T. C. Worthy Wholesale, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1966

159 N.L.R.B. 1700 (N.L.R.B. 1966)

1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become; or refrain from becoming members of the
above-named labor organization, or any other labor organization.
KENT-COFFEY MANUFACTURING COMPANY, INC.
Employer.
Dated-'----------'-------- By-------------------------------------------
(Representative)„ (Title)
NOTE.-We will notify the above-named employees if presently serving in -the
Armed Forces of the United States of their rights to full reinstatement upon appli-'
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional' Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101,
Telephone 723-2911, Extension 302.
T. C. Worthy Wholesale , Inc.; T. C. Worthy Retail , Inc., d/b/a
Carl's Market, City Market, and T. C. Worthy Retail Market;
and T. C. Worthy Cash and Carry, Inc. and Retail Clerks Union
Local No. 1167, Retail Clerks International Association, AFL-
CIO. Case 21-CA-6892. June 28, 1966
DECISION AND ORDER
On April 19, 1966, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. The Trial Examiner further found that Respondent
had not engaged in certain, other unfair labor practices alleged in
the complaint and recommended that those allegations be dismissed.
Thereafter, the Respondent and the General Counsel filed exceptions
and supporting briefs.
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 [Members Fanning, Brown, and Zagoria].
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 herby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications.
,We agree with the Trial Examiner that the Union represented a
majority of Respondent's employees in an appropriate unit and that,
159 NLRB No. 137.
H'T."!C.=WORTHY" WHOLESALE 1701
by its refusah ,to• meet 'and, ,bargaiii with, the: Union, the .'Respondent
violated Section 8 (a) (5) and (1) of the Act:! - We- wish- l o emphasize
that in our ' opinion the.-evidence, in the. reeord establishes that the
Respondent, after having been made aware of the Union's majority
support'b3T a strike of '29 'of ='33 employees' in the- appropriate unit,
,agreed-to recognize and bargain,. With the Union.. Indeed, the'.evi-
dence shows that at the meeting at- which recognition was accorded,
preparatory' 'to discussing' a contract Respondent's representatives
'nodded -their heads affirmatively in--response to a question by' the
Union's' representative as to,:whether they recognized' the Union as
'bargaining representative, of the employees. Thereafter, the parties
discussed the terms of the Union's proposed contract. The Respond-
ent's refusal after-the initial theetiiig to continue' negotiations on-the
ground that it'entertained a good-faith doubt concerning the }Union's
majority status and that it was uncertain as to the unit for' which the
Union sought recognition was not, as the Trial Examiner found, made
-in good faith. In, these 'circumstances, we find that the Respondent's
withdrawal' from further bargaining was in breach of its statutory
obligation to bargain in good faith with the majority representative
of its employees. .
In view of the above, it is apparent that the strike was economic in
its inception. Hon-ever, we find that the Respondent's refusal to con-
tinue negotiations with the Union on and after August 17 converted
it to an unfair labor practice strikes ' Accordingly, - we' shall modify
the Trial Examiner's, remedy to conform with this finding, thereby
requiring Respondent to offer unconditional reinstatement to employ-
who engaged in the strike and who had not been replaced as
of August 17,,1965, or who have not already been reinstated in the
manner now set forth, to the positions they held at the time they went
on strike, without prejudice to their seniority and other rights and
privileges, discharging if and as necessary persons hired- on and after
August 17, 1965, and to make applicants whole for any loss of pay
suffered by reason of the Respondent's refusal, if. any, to reinstate
them, by payment to each of them of a sum of money equal to that
which they normally would have earned less their net earnings, during
the period from 5 days after the date on which they apply 'or have
applied for reinstatement to the date of Respondent's offer of rein-
statement in accordance with the formula prescribed 'in F. W. Wool-
worth Company, 90 NLRB 289. Interest at the rate of 6 percent per
annum shall be added to backpay, to be computed in the manner set
forth in Isis Plumbing cC Heating Co., 138 NLRB 716.
,1 Cf. Hawaii Meat Company, Limited, 139 NLRB 966,' enforcement denied on other
grounds, 321 F 2d 397 (C A 9).
