Cox Market, Inc.

National Labor Relations Board - Board Decisions

Oct 1, 1965

155 N.L.R.B. 1 (N.L.R.B. 1965)

Cox Market , Inc. and Local 725, Retail Clerks International Asso-
ciation , AFL-CIO. Case No. 95-CA-2119. October 1, 1965
DECISION AND ORDER
On June 25, 1965, Trial Examiner William F. Scharnikow issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter, the
General Counsel and Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions.
The Trial Examiner concluded that the Respondent had violated
Section 8(a) (1) of the Act by certain conduct of Supervisors Brown
and Dockrey but that no unlawful interference with employee rights
occurred by reason of statements by Assistant Manager Roberts to
employee Sims or by comments by Roberts in the presence of em-
ployee Thomas. The General Counsel and the Union have excepted
to the findings concerning Roberts' activities. We find merit in those
exceptions.
As found by the Trial Examiner, Roberts told Sims that he thought
"there would be a store and no Union or a Union and no store" and
that President Cox would not permit picketing but "would sign with
the Union and if he couldn't meet [the Union's] demands, he would
just have to close the doors." Also, Roberts told Alvin Laughlin, in
the presence of employee Don Thomas, that he thought President
155 NLRB No. 1. 1
`Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cox would rather close than give in to the Union or the "union shop"
and that, in view of Cox's "moral beliefs," Cox would "close shop
rather than receive the Union." There can be no doubt that in both
instances the assistant manager clearly threatened that the store would
close if the Union persisted in its efforts to represent the employees.
We therefore do not agree with the Trial Examiner that Roberts' re-
marks to Sims were noncoercive. And, since the conversation with
Laughlin occurred at a time when Thomas and Roberts were working
together, the latter obviously knew Thomas was present and could
hear what was said. Under these circumstances, Roberts' remarks
may be presumed to have been intended for Thomas' ears, and they
constituted unlawful interference with employee activities, in viola-
tion of Section 8(a) (1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Cox Market, Inc., Conners-
ville, Indiana, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
I. Add the following as the first paragraph in paragraph 1.
1. "Cease and desist from :
"(a) Threatening employees with closing of the store or other eco-
nomic reprisals because Local 725, Retail Clerks International Asso-
ciation, AFL-CIO, was selected as the bargaining representative of
its employees."
II. Change the number of present paragraph 1 of the Recommended
Order to (b) and delete therefrom the opening words "Cease and
desist from" and capitalize the letter "i" in the word "interfering."
III. Add as the first indented paragraph in the Appendix the
following :
WE WILL NOT threaten our employees with closing of the store
or any other economic reprisals because Local 725, Retail Clerks
International Association, AFL-CIO, is selected as the bargain-
ing representative of our employees.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges unfair labor practices not found
herein.
i The Trial Examiner concluded that because the statements under consideration were
made to Laughlin, whom he found to be a supervisor, they could not be intimidatory.
However, in view of the basis of our Decision herein, we find it unnecessary to pass on
the supervisory status of Laughlin.
COX MARKET, INC. 3
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint in the present case was issued by the Board's Regional Director on
a charge filed by Local 725, Retail Clerks International Association, AFL-CIO,
herein called the Union, and alleges that the Respondent, Cox Market, Inc., has
committed unfair labor practices affecting commerce within the meaning of Sec-
tions 8(a)(1) and (5) and 2(6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, 73 Stat. 519, herein referred to as the Act.'
With respect to the unfair labor practices, the complaint alleges, in substance, that:
(1) As certified by the Board's Regional Director on November 23, 1964, in
accordance with the majority vote of employees in an election by secret ballot con-
ducted under his supervision on November 13, 1964, the Union has been since
November 13, 1964, and continues to be, the exclusive bargaining representative of
an appropriate unit of the Respondent's employees at its Connersville, Indiana,
store, within the meaning of Section 9(a) and (b) of the Act.2
(2) On various dates since approximately December 28, 1964, the Respondent,
through the acts of its supervisors and agents including John Dockrey and Donald E.
Brown, has interfered with, restrained, and coerced its Connersville employees in
their joining, assisting, remaining members of, and being represented by the Union,
and has thereby committed unfair labor practices within the meaning of Section
8(a)(1) of the Act.
(3) Among the acts of Dockrey and/or Brown attributable to the Respondent as
unfair labor practices within the meaning of Section 8(a)(1) of the Act were
Dockrey's and Brown's formation of the "Cox Market Employees' Association,"
which purported to represent the employees in the appropriate bargaining unit; their
solicitation of the signatures of employees to petitions opposed to the positions taken
by the Union in current bargaining negotiations with the Respondent; their urging
the employees to demand a vote on the Respondent's proposed contract terms; and
their solicitation of employee opposition to union policies and procedures relating
to picketing, consumer boycotts, and employees' voting on contracts.
(4) On and since November 13, 1964,3 the Respondent has refused to bargain
collectively in good faith with the Union as the exclusive bargaining representative
of the employees in the appropriate bargaining unit and has thereby committed un-
fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act (a) by
negotiating with the Union with no intention of entering any final or binding agree-
ment and (b) during the course of purporting to negotiate, by resorting to, or avail-
ing itself of the benefit of, the alleged acts of Dockrey and Brown as just described,
thereby weakening and undermining the employees' support of, and adherence to,
the Union as their bargaining agent, causing the employees to oppose the Union's
bargaining objectives and tactics on their behalf, and placing the Respondent in the
position of bargaining directly with the employees rather than with the Union as
their exclusive bargaining representative as required by the Act.
In the answer which it filed to the complaint, the Respondent denies its commission
of the alleged unfair labor practices and also the commission by its alleged super-
visors or agents of any of the acts charged. It also denies that either Dockrey or
Brown was its agent or that either of these men was a supervisor since, as it alleges
in substance, the Union, in spite of the Respondent's disagreement, had insisted in
the preelection conference and during bargaining negotiations between the Union
and the Respondent that neither man was a supervisor and that both were therefore
to be included as employees in the appropriate bargaining unit. The Respondent
further alleges, in this connection, that, with the assent of the Board's agent in charge
of the election, both Dockrey and Brown were included in the list of employees
eligible to vote and did, in fact, vote in the election of November 13, 1964.
