204 N.L.R.B. 1 (N.L.R.B. 1973)

Trade Mart, Inc.

National Labor Relations Board - Board DecisionsJun 6, 1973

204 N.L.R.B. 1 (N.L.R.B. 1973)

TRADE MART, INC. Trade Mart, Inc . and Retail Clerks ' Union, Local 1680 Retail Clerks International Association , AFL-CIO. Case 16-CA-4941 June 6, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 28, 1973, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed limited exceptions with a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order,3 with the following minor modifications. ORDER S Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Trade Mart, Inc., Oklahoma City, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Delete paragraph 2(a) and substitute the follow- ing: i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 The Union excepts to the failure of the Administrative Law Judge to order the Respondent to deduct from the employees backpay and pay to it the union dues which it would have checked off from the employees during the backpay period . As it does not appear that employees executed checkoff authorizations herein , we find no merit in the Union's exception Creutz Plating Corporation, 172 NLRB I, Ogle Protection Service, Inc, 183 NLRB 682. 3 The Respondent asserts that the remedy is ambiguous insofar as it sets forth the period of time for which it is to give effect to the 18 -month contract, if executed on request of the Union , i.e., whether for 18 months from August 9, 1972, or from date of actual signature plus the period retroactive to August 9. We construe the Administrative Law Judge's recommendation as requiring that the agreement be applied retroactively from August 9, 1972, to be effective for the full agreed-upon 18-month period beginning on such date. Accordingly, we shall modify the Order to reflect this requirement. I "(a) Upon request of the Union sign the collective- bargaining contract agreed upon between the Union and Respondent on August 8, 1972, the agreement to be effective from August 8, 1972, for the full agreed- upon 18-month period from said effective date. Upon request by the Union that the foregoing contract be executed, give retroactive effect to its terms and com- pensate any employee covered by the contract for any material disadvantage they may have suffered in con- sequence of the Respondent's refusal to sign the agreement in 1972, in the manner set forth in the section of this Decision entitled "The Remedy." If no such request is made by the Union, bargain, upon request, with the Union as the exclusive bargaining representative of the employees in the previously de- scribed appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial that we violated the Federal law by refus- ing to sign a collective-bargaining agreement fully negotiated and agreed upon between ourselves and Retail Clerks' Union, Local 1680 Retail Clerks Inter- national Association, AFL-CIO: WE WILL, upon request of the Union, sign the collective-bargaining contract agreed upon Au- gust 8, 1972, the agreement to be effective from August 8, 1972, for the full agreed-upon 18- month period from said effective date. Upon re- quest by the Union that the contract be executed, we will give retroactive effect to its terms and compensate any employee covered by that agree- ment who suffered material disadvantage in their conditions of employment in consequence of our refusal to sign the agreement in 1972, and we will make them whole for any losses suffered as a result thereof. In the event this Union does not request that we sign that contract, WE WILL, upon request of the Union, bargain with that Union as the exclu- sive bargaining representative of the employees in the appropriate bargaining unit described be- low and, if an understanding is reached, embody 204 NLRB No. 6 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such understanding in a signed agreement. The bargaining unit is: All employees in our Lawton store engaged in selling, including maintenance employees, but excluding office clerical employees, employees working outside the store, the grocery and drug departments, watchmen, guards, profes- sional employees, managers' assistants and all supervisors as defined in the Act. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. dent sold and distributed products having a gross value in excess of $500,000. During the same period it received goods valued in excess of $10,000 transported to its place of business directly from out-of-state sources. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED I find that Retail Clerks' Union, Local 1680, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICE TRADE MART, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 8A24, 819 Taylor Street, Forth Worth, Texas 76102, Tele- phone 817-334-2921. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held on i January 10, 1973, at Oklaho- ma City, Oklahoma, on complaint of the General Counsel against Trade Mart, Inc., herein called the Respondent or the Company. The complaint issued on October 27, 1972, on a charge filed on September 27, 1972, by Retail Clerks' Union, Local 1680, AFL-CIO, herein called the Union. The sole issue presented is whether the Respondent violated Section 8(a)(5) of the Act by refusing to sign a fully agreed- upon collective-bargaining contract with the Union. Briefs were filed by all three parties. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Trade Mart, Inc., an Oklahoma corporation, operates a retail discount department store in Lawton, Oklahoma. In the course of its business during the past year the Respon- A. Picture of the Case On August 11, 1971, the employees in the Respondent's Lawton, Oklahoma, store voted in a Board-conducted elec- tion to be represented by the Union in collective bargaining, and on August 20 the Regional Director certified the Union as exclusive representative of the employees. From Febru- ary to June 26, 1972, there took place a series of negotiation meetings between representatives of the parties and on the latter date agreement was reached on virtually all details of a very comprehensive agreement . The final settlement was reduced to writing by the Company's lawyer and copies put in the hands of both the Union and the Company. It devel- oped that there had been a misunderstanding 4 to a single very minor item in the contract, and, according to the com- plaint, it was resolved on the telephone on August 8, 1972, in a conversation between Vernon Hodges, the Union's principal negotiator, and Donald Klein, the Respondent's general manager , who throughout the bargaining had been the principal representative sitting with the Respondent's lawyer. The contract was ratified by a majority of the em- ployees who attended a union meeting that same night. The next day, August 9, the Respondent took the position that it would refuse to sign the agreement, on the grounds that no final agreement had been reached. The complaint allegation of prohibited conduct is a pre- cise and limited one; it is that the Respondent committed an unfair labor practice by refusing to sign the agreement. The General Counsel stated unequivocally on the record that if the evidence fails to prove that final agreement had been reached, there was no obligation upon the Company to sign any contract and in that event the complaint must be dismissed entirely. As stated, the defense is that there was no agreement. Before the start of the hearing the Respondent filed an amended answer in which it withdrew its earlier admission that the Union represented a majority of the store employ- ees at all pertinent times , and asserted instead that at an unspecified time after the date of the certification the Union lost the support of a majority of the employees. There is no substantial evidence worthy of note here lending any sup- port to this belated assertion. Rather, see Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954). No question of law is present- ed. If in fact final agreement was reached it was an unfair labor practice for the Respondent to refuse, as it admits it TRADE MART, INC. did, to sign the negotiated contract. H. J. Heinz Company v. N.L.R.B., 311 U.S. 514 (1941). If there was no agreement reached, there would remain no allegation of wrongdoing. The question to be decided is a factual one, and it pre- sents a pure issue of credibility. And the heart credibility question is whether on the telephone, on August 8, General Manager Klein came to terms with Union Representative Hodges on the final item of holiday pay, an agreement Hodges said they did make, but which Klein denied at the hearing. On the basis of the entire record, including the inherent probabilities of the total situation, related facts as to which there can be no dispute, and the demeanor of the witnesses , I resolve the credibility issue in favor of Hodges; I do not credit Klein's testimony. There are tangential ques- tions involving the testimony of James Davis, the Respondent's lawyer, but these are minor elements and are readily reconciled into the total picture. I find that Klein did agree with Hodges on the final small item, that he knew about the Union's ratification meeting scheduled for the same night, and that by refusing to sign the final accord the Respondent violated Section 8(a)(5) of the Act. B. Chronology Throughout the bargaining sessions , held one every week or two from February into June, mostly in the law office of Mr. Davis, Hodges was the Union's spokesman, and Davis, accompanied by Klein and Hurley, the single store manag- er, did all of the talking for the Company. At a final session, on June 26, it was agreed Davis would reduce into final written form all that had been agreed, and forward his draft to Hodges and Davis to be sure he had made no mistake. Davis mailed out the contract with an accompanying letter, on July 5. A few days later Hodges telephoned him to say there was a mistake in the holiday pay provision, that his notes indicated agreement in somewhat different form. Da- vis said he would check with Klein; he did, and on July 21 wrote to Hodges, with copy to Klein, as follows: We have a problem. You and Don Kline [sic] disagree over what was the prior agreement on Holiday Pay relative to the Trade Mart, Inc. contract. He stands ready to meet with you to resolve it but his position is that the last draft reflects the understanding. We will hold up on a page change until you communicate back to us. i Because he had to be out of town for a period, and antici- pating this minor matter in the comprehensive agreement would not be a great stumbling block, Hodges arranged for invitations to the employees for a ratification meeting. On August 1, his assistant, Billy Thornton, a union organizer, mailed notices to the approximately 53 store employees, advising that a meeting to ratify the contract would be held on the evening of August 8, in a Holiday Inn on the same street where the store is located in Lawton. For this purpose i There are seven holidays, during six of which (excluding Christmas) the store is open for business . As Davis had it in his draft , all employees who worked on holidays would be paid 2-1/2 times straight pay for hours actually worked, which Klein explained was usually 5 or 6 hours each holiday As Hodges understood it, full-time employees-those who regularly worked more than 20 hours a week-would be paid 8 hours'straight time for holiday work, plus time and a half for hours actually worked. 