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board adopted the Trial Examiner 's Recommended Order
with the following modifications :
[1. Substitute the following for paragraph 2(b) of the Recom-
mended Order :
["2(b) Upon application , offer to all their employees who engaged
in the strike as of August 17, 1965, who had not then been replaced
or were thereafter so reinstated, reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their seniority
and other rights and privileges, and make applicants whole f9r any
loss of pay suffered by reason of the Respondent's refusal, if any, to
reinstate them, by payment to each of them of a sum of money equal
to that which they normally would have earned less their net earnings,
during the period from 5 days after the date on which they apply or
have applied for reinstatement to the date of Respondent's offer of
reinstatement , in the manner set forth in the section of the Trial
Examiner's Decision entitled `The Remedy,' as modified herein."
[2. Insert the following as paragraph 2(c) of the Trial Examiner's
Recommended Order and reletter the subsequent original paragraphs
accordingly :
["Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due and
the rights of employment under the terms of this Order."
[3. Substitute the following for the third paragraph in the
Appendix :
[WE WILL, upon application, offer to all of our employees who
participated in the strike as of August 17, 1965, and who had not
then been replaced or were not thereafter so reinstated, reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges,
and make them whole for any loss of pay they may have suffered
as a result of any refusal to reinstate them upon such application.
[4. Insert the following immediately below the signature line at
the bottom of the Appendix :
["NOTE.-We will notify any of the above-mentioned employees
presently serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance With the
Selective Service Act, as amended, after discharge from the Armed
Forces."
[IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges unfair labor practices not found herein.]
T. C. WORTHY WHOLESALE 1703
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, herein
the Act, was heard in El Centro, California, before Trial Examiner William E.
Spencer, on December 7, 8, 9, and 10, 1965, pursuant to due notice. The complaint,
issued on October 12, 1965 and amended complaint, issued on November 22, 1965,
were based on an original , a first, second, and third amended charge, filed respectively
on August 49 and 30 and September 1 afid'30, 1965, by the Union, herein, and
alleged in substance that the Respondents had engaged in conduct violative of Section
8(a)(1) and (5) of the Act. Respondents in their duly filed answer denied the said
allegations.
Upon the entire record in the case, my observation of the witnesses, and con-
sideration of the briefs filed with me by Respondents and the General Counsel,
respectively, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
T. C. Worthy Wholesale , Inc., hereinafter Worthy Wholesale ; T. C. Worthy
Retail Inc., d/b/a Carl's Market , City Market, and T. C. Worthy Retail Market,
hereinafter Worthy Retail; and T. C. Worthy Cash and Carry, Inc., hereinafter
Worthy Cash and Carry, each of them California corporations , are engaged in
separate various locations in the city of Calexico, California, Worthy Wholesale in
the wholesale sale of food products, and Worthy, Retail, -and, Worthy Cash and
Carry' in: the ;retail; sale of food- products : Respondents as aforedescribed , consid-
ered as a joint enterprise , have annually a gross volume of business in excess of
$500,000.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local No. 1167, Retail Clerks International Association,
AFL-CIO, hereinafter the Union, a labor organization within the meaning of the
Act, is the only labor organization involved in this proceeding.
III. THE UNFAIR LABOR PRACTICES
A. The issues
1. Do the Worthy enterprises as described in section I, above, constitute a single
employer for purposes of collective bargaining, and do their employees constitute a
single appropriate unit for said purposes. 2. Did the Union represent a majority
of employees in the said unit at the time or times it demanded recognition of their
employer, or employers, as the case may be. 3. Was the recognition demand
ambiguous with respect to the unit in which the Union sought bargaining rights.
4: Did-the-Respondents unlawfully refuse to recognize and bargain with the Union.
5. Did the Respondents engage in conduct independently violative of Section
8(a)(1) of the Act.
B. The appropriate unit
Worthy Wholesale, Worthy Retail, and Worthy Cash and Carry are separate cor-
porations and each has a degree of autonomy in managerial matters. Geograph-
ically, they are located in the same area and only a few blocks apart. They
maintain separate payrolls. Thomas Carl Worthy is the president and sole share-
holder of each, and his wife, Edna Worthy, is the secretary-treasurer and a director
of each. J. L. Skinner, son-in-law of the Worthys, is general manager of Worthy
Wholesale and Worthy Cash and Carry. The officers and directors of each cor-
poration are related to the Worthys. Each has its own manager who is vested
with authority to hire and discharge. The managers of each report directly to T. C.