Pursuant to notice, a hearing was held at Connersville, Indiana, on May 3 and 4,
1965, before Trial Examiner William F. Scharnikow. The General Counsel, the
Respondent, and the Union appeared by counsel and were afforded full opportunity
i The Union 's charge was filed on January 15 , 1965, and served on the Respondent
on January 18, 1965. The complaint was issued and served on the parties on March 19,
1965.
2 Case No. 25-RC-2716.
2 The complaint apparently inadvertently refers to October 13, 1964, instead of Novem-
ber 13, 1964, the date the employees chose the Union as their exclusive bargaining repre-
sentative in the election conducted by the Regional Director.
212-809-66-vol. 155-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues. Since the hearing I have received and considered briefs sub-
mitted by counsel for each of the parties.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Indiana corporation with its principal office at Alexandria,
Indiana, maintains a store in Connersville, Indiana, where it is engaged in the retail
sale of groceries and related items. During the 12 months preceding the issuance
of the complaint, a representative period, the Respondent in the course and conduct
of its business operations at its Connersville, Indiana, store sold and distributed
products, the gross value of which exceeded $500,000. During the same year, the
Respondent purchased, caused to be shipped, and received goods and materials at
its Connersville store of a value in excess of $50,000 directly from points located
outside the State of Indiana. I find and conclude that the Respondent is now, and
has been at all material times, an employer engaged in commerce within the meaning
of the Act, and that it will effectuate the policies of the Act to entertain jurisdiction
of the case.
II. THE LABOR ORGANIZATION INVOLVED
Local 725, Retail Clerks International Association, AFL-CIO, herein called the
Union, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary basic findings and the issues
Pursuant to a consent-election agreement executed by the Respondent and the
Union on November 2, 1964, in Case No 25-RC-2716 and in accordance with the
vote of the Respondent's employees by secret ballot in the election conducted under
the supervision of the Board's Regional Director on November 13, 1964,4 the Re-
gional Director certified on November 23, 1964, that the Union had been designated
and selected as collective-bargaining representative by a majority of the Respondent's
employees, and was therefore the exclusive representative of all the Respondent's
employees in the following unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(a) and (b) of the Act: All employees of the
Respondent employed at its Connersville store, exclusive of meat department em-
ployees, guards, professional employees, the store manager, the assistant store man-
ager, and all supervisors as defined in the Act.
Thereafter, the Union's and the Respondent's representatives met at the YMCA
in Connersville in an attempt to negotiate a contract on December 7, 16, 28, and 29,
1964, and on January 5 and 14, 1965. No agreement was reached, however. The
bargaining issues still open and undecided were raised by the Union's requests for a
2-year instead of a 1-year contract, a 10-cent-an-hour raise for each of the 2 years
in addition to the bonus the Respondent was then paying its employees, and premium
pay for holidays (all of which the Respondent said it could not afford), and also by
the Union's request for an agency-shop provision (to which Respondent President
David Cox voiced his "moral opposition"). With bargaining in this posture, no
further negotiations have taken place, and on January 15, 1965, the Union began
picketing the Respondent's store. The picketing was still continuing at the time of
the hearing in the present case on May 3 and 4, 1965.
The foundation of the General Counsel's contention that the Respondent com-
mitted unfair labor practices in this case, is the conduct of its supervisors. As will
be later summarized and considered in detail, there is disputed evidence as to several
alleged incidents involving Store Manager Leon Barber and Assistant Store Manager
Clyde Roberts, both of whom admittedly were and are supervisors within the mean-
ing of the Act. But the bulk of the evidence introduced by the General Counsel
relates to the conduct of Department Heads John Dockrey and Donald Brown, their
status in the store, and the significance of their conduct from the latter part of
December 1964 until the present time From this evidence, it appears that during
the critical events in the case, the supervisory or nonsupervisory status of Dockrey
4 The tally of ballots showed that only 1 ballot having been challenged and none
declared void, 21 valid votes were cast for, and 18 valid votes were cast against , repre-
sentation by the Union.
COS MARKET, INC. 5
and Brown, and therefore the Respondent's responsibility for their conduct as the
basis for both Section 8(a)(1) and (5) findings, was clouded by the opposing posi-
tions taken by the Union and the Respondent concerning their inclusion in, or ex-
clusion from, the bargaining unit. Furthermore, as he stated during the hearing,
the General Counsel has based his theory of the Respondent's refusal to bargain
with the Union in good faith in violation of Section 8(a)(5) of the Act solely on
the conduct of Dockrey and Brown as undercutting and defeating the Union's rep-
resentative status, its bargaining position, and its tactics during the negotiating
meetings 5
There is no dispute as to Dockrey's and Brown's conduct the details of which will
be considered at a later point in this Decision. Moreover, it is clear from un-
contradicted evidence, and I therefore find and conclude, that both Dockrey and
Brown have possessed and exercised such substantial elements of the supervisory
authority described in Section 2(11) of the Act that they were and are supervisors
within the statutory definition of that term. For Dockrey and Brown are the salaried
department heads, respectively, of the store's produce department and its nonfood
or "Benjamin Franklin" department; they serve directly under, and are accountable
to, the Respondent's president, the store manager, and the assistant manager; with
reasonable discretion in the light of the requirements of their work, they schedule the
extent and the times of their own working hours, being free to leave the store upon
punching the timeclock whenever they complete their work or their duties outside
the store require it; their salaries are guaranteed weekly minima, with additional
compensation for all hours they may work in excess of 52 hours in a particular
week; and each purchases the merchandise for his own department, determines its
price, supervises or arranges his department's displays, schedules the hours of his
work force, has power to lay off his employees or to send them home when work is
slack, and occasionally makes recommendations as to hire or discharge which have
been followed.
In any event, the principal point of dispute in this case is the significance, not
merely of the actual supervisory or nonsupervisory status of Dockrey and Brown,
but of the differing positions taken by the Union and the Respondent with respect
to the two men's status from the time of the preelection conference in the representa-
tion case on November 2, 1964, through the period embraced by the contract nego-
tiations in December 1964 and January 1965. For it appears from the evidence that
it was the Union which maintained that the two men were not supervisors but were
merely "chief clerks" and therefore employees included in the bargaining unit,6 with
the result that the names of both men were included on the voting eligibility list and
both of them actually voted in the election without challenge. On the other hand,
the Respondent's counsel, Clyde Hoffman, argued with the Union's representatives at
length, but unsuccessfully at the negotiations of December 16, 1964, and thus about
2 weeks before either Dockrey or Brown engaged in any of the activity with which
the present case is concerned, that Dockrey and Brown were both supervisors and
should not be included as employees in the bargaining unit. It was only at the
negotiating meeting on January 14, 1965, after Dockrey had engaged in his question-
able activity with the employees, that the Union informed the Respondent that it
finally conceded Dockrey was a supervisor and not an employee in the unit. Even
5 See the section entitled "Statement of the Case," above, for a summary of the pertinent
allegations of the General Counsel in his complaint concerning Dockrey's and Brown's
participation with, and leadership of, employees in generally supporting the Respondent's
bargaining position , opposing the Union ' s position , and requesting the right to vote upon
the Respondent 's contract proposal.
9 From the testimony of Clyde Hoffman , the Respondent ' s attorney , it appears, and I
find, that this was the position taken by the Union at the preelection conference on Novem-
ber 2, 1964 , and that neither he nor President Cox voiced any objection Hoffman ex-
plained that at the time he was not familiar with the duties or authority of Dockrey or
Brown but , that, upon later learning what they actually were , he made an unsuccessful
attempt to convince the Union during negotiations on December 16, that the two men
were supervisors and not employees in the appropriate unit. This is also the substance
of the testimony of Union Representative Milli ; i e ., that on November 2 the Respondent
"did not object" to the inclusion of Dockrey and Brown in the appropriate unit. Fur-
thermore , in their briefs, both the Union and the Respondent recognize the situation to
have been as I have just set it forth . The General Counsel, however points to elements
in President Cox's testimony from which it might appear that it was Cow who originally
suggested at the preelection conference on November 2 that department heads such as
Dockrey and Brown were employees in the unit . However , Cox was obviously confused
and I rely upon the testimony of Attorney Hoffman and Union Representative Milli.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then, the Union still insisted that Brown, who had not yet become involved in any
of the employee activity, was not a supervisor but was merely an employee within
the bargaining unit. Under these circumstances, the Respondent contends that, since
the evidence does not show instigation or encouragement on its part, Dockrey's
and Brown's activities must be regarded as those of employees in the unit insisted
upon by the Union and that the Respondent should not be held accountable for them
as unfair labor practices.
The defense thus interposed by the Respondent against responsibility for Dockrey's
and Brown's activities would, if fully accepted, not only preclude a finding that these
activities were imputable to the Respondent as general interference with, restraint,
and coercion of the employees' exercise of their rights under Section 7 of the Act
and therefore an unfair labor practice on the part of the Respondent within the mean-
ing of Section 8 (a) (1) of the Act. In view of the General Counsel's limited theory
as expressed by him during the hearing, it would also constitute a defense to the
allegation of the complaint that the Respondent refused to bargain with the Union
in good faith and thereby committed an unfair labor practice within the meaning of
Section 8(a)(5) of the Act.
With this general background we may now turn to a consideration of the evidence
first as to the broad activity of Department Heads Dockrey and Brown, and then as
to the acts of Store Manager Barber and Assistant Store Manager Roberts.
B. The activities of Dockiey and Brown
From what has already been said, it is clear that the Union's representatives re-
garded both Dockrey and Brown as employees within the bargaining unit and openly
took this position in dealing with the Respondent until at least January 14, 1965,
when the Union finally agreed with the Respondent that Dockrey was a supervisor.
Even then, the Union still insisted that Brown was not a supervisor but merely an
employee within the bargaining unit. Consistent with the position thus taken by the
Union, both men were placed on the eligibility list for the election at which at least
Brown did in fact cast an unchallenged vote; the Union gave Dockrey the same
certificate waiving initiation fees that it gave generally to all the Respondent's em-
ployees in the unit; and both Dockrey and Brown were not only permitted, but were
invited by the Union, to attend the Union's meetings. Dockrey received the Union's
letter sent generally to employees and inviting them to attend these meetings, and in
fact attended the union meetings held on November 18, 1964, and January 13, 1965,
and thus up until January 14, 1965, when the Union finally agreed that he was a
supervisor. Although Brown did not receive these employee notices and invitations,
he attended three of the union meetings on the invitation of employees Barbara King
and Pauline Nestor.
Furthermore, Dockrey and Brown also attended some of the negotiating meetings
between the Union's representatives (Milli and Sandford) and the Respondent's
representatives (President Cox and Attorney Hoffman). Thus, Dockrey attended
the negotiating meetings on December 16, 28, and 29, 1964, and both he and Brown
attended the meetings of January 5 and 14, 1965. From Dockrey's credible testi-
mony, it appears that the two men attended these meetings in accordance with the
announcement made at the Union's meetings that all employees who could do so
were welcome to attend the bargaining sessions. From Brown's credible testimony,
it further appears that although neither Cox nor Hoffman gave them permission,
they made no objection to their attendance. While the employees who served on
the Union's committee 7 were not paid for their attendance at these sessions, Dockrey
and Brown received their weekly salaries without being docked for any loss of work-
ing time. But it does not appear from the record either that a request was made to
the Respondent that the Union's committee members be compensated for the time
spent by them at the bargaining meetings nor that Dockrey or Brown participated
in the bargaining discussions or was consulted by Cox or Hoffman on the bargaining
issues. In view of this and Dockrey's and Brown's normal freedom in fixing the
extent and times of their own working hours without reduction of their compensation
so long as they performed their work satisfactorily, it does not appear to me to be
significant, as the General Counsel urges in substance at one point in his complaint,
that the union committee was not compensated for negotiating time although the
department heads, who turned out to be unfriendly to, and critical of, the Union's
course in the negotiations, were free to attend the negotiating sessions without loss
of compensation. Without further discussion of the matter, I reject the General
4 Gene Harvey , Lana Wilma, Joan Willis , and Donald Thomas.
COS MARKET, INC. 7
'Counsel's contention that in this respect there was any disparity of treatment-much
less any significant disparity of treatment-of the prounion employees who attended
the negotiating meetings as members of the Union's committee and the two depart-
ment heads.
In any event, from their attendance of the union meetings and the negotiating
meetings, both Dockrey and Brown were obviously familiar with the developments
in the bargaining negotiations between the Union and Respondent and the respective
positions taken by each of them. But other employees, who were also not favorably
disposed toward the Union's position in the bargaining negotiations, were also inter-
ested in what was happening. Among them were Barbara King and Pauline Nestor,
who worked as checkout cashiers in the store. As will be seen, these two women
employees both played a prominent role first with Dockrey in the preparation and
circulation of a petition for the submission of contract issues to the employees be-
ginning on or about December 28, 1964, and then with Brown (and also to a lesser
-degree with Dockrey) in the formation of the "Cox Employees' Association" on or
about January 16, 1965, the day following the Union's establishment of the picket
line at the Respondent's store.
1. The petition of December 28, 1964
On the morning of December 28, 1964, King asked Dockrey whether anything
could be done "to move the [contract] negotiations along." Dockrey replied that
he had heard from his uncle who worked for an industrial employer that employees
had the right to vote on contract proposals. In their conversation, Dockrey and
King agreed that they should tell the Union how the employees felt about the wage
proposals under discussion and ask that the contract proposals be submitted to a
vote of the employees. King thereupon said she would go to a lawyer about this
possibility. Sometime later in the day, Dockrey met Clyde Hoffman, the Respond-
ent's attorney, and remarked that he understood employees had the right to vote
on their contract. But Hoffman told Dockrey he would have to see another lawyer.
On the same afternoon, Dockrey accompanied King to the office of Attorney
Himelick in Connersville. Upon being told of the purpose of their visit, Himelick
suggested that he draw a petition by the employees to the Union asking for the right
to vote. Upon Dockrey's and King's request, Himelick drafted such a petition and
Dockrey took it back to the store where he gave it to employee Weston to obtain the
signatures of employees. Neither King nor Dockrey paid Attorney Himelick for
his service nor has the attorney billed them for it.
Employee Weston and Dockrey began circulating the petition and asking em-
ployees to sign it that afternoon at the store. But Respondent President David Cox
told Dockrey he could not circulate the petition in the store. Accordingly, King,
Dockrey, and Weston visited employees' homes that night and, by their efforts,
succeeded in getting 32 signatures, including those of Dockrey and Brown.
The petition simply asked the Union for the right to vote on the Respondent's
counterproposal to the Union concerning wages. Accompanying the petition at
least at some stage of the solicitation of employees' signatures was a statement which
King had drafted and which described the Respondent's counteroffer on wages as
providing one 10-cent-an-hour increase immediately for full-time employees and an
immediate 5-cent raise followed by another 5-cent raise in September for part-time
employees, but eliminating the bonus then currently being paid by the Respondent.
According to Dockrey's testimony, this was essentially the Respondent's counteroffer
and one which the group circulating the petition believed to be fair.
In addition to soliciting signatures to the petition in the store, Dockrey accom-
panied King and Weston in their visits to employees' homes. From the record, it
appears merely that Dockrey explained the Respondent's wage offer and asked the
employees to sign the petition. In several cases, however, Weston told the em-
ployees in Dockrey's presence that it did not look as if the Respondent could meet
the Union's demands and that if the Union pressed the issue, the Respondent could
be forced out of business.
On December 29, 1964, the Respondent's and the Union's representatives held one
of their bargaining sessions at the YMCA. During a recess, Dockrey presented the
petition to Union Representatives Sandford and Milli. Upon reading the petition,
Milli said it was "the biggest piece of junk" he had ever seen. And Sandford tore
the petition in half, and told Dockrey to leave the room.
Although the Union's representatives thus became aware of Dockrey's involve-
ment in the activities of the Respondents' employees, it does not appear that the
Union brought the matter to the Respondent' s attention , much less that it made any
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protest to the Respondent For Union Representative Milli testified that, although
he was aware of antiunion activities on the part of both Dockrey and Brown and
the nature of these activities, the Union never asked the Respondent to stop them
On the other hand, as I have noted, President Cox of the Respondent knew that
Dockrey was circulating the December 28 petition in the store that day, having been
so informed by Store Manager Barber, and merely forbade the circulation of the
petition in the store. According to Cox's testimony, he had immediately consulted
Hoffman, the Respondent's attorney, about Dockrey's activity and Hoffman had said
that Cox was to "stop it."
2. The "Cox Market Employees' Association"
When the Union began picketing the Respondent's store on January 15, 1965,
some of the women employees became disturbed because they were not in favor of
the picketing and were being asked by customers what the reason for the picketing
was. Here again, as in December, employee Barbara King took the initiative. Both
she and employee Pauline Nestor told Don Brown that they believed something
should be done to express the employees' point of view and suggested that perhaps
an advertisement might be run in the local newspaper. Brown agreed.
Either King or Brown (it is not clear which of them it was) thereupon prepared
a statement which the employees were to sign and which was to provide the wording
of the newspaper ad. In substance, the statement (to which the witnesses all referred
as a "petition") asserted that the picketing of the Respondent's store was "not en-
dorsed by the majority of the employees"; that, having been told "we would have
the right to draw up our own contract" and vote on the Respondent's proposal, the
employees had presented a petition to the Union "for the right to vote on the
Company's counterproposal", but that "no steps [had been] taken [by the Union]
to recognize it [the employees' petition]" and that the "bargaining agents [had] made
it plain they do not intend to give us any participating rights."
On January 16, Brown and King got the signatures of about 24 employees on
this statement or "petition," by asking the employees to sign it at the store before
10 o'clock and by visiting 12 or 15 other employees at their homes. Although there
was no objection made by the Respondent, it does not appear that President Cox or
the store's manager or assistant manager knew of their activity. In his testimony,
President Cox specifically denied any knowledge.
After getting the employees' signatures on the statement or "petition," Brown sub-
mitted it to the local newspaper. But the newspaper later telephoned Brown and
informed him that it could not run the ad because of its policy "not to become a
party to a debate " Brown asked why the paper had printed the Union's ad and re-
fused to print the employees' statement, and the reply was that the employee group
was not "a recognized body and .. . would have to organize."
Brown and King then consulted John Kerrigan, another attorney in Connersville,
about organizing an employees' association to sponsor the advertisement. On Janu-
ary 26 or 27, acting upon Kerrigan's advice, King and Nestor drafted a brief set of
bylaws for a "Cox Market Employees' Association" which were to be signed by the
Respondent's employees who desired to become members. The bylaws as thus
drafted set forth the name of the Association, provided for the conduct of its activities
by a president, vice president, secretary, and treasurer, and the subscription of the
signatures of the employee members. The only other provisions in the bylaws were
the following:
ARTICLE II
The purpose of this Association is:
1. The welfare of the employees of Cox Market of Connersville.
2. To insure the rights of members of this group with regards to intimidation
of outsiders through advertising or other media.
ARTICLE IV
The support of this organization will be contributed by members of this
association through dues.
Between January 26 or 27 and February 1, 1965, Brown and Dockrey solicited the
signatures of employees at the bottom of the bylaws, both at the store and at the
employees' homes, and, in all, procured 39 signatures. Here again , although the
Respondent did not stop them, it does not appear that the Respondent knew of their
activity. Moreover, Brown testified that no notice was then given to the Respondent
that an association was being formed and President Cox denied any knowledge
until after it was formed and its advertisement appeared in the local newspaper.
COX MARKET, INC. 9
On February 1, 1965, the Association held its first meeting at the YMCA and
the members elected officers by writing their choices on slips of paper which were
collected and counted by an election board including Dockrey who was not a
candidate. Although three other employees were nominated for the office, Brown
was elected president. Barbara King was elected secretary. Dues were fixed at
$3 a month for full-time employees and $1 a month for part-time employees, and
were then and thereafter paid by the members for each of the few months the
Association had been in existence before the hearing in the present case. Rent for
the use of the YMCA meeting place and other expenses, including the $35 cost of
two advertisements which the Association then placed in the local newspaper, have
been paid out of the Association's treasury. No bill, however, has been submitted
by Attorney Kerrigan for his advice and services.
Following the first meeting of the Association and the election of its officers,
Attorney Kerrigan prepared the following advertisement which was thereupon pub-
lished in the local newspaper apparently on Thursday and Friday, February 4 and 5:
-NOTICE-
TO THE CUSTOMERS AND FRIENDS OF
COX SUPER MARKET ... .
We, an Association of the majority of employees of Cox Super Market have
requested an opportunity to VOTE on the Company's contract proposal.
We HAVE NOT been permitted to do so! No employee of this company is
picketing our store. We solicit your patronage and support.
COX MARKET EMPLOYEES' ASSOCIATION
OF CONNERSVILLE
DON BROWN, PRESIDENT
On February 22, Brown, as the Association's president, mailed letters to the
Union and to the Respondent, advising them of the formation of the Association. By
mistake, he reversed the enclosures and the Union actually received the Respondent's
letter while the Respondent received the Union's letter. Both letters refer to the
employees' desire for a vote on the contract. In the letter addressed to the Union,
but which was sent by mistake to and received by the Respondent, Brown said that
the employees who were members of the Association "feel their bargaining agent
should be responsive to its members' desires .
As I have noted, President Cox testified that he knew nothing of the formation of
the Association until its advertisement appeared in the newspaper. Moreover, so
far as the record shows, there has been no communication between the Association
and either the Union or the Respondent other than in the Association's letters of
February 22. While there was some evidence that the Association's advertisement
was posted in the store, President Cox, Store Manager Barber, and Assistant Store
Manager Roberts denied having seen, or having been responsible for, any such post-
ing or its continuance. Crediting their testimony, I make no finding, as the General
Counsel and the Union apparently urge, that the Respondent was responsible for any
posting of the Association's advertisement nor, in this manner or in any other man-
ner, for indicating the Respondent's sympathy with the Association or its instigation
or acceptance of the Association's assistance in limiting the contract terms to those
which might be approved by the Association.
C. Incidents involving Manager Barber and Assistant Manager Roberts
In addition to the evidence relating to Dockrey's and Brown's activities, the
General Counsel produced the testimony of two employees concerning remarks
and statements which were allegedly made to them or in their presence by Assistant
Store Manager Roberts on four different occasions, with Store Manager Barber
participating on one of these occasions. In each of these instances, according to the
General Counsel and the Union, the remarks made were antiunion and constituted
interference, restraint, and coercion attributable to the Respondent and violative
of Section 8(a)(1) of the Act.
On one of these occasions, according to the uncontradicted testimony of cashier
Betty Sims which I credit, she was waiting one evening for her husband to call for
her at the store and Assistant Manager Roberts was standing with her. As they
stood there, they talked about the Union. Although it does not appear who intro-
duced the subject, nor what else was said either by Roberts or Sims, she testified that
Roberts remarked to her that he thought "there would be a store and no Union or
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Union and no store"; that President Cox would not permit picketing but "that he
would sign with the Union first"; i.e. that he "would sign with the Union and if
he couldn't meet [the Union's] demands, he would just have to close the doors."
[Emphasis supplied.] Upon consideration of this testimony, I see no logical or
permissible construction of Roberts' remarks other than that he told Sims in effect
that the Respondent would "sign" a contract with the Union unless impossible de-
mands by the Union made it necessary to close the store. There was thus no threat
to close the store to avoid bargaining in good faith with the Union, as the General
Counsel apparently believes, nor any such interference with, restraint, or coercion
of the employees in their right to be represented by the Union which would be an
unfair labor practice within the meaning of Section 8(a)(1) of the Act. I so find.
The testimony as to the remaining three incidents involving Assistant Store Man-
ager Roberts, and in one instance also Manager Barber, was given by Don Thomas
who at the time was employed by the Respondent as a grocery clerk and who, as
I have noted, was one of the employees on the bargaining committee with the
Union's representatives at the negotiating meetings with the Respondent in Decem-
ber 1964 and January 1965.
In the first of these incidents, which occurred just after the November 1964 rep-
resentation election, Thomas (as well as Manager Barber and Assistant Manager
Roberts) testified that Barber and Roberts called Thomas to the office and repri-
manded him for his failure to drain the well of the store's "air door" over the week-
end. Thomas testified that the manager and the assistant manager also told him
that Thomas' persuasion of the part-time boys to vote for the Union was "one of
the main reasons that the Union had got in"; and that when Thomas denied having
exerted any such influence on the part-time boys, Barber said that he had heard
Thomas talking to the boys on the floor of the store, that Thomas knew this was
"illegal," that the Respondent's "hands had been tied before the election," but that
"now things were going to change." Both Barber and Roberts denied that the Union
had even been mentioned in this conversation and testified that they had merely
reprimanded Thomas not only about the "wind door" but also about his failure to
maintain his area of the store properly. On consideration of this conflicting testi-
mony I credit that of Barber and Roberts and find that, in this incident, they did
not attempt to repress Thomas' union activities nor interfere with any of his em-
ployee rights in violation of Section 8(a)(1) of the Act.
As to the second incident involving Assistant Store Manager Roberts to which
Thomas testified, Thomas' testimony was uncontradicted and I therefore credit it.
This incident occurred in the end of December 1964 or the beginning of January 1965
just after Thomas had been asked by Dockrey to sign, and some of the other em-
ployees did sign, the petition to the Union for the right to vote on the contract
proposal made by the Respondent. At that time, Thomas overheard Assistant
Produce Manager Alvin Laughlin tell Roberts he thought President Cox would close
rather than give in to the Union or the "union shop," and also ask Roberts for a
leave of absence so he (Laughlin) could go to Texas. Roberts agreed that, in view
of President Cox's "moral beliefs," Cox would "close shop rather than receive the
Union," but that it would be better if Laughlin quit instead of taking a leave of
absence.
From Thomas' testimony to this effect it does not appear that Roberts' remarks were
either directed to Thomas or that it was intended or realized by Roberts that Thomas
would overhear them. Furthermore, the only reference in the record to Laughlin
described him as "assistant produce manager" and thus apparently as a supervisor.
It cannot be said upon this state of the record that Roberts' remarks were made to,
or intended to be heard by, an employee, nor therefore that the remarks can reason-
ably be construed as a threat made by the Respondent to an employee that the
Respondent would close the store to prevent consideration and the possible con-
cession of one or more of the Union's bargaining requests I therefore do not find,
as the General Counsel and the Union urge, that Assistant Store Manager Roberts'
remarks constituted interference with, restraint, or coercion of employees within the
meaning of Section 8(a)(1) of the Act Moreover, since neither Roberts nor
Laughlin played any role in determining the Respondent's position or the course it
or President Cox would follow, Roberts' remarks must be regarded simply as an
opinion expressed by one supervisor to another concerning their employer's attitude
and not necessarily as a reflection of such an actual intransigence on the part of the
employer with respect to bargaining issues as would amount to a refusal to bargain
in good faith within the meaning of Section 8(a)(5) of the Act.
COX MARKET, INC. 11
As to the third incident involving Assistant Manager Roberts which occurred at
the end of January or the beginning of February 1965, Thomas and Roberts agreed
in their testimony that Roberts complained to Thomas that Thomas was slow in his
work and shifted Thomas' schedule of working hours to coincide with Roberts'.
Thomas testified that Roberts said since the Union had been in the store, Thomas
had become slower and slower in his work; that if Roberts were Thomas he would
go to another store because Thomas had shown disloyalty to Cox through his sup-
port of the Union and through his wife's buying at another store; and, finally, that
Cox had been more tolerant of Thomas' loyalty to the Union than other employers
would have been and that if Roberts were Cox, Thomas "would have left [the
Respondent's employ] long ago." But Roberts testified that in this conversation he
had not mentioned the Union in reprimanding Thomas for his slowness; that he told
Thomas he was going to schedule the same hours for Thomas as for himself so that
he could be sure Thomas would get his work done; that Thomas then said that the
Respondent was "just trying to get something on him" because of his union activities;
and that Roberts replied that he was not trying to "get" Thomas and that President
Cox said there would be no reprisals. Upon consideration of this conflict in the
testimony, I credit Roberts' testimony and, finding that Roberts' testimony has set
forth the substance of the conversation, I also specifically find that Roberts did not
refer to Thomas' union activities in reprimanding Thomas, nor charge Thomas with
disloyalty or in effect threaten him with discharge because of his union activities.
D. Conclusions
Upon the considerations just set forth, I have concluded contrary to the allega-
tions of the complaint, that there is no credible evidence that Store Manager Leon
Barber or Assistant Store Manager Clyde Roberts by any statements made by them
to employees or by any other action interfered with, restrained, or coerced em-
ployees in the exercise of the employees' rights under Section 7 of the Act Accord-
ingly, I will recommend dismissal of those allegations of the complaint which assert
that the Respondent through the statements or actions of Barber or Roberts com-
mitted unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
There remains the broad question of whether, under the peculiar circumstances
of this case, the Respondent was and is responsible for the acts of Department
Heads John Dockrey and Donald Brown and, through their acts (as the complaint
alleges), committed unfair labor practices within the meaning of either or both
subsection 8 (a) (1) and (5) of the Act.
In accordance with the Regional Director's certification in Case No. 25-RC-2716
and upon the basis of the proceedings had therein, I conclude that on and since
November 13, 1964, the Union has been and is the exclusive representative of all
the Respondent's employees in the employee unit described in the Regional Director's
certification as being appropriate for the purposes of collective bargaining within the
meaning of Section 9(a) and (b) of the Act. Furthermore, as I have already found
upon the evidence in the present case and despite the murkiness of the positions of
the parties before the hearing, Department Heads John Dockrey and Donald Brown
have at all times been supervisors within the meaning of Section 2(11) of the Act,
and not employees within the appropriate bargaining unit.
Although the Union has thus been their exclusive bargaining representative under
the Act, the Respondent's employees were entitled to representation in accordance
with their desires and, to the extent that they or any group of them attempted to
influence, govern, or control the objectives and the tactics of the Union to that end,
they were engaged in such "concerted activities for the purpose of collective bargain-
ing" as have been guaranteed to them by Section 7 of the Act and protected against
interference both by the Union representing them and their Employer 8 The em-
ployees themselves therefore might properly have attempted to persuade the Union
to accord them the right to vote on contract terms and even, as some of them
apparently intended, to accept the terms offered by the Respondent. So far as they
8N.L.R.B. v. Nu-Car Carriers, Inc., 189 F. 2d 756, 760 (C.A. 3), cert. denied 342 D.S.
919, enfg. 88 NLRB 75, 76 , 88-89; Roadway Express , Inc., 108 NLRB 874, 875, enfd.
sub nom. N.L.R.B. v. International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, Local 823, 227 F. 2d 439 (C A. 10) ; Roadway Express, Inc.,
119 NLRB 104 , 107-108, enfd . 257 F. 2d 948 ( C.A 4) ; Cooper Alloy Corporation (Air-
craft Division ), 120 NLRB 586 ; Honolulu Star-Bulletin, Ltd ., 123 NLRB 395 , 407-408,
remanded on other grounds 274 F. 2d 567 (C.A.D.C.).
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves were concerned, it was their protected right to pursue such a course by
bringing their concerted pressure to bear upon the Union through the December 28,
1964, petition and the newspaper advertisements in the beginning of February 1965.
