be reinstated and that negotia-
tions for a contract should start right away.
I find that the Union's offers on behalf of the employees to
return to work made on June 2 and 10 were conditioned on
matters Respondent was not obligated to do-reinstate Reid
Overman and negotiate on a new contract. The fact that the
offer conditioned the return to work on the reinstatement of
all strikers is not in and of itself defective, particularly since
this case involves unfair labor practice strikers.' But, where
a striker has engaged in strike misconduct, the seventy of the
conduct must be taken into account, and also the nature and
extent of the employer's unfair labor practices.'
In the instant case, the nails were scattered on only one
occasion and no damage resulted; however, if they had not
been picked up immediately by one of the witnesses to the
incident, damage to automobile tires of customers would
surely have occurred. The unfair labor practice of the Em-
ployer was that of granting unilateral wage increases-not a
general refusal to bargain on a contract, which was the pri-
mary objective of the strike. I find that based on information
from two eyewitnesses Respondent had a good-faith belief
that Overman had scattered the nails; there is no showing
that it did not occur I find that Respondent was warranted
in refusing reinstatement to Reid Overman. The fact that
Independent Wholesale Grocers, who took over the opera-
tion of Respondent's business, acquiesed in the Union's re-
quest that Overman be reinstated does not change the status
of the Union's offers of June 2 and 10 made to Respondent
from conditional to unconditional. Furthermore, based on
statements of Union Representative Russell on June 10, a
part of the Union's offer, and therefore a condition thereto,
was that negotiations start right away.
I find that the Union's offer on behalf of the employees
made on June 2 and 10 was conditional and Respondent was
therefore privileged to reject it.' By letter dated July 3, an
unconditional offer was made to Respondent, but the day
prior to the date of this letter Respondent had entered into
an agreement with Independent Wholesale Grocers to oper-
ate this store. A representative of this company then con-
tacted Union Representative Miller. Shortly thereafter and
on July 9, they entered into a recognition agreement, the
strike ended, and the employees returned to work on Mon-
day, July 13
Mastro Plastics Corp v NL.R B, 350 U S 270
Cactus Petroleum, Inc, 134 NLRB 1254, enforcement denied on other
grounds 355 F 2d 755 (C A 5) Also see Ernie Grissom Chevrolet, Inc, 168
NLRB 1052
a Kohler Co, 148 NLRB 1434, 1447.
Beaver Bros Baking Co, Inc, 171 NLRB No 98
IV THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of the Respondent set forth in Section III,
occuring in connection with the operations of Respondent
described in Section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral states and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following-
CONCLUSIONS OF LAW
1. Sawyer Stores, Inc., is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Retail Clerks International Association, Local No. 102,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All grocery clerks, checkers, bakery salesgirls, and
courtesy boys employed by the Respondent at its Casper,
Wyoming, store, but excluding all other employees, guards,
and supervisors as defined in the Act constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times since on or about September 24, 1968, the
Union has been the collective-bargaining representative of the
employees in the above-described bargaining unit.
5. By unilaterally increasing wages of employees on March
1, 1970, Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act
7. The strike of the employees from April 10 to July 9,
1970, was caused in part by the above-described unfair labor
practice and was, therefore, an unfair labor practice strike.
8. The collective-bargaining agreement between Respond-
ent and the Union executed on January 6, 1969, renewed
itself on January 6, 1970, the Union having failed to give
timely 60-day notice to reopen as required by the contract.
Respondent has not engaged in an unfair labor practice by its
refusal to meet and bargain with the Union concerning the
terms of a new collective-bargaining agreement.
9. The Union's offer on behalf of the employees to return
to work made on June 3 and June 10, 1970, was a conditional
offer and Respondent has engaged in no unfair labor practice
by its refusal to reinstate employees pursuant to this offer
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice violative of Section 8(a)(5) and (1) of the Act,
I shall recommend that it cease or desist thereform and that
it take certain affirmative action designed to effectuate the
policies of the Act. It will not be recommended that Respond-
ent withdraw unilateral wage increases granted to employees,
but it will be recommended that Respondent cease and desist
from making any changes in the wages and working condi-
tions of the employees without notice and bargaining with the
Union on such matters.
Having found that no unconditional offer to return to work
was made on behalf of the employees until July 3, 1970, and
in view of the fact that Independent Wholesale Grocers ap-
proached the Union on the matter of the strike and picketing
shortly thereafter and on July 9, 1970, concluded an agree-
ment with the Union and on July 13, 1970, reinstated the
employees, all within a reasonable time of the Union's letter
dated July 3 to Respondent and of the transfer of the business
SAWYER STORES, INC
from Respondent to Independent Wholesale Grocers, no
backpay to strikers will be recommended.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER'
Respondent, Sawyers Stores, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally granting wage increases to employees or
making other changes in conditions of employment without
first giving notice to the Union and bargaining with the Union
concerning such matters
(b) In any like or related matter, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Post at its Casper, Wyoming, store, copies of the at-
tached notice marked "Appendix."' Copies of said notice, to
be furnished by the Regional Director for Region 27, after
being duly signed by an authorized representative of Re-
spondent, shall be posted immediately upon receipt thereof
and be maintained for 60 consecutive days. Reasonable steps
shall be taken by Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for 27, in writing, within
20 days from the receipt by Respondent of a copy of this
Decision, what steps have been taken to comply herewith."
' In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions , and order , and all objections
thereto shall be deemed waived for all purposes
' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
10 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director, in writing,
within 20 days from the date of this order, what steps Respondent has taken
to comply herewith
657
It is recommended that the complaint be dismissed insofar
as it alleges a refusal to bargain by Respondent, except as to
unilateral wage increases as found herein, and it is recom-
mended that the complaint be dismissed insofar as it alleges
any violation of Section 8(a)(3) of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally increase rates of pay for
any employee in the following described bargaining unit
nor will we make any changes in their conditions of
employment without first giving notice to the Retail
Clerks International Association, Local No. 102, AFL-
CIO, and affording it the opportunity to bargain on such
matters. The bargaining unit is. all grocery clerks, check-
ers, bakery salesgirls and courtesy boys employed at our
Casper, Wyoming, store but excluding all other em-
ployees, guards, and supervisors defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed in Section 7 of the Act.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of the above-
named Union or any other labor organization.
Dated By
SAWYERS STORES, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, New
Custom House, Room 260, 721 19th Street, Denver,
Colorado 80202, Telephone 297-3551.