Worthy who receives and considers their monthly profit-and-loss statements and,
if a problem arises, consults with the appropriate manager. There can be no doubt
that Worthy, as president and sole owner, keeps his finger on the pulse of each of
the three corporations, and, together with his son-in-law, Skinner, actively partici-
pates in directing and influencing the policies of each. With respect to labor
1704 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
relations, though there may be some differences in the wage scale and hours of
work among the three corporations , such differences are not very substantial and,
in my opinion , pose no real - problem such as would interfere with and disrupt
collective bargaining on the basis of a single unit composed of the employees of all
'three. In the meetings which did occur 'on the basis of the Union 's demand for
bargaining rights ''-to be discussed in detail hereinafter=T. C. Worthy was spokes-
man for the three corporations and clearly dictated the course of such negotiations
as occurred." Despite such discrepencies as may now exist ' in wages and hours'of
work as between the two retail corporations , it seems obvious to me that these
retail employees comprise a homogeneous group , performing , as they do, similar if
not identical functions," and I do not see that the fact that the immediate supervi-
sion of each rests in the individual ' corporation is an element which seriously mili-
tates against a single unit . I would without question , then, group the employees of
the retail establishments in a single unit. The employees of Worthy Wholesale fall
in a somewhat different category ' but have, I am convinced , sufficient interests in
common with the retail establishments to be included with them in an appropriate
unit. •
Worthy Wholesale is an integral part of the Worthy enterprises . Skinner is
general manager of both Worthy Wholesale and Worthy Cash and Carry. While
Worthy Wholesale supplies retail food stores in the area generally , a substantial
portion of its stock ' is•for supplying the Worthy ' retail operations . Under such
circumstances ' it can hardly be argued with conviction that there is no viable 'relation-
ship between the operation of the wholesale and the retail establishments , or that
the wholesale employees have no' community of interests with employees of the
retail stores : They may well fall into a somewhat difffferent category with respect
to job qualifications , wages, hours, etc .; but this is not anomalous in an industrial
unit which may `embrace ,any number of different classifications of employees?
Upon the entire evidence it is found , as alleged in the complaint , that all full-time
and part-time selling and nonselling employees of the Respondents at their various
business operations described in section I, above , excluding professional employees,
guards, and supervisors as defined in the Act , constitute 'a unit appropriate for
purposes , of, collective bargaining.
"C. The Union's majority'
In July, 1965, Retail Clerks Organizing Council ' for Southern California, here-
inafter Council , began organizing Respondent 's employees on behalf of Local 1167,
the Union herein The organization extended throughout the Worthy enterprises.
At that time there were approximately 33 employees in the unit and most of these
spoke only Spanish . The Council employed the services of Alfonso Settle, an inter-
preter , and at various meetings held by the Council in Mexicali , Mexico, where
most of the employees lived , Settle translated the text of the authorization cards
used by the Council and/or explained their import to the employees in their native
language. On or.before August 11, the date of the Union's initial demand for
recognition , a substantial majority of unit employees had signed the Union 's author-
ization cards .3 As further proof of the Union 's representative status, 29 of the
some 33 unit employees participated in a union -called strike on August 14. Accord-
ingly, it is found that on August 11, .1965, and at all material times thereafter,
the Union was the designated bargaining representative of Respondents ' employees
in the appropriate unit described above.