Furthermore, the formation of the Cox Market Employees' Association, as part of
their scheme of pressure upon the Union, was also a protected activity so far as the
employees were concerned. For, although the employees in the Association were
apparently favorable to an acceptance of the Respondent's contract terms, they made
no attempt to deal with the Respondent nor therefore to substitute the Association
for the Union as their representative. Instead, as the Association stated on Febru-
ary 22, 1965, in the letter which it directed to the Union but which by mistake was
mailed to and received by the Respondent, its purpose was merely to convince the
Union that, as "their bargaining agent [it] should be responsive to its members'
desires," an objective which the Board and the courts have repeatedly approved as
being protected by Section 7 of the Act .9
Dockrey's and Brown's participation in and leadership of these proper activities
of the employees, however, constituted an interference which the Act was designed
to eliminate. For regardless of how the Union and the Respondent treated them,
these two men were actually supervisors under the tests laid down by the Act, and
their supervisory authority not only gave them the power to affect the status of
employees but was likely to create the impression that they were exercising their
influence upon the employees with the approval of the Respondent. Since the
General Counsel has made this supervisory interference with employee rights the
sole basis for his contention that the Respondent committed unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act, what effect, in
its determination of the ultimate unfair labor practice issues and the terms of an
appropriate remedial order, should the Board give to the fact that the Union, in
dealing with the Respondent, insisted that Dockrey and Brown were not super-
visors? For the reasons which follow I conclude that the facts as shown by the
evidence in the present case justify and require findings that the Respondent engaged
in unfair labor practices within the meaning of Section 8(a)(1), but not Section
8(a)(5) of the Act, with a correspondingly limited remedial order.
From the evidence, it appears, and I find, that the Respondent (personified in this
small-business operation by President Cox) knew nothing of its employees' activity
critical of their Union's course in bargaining nor of Dockrey's or Brown's roles
therein before they developed and had any effect and certainly that the Respondent
did not instigate or encourage Dockrey's or Brown's participation Furthermore,
before any of the employees' or Dockrey's or Brown's activity began the Respondent
had already formulated and presented its contract terms to the Union and then con-
tinued to negotiate with the Union in an apparent attempt to reach an agreement
acceptable to both sides without reference to or any attempt to take advantage of
the employees' activities. Throughout all this, by insisting that Dockrey and Brown
were employees in the bargaining unit it represented despite the Respondent's pro-
testation of December 16 that they were actually supervisors, the Union was as much
to blame as the Respondent for permitting Dockrey's and Brown's participation as
putative employees in the general employee activity critical of the Union. For
although it possessed as much information about Dockrey's and Brown's activities
as did the Respondent, never once did it make any protest to the Respondent or
ask that this activity be stopped or repudiated by the Respondent. But, despite all
this (i.e., the absence of any authority, instigation, encouragement, or approval by
the Respondent, and the Union's initial and continuing responsibility for the situa-
tion which permitted Dockrey and Brown to act though they were merely em-
ployees), Dockrey's and Brown's activities were actually those of the Respondent's
supervisors; they did interfere with the employees' freedom to engage in, or to re-
frain from engaging in, concerted activities protected by the Act; and under the
principles underlying the Act and recognized by the Board and the courts, the Re-
spondent as the Employer was responsible for Dockrey's and Brown's activities even
though unauthorized and also for the interference which these activities brought to
hear upon the employees Accordingly, I find and conclude that the Respondent
through the activities of Dockrey and Brown did interfere with, restrain, and coerce
its employees in the exercise of their right tinder Section 7 of the Act and thereby
committed unfair labor practices within the meaning of Section 8(a)(1) as the
complaint alleges.
0 Ibid. See particularly Nu-Car Carriers, Inc , 88 NLRB 75, 88-89.
COX MARKET, INC. 13
Certainly, the general effect of this interference was to give the Respondent an
appreciable advantage in dealing with the Union at the bargaining table. The
pressure exerted upon the Union by the activities of the employees and Dockrey
and Brown as putative employees, favored acceptance of the Respondent's contract
terms, withdrew the employees' support of the Union's bargaining objectives, and, in
that sense, "undercut" the Union as the General Counsel and the Union both point
out. Furthermore, if fair and free bargaining is yet to proceed under the Respond-
ent's continuing, general statutory obligation to bargain with the Union as certified
exclusive bargaining representative, the Respondent's bargaining advantage traceable
to Dockrey's and Brown's activity should be wiped out, as far as possible, through an
appropriate remedy of the supervisory interference which I have found to be an
unfair labor practice on the part of the Respondent within the meaning of Section
8(a)(1) of the Act. But, at the same time, the employees' future exercise of their
free and independent right to engage in concerted activities, vis-a-vis the Union,
should not be limited nor disturbed.
On the other hand, under the peculiar circumstances of its case, the mere fact
that in its negotiations with the Union the Respondent may have derived a bargain-
ing advantage from its supervisors' improper activities does not, in my opinion, pro-
vide a sufficient basis for a finding that it failed or refused to bargain with the
Union in the good faith required by the Act, nor therefore that it had violated not
only Section 8(a)(1) but also Section 8(a)(5). On the contrary, upon the facts
shown by the present record it appears that the Respondent did bargain in good
faith in an attempt to reach an agreement; that it established its position with respect
to the various issues even before any of the objectionable supervisory activities began
and then merely adhered to this position as did the Union to its counterposition;
that the Respondent did not know of, much less authorize or give its approval to,
its supervisors' activities; that it did not plan nor exploit the bargaining advantage
which it received from these activities; and that the Respondent's very bargaining
advantage of which the General Counsel and the Union now complain was primarily
the result of the position taken by the Union that Dockrey and Brown were em-
ployees and not supervisors. It would therefore be impossible to find upon any of
the facts in this case that this Respondent failed or refused to bargain in good faith.
Nor would the finding of a violation of Section 8 (a) (1) of the Act, which I have
made upon the supervisors' activities, warrant an order to bargain. For such an
order would contain implications of a violation of the Act by Respondent beyond
the Section 8(a)(1) interference found, and would serve to place the Respondent in
an undeservedly disadvantageous position upon a resumption of negotiations with
the Union. In any event, as I have already stated, the Respondent is still under the
general statutory obligation to bargain with the Union as the exclusive bargaining
representative of all the employees in the appropriate bargaining unit, and the most
that can fairly be required of the Respondent is that it take such steps as are possible
for the dissipation of the effects of the Section 8(a)(1) violation found. Whether
the recommendations I hereinafter make will be sufficient, is conjectural, but, as I
have pointed out, it was not the Respondent, but the Union which created the situa-
tion permitting Dockrey and Brown to act as they did.
For the foregoing reasons, I shall recommend dismissal of those allegations of
the complaint which assert violation by the Respondent of Section 8(a)(5) of the
Act, and the issuance of an order against the Respondent confined to my Section
8(a)(1) findings based upon the improper supervisory activities of Dockrey and
Brown.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the business operations of the Respondent as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent through its supervisors, John Dockrey and
Donald Brown , has engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The essence of the unfair labor practices which have been found is that Super-
visors Dockrey and Brown, although without the Respondent's authority, participated
and were among the leaders in concerted activities of the Respondent's employees
which undercut the Union's bargaining position and tactics and favored acceptance
of the Respondent's contract proposals. To dissipate the effect of these activities of
the supervisors so far as it is possible, and to prevent their continuance or resumption,
I shall recommend that the Respondent:
(1) Issue written instructions to John Dockrey and Donald Brown that, upon
penalty of discharge so long as they occupy their present or other supervisory posi-
tions with the Respondent, they are to cease, and in the future refrain from, par-
ticipating with, counseling, or advising any of the Respondent's employees in the
exercise of the rights guaranteed by Section 7 of the Act, and that they are also to
withdraw from, and hereafter refrain from, holding membership or any position or
office in the Cox Market Employees' Association or any similar future group of the
Respondent's employees which may be formed.
(2) Require Dockrey and Brown to comply with these instructions.
(3) Notify it employees as provided in my Recommended Order that: (a) It has
issued the foregoing written instructions to Dockrey and Brown and intends to en-
force them; (b) it disavows and repudiates the action of Dockrey and Brown in
their participation with, counseling, and advising its employees in the employees'
concerted activities under Section 7 of the Act; and (c) it recognizes, and will not
in the future interfere with, its employees' independent exercise of the right to engage
in, or to refrain from engaging in, the concerted activities guaranteed by Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent , Cox Market, Inc., is an employer engaged in commerce within
the meaning of the Act.
2. Local 725, Retail Clerks International Association , AFL-CIO, is a labor organi-
zation within the meaning of the Act.
3. All employees of the Respondent employed at its Connersville store, exclusive
of meat department employees , guards, professional employees , store manager , assist-
ant store manager, and all supervisors as defined in the Act, constitute , and at all
material times have constituted , a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. On and at all times since November 13, 1964, the Union has been, and now
is, the exclusive representative of all employees in the aforesaid bargaining unit for
the purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. At all times material herein, John Dockrey and Donald Brown have been
supervisors and not employees within the meaning of the Act.
6. By the acts of its supervisors , John Dockrey and Donald Brown , in participat-
ing with , counseling , and advising the Respondent 's employees in the aforesaid bar-
gaining unit in the employees ' exercise of the rights guaranteed by Section 7 of the
Act, the Respondent has interfered with , restrained , and coerced employees in the
exercise of said rights and has thereby committed unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent has not refused to bargain collectively with the Union in good
faith and therefore has not committed unfair labor practices within the meaning of
Section 8 ( a)(5) as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that the Respondent, Cox Market,
Inc., an Indiana corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from interfering with, restraining, and coercing its employees,
through the acts of its supervisors, in the employees' exercise of their right to engage
in, or refrain from engaging in, the concerted activities for the purpose of collective
bargaining which are guaranteed by Section 7 of the Act.
COX MARKET, INC. 15
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Immediately issue written instructions to John Dockrey and Donald Brown
that, upon penalty of discharge so long as they occupy their present or other super-
visory positions with the Respondent, they are to cease, and in the future refrain
from, participating with, counseling, or advising any of the Respondent's employees
in the exercise of the rights guaranteed by Section 7 of the Act, and that they are
to withdraw from, and hereafter refrain from holding, membership or any position
or office in the Cox Market Employees' Association or any similar future group of
the Respondent's employees which may be formed.
(b) Require Dockrey and Brown to comply with the foregoing instructions.
(c) Post at its store in Connersville, Indiana, copies of the attached notice
marked "Appendix." 10 Copies of said notice, to be furnished by the Regional
Director for Region 25, shall, after being signed by a representative of Respondent,
be posted by it immediately upon receipt thereof, and be maintained for a period
of 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 25, in writing, within 20 days
from the receipt of this Decision, what steps the Respondent has taken to comply
herewith."
10 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees, through the
acts of our supervisors, in the employees' exercise of their right to engage in,
or refrain from engaging in, the concerted activities for the purpose of collective
bargaining which are guaranteed by Section 7 of the Act.
WE HAVE issued, and will enforce, written instructions to Department Heads
John Dockrey and Donald Brown, that, so long as they occupy their present
or other supervisory positions with us and upon penalty of discharge, they are
to cease, and in the future refrain from, participating with, counseling, or advis-
ing any of our employees in the exercise of the employees' rights guaranteed
by Section 7 of the Act, and that they are to withdraw from, and hereafter
refrain from holding, membership or any position or office in the Cox Market
Employees' Association, or any similar future group of our employees which
may be formed.
WE DISAVOW AND REPUDIATE the action of Department Heads John Dockrey
and Donald Brown in their participation with, counseling, and advising our
employees in the employees' concerted activities under Section 7 of the Act.
WE RECOGNIZE, and WILL NOT in the future interfere with, our employees'
independent exercise of their right to engage in, or to refrain from engaging in,
any of the concerted activities guaranteed by Section 7 of the Act.
COX MARKET, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose
3-8921.
Local 157, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO and Midwest Homes, Inc. Case No. 25-
CC-133. October 1, 1965
DECISION AND ORDER
On July 22, 1965, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Trial Examiner's Decision.
Pursuant to Section 3(b) of the National Labor Relations Act,
as amended, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Respondent, Local 157, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
The charge herein was served on Respondent on March 10 , 1965,1 the complaint
issued on April 9, and the case was heard on June 2 before Trial Examiner Sidney
Sherman . The issues litigated related to alleged violations of Section 8(b)(4)(i)
and (ii)(B ). After the hearing briefs were filed by the General Counsel and
Respondent.
i All events herein occurred in 1965, unless otherwise stated.
155 NLRB No. 5.