Warehouse Market, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1975

216 N.L.R.B. 216 (N.L.R.B. 1975)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Market, Inc. and Retail Clerks Union,
Local No. 73 of Retail Clerks International Associ-
ation, AFL-CIO. Case 16-CA-5458
January 17, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On August 9, 1974, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel and Charging Party filed limited exceptions
and supporting briefs. The Charging Party also filed
a brief in opposition to the exceptions filed by the
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order for the
additional reasons set forth below.
Consistent with the allegations of the complaint,
the Administrative Law Judge found, and we agree,
that, in the period preceding the May 5, 1974,
termination date of a collective-bargaining contract
between Respondent and the Union, Respondent
aided and abetted employee decertification activity
by conduct violative of Section 8(a)(l) of the Act;
and when that decertification activity culminated in
the filing of a decertification petition with the Board
on February 15, 1974, Respondent withdrew recogni-
tion from the Union and refused to bargain with it,
contrary to the provisions of Section 8(a)(5) of the
Act. Although we adopt the Decision of the
Administrative Law Judge, we believe certain addi-
tional rationale to be appropriate in light of the
approach taken by Respondent in its exceptions to
the 8(a)(5) violation findings and the bargaining
order predicated thereon.
Respondent takes the position that no valid
obligation to bargain can properly be imposed upon
it in the context of evidence which , so it asserts,
indicates that both the decision made by unit
employees to circulate a decertification petition, and
the further decision of a majority of said employees
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
to sign the same, was not or could not have been
implied or influenced by the 8(a)(1) violations
Respondent is found to have committed. As support
for this position, Respondent contends that the
proven 8(a)(1) violations involved only 1 of the 3
stores composing the unit, viz., the Muskogee,
Oklahoma, store, where only 23 of the 56 unit
employees were located; the decertification petition
was signed by 36 employees, of whom 24 were
identified as employees at 2 other stores, 1 located at
Claremore and the other at Vinita, Oklahoma; and
the General Counsel, in claiming that the decertifica-
tion petition did not raise a genuine question
concerning representation, relied only on the testi-
mony of 5 Muskogee store employees who, though
describing unlawful 8(a)(1) conduct by Respondent's
agents, did not testify that they informed other
employees of that conduct.
We find nothing in the facts recited to us by
Respondent which warrants finding, as it here
suggests, that no significant number of the employees
who circulated and signed the decertification petition
could have been impelled to do so by any of the
unlawful acts Respondent is here bound to have
committed. The credited evidence, viewed as a
whole, plainly depicts Respondent's pursuit of a
course of conduct directed to compelling its employ-
ees' abandonment of the Union as their bargaining
representative. That course of conduct was eviden-
ced in part by serious unfair labor practices, most of
which were committed before or shortly after the
drafting and circulating of the decertification peti-
tion, but before that petition was finally filed. Those
unlawful acts included not only threats of reprisal,
interrogation, and promises of benefit specifically
addressed to individual employees to induce defec-
tion from the Union, but also conduct which
demonstrated the Respondent's disapproval of the
Union to all the employees, such as the disparate and
hence unlawful application of the no-talking rule by
prohibiting prounion activity and permitting anti-
union employee activity, which as the record shows,
involved circulation of the decertification petition
and solicitation of unit employees to sign it during
company time on Respondent's premises; and the
encouragement of antiunion activity to the extent of
suggesting and allowing employees to take time off
with pay to discover what benefits Respondent's
Tulsa store employees had received since they had
voted out the Union.
We cannot, of course, tell with any certainty how
many of the 36 employees who signed the decertifica-
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
216 NLRB No. 41
WAREHOUSE MARKET, INC. 217
tion petition would have signed even absent the
Respondent 's commission of the unfair labor prac-
tices supra. But, in the circumstances of this case, we
cannot properly infer that all or some, or even a
majority of those who signed, did so without any
vestige of compulsion attributable to the Respon-
dent's unlawful conduct. We cannot discount the
teaching of experience and commonsense that
employees who, as here, have constant contact with
each other at their place of work are not likely to
refrain from discussing their employer's demonstra-
tions of hostility to a union-especially where the
employer's acts include many of so blatant a nature
as those which the Respondent here committed. Nor
can we discount the facts that the five employees
whose credible testimony provided the affirmative
evidence of Respondent's unfair labor practices,
supra, composed about 10 percent of the total unit
complement; that they further testified they would
not have signed the decertification petition but for
the pressures unlawfully exerted on them by supervi-
sors; that they were among the first of the employees
whose names appear on the petition; and that the
appearance of their names thereon may well have
influenced other employees to add their names
thereto.2
All of the above considerations militate against our
finding in the filing of the decertification petition any
reason to excuse Respondent's refusal to bargain
with the Union, or to otherwise refrain from issuing a
bargaining order. Respondent's contrary contentions
fly in the face of well-established Board-and court-
honored precedents which hold that: (1) We will not
conduct a decertification election where, as here,
there are unremedied unfair labor practices commit-
ted by an employer for the purpose of causing
employee disaffection from a validly established
union bargaining representative; 3 and (2) we will
presume that a validly established union representa-
tive continues to enjoy majority support where, as
here, its status is questioned by an employer's refusal
to bargain, unless the employer is able to prove that
he relied on valid, objective considerations in
questioning the union's continued majority support.4
Plainly, Respondent could not validly meet that
employer burden by reliance on the decertification
petition's filing to support its claim of a disaffection
by a majority of the employees where, as here, the
Respondent's unlawful conduct in large measure
created or contributed to the situation which led to
such disaffection, and it submitted no other evidence
to support such a claim. We therefore, find, as did
the Administrative Law Judge below, that Respon-
dent's refusal to bargain with the Union was in
violation of Section 8(a)(5) and (1) of the Act, and
that a bargaining order should appropriately be
issued.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Warehouse Market,
Inc., Claremore, Vinita, and Muskogee, Oklahoma,
its officers, agents , successors , and assigns shall take
the action set forth in the said recommended Order.
2 Cf. N.L.R.B. v. Savair Mfg. Co., 414 US. 270 (1973), where the
Supreme Court indicated that , although only a few employees may have
been directly induced by improper or unlawful means to sign authorization
cards for a union , their manifestations of support may, in turn, have had a
bandwagon effect on other employees whose signatures may have been
solicited without any improper offers having been made to them.
3 See, e .g., Nu-Southern Dyeing & Finishing, Inc., 179 NLRB 573 (1969),
enfd. in relevant part 444 F .2d II (C.A. 1, 1971); Kaiser Agricultural
Chemicals, A Division of Kaiser Aluminium & Chemical Corporation, 187
NLRB 661 (1969), enfd . 473 F.2d 374 (C.A. 5, 1973). See also Bishop v.
N.LR.B., 502 F.2d 1024 (C.A. 5, 1974). Cf. Teleautograph Corporation, 199
NLRB 892 (1972), a case holding that only the filing of a decertification
petition which raises a genuine question concerning representation relieves
an employer of his obligation to bargain pending resolution of the
representation issue. Acting Chairman Fanning and Member Jenkins do not
rely on Teleautograph.
4 See, e.g., Celanese Corporation of America, 95 NLRB 664, 671-672
(1951); Cantor Bros., Inc, 203 NLRB 774 (1973); Cnmptex, Inc., et al., 211
NLRB 855 (1974).
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Muskogee, Oklahoma, on June 11 and
12, 1974. The complaint,' issued April 30, 1974,2 is based
on charges filed February 15 and March 29, by Retail
Clerks Union, Local No. 73 of Retail Clerks International
Association, AFL-CIO (hereinafter referred to as the
Union). The complaint alleges that Warehouse Market,
Inc. (hereinafter referred to as Respondent), violated
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended (hereinafter referred to as the Act).
Issues
The issues herein are:
1. Whether Respondent, through its managers or
supervisors, engaged in various acts of interrogation,
promise of benefits, threats, encouragement of decertifica-
tion activity, and similar actions to persuade employees of
Respondent to abandon the Union and union support, in
each alleged instance violating Section 8(a)(l) of the Act.
2. Whether Respondent has refused, and is refusing, to
bargain with the Union as the exclusive bargaining
1 As amended at hearing , to correct the name of Respondent to
Warehouse Market, Inc., to add pars. 7(o) and (p), and to expand par. 12.
Said additions and expansions , and amendment of pars. 15 and 16 to
conform therewith, are set forth in G.C. Exh. 2.
2 All dates are within 1974, unless otherwise stated.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of Respondent's employees, in violation of
Section 8(a)(5) of the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of the General
Counsel, Respondent, and the Union.
Upon the record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein Respondent has been, and
now is, an Oklahoma corporation engaged in the retail sale
of food and related nonfood items in a chain of stores
located throughout the State of Oklahoma, including stores
located in Claremore, Vinita, and Muskogee, Oklahoma.
During the past 12 months Respondent, in the course and
conduct of its business operations, distributed and sold
products, the gross value of which exceeded $500,000.
During the same period of time Respondent received
goods valued in excess of $50,000 transported directly to its
stores from States outside Oklahoma.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local No. 73 of Retail Clerks
International Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
All employees working at Respondent's stores in Vinita,
Claremore, and Muskogee, Oklahoma, excluding meat
department employees, pharmacists, supervisors, guards
and watchmen, constitute an appropriate unit, as admitted
by the pleadings.
The Union and Respondent executed an agreement
effective May 6, 1973, through May 5, 1974, with
successive 1-year periods thereafter unless either party gave
the other written notice not less than 60 days in advance of
the yearly expiration date, of its desire to terminate.
On February 15, employees in the bargaining unit
described above filed a decertification (RD) petition, and
on February 28, Respondent filed a petition (RM) for an
investigation and certification of representative.
On March 1, the Union wrote a letter to Respondent and
stated its desire to reopen the agreement and negotiate a
successor thereto. Certain information was requested, in
order to prepare a union proposal.
On March 4, Respondent replied to the Union, and
stated:
Dear Mr. Cook:
Your letter of March 1, 1974, addressed to Ware-
house Market, Inc. has been referred to my attention.
In your letter you request certain information which
you state you must have in order to prepare a contract
proposal for the Company's consideration. In view of
the fact that a question of representation is now
pending before the National Labor Relations Board for
decision, the Company must decline to furnish such
data until the question is resolved. In the event that
your Union is chosen by the employees to represent
them, we will, of course, proceed immediately to
furnish you the requested information and participate
in collective bargaining negotiations.
We ask that you cooperate with Warehouse Market,
Inc. in arranging an election at an early date in order
that the employees can decide the question of repre-
sentation by secret ballot.
Very truly yours,
HALL & SUBLETT
/s/ Carl D. Hall, Jr.
Carl D. Hall, Jr.
The Union also requested on May I that Respondent
furnish it with information relative to wage rates, but the
Respondent did not reply to that request.
On May 1, the Regional Director dismissed both the RD
and the RM petitions, on the basis that a complaint had
been issued which alleged a refusal by Respondent to
bargain. The complaint, dated April 30, was based on an
original charge filed February 15 (amended on March 29).
Attorneys fpr Respondent and for the petitioning employ-
ees requested NLRB review of the Regional Director's
dismissal of the two petitions.3
Respondent's headquarters for all stores in the State are
located in Tulsa. The record shows that the Tulsa store's
employees voted against union representation on Decem-
ber 7, 1973. Shortly thereafter, Respondent increased the
pay and benefits of its Tulsa employees.
Commencing the first part of 1974, Respondent held a
series of meetings at the Tulsa headquarters. The meetings
were attended (separately and individually) by store
managers and their assistants . They were called to meet by
Tulsa "supervisors," and were attended on the managerial
side by, among others, a certain "Alex" (last name not
known), who was a consultant and who conducted the
meetings.
A preliminary first meeting was attended by store
managers and their assistants as a group. At that meeting
the group was told about the result of the Tulsa employee
election, and that management "had won the election."
There was discussion about the possibility of using
employees from Tulsa in the event stores were struck at
Muskogee, Claremore, and Vinita. At all individual
meetings union matters were discussed, and managers and
their assistants were instructed in how they should conduct
themselves in handling union discussions and actions.
Managers and their assistants attended a total of 8 or 10
such individual meetings. Ralph Graves, manager at
Muskogee, first heard about the RD petition involved
3 The Board affirmed the Regional Directors dismissal of the RM
petition , on June 11 , and of the RD petition on July 3.
WAREHOUSE MARKET, INC. 219
herein, at one of the Tulsa meetings before the petition was
circulated at Muskogee.
Betty Blevins is an employee of the Claremore store. She
visited an attorney , whose assistance she solicited in
drafting an RD petition . Thereafter, she obtained signa-
tures on the petition of employees in the Claremore and
Vinita stores . She and fellow Claremore employees visited
the Muskogee store on two occasions , January 30 and
February 9, to obtain signatures . Thereafter , Blevins
caused the RD petition and signatures to be filed with the
Regional Director , who dismissed the petition because of
blocking charges involved herein, as described above.
The charges consist of several allegations of 8(axl)
actions by supervisors related to initiation and signing of
the RD petition, actions intended to undermine the Union,
and refusal to bargain in violation of Section 8(ax5) of the
Act. Respondent denies 8(axl) violations, and alleges that
its refusal to bargain is based on good-faith doubt of the
Union's majority.
The complaint alleges, the answer admits, and I find that
the following named persons are agents and supervisors of
Respondent within the meaning of Section 2(11) of the
Act: Clint V . Cox, Ralph Graves , Wesley Pipkins, Frank
Blevins, John Lay, and Jay Worth.
"asked Ralph if we went non-union would they get the
raise they got in Tulsa . lie [Graves ] said he wasn't sure but
it would just be natural that we would . He couldn't
promise but he said it would be natural if we went non-
union." Hollifield also testified that he asked Graves how
the Muskogee employees could get a better insurance plan
like the Tulsa employees had, and Graves said they "would
have to circulate a petition in order to get a chance to
vote."
Graves denied that he promised raises or any other
benefits if the store went nonunion . However , he testified
that he talked with employees about the Tulsa benefits and
"what the employees in Tulsa got. " He also testified that he
"asked" or "encouraged" Glenn Hollifield and others "to
go to Tulsa and look over the benefits there on company
time." Graves stated on cross-examination:
Several of them come up to me and asked about a
promotion, "When can we be promoted?" They say
they want to stock and they say they want to check. I'd
tell them, "Well if I could , I'd let you 'become a stocker
or checker. "True, if you didn't have a Union then sure
I'd let you stock or check as a trainee . That way if an
opening came up you would have some trainee
experience at that."
B. Alleged 8(a)(1) Violations
1. The complaint states:
(a) On or about January 15 , 1974, Respondent by its
supervisor and agent Ralph Graves, promised its
employees new and/or increased benefits if they voted
the Union out.
(b) On or about January 15, 1974, Respondent by its
supervisor and agent Ralph Graves, promised its
employees increased pay rates if they voted the Union
out.
Glenn Hollifield testified that Ralph Graves (hereinafter
Graves) explained to him the benefits that had accrued to
Tulsa employees "when they got out of the Union"; and
told him "we needed to go to Tulsa and see how the people
up there like it since they've gotten out of the union."
Mike Brown testified that Graves told him he would get
a raise "if we was nonunion like Tulsa," and that Graves
asked him if he would like to go to Tulsa with a few others
the next day "to see how well they liked it up there and if
we would like it."
Darrel Arnett testified that Graves and Wesley Pipkins
(hereinafter Pipkins) explained to him and other employee's
the benefits gained at the Tulsa store after the Union was
defeated, and that Pipkins said a raise for everyone should
be possible if man hours could be cut after the Union was
voted out of Muskogee.
Joe Fairchild testified that, when he applied for a job at
the Muskogee store, Graves told him "they were trying to
go hon-union and if they went non-union it would be
better for everybody."
John Hollifield testified that Graves urged him to go to
Tulsa to observe conditions there , while on paid time, and
that he did so . He said his cousin (a bagboy at the store)
He also stated on cross-examination:
Q. Ralph, why did you authorize the employees to
go to Tulsa?
A. I honestly didn't think they believed what I told
them . I just wanted to clear any doubt in their mind
and let them talk to the people and find out for
themselves.
Q. You wanted them to see first hand the benefits
of not being in the Union and talk to the people and
find out what the pros and cons were?
A. That's right.
It is seen by the foregoing that, even considering the
testimony in the light most favorable to Respondent, the
allegations of the complaint are supported by the record.
Graves denied promising benefits if the Union was voted
out, but he testified that he discussed and explained the
Tulsa nonunion benefits to Muskogee employees ; that he
urged employees to go to Tulsa to see those benefits for
themselves ; and that he permitted Tulsa trips on company
time . It is obvious that Graves would not have gone to such
length unless he was saying , in effect, that the Tulsa
benefits and wages (which clearly were better than those at
Muskogee) would be forthcoming if the Union was voted
out.
However, the case for violation is even stronger when the
testimony of Brown, Arnett, Fairchild , and the, two
Hollifield brothers is considered . Their testimony is
contrary to that of Graves on several important points, but
their contradictory statements are credited over Graves.
Their demeanor on the stand , their mutual corroboration,
and the support their testimony has by the record as a
whole impel the conclusion that they are entitled to belief.
It is found that these two charges of the complaint are
proved.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The complaint states : "(c) On or about January 15,
1974, Respondent by its supervisor and agent Ralph
Graves orally interrogated prospective employees concern-
ing their union membership , activities and desires."
Joe Fairchild testified:
A. When I first went up there to apply for a job, he
was telling me about the union . He said they were
trying to go non-union and if they went non-union if
[sic] would be better for everybody. He said the
package boys now were getting $ 1.60 an hour and if
they went non-union they would get either $ 1.80 or
$2.00 an hour . He said he didn't really know . He asked
me if I went to work there would I vote non-union, and
I told him I would so I could get the job, After I said
that, I got the job.
Q. When you said that he talked to you about this,
who did you mean?
A. Ralph Graves, the Manager.
Graves testified concerning this conversation:
A. I told him that we had a union store there and
he would be required to join the union . I told him what
the union dues were , who the union steward was, and I
proceeded to tell him what happened in Tulsa.
Q. Did you ever ask him if he was for the union?
A. No, sir, I didn't.
Q. Or against the union?
A. No sir.
Q. Did you ever tell him that if the store went
nonunion that package boys would get more money?
A. No, I did not.
Since no other person was present at this conversation,
resolution of the controversy depends solely upon assess-
ment of credibility. Fairchild is credited over Graves,
based on observation of the witnesses and their demeanor
on the stand , and the record as a whole.
It is found that this allegation of the complaint is proved.
3. The complaint states : "(d) On or about January 15,
1974, Respondent by its supervisor and agent Ralph
Graves, encouraged its employees to go non -union by
stating to its employees that they would not receive raises if
they did not go non-union."
The record does not contain testimony or evidence to
support this charge . Possibly it could be speculated that the
alleged statements were made , and certainly Graves went
to considerable trouble to convince employees that their
pay and benefits depended upon their union attitude.
However, the wording of this charge does not fall within
the proof adduced at hearing.
4. The complaint states : "(e) On or about January 15,
1974, Respondent by its supervisor and agent Wesley
Pipkins , encouraged and instigated circulation of a
decertification petition among its employees."
Glenn Hollifield testified that Pipkins asked him if he
had signed the RD petition and stated that it was not an
election-it was just to give employees a chance to vote in
order to show whether they wanted an election.
Mike Brown testified that Pipkins congratulated him
after learning that Brown had signed the petition.
Darrel Arnett testified : "After I had signed the petition
the First Assistant proceeded to come over and asked to
see the petition . They gave it to him and he flipped through
the petition commenting most of the signatures were from
Claremore and noticing who had signed from our store."
Joe Fairchild testified:
A. The first time they called me up front to
package groceries. I managed to get away without
signing it. I didn't sign it that time but the second time
when they came back, well they was walking through
the back. Ralph and Wesley looked at the petition and
they walked up front. That's when I signed it.
Q. You say you saw Ralph and Wesley look at it?
A. Yeah.
John Hollifield testified:
I told them I really didn't know because I didn't
know what to say . Wesley was there and he said, "We'd
really appreciate it if you'd give us a chance." We just
kind of stood there a minute and Glenn said, "Well
let's give it a chance," so we signed the petition.
Q. Did any member of supervision talk to you after
you had signed the petition?
A. Wesley told me he appreciated us giving it a
chance.
Betty Blevins testified that , when she visited the
Muskogee store on the first occasion to solicit signatures
for the RD petition, she and those who accompanied her
introduced themselves to Pipkins and said they wanted to
talk with some of the employees . She said Pipkins advised
her that some of the employees were in the back room.
Blevins testified that she and the others from Claremore
were in the Muskogee store about 3 or 4 hours.
Pipkins testified differently from Blevins . In describing
the first visit of Blevins, he stated:
A. I was gone to lunch and I came back in, and I
was informed that there was some employees from the
Claremore store in our store . They were circulating or
trying to circulate a petition so therefore I just carried
on my normal duties . I did happen to go through the
back but other than that , I carried on my normal duties
as required by my job.
Pipkins testified concerning the second visit that "I
didn't know they were in the store until they were fixing to
walk out."
Pipkins also testified about the RD petition:
A. Well at one time after the petition had been
entered we talked about the petition.
Q. What was said about that?
A. He asked me what it was for and I replied that it
was to see if the people still felt like they needed a
union or wanted a union to represent them.
Q. Did he initiate that conversation?
A. Yes sir.
WAREHOUSE MARKET, INC. 221
Q. Did you ever have any physical contact at all
with the employee petitions?
A. Yes sir.
Q. What was that occasion?
A. Betty Blevins handed me the petition . I unfold-
ed it, looked at it . There was no signatures . I folded it
back and handed it to her.
Q. What did she want you to do with it?
A. She wanted me to give it to Darrel Arnett.
Q. Did you refuse?
A. Yes sir.
Q. Now you were present when the employees
from the Claremore store came the first time, were you
not?
A. I was out to lunch when they came.
Q. Did they introduce themselves to you?
A. No sir.
Q. Now I believe in your testimony you mentioned
something about "they were circulating a petition when
they were there on the first occasion." How did you
know this?
A. How did I know they were circulating a
petition?
Q. Yes sir?
A. I was told.
Q. Who told you that they were circulating a
petition?
A. My manager.
Q. Mr. Graves told you they were circulating a
petition?
A. Yes sir.
Q. Did he tell you that on that day?
A. No sir, he told me the day before.
Q. He told you that there would be some employ-
ees coming to the store to circulate a petition, didn't
he?
A. Yes sir.
Pipkins denied that he assisted the Claremore group in
preparation or circulation of the RD petition , and he also
denied encouraging or pressuring any employee to sign the
petition.
As seen by the foregoing , Pipkins acknowledged that he
was told the day before the Claremore group visited the
Muskogee store that they would be there to circulate the
RD petition . He also stated that Blevins handed him the
petition and that he looked at it. He testified that he talked
with Glenn Hollifield about the petition. Thus, it is quite
clear that Pipkins knew much about the petition and its
circulation . The only question is whether he "encouraged
and instigated" it.
There is no evidence to show that Pipkins instigated the
petition or had any part in its instigation , and it is so
found.
However, there is evidence that he knew of the petition,
assisted in its circulation, and encouraged employees to
sign it. Pipkins acknowledged that he was instructed to tell
Muskogee employees about the benefits Tulsa employees
received after they voted the Union out, and that he did so.
He had advance knowledge about the visit of the
Claremore group. He looked at the petition and talked with
an employee about it. Under such circumstances, the
testimony of the witnesses Glenn and John Hollifield,
Brown, Arnett, and Fairchild is in accord with the
allegation of encouragement ; the denial of Pipkins is not
realistic. The testimony of those witnesses is credited over
that of Pipkins. It is found that the allegation of the
complaint is well supported by the record, and proved.
5. The complaint states:
(f) On or about January 22, 1974, Respondent by its
supervisor and agent Wesley Pipkins, promised its
employees increased pay rates if they got the Union
out.
(g) On or about January 22, 1974, Respondent by its
supervisor and agent Wesley Pipkins, encouraged its
employees to get rid of the Union.
(h) On or about January 22, 1974, Respondent by its
supervisor and agent Ralph Graves, encouraged its
employees to vote the Union out by having its
employees visit the Tulsa stores while being paid to
view the work situation that had resulted in Tulsa when
they voted the Union out.
Respondent's witnesses Graves and Pipkins acknowl-
edged that they attended supervisory meetings in Tulsa to
discuss the election there, and its effect on other stores;
that they were instructed to tell employees at Muskogee
about the Tulsa benefits accruing from voting the Union
out; that they did talk with the employees as instructed;
and that several employees were permitted to go to Tulsa
on company time to see for themselves the results of the
Tulsa election.
The, foregoing evidence is adequate for proof of these
three charges in the complaint . However, that evidence is
well supported by the General Counsel's witnesses,
particularly Darrel Arnett and John Hollifield.
It is found that paragraphs 7(f), (g), and (h) are well
supported by the record, and are proved.
6. The complaint states : "(i) On or, about January 30,
1974, Respondent by its supervisors and agents Ralph
Graves, Wesley Pipkins, and Frank Blevins , encouraged its
employees to sign and circulate a decertification petition."
This charge was not specifically proved, in that actions
of Graves , Pipkins, and Blevins are not tied to the date of
January 30. In any event, the charge is cumulative and a
separate finding is not required . The record amply supports
a finding of 8(a)(l) violations on other and similar charges,
as discussed herein.
7. The complaint states : "(j) On or about January 30,
1974, Respondent by its supervisor and agent Wesley
Pipkins, threatened to make things rough on its employees
if the Union stayed in."
John Hollifield testified:
Q. Have you had any other discussions with any
member of supervision about the union?
A. Yes, around that day. It was that day or the day
before. I really can't recall for sure . Wesley told me that
things were going to be rough around the store if we
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
didn't go nonunion. They would just bring people
down from Tulsa and we could walk the picket line.
There wasn't no way we could get what they got in
Tulsa if we stayed in the union.
Pipkins denied threatening any employee at any time.
However, he acknowledged discussing possible strikes with
John Hollifield and telling him replacements could be
hired or anybody brought from Tulsa. He said he
remarked to Hollifield "as far as I know you'll just have to
draw up your picket lines out front and well just continue
our job on the inside."
In view of Pipkins' acknowledged instructions from
management to tell Muskogee employees about the Tulsa
benefits, the trip by employees to Tulsa on company time,
and the acknowledged statements by Pipkins described
above, John Hollifield's testimony is logical and entitled to
belief. Hollifield was a credible witness and his version of
this event is accepted over Pipkins'. It is found that this
allegation of the complaint is fully supported by the record
and proved.
8. The complaint states : "(k) On or about February 5,
1974, Respondent by its supervisor and agent John Lay,
encouraged the circulation of a decertification petition
among its employees."
John Lay is store manager at Claremore. Bill Bryant
testified concerning this allegation . He testified that he was
in the back room at Claremore a few minutes talking with
the Claremore group and their attorney about the RD
petition. He stated:
Q. Was there any member of supervision present
while you were talking to the people from Claremore?
A. John Lay, the Manager, was in the background.
Q. Where was John Lay in relation to you and
union membership, activities, and desires and concerning
the union membership, activities, and desires of other of its
employees."
The record does not contain testimony or evidence to
support this charge, and it is so found.
10. The complaint states: "(m) On or about March 2,
1974, Respondent by its supervisor and agent Ralph
Graves, created the impression of surveillance of the union
or concerted activities of its employees engaged in for the
purpose of collective bargaining or other mutual aid or
protection."
The record does not contain testimony or evidence to
support this charge, and it is so found.
11. The complaint states: "(n) On or about March 6,
1974, Respondent by its supervisor and agent Wesley
Pipkins, orally interrogated its employees concerning their
union membership, activities and desires and concerning
the union membership, activities and desires of other of its
employees."
John Hollifield testified that he talked with Pipkins on
March 6:
Q. What did Mr. Pipkins say to you?
A. He asked me what good I thought the Union
was doing me except taking my $8 a month. I told him
I felt like it was job security. He asked me if I didn't
think they could fire me right then and I told him I
didn't feel like they could.
Pipkins corroborated the essence of John Hollifield's
testimony, when he stated:
Q. Did you ever ask Mr. John Hollifield what good
the Union was doing him?
these people from Claremore? A.
A. He was unloading the frozen food truck that Q.
comes to the back door right across from them, and the A.
frozen food cooler was eight to ten feet from where Q.
they were standing. A.
Q. While you were talking to these employees from Q.
Claremore, what was Mr. Lay doing? A.
A. He was throwing frozen food to the frozen food
manager and putting it in the freezer.
He further testified that there is "a big sign hanging in the
back room that says `Employees Only Beyond This
Point' " He stated that the sign was placed there by a
prior assistant manager and that "Most of the enforcement
was during the period when we had an Assistant Manager,
Jim Mullens. He's the one who made the sign." Bryant
testified that people other than employees come into the
back room "quite often," and that, even when the rule was
enforced for the 3 months Jim Mullen was there , people
other than employees were allowed in the back room.
There is no evidence of an explicit nature showing that
Lay encouraged the circulation of a decertification
petition. The evidence of an implied nature is very limited
and is far from conclusive. This allegation was not proved,
and it is so found.
9. The complaint states : "(1) On or about March 2,
1974, Respondent by its supervisor and agent Ralph
Graves, orally interrogated its employees concerning their
Yes sir, I did.
You did ask him that?
Yes sir.
What was his answer?
He said, "Well it gives me job security."
And what was your reply?
Job security is basically to me, if a man's doing
his job right he has no worry about job security.
Q. Did you tell him that?
A. Yes sir.
Q. And what did he say?
A. He said he felt like he was doing his job and had
no worry in that line. He felt he was doing his duties
the way they should be done.
Q. Did you tell him anything to the effect that
Union employees could be fired?
A. Yes sir, I did.
Q. Would you state what you said in that regard?
State as best you can recall your actual words.
A. I said, "Yes, a union employee can be fired on
the spot for either stealing or drinking on the job."
JUDOS STBvm. s: Did you limit it just to those?
THE Wimnss: Yes sir.
The questions and statements of Pipkins clearly are in
violation of the Act, and it is so found. Essex Wire Corp.,
188 NLRB 397 (1971). This is an instance of probing that
inherently militates against union sympathy.
WAREHOUSE MARKET, INC. 223
12. The complaint states:
(o) On or about May 9, 1974, Respondent by its
supervisor and agent Wesley Pipkins, discriminatorily
enforced its no-solicitation rule prohibiting its employ-
ees from engaging in protected union activities during
non-working time in non-working areas.
(p) On or about February 4, 1974, Respondent by its
supervisor and agent Wesley Pipkins, discriminatorily
enforced its no-solicitation rule in derogation of the
union contractual right to talk with employees during
working time in working areas.
Graves testified that Respondent has no no-solicitation
rule, but that it does have a talking rule: "That as long as it
doesn't interfere with their work, if they're working fine, if
they don't stop, if it doesn't stop production. There's no
use paying a man for just standing there talking."
Pipkins also testified that Respondent does not have a
no-solicitation rule, but does have a talking rule: "It's not a
drawn up written rule. It's just a well-known established
rule. If say a friend comes in and he lingers there in the
store and talks 15 to 20 minutes and he's holding up this
man's working duties , yes, we go ask him to leave."
In discussing the first visit of the Claremore group
soliciting RD petition signatures in Muskogee , Pipkins
testified:
Q. It's an unusual situation to let employees from
another store linger in the back of the store for a period
of two or three hours, isn't it?
A. Not to my knowledge.
Q. This was the first time it has ever happened, is it
not?
A. Yes sir.
Pipkins also testified that visitors as well as employees on
occasion have been asked to leave the back room.
Glenn Hollifield testified:
It is seen from the foregoing that the alleged no-
solicitation rule must be considered in three aspects: (a) the
back room of the Muskogee store, (b) talking while
working, and (c) talking with a union representative on
company premises.
It is clear that neither Respondent nor the Muskogee
store has a no-solicitation rule as such, and it is so found.
General Counsel established no such rule. Graves and
Pipkins testified there is no such rule, and their testimony
was not contradicted.
However, the possibility remains that there was a
violation of the Act because of interference with, or
restraint or coercion relative to, protected activity.
(a) Pipkins acknowledged that the group from Claremore
used the back room for a lengthy period of time-from 2 to
4 hours-and that no one else , not on business , had been
permitted in the room for such an extended period of time.
Pipkins testified that others, both employees and nonem-
ployees, had on occasion been asked to leave the back
room. However, other witnesses credibly testified that
there had been occasions when the room was occupied by
persons not on business, without being asked to leave. In
view of the record as a whole, it is clear that Pipkirts did, in
fact, permit the petitioners from Claremore to do some-
thing that others were not permuted to do; i.e., use the
back room for from 2 to 4 hours for a nonbusiness purpose
(solicitation of signatures for a decertification petition). It
is so found.
(b) The record shows, and it is so found, that the
Muskogee store has a rule permitting employees to talk
while "on the clock," to the extent that the conversation is
not unreasonably long and does not interfere with work.
Pipkins acknowledged that he enforced the talking rule
against a union representative and Darrel Arnett on a date
he could not remember. Pipkins also acknowledged that he
refused to permit Mark DeLay, a union representative, to
talk with John Hollifield on company property in April or
May 1974.
Pipkins testified:
Q. Do you have any rule about access to the back
of the store in Muskogee?
A. No, well we have a sign on the door that says,
"Employees Only". Usually about anybody comes
back there.
Q. Do you have a rule regarding talking while you
are working at the Muskogee store?
A. Well I was told that the only time we should
talk-well as long as we were doing our work and it
didn't interfere with our work, we could talk.
Q. Who told you that?
A. Just the supervision.
John Hollifield testified:
Q. Do you know whether or not there is any rule at
the Muskogee store regarding talking while on the
clock?
A. Yes, they've told me-I mean the managers,
Ralph and Wesley , that you can. You know, it's all
right to . talk for a few minutes but you can't talk for a
long time . You can talk if it doesn 't interfere with your
work.
A. The occasion I recall-Mark had been in the
store and when he was leaving, John Hollifield was
leaving with him. I followed them out to the car and I
told Mark, "If you have anything to say to this man,
take him off company property to do so."
s s s s s
A. Yes sir. I walked out on the retail floor and I
seen Mark standing there talking to Darrel Arnett, and
Darrel had stopped all working procedures and was
talking to him . I walked up to him and said, "Please
move on and let this man continue with his work."
DeLay testified:
A. Yes, I entered the store on that day [February 4]
and the assistant manager, Wesley Pipkins, followed
me through the store . As I was going down one of the
stock aisles on the retail floor, I approached one of the
employees, Darrel Arnett. As I approached him he said
he needed to talk to me so I said, "All right." I stopped
and began talking with him . I might add that he
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued stocking the shelf as he was doing before I
approached . He began to tell me what he wanted and
before he could get it out , Wesley Pipkins walked up
and informed me that I was not to talk to people while
they were on the clock . Darrel then stated, "Go ahead
and I 'll talk to you later," and I said, "Fine ." I left and
started up the next aisle . Mr. Pipkins approached me
and told me I was not to talk to people while they were
on the clock . I pointed out that I had the contractual
right to do so as long as I did not interfere with their
work . He told me he did not agree with that so I
terminated the conversation and walked away.
s s s • s
A. Yes , I entered the store about three minutes
until 5 : 00 on that day [May 9] and walked through the
store . As I was leaving , employee John Hollifield had
punched out and began walking out into the parking
lot with me . As I approached my car, I asked him if
he'd like to go and have a cup of coffee with me, and he
said, "Yes." As he was sitting in the car, Wesley Pipkins
walked up and informed me if I wanted to talk with the
employees I would have to do it off company property.
It is found that Respondent did, as alleged , prohibit its
employees from engaging in protected union activities
during nonwork time in a nonwork area,4 and during
worktime in a work area as permitted by the contract
between the parties .5
C. Alleged 8(a)(5) Violations
The complaint states:
Beginning on or about March 4, 1974, and at all
times thereafter , Respondent has refused, and is
refusing, to bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the unit described above in paragraph 8.
Since on or about January 15, 1974 , Respondent did
refuse , and continues to refuse , to bargain collectively
with the Union in order to undermine and dissipate by
the acts described above in paragraph 7, the Union's
majority status among the employees in the unit
described above in paragraph 8.
The complaint alleges , the answer admits, and I find that
the following unit is appropriate herein for the purposes of
collective bargaining:
All employees working at the Respondent 's Vinita,
Oklahoma store , located at 310 North Wilson Street,
Respondent 's Claremore, Oklahoma store , located at
515 West Sixth Street, Respondent's Muskogee, Okla-
homa store , located at 1906 North Main , but excluding
all meat department employees , pharmacists , supervi-
sors, guards and watchmen , as defined in the Act.
4 Any such rule is presumptively unlawful . SNC Mfg. Co., 174 NLRB
159 (1%9); Mallory Capacitor Company, 162 NLRB 1404(1%7), Greentree
Electronics Corp., 176 NLRB 919 (1%9)
S The evidence shows, and it is found , that Mark DeLay (whose
testimony is credited), did not interfere with or retard the duties of the
The record shows , and I find, that the parties hereto
entered into a collective-bargaining contract May 6, 1973,
which expired May 5 , 1974; that the Union requested that
Respondent bargain with it for a new contract ; and that
Respondent refused, and continues to refuse , to bargain
with the Union .6
Respondent alleges that its refusal to bargain is based on
its good-faith doubt that the Union represents a majority
of the employees in the aforesaid unit . In support of its
allegation, Respondent states that it filed an RM petition
on February 28, 1974 , and that employees of Respondent
filed an RD (decertification ) petition on February 15, 1974,
both of which were dismissed by the Regional Director
without a hearing on the merits.
Respondent moved at the hearing to dismiss or stay
these proceedings pending decision of the Board on
Respondent's appeal of dismissal of the RM and RD
petitions . The motion was denied.
The law has been long and well settled that a presump-
tion of majority union status continues after expiration of a
contract . Barrington Plaza and Tragniew, Inc., 185 NLRB
962 (1970). "The presumption is rebuttable , however, 'by
clear and convincing proof .' " Ref-Chem Company, 196
NLRB 376 (1972).
Good-faith doubt is not, by itself , sufficient to overcome
the presumption . The assertion of doubt must be "support-
ed by a showing of objective considerations providing
reasonable grounds for a belief that a majority of the
employees no longer desire union representation."
McSouthern Dyeing & Finishing, Inc., 179 NLRB 573
(1969), and as stated by the court in N.L.R.B. v. Sky Wolf
Sales, d/b/a Pacific Industries of San Jose, 470 F.2d 827
(C.A. 9, 1972): "Reasonable doubt as to majority status
must only be asserted in good faith , and cannot be raised
in the context of employer activity aimed at causing
disaffection from the union."
Respondent alleges good -faith doubt herein solely on the
basis that RM and RD petitions were filed with the Board.
There is no contention by Respondent that it based its
doubt of the Union 's majority status upon any other fact.
The filing of an RM petition is of no probative value in
unfair labor practice cases . United States Gypsum Company,
157 NLRB 652 ( 1966).
If Respondent's defense can prevail, therefore, it must be
on the basis of the RD petition . That petition was
circulated by employees of the Claremore store, and
signatures are dated from January 29 through February 11.
The petition was filed with 36 signatures on February 15.
As of the last pay period before the filing of the petition,
the unit had 56 employees . The Union's request to bargain
was dated March 1 , and the refusal was dated March 4.
Respondent grounds its legal argument on the principle
of Telautograph Corporation, 199 NLRB 892 (1972).
However, that case is not controlling herein because, in the
language of Telautograph, the charge in this case contains
allegations that the Respondent has committed some act
employee when he talked with Darrel Arnett. Respondent's actions,
therefore , were unlawful . General Machine Company, 174 NLRB 1023
(1969).
6 The statements of this paragraph are not contradicted and are
established by documentary evidence.
WAREHOUSE MARKET, INC. 225
(other than its mere refusal to bargain ) which may be a
proper basis for finding a violation of the Act.
Respondent also relied on National Cash Register, 7 but it,
too, is not controlling herein . Again, in the language of that
decision , the loss of majority status in this case is
attributable to the employer's own unfair practices.
Respondent relies on additional language of National Cash
Register which states : "We have previously held that there
is not substantial evidence on the record as a whole to
support the conclusion that the company's unfair labor
practices induced the filing of the decertification petition."
That quotation , however, is followed by: "The record
likewise fails to disclose any substantial evidence from
which a permissible inference could be made that the
unfair labor practices contributed generally to the possible
loss of majority status by the union."
As shown in the text hereof , and as is summarized
hereinbelow, this record is clear in showing that Respon-
dent's unfair labor practices did, in fact, contribute to the
loss of majority herein . One of the more obvious portions
of the evidence shows that at least four employees at the
Muskogee store credibly testified that they initially refused
to sign the RD petition , and later agreed to do so only after
pressure was exerted by management personnel. That
evidence, together with admissions of Graves and Pipkins
that they encouraged and assisted employees to go to
Tulsa, there to see the benefits of a nonunion store, clearly
meet the requirements of National Cash Register, and show
"a permissible inference . . . that the unfair labor practices
contributed generally to the possible loss of majority status
by the union."
On December 7, 1973, employees of the Tulsa store
voted to decertify the Union as their bargaining represent-
ative . Shortly thereafter , in early January , Respondent
conducted a series of meetings with its supervisors to
discuss union matters . Supervisors were instructed by an
out-of-town consultant on how to handle labor matters,
and were advised that Tulsa employees could work as
temporary replacements if other stores were struck . Graves
was advised during the Tulsa meetings in January that a
decertification petition was being circulated at Claremore,
and Graves told Pipkins the evening before the Claremore
group came to Muskogee that the group would bring the
petition to Muskbgee the following day.
Graves and Pipkins acknowledged that they discussed
the Tulsa nonunion benefits with Muskogee employees
upon instruction from Tulsa headquarters managers; that
they advised Muskogee employees of the benefits acquired
by Tulsa employees after the Union was voted out; that
they urged Muskogee employees to go to Tulsa to see the
situation there ; and that several employees went to Tulsa
as urged, the trip being made on company time . The date
of the Tulsa trip was not ascertained with certainty at the
hearing, but it was clearly established by several witnesses
as being before the RD petition was circulated.
It is quite clear from the record that Respondent
followed a planned course of action after the Tulsa vote
against the Union, designed to bring about that same result
in an election by the Muskogee-Vinita-Claremore unit.