T. C. Worthy testified that the jobs in the Worthy retail stores were practically the same
a T. C. Worthy testified that while the salaries of Worthy Wholesale employees differed
from salaries paid employees of the retail stores, "what the people do" was about the
same '
3 The text of the cards was in English but I 'am convinced that Settle correctly ex-
plained the import of these cards to the'employees in their native'tongue, and that they
knowingly and willingly executed them.r Unlike some cases involving employees of Mexican
extraction, I found these employees to be alert and knowledgeable with respect to union
representation. In these circumstances, I think the Board's rule articulated in Bailer
Welding & Metal Fabricators, Inc., 154 NLRB 954, applies, and accordingly have given
,no weight to testimony elicited as to their subjective states of mind when executing the
authorization cards. See N.L.R.B. v. Secui ity Plating Co . 356 F 2d 725 (C A 9)
T. C. WORTHY WHOLESALE I • • 1705
D. The refusal to bargain
Ori' August 11, Council, Organizer LeRoy Glazer and. Union Business Agent Bill
Brooks, approached Respondents' Skinner, stated that the Union represented a
majority' of Respondents' employees, and, when Skinner expressed a doubt of the
Union's majority, asked for a meeting with Worthy who was at that. time out of
town. - A meeting was arranged for August 13. Following the meeting with Skin-
ner, on the evening of August 11, the Union called a meeting of Respondents'
employees, informed them that the Union's initial request for recognition had been
refused, and advised that if Worthy refused recognition a strike would have to be
called. All of the some thirty-odd employees present at the meeting voted for such
a strike.
On meeting with Worthy at the Worthy warehouse on August 13, Glazer, accom-
panied by Council Director Sam Kinsora, again demanded recognition-of the Union,
and when Worthy questioned the Union's majority, produced authorization cards
and, while refusing to let Worthy examine them personally, offered to submit them
to a payroll check by a disinterested party.4 Worthy, while rejecting the Union's
offer, reiterated his belief that the Union did not represent -a majority, and further
stated, apparently in response to some, mention of strike action to obtain recogni-
tion, 'that he did not believe a majority of his employees would go on strike.
Respondents' attorney, Robert Fox, appeared near the close of the meeting and
informed Glazer and Kinsora that the Respondents would demand certification
of the Union following an election, as -a condition precedent to recognition and
bargaining rights.
• On the following day, August 14, some 29 of Respondents' 33 employees in the
uriit found to be appropriate, went on strike and participated in picketing Respond-
ents' several enterprises. -
On August 15, Glazer saw Skinner with respect to information which had
reached him that Skinner and Worthy had been threatening the picketing employ-
ees, and at this meeting Skinner admitted in effect, based on his observation of the
number of employees on strike, that the Union represented a majority of employees.
A meeting for the purpose of discussing a contract was arranged for August 16.
This meeting occurred at Respondents' warehouse. Present at this meeting besides
Skinner, Worthy, and Glazer, was the Union's secretary-treasurer, G. Raymond
Butler. Butler testified that preparatory to discussing a contract, he asked Worthy
and Skinner if they recognized the Union as bargaining representative of their
employees, and that they nodded their heads affirmatively. The Union produced a
contract form and there was a discussion of its provisions. The meeting concluded
with Worthy stating that he would take the contract home for consideration by his
wife and attorney. It was agreed that the parties would meet on the following day.
At the meeting of August 17 Worthy informed Butler that he would not execute
the proffered contract at that time. There were no further meetings between the
parties.
On September 2, the Union by letter requested Respondents to resume negotia-
tions on a contract.
On September 13, Respondents' counsel, Erwin Lerten, by letter to the Union,
denied that there had been any negotiations on a contract; asserted that the Union
had insisted that Respondents sign its standard contract; that the Union had failed
to specify "the employees to whom the contract would apply"; and that the Union
had refused to submit any proof that it represented Respondents' employees. The
letter concluded by requesting that the Union specify the employees it purported
to represent and submit proof of its majority. _
On September 15, Butler, in a telephone conversation with -Worthy, renewed his
request for further negotiations on a contract and Worthy replied that the matter
was in the hands of his attorney.
' Respondents ' witnesses , while admitting that the cards were produced and that the
Union offered to submit them to the examination of a disinterested party, denied that there
was specific mention of having them checked against Respondents' payroll This, ob-
viously, is'mere quibbling, since the Union's offer would make no sense if it did not imply
a payroll check, and I have no doubt that it was understood that the cards would be
submitted for such a purpose
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS
From the date of the Union 's initial request for recognition until Lerten's letter
of September 13, the Respondents at no time raised a question as to what employ-
ees the Union purported to represent , except that on one occasion , according to
Butler's testimony , Worthy inquired if the Union 's contract would cover store man-
agers. Glazer testified that beginning with his first recognition demand, it was
stated that supervisors would be excluded from the bargaining unit . I credit this
testimony . I am further convinced that all meetings between union and manage-
ment representatives were predicated on the assumption that the Union purported
to represent all Worthy rank-and-file employees in a single bargaining unit. The
fact that recognition demands were made on both Skinner and Worthy, that neither
at any time questioned the scope of the unit , and that such discussions of a contract
as occurred clearly related to a single unit of all Worthy employees , establishes to
my satisfaction that there was no ambiguity in the Union 's representations with
respect to the unit of employees it purported to represent . That it did not specifi-
cally and with a lawyer's skill spell out each exclusion , such as guards, temporary
employees , etc., is not fatal to the validity of its recognition demands; if the
Respondents had had any doubt in such matters prior to the time they turned the
matter over to their attorney , they surely would have articulated them in one of
the several meetings of the parties , and they would reasonably infer such excluded
categories from the application of the Union 's contract submitted to them for
their perusal and consideration.
Turning now to Respondents ' refusal to recognize and bargain with the Union,
though they may have had an initial doubt of the Union 's majority as expressed
by Skinner at the first meeting, and Worthy at the second , their refusal of the
Union's offer to submit the authorization cards to a disinterested party for proof
of the Union 's majority, absent any evidence whatever to ground a belief or even
a suspicion on their part that the said authorization cards were not signed know-
ingly and willingly, rather belies a good -faith doubt of the Union 's majority, but
granting without finding that such existed up to the time of the strike , it could not
have existed thereafter inasmuch as nearly all of their employees engaged in the
strike, a strike which , as Respondents knew, was called by the Union to compel
Respondents to recognize and bargain with it. In fact, Skinner at that time con-
ceded the Union 's majority. Participation in the strike of employees of all the
Worthy enterprises , further exemplifies the scope of the bargaining unit and
Respondents' knowledge of it.
Respondents , in their letter of September 13, denied that any negotiations on a
contract occurred . I think we may safely say that no bona fide negotiations on
a contract occurred . Following the initiation of a strike , Respondents did meet
with the Union , did discuss contract terms with the Union , and did request time for
further consideration of the contract proposal . If such a meeting did not signify
Respondents ' recognition of the Union 's representative status, one may ask just
what was Respondents' interest in the matter . The answer is fairly obvious.
Respondents wanted to find out what contract terms the Union would offer.
Respondents , did not find the Unions contract proposals acceptable and, without mak-
ing a counteroffer of any kind , rejected them and refused further negotiations.
Respondents ' contention now that the Union submitted its contract proposal on the
basis of "this and nothing else" is belied by the Union 's letter of September 2 in
which it requested Respondents to resume negotiations on a contract . Further, the
Union 's alleged "this and nothing else" insistence, could have been tested on the
basis of a counteroffer-a counteroffer which was never made.
On the entire evidence I find that at no time did the Respondents recognize and
bargain with the Union in good faith, and that their refusal of the Union's
demands for recognition and bargaining rights was based neither on a good-faith
doubt of the Union 's majority status nor on any ambiguity in the Union 's presen-
tation of its representative status. Respondents , by their refusal to recognize and
bargain with the Union on and after August 13 , 1965, violated Section 8(a)(1)
and (5 ) of the Act.
I further find that the strike of August 14, 1965, was caused and prolonged by
Respondents ' continuing refusal to recognize and bargain with the Union as repre-
sentative of all its employees in the unit found to be appropriate.
T. C. WORTHY WHOLESALE 1707
E. Interference, restraint, coercion
Coming now to the allegations of independent 8(a)(1) violations , I shall deal
with them briefly. We have the testimony of employees Frank Arballo, Jr., and
William Stimac, that while they were picketing Edna Worthy addressed one or the
other or both as "bastards" and "pigs" and made the threat that they would never
again be employed by the Respondents. Assuming that she did characterize them
with such epithets as those ascribed to her, this would hardly have been more than
a seemly retort to characterizations by them of Respondents' operations as a "cave
of bandits" and aspersions on the age and effluvium of their merchandise. Her
admitted statement to Stimac that Respondents' picked him up out of the gutter
and her acid prediction that he would wind up there falls in the same category. A
little excess of animal exuberance may be allowed an employer as well as his strik-
ing employees. A threat of denial of future employment because of picketing activ-
ities such as we have here, would unquestionably be coercion within the meaning
of the Act, but the balance of credibility on the point is too fine as between Mrs.
Worthy and the General Counsel's witnesses to predicate a finding of an 8(a)(1)
violation. She was candid enough about her statements to Stimac about his gutter
tendencies as well as in some other portions of her testimony. As to the contention
that her statements would not be binding on the Respondents, it obviously is with-
out merit.
I am also unable to find, as urged by the General Counsel, that T. C. Worthy
threatened certain of his employees domiciled in Mexico with a cancellation of
their passports-work permits-because of their strike-picketing activities, or urged
employee Stimac to form a company union. As to the latter allegation, it is highly
improbable had he had the formation of a company union in mind that he would
have singled out Stimac to initiate such a move. Stimac surely did not rate very
high with Mrs. Worthy, and it is not likely that T. C. Worthy would have extended
such confidence to an employee who, while on the picket line, was exorting poten-
tial customers not to enter the Worthy "cave of bandits." 5 As to the matter of
passports, it was Worthy's undenied testimony that during the strike the customs
confiscated certain advertising handbills because they had been printed in Mexico
and the duty on them had not been paid. When Stimac questioned him about the
matter, Worthy replied: "They are confiscating the handbills. You better look out.
They will be confiscating, picking up, your passports." Asked by the General
Counsel why he had made this statement, Worthy testified: "There was a rumor
around town there that the Union from Mexico told customers that come over to
our store that [if] they traded with Worthy, their passports might be picked up."
I find that Worthy testified credibly in the matter. Under all the circumstances I
am unable to find in his remarks to Stimac a threat to have Stimac's passport
picked up if he continued in his strike activity.
Finally, I do not think the General Counsel has sustained the burden of proof
in establishing that Respondent, through T. C. Worthy or Store Manager Gaston
Lopez, induced, or sought to induce, striking employees to return to work by offer-
ing them better wages or improved working conditions. While there was some
shortening of working hours in certain of Respondents' operations without a pro-
portionate reduction in wages, I cannot say that this was not a legitimate adjust-
ment of operations to the strike situation, or that it was effectuated as an induce-
ment to get striking employees back on the job. And while Lopez did visit the
homes of certain striking employees, I credit his testimony that he did so because
word reached him that these certain strikers wanted to return to work, that he told
them that their jobs were still available for them if they wanted to return to
work, and further credit his denial that he offered any inducements such as shorter
hours, better wages, or improved working conditions to get them back on their
jobs.
In sum, after careful consideration of all the testimony and with my appraisal
of the credibility of witnesses in mind, I find that the allegations of independent
violations of Section 8(a) (1) of the Act are not sustained by a preponderance of
evidence.
E The testimony of Employee Aaron Lopez Contreras (referred to in General Counsel's
brief as Lopez) in corroboration of Stimac, given in broken English or through the inter-
preter, was too halting, evasive, and self-contradictory to merit acceptance
1,708 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above; occurring in
connection with Respondents' operations. described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States,'and tend to lead to:labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents refused to bargain with the Union, the duly
designated representative of their employees in an appropriate unit, on and at all
times after August_ 13, 1965, I shall recommend that the Respondents bargain,
upon request, with the Union, as the exclusive bargaining representative in the
previously described appropriate unit concerning wages, hours, and other terms and
conditions of employment, and if an understanding is reached embody such under-
standing in a signed agreement.
I shall further recommend that the Respondents, upon application, offer uncon-
ditional reinstatement to their employees who engaged in the strike beginning Au-
gust 14, 1965, and who have not already-been reinstated in the manner now set
forth, to the positions they held at the time they went on strike, without prejudice
to their seniority, and other rights and privileges, discharging if and as necessary
persons hired on and after August 14, 1965. _
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the -following: _,
CONCLUSIONS OF LAW
1. Respondents constitute a single employer within the meaning of Section 2(2)
of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All full-time and part-time selling and nonselling employees of the Respond-
ents in their operations described in section 1, above, excluding professional employ-
ees, guards, and supervisors as defined in the Act, constituted at all material times
herein, and now constitute, a unit' appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4 The Union is now and has been at all times since August 13, 1965, the exclu-
sive representative of all employees in the aforesaid unit for the purposes of col-
lective bargaining.