3 he obtained, shortly before August 1, a list of names and addresses of the employees from Klein. The parties had agreed there must be a ratification vote, and that it could be held off the Company' s premises. On the morning of August 8, Hodges called Davis on the telephone to discuss the holiday item with him. As he testi- fied, Davis told him ". . . to contact Mr. Klein and for us to try to reach a mutual agreement on the provision that we were in disagreement on." The ultimate burden of Davis' testimony as to this conversation is that he did not say the matter could be settled with finality through Klein, but his language as a witness falls short of amounting to a credible contradiction. " . . . the gist of the conversation if I recall it, . . . was he wanted to get with me that afternoon . . . I simply said, . . . there is just no way that I can spend time with you today ... he asked me if he could talk to Don Klein and I said fine. No problems at all. You can talk to Don Klein directly. I even think I gave him Don's telephone number." The lawyer went out of his way to repeat several times he did not recall really what words he had used. It will be remembered, however, that in his July 21 letter, written after he had discussed the matter with his client, Davis told Hodges "he [Klein] stand ready to meet with you to resolve it [the holiday issue]." After talking to Davis, Hodges quickly called Klein. Here the conflict in testimony between the two is clearer. Hodges' story is that he told Klein, Davis had agreed they could settle the matter, and then explained the difference between the draft language and the Union's view. Hodges recalled that at the start of their conversation Klein indicated he wanted to discuss the item with "someone else," but that he, Hodges, stressed urgency on the ground that a ratification meeting was to be held that same evening. Hodges contin- ued to testify that after he gave examples of how his view of holiday pay would work, Klein asked was this the only remaining difference between them, and when he said yes, the manager answered: "Well, its agreeable. That' s fine." Klein 's version is that Hodges started by asking "if I was aware that we had a misunderstanding on the Holiday pay provision on the contract," and that when he said yes Hodg- es went on to explain the difference in their views, with examples of how his own would operate. Klein then asked would it cost more than the other, and when Hodges said yes, he, Klein, said "it would then require more conversa- tion." Still according to Klein, Hodges then asked "if I felt that that was a point that we could not work out," and that the conversation ended with his saying: " I am sure we can work it out, and he [Hodges] said, `Fine. I will call Mr. Davis.' And that was the extent of my conversation." At 9 o'clock that night, after the store closed, the employ- ees met at the Holiday Inn, the contract was explained to them by Hodges, and the assembled employees voted in favor of ratification. The next day Klein called Hodges to say there had been a mistake, that the contract had not been finally settled. Some correspondence followed, but all it adds up to is that the Respondent has since refused several requests that it sign the agreement, with holiday pay provi- sion as Hodges said Klein agreed. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions The best starting point for discussion is Klein's talk with Hodges on the 8th. As Klein would have it, Hodges started by asking did the general manager know there was a ques- tion still to be settled in the contract draft. What likelihood is there that Hodges would ask such a question? In July the lawyer had told Hodges on the telephone he had raised the question with his client. In his July 21 letter the lawyer very explicitly repeated to Hodges he had discussed it with Klein, indeed that Klein "stood ready" to resolve it. And Klein knew that Hodges had been so advised, for the July 21 letter went to him also. In the circumstances, it is difficult to credit this beginning of Klein's testimony. The closing portion of his version is even less persuasive , in fact incredible alto- gether a view of the surrounding fact. If Klein is to be believed, all Hodges wanted to know, and his sole purpose in calling at all, was whether Klein believed the issue could be resolved in discussion, and was satisfied in the end with assurance he could call Davis. But Hodges had just talked with Davis, and the lawyer had made no issue about any- thing-either the merits of the holiday pay clause or the agent's liberty to communicate with him later. It simply would have made no sense for Hodges to call Klein only to speak as the manager quoted him at the hearing. Both witnesses agreed Hodges went into details of how the holiday provision would operate; Hodges said his pur- pose was to sell it to Klein; Klein said all the talk was only to check on whether later repeat talk would be worth the effort. Why would Hodges take such pains to explain things to Klein if he still had to convince the lawyer about it all over again at a later date? More important, what are the chances he only wanted to know whether the question could be discussed later, when he had the ratification meeting already scheduled for that very night? This finding, which I make, that Klein agreed with Hodg- es upon this last item in dispute, and that both he and the Union agent understood clearly complete settlement had been reached on all matters, finds other support in the re- cord. He was the top representative of the Company in the negotiations. It is true Davis was the mouthpiece, but no lawyer argues or agrees without direction from and approv- al by his client. When Hodges called Davis first to resolve the remaining item the lawyer was too busy and told Hodges he could talk to Davis "directly." If these words did not mean "and take up the merits of the dispute" they meant nothing at all .2 At the hearing both Davis and Klein protest- ed that Klein had no authority in the bargaining, and Klein even said that once on an earlier occasion when Hodges wanted to