Whether or not Respondent instigated initiation of the RD
petition, it certainly so tainted the petition that it did not
represent the free will determination of the employees who
signed it. Respondent extolled the virtues of the Tulsa
nonunion benefits; it paid employees to travel to Tulsa to
see those benefits ; its managers promised similar benefits
to Muskogee-Vinita-Claremore if the unit voted the Union
out; it encouraged circulation of the RD petition in a
number of ways ; its statements concerning striker replace-
ments clearly carried a threat to break the Union at
Muskogee ; its treatment of the union business representa-
tive showed unmistakable union animus . Under such
circumstances it is clear that, when it refused to bargain on
March 4 and thereafter (including the unilateral pay raise
and increase of benefits effective May 12), Respondent was
not relying on objective considerations, providing reason-
able grounds for a belief that a majority of the employees no
longer desired union representation. Rather, it relied on a
contrived and deliberate situation designed to undermine
the Union and to see it defeated by election.8 It is found
that the allegations of this portion of the complaint have
abundant support in the record, and are proved.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The Respondent's activities set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, 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 of commerce.
V. THE REMEDY
It having been found and concluded that Respondent
Warehouse Market, Inc., has not engaged in certain
alleged unfair labor practices, it will be recommended that
the allegations of paragraph 7(d), (i), (k), (1), and (m) of the
complaint be dismissed in their entirety.
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act. A broad
order will be recommended because of the numerous
8(a)(1) violations found, and the pervasive nature of those
violations.
Upon the basis of the foregoing findings of fact, and the
entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Warehouse Market, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Retail Clerks Union, Local No. 73 of Retail Clerks
r National Cash Register Co., 201 NLRB 1034 (1973).
8 For similar reasoning, whereby inducement of a decertification petition
was held not to justify a refusal to bargain. See also Wahoo Packing Co., 161
NLRB 174 (1966); Boren Clay Products Co., 174 NLRB 1200 (1969); Texas
Electric Co-op, Inc., 197 NLRB 10 (1972); Federal Pacific Electric Co., 203
NLRB 971 (1973).
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following unit is an appropriate unit within the
meaning of Section 9(b) of the Act:
All employees working at the Respondent's Vinita,
Oklahoma , store, located at 310 North Wilson Street,
Respondent's Claremore, Oklahoma, store , located at
515 West Sixth Street , Respondent 's Muskogee, Okla-
homa , store, located at 1906 North Main, but excluding
all meat department employees , pharmacists , supervi-
sors, guards and watchmen, as defined in the Act.
4. The above-named labor organization is the exclusive
representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act, and has been such
exclusive representative since prior to May 6, 1973.
5. Respondent engaged in unfair labor practices in.
violation of Section 8(axl) of the Act as described above,
by: (a) promising employee pay raises and benefits if the
Union was voted out; (b) interrogating prospective and
present employees concerning union activities ; (c) encour-
aging circulation of, and signatures on, a decertification
petition; (d) threatening employees if they remained union;
and (e) discriminatorily enforcing a talking rule to
discourage protected activity.
6. By refusing on or about March 4, 1974, and at all
times thereafter, to bargain collectively with the above-
named organization as the exclusive bargaining representa-
tive of all employees of Respondent in the appropriate
unit , Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(aX5) of the
Act.
7. By the aforesaid independent actions enumerated in
paragraph 5(a) through (e), and derivatively by the
aforesaid refusal to bargain described in paragraph 6,
Respondent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. 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 hereby issue the following recommended:
ORDERS
Respondent, Warehouse Market, Inc., its officers,
agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Promising employee pay rases and benefits if the
Union is voted out.
(b) Interrogating prospective and present employees
concerning union activities.
(c) Encouraging circulation of, and signatures on, a
decertification petition.
(d) Threatening employees if they remain union.
(e) Discriminatorily enforcing talking rules to discourage
union activity.
(f) Refusing to bargain collectively concerning rates of
pay, wages , hours, and other terms and conditions of
employment with Detail Clerks Union, Local No. 73 of
Retail Clerks International Association , AFL-CIO, as the
exclusive bargaining representative of its employees in the
following appropriate unit:
All employees working at the Company's Vinita,
Oklahoma store , located at 310 North Wilson Street,
the Company's Claremore, Oklahoma store, located at
515 West Sixth Street, and the Company's Muskogee,
Oklahoma store, located at 1906 North Main, but
excluding all meat department employees, pharmacists,
supervisors , guards and watchmen, as defined in the
Act, as amended , constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization , to form, join, or assist labor organizations,
including the above-named organization , to bargain
collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action , which I find
will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive labor representative of all
employees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours, and other terms and conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its principal places of business in Muskogee,
Claremore, and Vinita, Oklahoma , copies of the attached
notice marked "Appendix." 10 Copies of the notice on
forms provided by the Regional Director for Region 16,
after being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof , and be maintained 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 the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
9 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.
10 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."
WAREHOUSE MARKET, INC. 227
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise employee pay raises and
benefits if employees vote against the Union; interro-
gate prospective or present employees concerning
union activity; encourage circulation of, or signatures
on, any union decertification petition; threaten em-
ployees if they remain in the union ; or discriminatorily
enforce talking rules to discourage union activity.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with Retail Clerks Union,
Local No. 73 of Retail Clerks International Associa-
tion, AFL-CIO, as the exclusive representatives of the
employees in the bargaining unit described below.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
rights , to self-organization, to form, join, or assist labor
organizations , to bargain collectively through repre-
sentatives of their own choosing , to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
or all such activities.
WE WILL, upon request , bargain with the above-
named Union , or the exclusive representative of all
employees in the bargaining unit described below, with
respect to rates of pay, wages , hours, and other terms
and conditions of employment and, if an understand-
ing is reached , embody such understanding in a signed
agreement. The bargaining unit is:
All employees working at the Company's
Vinita, Oklahoma, store, located at 310 North
Wilson Street , the Company's Claremore, Okla-
homa store, located at 515 West Sixth Street, and
the Company's Muskogee, Oklahoma store,
located at 1906 North Main, but excluding all
meat department employees, pharmacists, super-
visors, guards and watchmen , as defined in the
Act.
WAREHOUSE MARKET, INC.