Sunshine Food Markets, Inc.

National Labor Relations Board - Board Decisions

May 29, 1969

176 N.L.R.B. 252 (N.L.R.B. 1969)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunshine Food Markets, Inc. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Local 521. Case 17-CA-3585
May 29, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 6, 1969, Trial Examiner Robert E.
Mullin issued his Decision in the above-entitled
proceeding, finding that Respondent 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 Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practice
conduct alleged in the complaint and recommended
dismissal of those allegations. Thereafter, the
General Counsel filed exceptions to the Decision and
a supporting brief, and Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusion,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Sunshine Food
Markets, Inc., South Sioux City, Nebraska, its
officers, agents, successors, and assigns , shall take
the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E . MULLIN, Trial Examiner : This case was
heard in South Sioux City, Nebraska , on October 1, 1968,
pursuant to charges duly filed and served' and a complaint
'In the absence of exceptions we adopt pro forma the Trial Examiner's
finding that Respondent 's unilateral change of the hours of two employees
violated Sec . 8(a)(3)
that, initially, was issued on July 31, 1968. The complaint,
as amended on September 4, 1968, presents questions as
to whether the Respondent violated Section 8(a)(1), (3)
and (5) of the National Labor Relations Act, as amended.
In its answer and amended answer, duly filed, the
Respondent conceded certain facts with respect to its
business operations, but it denied all allegations that it
had committed any unfair labor practices.
All parties appeared at the hearing and were given full
opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally at the close of
the hearing and to file briefs. Oral argument was waived.
On November 7, 1968, briefs were submitted by the
General Counsel and the Respondent.'
Upon the entire record in the case, including the briefs
of counsel, and from his observation of the demeanor of
the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT'
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a South Dakota corporation, with its
central offices located in Sioux Falls, in that State,
operates a chain of retail grocery stores in the States of
South Dakota, Iowa, and Nebraska. In the course and
conduct of its operations, the Respondent has an annual
gross volume of business in excess of $500,000. It likewise
has annual purchases in excess of $50,000 which cross
state lines directly in transit to the Respondent. Upon the
foregoing facts the Respondent concedes, and the Trial
Examiner finds, that Sunshine Foods Markets, Inc., is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
'II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes , and the Trial Examiner
finds , that Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO (herein called
Union or Amalgamated), is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of Events
The Respondent's chain of retail markets is divided into
two divisions, one known as the Sioux Falls Division and
the other as the Sioux City Division. The latter has six
stores, one of which is located in Yankton, South Dakota,
and the other five of which are located in the metropolitan
area of Sioux City, Iowa. Store 8, in South Sioux City,
Nebraska, is one of the latter five stores and is the only
one involved in the labor dispute with which this case is
'The charge was filed on June 12, 1968.
'During the hearing, Counsel for the Respondent moved that the Trial
Examiner view the premises of the supermarket that was the scene of the
labor dispute here involved . This motion was granted and immediately
after the close of the hearing the viewing was accomplished by the Trial
Examiner, who, in so doing, was accompanied by counsel for all the
parties.
'In an appendix to its brief the General Counsel moved that the
transcript be corrected in three minor particulars. The Respondent having
filed no opposition thereto , and the Trial Examiner having duly considered
the motion , said motion is granted and the transcript corrected in
accordance therewith.
176 NLRB No. 36
SUNSHINE FOOD MARKETS
concerned. The total number of employees in the
Respondent's entire chain is between 450 and 500.
On February 6, 1968, subsequent to a hearing on the
matters raised in a representation petition filed by the
Union, the Regional Director issued a decision wherein he
directed an election in a unit, which he found appropriate,
of all meat department employees at Store 8, excluding
office clericals, the cleanup man, professional employees,
guards and supervisors as defined in the Act. Sunshine
Food Markets, Inc., Case 17-RC-5606.'
At the time of the election, held on March 1,' there
were seven employees in the aforesaid unit. Of this
number, four cast ballots for the Union and three voted
against it. There were no challenged ballots. On March
11, no objections having been filed to the tally of ballots
or to the conduct of the election, the Regional Director
certified the Union as the representative of the employees
in the appropriate unit.
Thereafter, on April 3 and 18, the parties met for
collective bargaining negotiations. Whether the
Respondent arranged for a third meeting which was
subsequently cancelled at the Union's request is an issue
in this case. In any event, no further meetings were held.
On June 13, a strike began at the meat department of
Store 8. Two witnesses at the hearing, John Graybill and
Helen Plantz, testified that they were still on strike.
Whether others in the unit ever joined them in the strike
does not appear in the record.
The General Counsel contends that during the period
prior to the election and immediately thereafter the
Respondent engaged in various acts of interference,
restraint and coercion; that after the Union attained its
majority status, the Respondent engaged in unlawful
unilateral actions ; that the Respondent refused to bargain
in good faith; and that the strike which began on June 13,
arose out of the Respondent's unlawful course of conduct
and was an unfair labor practice strike. All of the
foregoing allegations are denied in their entirety by the
Respondent.
B. The Alleged Violations of Section 8(ayl ); Findings
and Conclusions With Respect Thereto
In support of these allegations the General Counsel
relied on testimony as to several incidents, one of which
occurred prior to the election and the rest subsequent
thereto.
February 23
Mrs. Helen Plantz testified that on about February 23,
she and her husband, Alvin Plantz , had a discussion with
Robert E. Anderson, meat department supervisor for the
Respondent's Sioux City Division . According to Mrs.
Plantz, Anderson asked her if he and Paul Zajecka, the
head of the meat department, could come to her home
that weekend and visit with her and her husband. Mrs.
Plantz testified that she told Anderson that would be
impossible because of other commitments , but that her
husband would be in the store on Friday, February 23, to
do the family shopping and that Anderson could talk with
the two of them at that time.
'The Respondent conceded that it did not request a review of this
Decision and Direction of Election.
'All dates mentioned hereinafter refer to the year 1968, unless otherwise
noted.
253
Both Mrs. Plantz and her husband testified as to this
meeting with Anderson and Zajecka. According to these
witnesses , at the outset of the meeting, Anderson stated
that there would not be a union in the Sunshine stores.
Mrs. Plantz testified that thereafter Anderson reviewed
the company benefits and, after describing the Sunshine
personnel as being a "big, happy family," he told her and
her husband that the Sunshine employees "stand to lose
too much to have a union ." Mrs. Plantz' testimony was
corroborated in substantial measure by that of her
husband. Further, according to Alvin Plantz, it was
Anderson who requested an opportunity to meet and
discuss the forthcoming election with him and his wife.
Anderson testified that the meeting came about at the
request of Mrs. Plantz and that it arose, in part, out of
her difficulties in getting along with her coworkers. He
conceded that during the meeting he discussed the
advantages of company employment, and various benefits
and dividends which that employment had to offer. He
denied that he told Mrs. Plantz that she would lose
anything if the Union won the election. On
cross-examination , however, after Anderson testified that
whereas he had not singled out Mrs. Plantz as the only
one who would lose under those circumstances, he went on
to say that what he had implied to Mrs,. Plantz, he was
"implying to every employee that was there."6
Anderson's testimony as to the circumstances under
which he happened to have a meeting with both Mrs.
Plantz and her husband was lacking in credence. Zajecka
who was present at the meeting and who appeared as a
witness at the hearing was asked no questions about what
occurred on this occasion. On the other hand, both Mrs.
Plantz and her husband were credible in their testimony
that it was Anderson who initiated the conference. The
Trial Examiner concludes and finds that their testimony in
this regard was substantially accurate. On the basis of
their testimony, it is the conclusion of the Trial Examiner
that Anderson called Mr. and Mrs. Plantz to the store
office to confer with them about the impending election
and that during the course of the ensuing discussion of
company benefits he told them that the employees "stand
to lose too much to have a union ." Anderson, of course,
was free to discuss the election issue with the employees
insofar as his comments did not constitute interference,
restraint or coercion within the meaning of the Act. His
freedom of speech, however, did not extend to the last
quoted phrase which, when coupled with his review of
company benefits, plainly implied that the advent of a
union might result in the loss of such benefits. Anderson's
comment in this connection , and under these
circumstances, constituted a violation of Section 8(a)(1) by
the Respondent.
March I
As appears above, the election was held on March 1.
Mrs. Plantz testified that within an hour after the results
of the voting became known, Store Manager Seth A.
Scott came to where she and two other employees, Alara
Loecker and Cheryl Rush , were standing . According to
Mrs. Plantz, Scott told her that Jerold Schaeffer, another
employee of the meat department, had gone to the main
office' and had asked for a transfer. Mrs. Plantz testified
that Scott told them that this proved that Schaeffer had
`The quotation is from Anderson's testimony
'The main office for the division was located in Sioux City, Iowa, only a
short distance away
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voted against the Union and that if any of the other
employees asked for a transfer the company officials
would construe that as an indication that they also had
voted "no" in the election . Mrs. Plantz testified that at
the time she told Scott that she had no desire to transfer
to another store because she had been at Store 8 for over
3 years.
Scott denied that he had made any such comments on
election day as those which Mrs . Plantz attributed to him.
On the other hand, he testified that he had heard late that
afternoon that Schaeffer had sought to be transferred and
that Cheryl Rush likewise had asked for a transfer on the
ground that there was too much dissension in the meat
market.
Earlier herein , Mrs. Plantz was found to be a credible
witness . In this instance , her version impressed the Trial
Examiner as a frank and honest recollection of what
occurred on the day in question . Moreover , although
subjected to a searching cross-examination as to other
phases of her testimony , no questions were asked of her
on cross-examination as to this incident . Scott's
categorical denial of the comment attributed to him by
this employee did not carry the same degree of
persuasiveness . For this reason , the Trial Examiner
concludes that the testimony of Mrs . Plantz was a
substantially accurate account of what occurred. The
statement by Scott, as related in the testimony of Mrs.
Plantz, was , in effect, a suggestion by the store manager
that the employees disclose their vote in the election which
had just been concluded . This, of course, constituted
interference with , and restraint of, employee rights
guaranteed by the Act, and, as such , was violative of
Section 8(a)(l). The Trial Examiner so finds.
March 12
On the evening of March 12, the Respondent held a
meeting at the American Legion Hall in Sioux City. All
permanent employees in the Sioux City division were
invited and approximately 150 were in attendance.' The
Respondent ' s president , George Sercl , spoke to the
employees about the significance of the fact that the
Union had won the election in a unit consisting of the
meat department at Store 8 and he discussed the existing
benefits which the Company already offered all its
employees . According to Employee John Graybill, Sercl
read the provisions of certain collective-bargaining
contracts then in effect in the Sioux City area and
compared the advantages which Sunshine employees had
as to a profit sharing plan, insurance and other benefits.
Graybill testified that Sercl declared that whereas the
Union had won the election and he was required to
bargain with it, he would not agree to anything more than
was provided by the terms of the collective-bargaining
agreements from which he had quoted . According to
Graybill, Sercl concluded by reading from two letters,
purportedly written by employees in the meat department,
in which the writers expressed misgivings about having
voted for the Union . Sercl's comment , after reading the
letters , was that these employees had "made their beds
and now they had to sleep in them ." At the hearing,
Sercl 's testimony in large measure , corroborated that of
Graybill as to what had been said at the meeting. He did
not deny having made the specific comment quoted above,
but he did deny that he had forecast that in the future
those who had voted for the Union would find working
conditions unpleasant.
The General Counsel contends, and the . Respondent
denies, that Sercl's speech was coercive, most particularly
the phrase that appears above.
Secri ' s comments expressed disagreement with the
choice which a majority of the meat department
employees had made and he endeavored to establish in the
minds of those present that the Respondent had provided
more for its personnel than they could secure under
various union contracts in effect at other stores. Some in
the audience may have felt that the phrase in question
contained overtones of a threat to those who had voted for
union representation. In fact, however, the comment was
largely ambiguous . Viewed in the light of the protection
accorded free speech by Section 8(c) of the Act, the Trial
Examiner concludes and finds that Sercl's remarks did not
violate Section 8(a)(1).
March 14
Employee Helen Plantz testified that on March 14,
Division Manager Bernie S . Narlin , Sr., spoke to the
employees of the meat department in the store office.
According to Mrs . Plantz, the Company was represented
by Neil Jensen , the personnel manager , as well as Narlin.
Paul Zajecka , the head meat cutter was likewise present,
along with employees Cheryl Rush , Alara Loecker, and
Jerold Schaeffer.