discuss something with him in the absence of the lawyer, he, Klein, refused. But he did talk about the sub- stance of the holiday pay issue in detail with Hodges on the telephone; and Davis did tell Hodges to call the manager. No talk then to the Union of Klein having any silencer put on him. There was no reason for Hodges to view Klein as anything other than the voice of management that day. And finally, this was indeed a very minor item remaining, in terms of the comprehensive overall contract, and therefore one which the manager himself would in all probability feel he could take upon himself to settle, without counsel. In disputing the essential complaint allegation that com- plete agreement has been reached the Respondent's witness- es implied, indirectly, that other matters remained in dispute, that the document placed in evidence by the Gener- al Counsel, and which the prosecution now demands the Company must sign, is not a final contract. Davis said at the hearing that when he prepared the completed draft, as re- quested by the parties, "I thought there would probably be at least a half dozen items [in dispute]. We still had some rounds to get over . . . I really anticipated there were going to be a number of problems." This is not what he told the Union on July 21, when he spoke of only "a" problem remaining outstanding. And in his July 5 letter to both parties in interest, when he forwarded the contract, he said: "We have rewritten the proposed contract, incorporating the changes negotiated at the session on July 26, 1972, as we understand them . . . see if it reflects your understanding of what has been agreed upon." And Klein, in his testimony, contradicted his own lawyer flatly: "Q. And was that your conception of what the parties had agreed to? A. Absolute- ly." The suggestion, however obliquely injected into the record, that there were other issues still to be bargained out by the time of the ratification vote, simply has no evidenti- ary support. And this is equally true of the attempt, also made inferen- tially, to raise a defense grounded upon the ratification agreement between the parties. Despite the language in one clause of the draft prepared by Davis on July 5, both the lawyer and Klein admitted they had agreed that the ratifica- tion vote could properly take place away from the store .3 Consistent with his denial that Hodges told him during the day of the 8th about the scheduled union meeting that night, Klein said he knew nothing of the meeting until the next day. He even testified the individual store manager called him from Lawton to ask was he coming to any meeting in the store that evening, and that he said no. From all this the argument is made that the Union deliberately kept the Company in the dark about its ratification plans, that it pulled a fast one behind the Respondent's back, as it were. First of all, there is no reason not to believe the testimony of Thornton that he saw to it that meeting notices were mailed to all 53 of the employees. A substantial number did attend. Moreover, Mike Cooper, the only employee witness called by the Respondent, and who admitted he was op- posed to the Union, said he too did receive an invitation. Klein tried to create the impression the employees knew nothing about the evening meeting, but there is no substan- tive proof lending support to his lefthanded contention. He said the store manager, Lew Wisdom, told him on the tele- phone that he, Wisdom, had been asked by some employees 7 On this question of where the ratification vote would be held Klein gave 2 In the light of Davis' own version, that of Hodges, more revealing , is inconsistent testimony , but he did say the following . "I remember one time absolutely credible . "I asked Mr. Davis if he was then telling me that I had Jim Davis asked me if it would be any big issue to me personally if they were permission and Mr . Klein had authority to negotiate a part of the contract to hold the ratification meeting any place other than the store I told Mr. or to negotiate this particular clause of the contract and he said , 'That's right Davis I didn ' t particularly care at that time where they would hold it , so long Feel free to call him and you guys work out the difference if you can."' as I or my store management were notified." TRADE MART, INC. 5 whether there was to be a meeting. This is hearsay, self- serving, and worthless testimony. Moreover, there is no obligation upon a union to take the employer into its coun- cil in matters of this kind, or to assure attendance by all employees in the bargaining unit. Compare N.L.R.B. v. Wooster Division of Borg-Warner, 356 U.S. 342 ( 1958). See also M & M Oldsmobile, Inc., 156 NLRB 903. When Klein learned, on the 9th that the contract had been ratified, he panicked a little, and turned to his lawyer for help. Hodges too talked to the lawyer on the telephone more than once that day, and learned from him again that the Company was not going to sign any contract. Hodges said that with him insisting agreement had been reached and must be signed, Davis "agreed with me that he thought that we did have an agreement. He could not sign the agree- ment and Mr. Klein couldn't sign it ." When Hodges called again in the afternoon, advising the lawyer of a demand telegram the Union had just sent out, still as Hodges testi- fied, "Mr. Davis confidentially told me that he-again, that he was concerned about Mr. Klein's job and really, he con- sidered Mr. Klein his primary client rather than Trade Mart, Inc. That he intended to try to protect Mr. Klein's job and that he was going to have to flim flam me around around about signing this agreement." Davis' first response at the hearing to the plain question had he agreed with Hodges that a final contract had been reached was pure evasion, a calculated attempt to change the subject.4Asked