5. By refusing on and after August 13, 1965 to bargain collectively with the
Union as the exclusive representative of employees in the appropriate unit, the
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
6. By their said conduct, the Respondents have engaged in, and are engaging in,
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of the Act,
it is recommended that the Respondents, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive represent-
ative of all their employees in the previously described appropriate unit.
(b) In any like or related manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the Union or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in any other
mutual aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in Section
T. C. WORTHY WHOLESALE, 1709
8(a) (3) of the, Act, as modified by the Labor-Management Reporting and Disclo-
sure Act of l959.1.- ,.t . 1 ' , I ' , . ,
2. Take, the, following affirmative action which it, is found will effectuate the
policies of the Act: -,, 1 1 . " ..
(a) Upon request, bargain collectively with the Union, as the exclusive represent-
ative of their employee's in the previously' described appropriate unit with respect
to rates of pay, wages, hours of work; 'and other terms and' conditions of employ-
ment, and embody in a signed agreement any understanding reached.
(b) Upon application reinstate to the positions they held at the time they went
on strike, without prejudice to their seniority and other rights and privileges, all
their employees who engaged, in the strike beginning August 14, 1965, in the man-
ner set forth in the section above entitled "The Remedy."
(c) Post at each of their respective places of business in Calexico, California,
copies of the attached notice marked "Appendix." 6 Copies of the notice,' to be
furnished by the Regional Director for Region 21 after being duly signed by
Respondents' representative, shall be posted by the Respondent immediately upon
receipt thereof, and maintained by it for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in writing, within 20 days from
the date of the service of this Decision and Recommended Order, what steps the
Respondent has taken to comply herewith? . ,
In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order 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." -
7In the event that this Recommended Order is adopted by -the Board; this pfovision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, sand in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse, upon request, to bargain collectively with Retail Clerks
Union Local No. 1167, Retail Clerks International Association, AFL-CIO, as
the exclusive representative of all our employees in the appropriate unit
described below, or in any like or related manner interfere with, restrain, or
coerce employees in the exercise of their right to self- organization , to bargain
collectively through representatives of their own choosing, to engage in con-
certed actiN ities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act, as amended. ,
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all employees in the
following unit with respect to rates of pay, wages, hours, of employment, and
other conditions of employment and if an understanding is reached embody
such understanding in a signed agreement. The bargaining unit is:
All our full-time and part-time selling and nonselling employees, excluding
professional employees, guards, and supervisors as defined in the National
Labor Relations Act. '
WE WILL, upon application, offer reinstatement to the positions they held at
the time they went on strike, without prejudice to their seniority and other
rights and privileges, to all our employees who participated in the strike begin-
ning August 14, 1965.
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or refrain from becoming or
remaining, members of any labor organization , except to the extent that this right
may be affected by a lawful agreement requiring membership in a labor organization
as a condition of employment.
T. C. WORTHY RETAIL , INC., d/b/a CARL'S MARKET, CITY
MARKET, AND T . C. WORTHY RETAIL MARKET,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
T. C. WORTHY WHOLESALE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
T. C. WORTHY CASH AND CARRY, 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, 849
South Broadway, Los Angeles, California, Telephone 688-5229.
Neuhoff Bros., Packers, Inc. and United Packinghouse , Food and
Allied Workers of America, AFL-CIO. Cases 16-CA-2191 and
2244. June 28, 1966
DECISION AND ORDER
On November 8, 1965, Trial Examiner George L. Powell issued
his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices alleged
in the complaint, that certain other alleged unfair labor practices
constituted conduct similar in nature to unfair labor practices found
against the Respondent in another proceeding and therefore did not
require litigation herein, that. a final allegation of an unfair labor
practice at most constituted a technical violation of Section 8 (a) (1)
that did not require at this time a remedial order, and recommending
that the complaint be dismissed as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner 's Decision and a supporting brief, and
the Respondent filed a brief in opposition to the General Counsel's
exceptions and 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 [Members Fanning, Brown, and Jenkins].
159 NLRB No. 133.