Mrs. Plantz testified that Narlin told those in
attendance that he considered anyone who went to a union
meeting , or signed union cards , as a disloyal employee;
that those who "really did not like our work ,. . . should
go somewhere else... there would be other people waiting
for the work ."' To emphasize that replacements were
available, Narlin concluded by telling them that a woman
applicant had come to the store recently and applied for a
job in the meat department.
Narlin died prior to the hearing . The death of one who
would have been a witness on its behalf unquestionably
placed the Respondent at a grave disadvantage. On the
other hand, Personnel Manager Jensen , who was present
when Narlin met with the employees and who, so far as
appears from the record , was available at the time of the
hearing , was not called to testify as to this meeting.
Furthermore , the Respondent called Head Meat Cutter
Zajecka to testify as to other matters, but asked him no
questions as to this incident . Mrs. Plantz was a credible
witness and , in view of the fact that the Respondent did
not seek to contradict her testimony through the witnesses
who were available , it is the conclusion of the Trial
Examiner that Division Manager Narlin made the
remarks which she attributed to him . '" Narlin 's comments
about what he considered disloyalty on the part of those
who supported the Union and the implication that those
who were dissatisfied with present working conditions
should seek other employment rather than resort to the
Union for representation , constituted unlawful
interference, restraint and coercion and a violation of
Section 8(a)(l) of the Act.
'President Sercl estimated that about 95 percent of the employees were
present.
'The quotation is from Plantz' testimony.
"Even if the Respondent had had no other witnesses on whom to rely,
Plantz ' testimony as to a conversation with the decedent would have been
admissible . Wigmore , Evidence , Vol V, Sec. 1456, Vol VI, Sec. 1766,
1769-72 (3d ed .), Linde Air Products Company 86 NLRB 1333, 1336;
Quarles Mfg. Co., 83 NLRB 697, 699, remanded to the Board on other
grounds 196 F.2d 82 (C.A. 5), Reynolds Wire Company, 26 NLRB 662,
666, enfd . 121 F 2d 627 (C A 7); see also Central Rent-a-Car Y. Franklin
SUNSHINE FOOD MARKETS 255
The Alleged Solicitation to Withdraw from the Union
After Sercl concluded his speech to the employees on
the evening of March 12, John Graybill, an employee in
the meat department at Store 8 , asked Personnel Manager
Jensen whether he could discuss with Sercl the questions
which the latter had raised in his speech. Jensen assured
him that this would be possible, but suggested that such a
meeting be deferred until later.
The following day, Division Manager Narlin and Meat
Manager Anderson were at Store 8. Graybill testified,
credibly and without contradiction, that Narlin told him
and several other employees present that the Company
"would like to have everyone be like one big, happy
family and have things go along the way they were before
the election." According to Graybill, Narlin further told
them that if any of the employees had any problems that
could not be resolved by Zajecka, the meat manager, that
President Sercl himself would always be ready to talk with
them about their problems. Graybill testified that at this
point he apprised Anderson of the fact that at the meeting
the night 'before he had sought an opportunity to speak
with Sercl. A few minutes later, Anderson told Graybill
that he had just concluded a telephone conversation with
Sercl and that the latter told him that he could see
Graybill that afternoon at the company headquarters in
Sioux Falls. Graybill testified that both Anderson and
Narlin urged that he leave immediately for such a
conference." Graybill did so and arrived at Sercl's office
in Sioux Falls late on the afternoon of March 13.1=
Graybill's testimony as to the ensuing conversation with
the company president was substantially as follows:
Graybill opened the discussion by telling Sercl that he felt
the latter misunderstood what the employees really
wanted. Then, when Sercl suggested that it was Graybill
who had started the union drive, the employee denied that
he was . Sercl thereupon enumerated the other employees
in the meat department and Graybill finally told him that
Dick Smolnick was the meat department employee who
had initially contacted the Union. Graybill, however,
acknowledged that thereafter he actively sought to enroll
the members of the department as union supporters. Sercl
thereupon told Graybill that since the election he had
received letters from three of the meat department
employees wherein they indicated a change of mind so
that at that point it appeared that Graybill was the only
union supporter left." Sercl then asked "Since there is
only one left... could you be persuaded to change your
mind?" Graybill answered in the negative and the
conference ended when Sercl promised that he would send
the employee a letter covering the substance of their
duscussion.
The testimony of Sercl as to what was said at this
meeting did not differ in any substantial respects from
that of Graybill. The Respondent's president testified that
after Graybill endeavored to establish that he was not the
one initially responsible for bringing the Union into the
meat department , the employee manifested some
dissatisfaction with current developments as far as the
Mut. Ins. Co., 289 N.W. 261, 291 Mich . 578; Prudential Ins. Co. v. Saxe,
134 F.2d 31 (C.A. D.C.) cert. denied 63 S.Ct. 1033.
The foregoing findings are based on the credible testimony of Graybill.
The Respondent called Anderson as a witness , but at no time asked him
any questions as to this incident . Graybill's testimony in this connection,
therefore, stands uncontradicted.
"Sioux Falls and Sioux City are approximately 90 miles apart.
"The Union had received four votes in the unit of seven employees
Union was concerned . Sercl never denied any of the
testimony which Graybill gave as to this encounter. In a
very material respect , Sercl 's testimony corroborated that
of the employee . Thus, Graybill testified that after Sercl
told him that correspondence from three of the employees
indicated that he [Graybill ] was the only union man left,
Sercl then asked him "Since there is only one left. . .
could you be persuaded to change your mind .?" Sercl, on
the other hand, testified that after he and Graybill had
been discussing the Union for some while , " we both
agreed that he [Graybill ] was just about the only one left
that was carrying the ball." (Emphasis supplied.)
According to Sercl , at this point , Graybill asked "What is
there in it for me if I drop out?" Sercl testified that he at
first took this to mean that the employee was asking for
money, but that further conversation disclosed that this
was not the case , and that, in fact , Graybill was disturbed,
primarily , about his relations with Zajecka and Anderson.
According to Sercl , he then proposed that Graybill secure
a meeting with Division Manager Narlin and discuss his
problems with Narlin . Sercl conceded that prior to the
conclusion of their conference , he promised Graybill that
he would send him a memo of what he had suggested and
shortly thereafter he did send such a letter to the
employee.'
The General Counsel alleged that , in the aforesaid
meeting with Graybill, President Sercl unlawfully solicited
the employee 's withdrawal from the Union. On the
findings set forth above , it is apparent that in his
conversation with Graybill, Sercl questioned the employee
about his coworkers and the strength of their current
sympathies for the Union . As a result of this discussion,
at the hearing Sercl could testify that both he and
Graybill agreed that , at the moment , Graybill was about
the only union adherent left in the appropriate unit. It was
undenied that , as Graybill testified , Sercl then asked him
"Since there is only one left... could you be persuaded to
change your mind?"
The foregoing exchange between the Respondent's
president and one of the principal union activists occurred
on March 13 . On March 1 , the Union had won the
election and on March 11, it had been certified . By March
13, the Respondent 's management was no . longer free to
deal directly with employees who had designated the union
as their representative . Accordingly, it is the conclusion of
the Trial Examiner that by encouraging Graybill to
discuss his dissatisfaction with the Respondent 's president,
and thereafter , by the action of the latter in openly
soliciting the employee to withdraw his support from the
Union , the Respondent violated Section 8 (a)(1) of the Act.
Medo Photo Supply Corp. v. N.L.R.B., 312 U.S. 678,
683-684 ; N.L.R.B . v. Pembeck Oil Corp., 404 F. 2d 105
(C.A. 2); Trey Packing , Inc., v . N.L.R.B., 405 F. 2d 334
(C. A. 2).
"It was undisputed that several days later , Graybill received a letter
from Sercl. The letter, however, was not produced at the hearing. Graybill
testified that he turned it over to Lester Peck , international representative
for the Union , and that the latter had given it to an associate , one Willard
Ferson . Counsel for all parties agreed that at the time of the hearing
Ferson was unable to testify because of a physical , or nervous , breakdown
which he had incurred The General Counsel stated that the latter fact had
come to his attention only on the eve of the hearing so that he was unable
to secure the original of the letter from Ferson and, because of the time
element , unable to subpoena a copy from the Respondent . Be that as it
may, the existence of such a letter was not disputed by the Company.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged Violations of Section 8(aX5) and (5);
Findings and Conclusions With Respect Thereto
1. The approriate unit
As noted earlier, the Regional Director, in a Decision
and Direction of Election issued on February 6, 1968,
found that all meat department employees at the South
Sioux City, Nebraska, store of Sunshine Food Markets,
Inc., excluding office clericals, the cleanup man,
professional employees, guards and supervisors as defined
in the Act, constituted an appropriate unit. Although the
Respondent did not concede the appropriateness of such a
unit, it did not appeal the decision of the Regional
Director. Neither did it, subsequent to the election, file
any objections. At the hearing in the case at bar, the
Respondent renewed its initial opposition to the unit
finding of the Regional Director. This was overruled by
the Trial Examiner on the ground that he was bound to
accord finality to the unit determination made in the
representation case.16 This ruling is reaffirmed and the
appropriate unit is hereby found to be the same as that
described above and as set forth, initially, in the Regional
Director's Decision.
2. The unilateral changes in working conditions
The General Counsel alleged that subsequent to the
election the Respondent unilaterally changed the working
hours of its meat wrappers, changed the duties of unit
employees, changed the day off for unit employees and
reduced the number of working hours for two employees
in the unit. The Respondent did not deny that the changes
had been effected. Its defense was that the changes had
been made prior to the time the Union was certified and
that, in any event, they had been dictated by economic
necessity.
The Respondent did not contest the testimony of Helen
Plantz that shortly after the election Zajecka posted a new
schedule of working hours for the employees in the unit
which constituted a change in the daily reporting and
departure time for most of the employees. Mrs. Plantz
further testified that about this same time her day off was
moved from Monday to Tuesday. Employee Graybill
testified that late in April his day off was changed from
Thursday to Tuesday. On May 11, Mrs. Plantz and a
coworker Cheryl Rush, had their hours of work per week
reduced from 42 to 40.
Mrs. Plantz also testified that subsequent to the
election the women in the meat department were given
more onerous duties. According to her, a new schedule
required that she report to work at 9 a.m., instead of 8
a.m., and stay until 6 p.m., rather than 5 p.m. Mrs.
Plantz testified that this change resulted in the women
being left with more arduous cleaning chores prior to
closing for the day. She further testified that after the
election the women were also required to sweep and clean
Store Manager Scott's office and scrape labels off the
floor of the meat department.
"The parties stipulated that the testimony of Max Gerken , vice president
of the Respondent , as it appears in the transcript of the representation
hearing could be received insofar as it related to the difficulties of
bargaining for a unit that included only the meat department employees of
one store in the chain. In receiving this stipulation and the transcript of the
representation case, the Trial Examiner held that, insofar as Gerken's
testimony might constitute support for the Respondent's argument that the
original unit determination was erroneous , it would remain in the record
only as an offer of proof.
Mrs. Plantz' account of the alleged changes in her
cleaning duties subsequent to the election was not too
convincing. In part, some of the changes resulted from the
altered work schedule which Zajecka posted shortly after
the election and which was referred to in the paragraph
above. Her testimony about the burden of cleaning Scott's
office was likewise unpersuasive. She conceded that the
office in question was only 8 feet square and that it
adjoined the meat department. She also conceded that she
could only recall one time after the election when she had
had to clean labels off the floor with a razor blade, and
that, in fact, the employees in the meat department had
always had to perform sweeping. Zajecka testified that
sometime before the election Store Manager Scott
permitted him to use the manager's office for Zajecka's
recordkeeping, and that after this practice began, Scott
insisted that at the end of each day the meat department
employees should be responsible for cleaning his office.
Zajecka further testified, and in this respect, his testimony
was credible, that this practice had begun some while
prior to the election. According to Zajecka, the emphasis
on a thorough cleanup, about which Mrs. Plantz testified
at some length, had resulted from an unfavorable
examination of the meat department by the local health
inspector. From the welter of testimony on this issue
which appears in the record, it is the conclusion of the
Trial Examiner that the practice of cleaning the store
manager's office had been established prior to the election
and that Zajecka's insistence on a thorough cleanup
before and after a visitation from the health department
representative was no different subsequent to the election
than it had been prior thereto. At the same time, the
change in the working schedule which required Mrs.
Plantz to report for work at 9 a.m., instead of 8 a.m., and
then stay until 6 p.m. instead of 5 p.m., probably resulted
in her getting more cleanup work to perform. Insofar as
this constituted a change in her work, it was related to the
change in her working schedule and will be considered
hereinafter in that connection.
The Respondent conceded that the rearrangement of
the work schedule and the change of Plantz' day off from
Monday to Tuesday had been effected about March 8,
and without any notice having been given to the Union.
At the hearing, it moved to dismiss these allegations on
the ground that on this date the Union had not yet been
certified. This motion was denied, and said ruling is
hereby reaffirmed. The critical date which determined the
Respondent's obligation to recognize and bargain with the
Union was the date on which the majority of the latter
was established. This was March 1, the date of the
election, rather than March It, when the Regional
Director issued the certification. Laney & Duke Storage
Warehouse Co., Inc., 151 NLRB 248, 266-267, enfd. as to
this point 369 F.2d 859, 869 (C.A. 5).
The Respondent also offered various defenses, based on
economic necessity, for the change in work schedules for
the employees and the cut back in the work week of
Plantz and Rush from 42 to 40 hours. Accepting this
testimony as true and the soundness of the managerial
decision there involved, the Act still required that
subsequent to the election, the Respondent was obligated
to meet, or at least offer to meet, and bargain in good
faith with the employees' representatives as to any
changes with respect to wages, hours, or working
conditions. This, the Respondent admittedly failed to do.
In thereby effecting, unilaterally, readjustments in the
employees' hours of work, alteration of the schedule for
days off for some of the employees and a reduction in the
SUNSHINE FOOD MARKETS
number of hours in the work week for Plantz and Rush,
the Respondent acted in derogation of the Union's status
as the bargaining agent for the unit . In so doing, the
Respondent must be, and is, found to have violated
Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Katz, 369
U.S. 736, 742-743. Moreover, in view of the fact that the
decrease in hours for Plantz and Rush affected a term or
condition of their employment, the Respondent's
unilateral action in this regard also violated Section
8(a)(3) of the Act.
3. The bargaining conferences
On April 3 and 18, the parties met for the only two
collective bargaining sessions which were held. The
conferences took place in Sioux Falls, South Dakota, at
the law offices of Attorney John E. Burke, counsel for the
Respondent. At the first session Lester Peck and Robert
Hanson , international representative and business agent,
respectively, represented the Union, and Attorney Burke
and President Sercl represented the Respondent. At the
second meeting, Union Representative Willard Ferson and
Employee John Graybill met with Attorney Burke and
Vice President Max Gerken. At the hearing in the present
proceeding, Peck and Graybill testified as to the
bargaining conferences for the General Counsel and
Attorney Burke took the witness stand for the major
portion of the testimony offered by the Respondent on
this phase of the case . In some instances , the testimony of
these witnesses summarized the positions of the parties
during both conferences . For this reason and in the
present state of the record, it appears more orderly to set
forth the findings as to the meetings held on April 3 and
18 on the basis of the subjects covered, rather than by
attempting to set them forth separately as to each
conference. The findings hereinafter are based on the
mutually corroborative testimony of the witnesses, except
where otherwise noted. Insofar as there is conflict in the
testimony such conflicts will be discussed in detail.
At the initial meeting of the parties , the Union and the
Company agreed to use, as the basis for their
negotiations , the Union 's current contract with Sioux City
Discount, Inc., another store in the Sioux City area. To
the subjects covered and the agreement , or disagreement,
of the parties with respect thereto, we will now turn.
Article I - Recognition
The parties agreed upon the terms of this clause.
Article I - A Check Off
The Company rejected this clause on the ground that
the machine accounting used by its payroll division could
not be changed for so small a unit as that for the seven
employees involved.
Article II - Hours of Work
Section 1. This provided for a 40 hour week and for
time and one-half for all hours worked in excess of 8
hours per day and 40 hours per week. The Company
objected to any provision for overtime on the ground that
it had been company policy for a long while not to
schedule overtime.
Section 3. This provided that no employee would be
required to work a split shift. The Company disagreed on
257
the ground that, whereas no split shifts were in effect at
any store, the Employer did not want to preclude the
prospect of having such a shift at any particular store.
Section 4. Call-in pay. The Company stated that it had
no objection to this provision because it had never been
company practice to call an employee without giving him
work.
Section 5. Rest periods. This provision presented no
problem because, as the company rperesentative stated,
the rest periods provided in the proposed contract were
those which the Employer already had in effect.
Section 6. Holidays. The Company agreed to this
provision since it provided for the same paid holidays as
the Employer was already paying.
Section 8. Double time pay for Sunday work. The
Company stated that it had no Sunday work so that there
was no need to discuss this proposal. The Union
thereupon agreed with the company position on this
section.
Section 9. This section provided that one member of
the Union should be given time off without pay, but
without loss of seniority, to take care of necessary union
business . The Company agreed to this language.
Article III - Vacations
The parties discussed at some length the provisions in
the proposed contract on vacations. At that time the
Company had a practice of granting its employees sick
leave. The proposed contract had no provision for sick
leave. Discussion of the vacation provisions of the
proposed agreement was tabled when Attorney Burke told
the union representatives that the Company was
reevaluating its vacation policy and had under
consideration a change in its vacation policy that would
incorporate its existing sick leave practice.
Article IV - Funeral Leave
According to both Peck and Burke, the Company
agreed to this provision, which allowed an employee up to
three days leave with pay to attend the funeral of an
immediate family member.
Article V - Leave of Absence
According to the uncontradicted testimony of Attorney
Burke, the Company agreed to all sections of this article
as it appeared in the Union's proposed contract.
Article VI - Seniority
The parties discussed the proposed provision on
seniority which would provide for seniority on a
company-wide basis. The Company insisted that with
respect to promotions, some provision should be made for
the consideration of ability as well as seniority. At the end
of the second session this issue remained unresolved.
Article VII - Hiring of New Employees
This term in the proposed contract provided that the
Employer would notify the Union whenever additional
help was needed. The Company did not approve of this
article on the ground that it provided for what was, in
effect , a union hiring hall.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article VIII - Grievance Procedures
This article provided for a grievance procedure that, in
its last step, required that the parties submit their
differences to final and binding arbitration.
The Company expressed its opposition to any provision
for arbitration . Instead , the Company suggested that the
parties discuss a provision whereby any grievance would
be taken first to the district supervisor. If unresolved
there, it would be taken to the vice president, and if that
did not lead to a satisfactory disposition of the matter,
either side could take any action it wanted. The
differences of the parties as to this article were never
resolved.
Article IX - Working Conditions and Regulations
Company agreed to this provision.
Section 12. This provided that the Respondent would
pay for the cost of any physical examination requested by
the Employer. The Company agreed to this provision.
Section 13. This provided that an authorized union
representative would be permitted to visit the store at
reasonable hours . The Company agreed to this provision
on condition that the union agent checked with the store
manager at the time of his arrival."
Article X - Employer Rights
This article provided that all of the Employer's rights,
responsibilities and authority not specifically limited by
the express terms of the agreement would remain
exclusively the rights of the Employer. The Company
agreed to the language in this provision.
Section 1. This provided that frocks, aprons and
uniforms required by the employer would be furnished and
laundered free of charge to the employee and that any
tools required would likewise be provided to the employee
without cost. Sercl stated that the Company already
followed this practice and that it was not opposed to this
section.
Section 2. This provided that no employee would have
anything which he was already receiving taken from him
as a result of any provision in the contract. The Company
agreed to this section.
Section 3. This clause related to the hiring of
apprenctices. The Company at first objected to it, but
Peck then stated that the provision need not constitute
any obstacle to an agreement because apprentice meat
cutters were rarely available.
Section 4. This provided that when a journeyman was
required to perform the duties of head meat cutter for
more than one week , he would receive the higher rate of
pay, but that if a journeyman temporarily filled the job of
another employee getting a lower rate, the journeyman's
rate would not be reduced. The Company asked for more
time to consider this provision.
Section 6. This provided that an employee laid off and
then rehired would not be required to take a lower rate of
pay than that which he was receiving at the time of layoff.
The Company agreed to this provision.
Section 8. This provided that the parties sign three
copies of the agreement , one to be kept by the Employer,
the second by the Union and a third copy to be posted in
the shop. The Company objected to the provision on the
third copy and would agree only to a stipulation that the
manager keep a copy in his office available for inspection
by the employees upon request.
Section 9. This provided for up to four days of sick pay
for injuries arising out of and during the course of
employment . At the time the Respondent had a sick leave
plan in effect for all its employees. Attorney Burke
testified , without contradiction, that at the collective
bargaining sessions he told the union representatives that
the Company' s existing plan was better for the employees
than the one in the union proposal and that the Company
would prefer to keep its own plan. There was no evidence
that the Union was adverse to this suggestion.
Section 10. This provided for the display of the Union
Shop Card at the Respondent's meat department. The
Company agreed to comply.
Section 11. This provided that employees would not be
required to take inventory on any holiday or after 5 p.m.
on the eve of Christmas or New Year's Day. The
Article XI - Insurance
This provided that any existing company pension policy
and insurance plan in effect at the time of execution of the
collective- bargaining agreement would continue
throughout the life of the agreement.
Attorney Burke testified that the Company told the
union representatives that the Respondent was revising its
whole insurance plan and that when this was accomplished
the Union would be informed. Burke also told the Union
that the Company's profit sharing plan was in effect
pursuant to a contract between the Respondent and a
bank and that it could not be changed at the behest of
only 7 employees out of 477. Burke further testified, and
his testimony in this regard was undenied , that he told the
Union that if the employees in the unit wanted to
withdraw from the plan they could do so, and that if they
remained , insofar as the Company contemplated any
changes in the pension plan it would negotiate with the
Union as to the effect such changes would have on the
unit employees . Peck's testimony as to this discussion did
not contradict or deny the account to which Attorney
Burke testified. According to Peck, at their bargaining
conferences Burke told them that, as to the Company's
pension and profit sharing plan, the seven unit employes
would be treated the same as the rest of the employees,
"no better [and] no less than any of the rest."
Article XII - Duration of Agreement
This article in the contract, which the Union offered as
a format for discussion, provided that the agreement
would be in effect from September 3, 1967, to September
31, 1970. The bargaining sessions between the Company
and the Union were held in April 1968. To what extent, if
any, the Union suggested a change in the term of the
proposed agreement the record is silent . It is clear that the
Respondent, through Attorney Burke, proposed that the
term of any agreement be for two years rather than one.
There is nothing in Peck 's testimony or anywhere else in
the record to suggest that the Union was opposed to the
Company 's proposal in this regard.
The appendix to the proposed contract dealt with a
wage structure. On this subject the Respondent's
"Article IX of the proposed contract also had a section 5 on payment
for deliveries made outside working hours , and a section 7 , on service to
customers in a store at closing time . There was no testimony in the record,
however , as to whether either of these sections was discussed by the
parties.
SUNSHINE FOOD MARKETS 259
representatives referred to two company-wide wage
increases which been put into effect only a short while
before. Burke testified that he stated that the Company
was opposed to any further increases at that time or to
the incorporation of any wage structure in the contract."
Peck testified that the Company assured the Union that it
would not reduce any wages , but that in the meantime it
could not give any wage increases to the meat department
in South Sioux City because to do so would compel the
Respondent to give a similar raise to all employees in the
division. On this subject, Attorney Burke testified that at
the bargaining sessions he reiterated that the Company
had been operating on the principle of uniform conditions
throughout the entire division and that the Company did
not feel that it could give the meat department in Store 8
benefits that it did not immediately extend to all other
employees in the division. He further testified, and
without contradiction, that he told the Union that, if a
general pay raise was planned at any date in the future,
the Company would negotiate with the Union as to its
effect on the employees in the unit.
Subsequent to April 19, the parties held no further
meetings. In a letter, dated May 3, which Attorney Burke
wrote to Robert L. Hanson , business agent for the Union,
the company attorney proposed that the parties hold a
third meeting on May 9. Hanson at first agreed to meet
on the last mentioned date, but later telephoned Burke to
tell him that one of the Union's negotiators would be
unavailable and that, as a result, the Union would have to
ask that the meeting be cancelled.18
On about May 20, Peck telephoned Attorney Burke to
ask whether another meeting could be arranged. Peck
proposed that any such meeting be held in Sioux City.
Burke demurred on the ground that the initial meetings
had been held in Sioux Falls with the tacit consent of the
Union and that, for this reason, he did not care to change.
Peck then asked whether another meeting would be
worthwhile. According to Peck, Burke told him "I don't
know about yours [position], but there sure isn't in ours."
Burke's testimony was in substantial accord with that of
Peck. According to company counsel, when Peck asked
whether there was any point in arranging a further
meeting he told the union representative : " I wouldn't
know if there was any point in meeting or not. . I
really hadn't changed my mind about anything I had
discussed with him,. . . in particular in those areas which I
thought were quite inflexible, but certainly we were
willing , we had a legal obligation and we would sit down
in good faith and try to negotiate a contract. It was up to
him to decide whether or not it was worthwhile." From
the testimony of these two witnesses it is apparent that the
conversation was concluded with neither of the
participants taking any further affirmative step to arrange
for another meeting. Insofar as the record indicates, there
"In November or December 1967 the Company had given all its
employees an increase of 10 cents per hour . On January 29, 1968, it had
given them another increase in the same amount . The latter raise was given
after the union campaign had begun . The Company , however , described it
as a raise which had been scheduled prior to the advent of a labor
organization and the General Counsel conceded that he was not basing any
unfair labor practice allegation on the facts in connection with these wage
increases.
"The foregoing findings as to the arrangements for a third meeting are
based on the credible testimony of Attorney Burke When on the stand,
Hanson averred that he had no knowledge as to any such arrangements as
those found above . Hanson 's testimony , and his asserted lack of any
recollection on this issue , was totally lacking in candor and most
unpersuasive.
was no further communication between the parties
thereafter.
Concluding Findings
The General Counsel contends that the Respondent
failed to bargain in good faith, that this was apparent
both from its conduct during the course of the two
sessions which the parties had, and also from the position
which its counsel manifested both before the election was
held and after bargaining began.
It is clear from the record that Respondent's counsel
bitterly attacked the Regional Director's unit
determination when the decision issued in the
representation case . Thus, in a letter dated February 13,
1968, Attorney Burke assailed the validity of the Regional
Director's conclusion as to the appropriate unit on the
ground that it was in conflict with N.L.R.B. v. Purity
Foods Stores, 354 F.2d 926 (C.A. 1) (unit determination
in 150 NLRB 1523 remanded to Board for further
consideration ); 376 F. 2d 497 (C.A. 1) (Board order set
aside), cert. denied 389 U.S. 959. He concluded this letter
with the statement:
[Wje will, of course, refuse to comply with any
recognition order put out by your office and are only
going through the motions of this election in the hopes
that that is an easy way to dispose of this matter.
Later, in another letter dated June 18, 1968, written in
response to the Regional Director's notification that the
Union had filed a charge alleging that the Respondent had
refused to bargain in good faith, Attorney Burke stated,
with reference to the negotiations which had taken place:
There has been some difficulty in the bargaining
because the Board made a clear legal error in trying to
establish this one store as a separate unit. The Union
would like to have the last inch of the dog's tail wag the
dog and that's sometimes very difficult.
In his brief, the General Counsel contends that the
attitude of the Respondent's counsel, as manifested by the
foregoing excerpts from his correspondence, was displayed
throughout the negotiations had with the Union, and that
during those meetings the Respondent approached
bargaining with a closed mind and without any intention
of making a good faith effort to compose its differences
with the Union.
In support of this contention, the General Counsel
relies upon the fact that the Respondent refused to
incorporate a wage structure in any proposed contract, did
not advance any counterproposals, insisted on meeting in
Sioux Falls, rather than in Sioux City, and throughout the
course of negotiations maintained that any change in
wages or other conditions of employment for the unit
employees would have to be deferred until they could be
put into effect for all of the employees in the entire
division.
The record is, indeed, clear that the arrival of the
Union was not welcomed by the Respondent and that the
Regional Director's unit determination was greeted with
outright disdain by the Respondent's attorney.
Nevertheless, after the election the Respondent did not file
objections and it did agree to meet with the Union for
negotiations . Apart from the background of what
preceded the bargaining sessions and on which
background the General Counsel relies heavily, the rest of
the evidence on which the General Counsel' s case is
dependent in this connection must be found in the record
of the bargaining sessions.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is significiant that in this case there were only two
meetings, followed by the Respondent's arranging for a
third which was subsequently cancelled at the Union's
request . In a final telephonic exchange between
representatives of the parties the Respondent ' s attorney
stated that the Company had not changed its position on
any of the issues involved, but that it was ready to sit
down at another meeting whenever the Union desired. The
Union never requested another meeting.
The General Counsel contends that under the
circumstances present here , another meeting would have
been a waste of time. That is not at all clear from the
record. The findings set forth earlier as to the negotiations
held on April 3 and 18 establish that the Company agreed
to many of the provisions in the Union's proposed
contract . It is true that the Company stated at the outset
that it was opposed to a checkoff, final and binding
arbitration of grievances , and a wage increase for the
meat department employees . However , in connection with
this last issue , the Respondent was able to point out that
it had within the preceding five months granted two
company-wide increases . Further , it was undoubtedly a
problem for the Respondent to consider the grant of any
wage increase to the seven meat department employees
that would not result in demands from its other 450 to
500 employees for similar benefits.
An employer is not required to make a concession as to
a union ' s wage demand , or to any other demands , for that
matter , to establish its good-faith participation in
collective bargaining . N.L.R.B. v. American National
Insurance Co., 343 U. S. 395 . Here the General Counsel's
allegation that Respondent engaged in bad faith
bargaining is largely dependent upon what occurred at
only two bargaining sessions . After the second session the
Respondent took the initiative to arrange a third meeting.
When the Union, for reasons of its own, cancelled that
session , it never thereafter sought another meeting,
apparently on the assumption that no further concessions
could be secured.
The Union' s assumption in this regard may have been
correct . The Trial Examiner , however , does not agree that
on the basis of this record any further meeting would have
involved a futile expenditure of time and effort. In the
light of the facts set forth above, the Trial Examiner
concludes and finds that the General Counsel has failed to
prove by a preponderance of the evidence that during the
collective bargaining sessions the Respondent was guilty of
bad faith bargaining . Accordingly, dismissal will be
recommended for the allegation in the complaint that the
Respondent's course of conduct at these meetings violated
Section 8(a)(5).
4. The alleged unfair labor practice strike
The General Counsel 's allegation as to the character of
the strike was premised upon the assumption that the
Respondent displayed such bad faith during the bargaining
conferences that it stalemated the negotiations and
precipitated the strike . On this ground , the General
Counsel contends that the work stoppage here involved
was an unfair labor practice strike.
Even if it was found that Respondent displayed bad
faith in the collective bargaining sessions, the Board does
not hold that a strike which follows such a course of
conduct is , in every instance , an unfair labor practice
strike . There must be a causal link between the unlawful
refusal to bargain and the work stoppage . N.L.R.B. v.
Thompson & Co., 208 F.2d 743, 749 (C. A. 2); Rogers
Brothers Company of California, 169 NLRB No. 124
(TXD); Heart of America Meat Dealers Association, 168
NLRB No . 110 (TXD).
Here , the last communication between the Union and
the Company was had on about May 20 , 1968, at which
time , as found above , Union Representative Peck and
Attorney Burke had a telephone conversation and neither
sought a further meeting . There is no evidence in the
record as to what occurred between that date and the
initiation of the strike on June 13 . Whether, after May 20,
the Union held any meetings with the employees , whether
the course of the bargaining was discussed by the
employees at any such meetings , or whether the strike was
called solely to press for a wage increase or other
economic benefits, is left for conjecture since the record is
completely silent on this issue.
In any event , the earlier conclusion of the Trial
Examiner that the Respondent did not display bad faith
during the bargaining impels the further conclusion in this
instance that the strike which began on June 13 was
economic in character and was not an unfair labor
practice strike.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of
the Act.
2. All meat department employees at the South Sioux
City, Nebraska, store of the Respondent constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act, with the
exception of office clericals, the cleanup man, professional
employees , guards and supervisors. ,
3. At all times since March 1 , 1968, the Union has
been the exclusive representative, for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act, of all the employees in the aforesaid appropriate
unit.
4. By unilaterally changing the work schedules and
reducing the hours of certain employees in the appropriate
unit , the Respondent has engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
5. By unilaterally reducing the hours of work of Helen
Plantz and Cheryl Rush , the Respondent has engaged, and
is engaging, in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
6. By interfering with , restraining , and coercing it
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
7. The work stoppage which began on June 13, 1968,
was, from its inception and thereafter , an economic strike.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , the Trial Examiner will
recommend that the Respondent be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
SUNSHINE FOOD MARKETS 261
Having found that on May 11, 1968, the Respondent
unilaterally reduced the hours of employment of Helen
Plantz and Cheryl Rush in violation of Section 8(a)(3),
(5), and (1) of the Act, it will be recommended that the
Respondent make these employees whole for any loss of
earnings that they may have suffered by payment to them
of a sum of money equal to that which they normally
would have earned from the aforesaid date to the date of
Respondent reinstatement of their former schedule of
hours. The Crestline Company , 133 NLRB 256, 258-259;
Dickten & Masch Mfg. Co., 129 NLRB 112, 113." The
backpay provided for herein shall be computed in
accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest
thereon . Isis Plumbing & Heating Co ., 138 NLRB 716.
Finally, since it has been found that the Respondent
violated Section 8(a)(5) by reducing the hours of work of
the aforesaid employees and by changing the work
schedules of the unit employees without bargaining with
the Union over its decision to do so, it will be
recommended that the Respondent be ordered to cease
and desist from making any unilateral changes in terms
and conditions of employment without consulting the
employees ' designated bargaining agent.
Upon the foregoing findings and conclusions and the
entire record , and pursuant to Section 10(c) of the Act,
the Trial Examines hereby issues the following:
ORDER
Sunshine Food Markets , Inc., its officers , agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, Local 521 , as the exclusive representative of its
employees in the bargaining unit described below, by
taking action without prior consultation with said
organization with respect to hours, work schedules and
other terms and conditions of employment. The
bargaining unit is:
All meat department employees at the South Sioux
City, Nebraska store , with the exception of office
clericals, the cleanup man, professional employees,
guards and supervisors.
(b) Threatening employees with the loss of benefits for
enlisting the support of the Union.
(c) Coercively, or otherwise unlawfully , interrogating
employees concerning their union activities or sympathies.
(d) Soliciting employees to withdraw from the aforesaid
union or any other labor organization.
(e) In any like, or related manner , interfering with,
restraining , or coercing its employees in the exercise of
their right to self-organization , to form , join, or assist the
above-named , or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities..
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
"Of course , after the obligation to bargain with the Union has been
satisfied , the employer may lawfully reduce the hours of employees in the
appropriate unit. Town & Country Manufacturing Co.. Inc ., 136 NLRB
1022, 1030, enfd . 316 F.2d 846 (C.A. 5).
(a) Make whole Helen Plantz and Cheryl Rush for any
loss of earnings suffered as the result of the Respondent's
unlawful unilateral reduction in their working hours, in
the manner set forth in the section of this Decision
entitled, "The Remedy."
(b) 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 amount of backpay, if
any, which may be due under the terms of this Order.
(c) Post at its premises in South Sioux City, Nebraska,
copies of the attached notice marked "Appendix.""
Copies of said notices, on forms provided by the Regional
Director for Region 17, after being duly signed by an
authorized representative of the Respondent, shall be
posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps it 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 is 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 the Regional Director for
Region 17, 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 to bargain collectively with
Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, as the exclusive
representative of our employees in the bargaining unit
described below , by taking action without prior
consultation with said organization with respect to
hours of employment, work schedules and other
conditions of employment . The bargaining unit is:
All meat department employees at our South Sioux
City, Nebraska store, with the exception of office
clericals, the cleanup man, professional employees,
guards and supervisors.
WE WILL NOT threaten employees with the loss of
benefits for enlisting the support of the aforesaid
Union.
WE WILL NOT coercively , or otherwise unlawfully,
interrogate employees concerning their union activities
or sympathies.
WE WILL NOT solicit employees to withdraw from the
aforesaid union or any other labor organization.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like , or related manner,
interfere with , restrain , or coerce our employees, in the
exercise of their rights to self-organization , to form,
join, or assist the above -named , or any other, labor
organization to bargain collectively through
representatives of their own choosing to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities
WE WILL make whole Helen Plantz and Cheryl Rush
for any loss of earnings suffered as the result of our
unilateral reduction in their working hours
SUNSHINE FOOD
MARKETS, INC
(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 , 610 Federal
Building , 601 East 12th Street , Kansas City , Missouri
64106 , Telephone 374-5282