had he told the union man he was going to resort to "flim Elam" in haec verba, he said "yes." He even corroborated Hodges' testimony by admitting his intended purpose-in the plan to play a "now you see it now you don't" game with the Union-was to protect Klein 's job. In extenuation of the deception he promised, Davis then added a completely extraneous element, of which there had been no talk at all between the parties and on which the contract is silent. Q. (By Mr. Ellis) Did you tell Mr. Hodges that in order to protect Mr. Klein's job, you were going to have to mislead the union or used the words "flim flam" the union? A. Yes. There is a problem with Mr. Klein 's job and it was involving our conversation that I had with Ver- non after I talked to Don. And Vernon again, in the very same matter of fact was that we talked on after I sent the draft out. He said, "Well, we worked our deal with Don on the holiday pay clause. There is no prob- lem." And I said, "Well, there is going to be a terrific problem with Don in connection with the licensees, the other employers in the store if this all went on without us sending out a copy of the contract in advance and getting approval." I said, "He is going to be in more hot 4 Q. (By Mr Ellis) Mr. Davis, did you admit to Mr. Hodges during this general period of time , around August 8th or 9th or any other time, that you felt the parties did in fact have an agreement? A. I think I probably evidenced concern to Vernon , not intentionally, but inadvertently because of what all had taken place that an honest misunderstanding had arisen and that where as we were progressing along the line in negotiations, I could see where we were, sort of speak, thrown in the soup and we might have a hell of a problem and end up in what we've ended up in today. water with his boss than he can possibly stand and probably will get fired." Which I believed to be the case. On the basis of Hodges' testimony, which I credit, I find that Davis told him on the 9th, on the telephone, that he, Davis, knew final agreement had been reached on all terms of the contract. A final defense is no more than insinuation that the Union must be discredited generally in this case because it knew, on August 8, 1972, that the certification year was about to end, and that a decertification petition could then be filed. It would be no less unjust to presume evil intent in the Respondent because it too was aware that the 12-month Ray Brooks period only had 12 days more to run. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom and to take appropriate remedial measures. As the Respondent has unlawfully refused to sign the fully agreed-upon contract as of August 9, 1972, it must be ordered, upon request, to sign that agreement now, for the fully agreed-upon 18-month period. If, in the retroactive application of the terms of that agreement back to the day when it should have been signed, any of the employees covered by the agreement suffered economic disadvantage in their conditions of employment, the Respondent must make them whole to that extent 5 If no such request is made by the Union, the Respondent must bargain collectively, upon request, with the Union as the exclusive representative of the employees in the appropriate unit, and, if an under- standing is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. All employees of the Respondent engaged in selling within the store of Lawton, Oklahoma , including mainte- nance employees, but excluding office clerical employees, employees working outside the store , the grocery and drug departments , watchmen , guards, professional employees, manager's assistants and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. I Ogle Protection Service, Inc, 149 NLRB 545, enfd 375 F.2d 497 (C.A. 6, 1967), cert . denied 389 U.S. 483 (1967), N.L.R.B v. Joseph T. Strong, d/b/a Strong Roofing and Insulating Co., 393 U.S. 357 (1969). 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. At all times since August 20, 1971, the Union has been and now is the exclusive representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing, on August 9, 1972, and thereafter, to sign the collective-bargaining agreement previously agreed upon between the Respondent and the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By the foregoing conduct the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER6 The Respondent, Trade Mart, Inc., Oklahoma City, Ok- lahoma, its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to sign any collective-bargaining agreement fully negotiated and agreed upon with the Union, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Retail Clerks' Union, Local 1680, AFL-CIO, or any other labor organization, to bargain collectively 6 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become Its findings , conclusions, and order , and all objections thereto shall be deemed waived for all purposes. through representatives of their own choosing, and to en- gage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Upon request of the Union sign and give retroactive effect to the collective-bargaining contract agreed upon be- tween the Union and the Respondent on August 8, 1972, and compensate any employees covered by the contract for any material disadvantage they may have suffered in conse- quence of the Respondent's refusal to sign that agreement in 1972, in the manner set forth in the section of this Deci- sion entitled "The Remedy," and if no such request is made by the Union, bargain, upon request, with the Union as the exclusive bargaining representative of the employees in the previously described appropriate unit, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its store in Lawton, Oklahoma, copies of the attached notice marked "Appendix." 7 Copies of the notice, on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "