211 N.L.R.B. 991 (N.L.R.B. 1974)

Horton's Market

National Labor Relations Board - Board DecisionsJun 25, 1974

211 N.L.R.B. 991 (N.L.R.B. 1974)

HORTON'S MARKET 991 Alan L. Horton, Inc. d/b/a Horton's Market and Retail Clerks Union, Local 1167, Retail Clerks International Association, AFL-CIO and Charles H. Orr. Cases 21-CA-11803, 21-CA-11811, and 21-CA-12100 June 25, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 22, 1974, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding . Thereafter , Respondent filed exceptions and a supporting brief , and General Counsel filed a brief in answer to the exceptions. 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. 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 , Alan L . Horton, Inc. d/b/a Horton 's Market, Desert Hot Springs , Califor- nia, its agents , successors , and assigns , shall take the action set forth in the said recommended Order. Respondent thereafter engaged in direct bargaining with employees all in violation of Section 8(a)(5); that on March 14, and May 10, 1973, Respondent unlawfully discharged two named employees because of their union activities in violation of Section 8(a)(3); that Respondent unlawfully interrogated employees concerning their union member- ship and engaged in activities creating the impression of surveillance of employees' union or protected activities in violation of Section 8(axl) of the Act. Respondent's answer admits the procedural and jurisdic- tional allegations of the consolidated complaint but denies the remaining substantive allegations, including the appro- priateness of the unit. Respondent further contends that the Union gained its exclusive bargaining representative status by fraud, coercion and misrepresentation and, consequently, is not the exclusive representative of Res- pondent's employees. All parties were afforded full opportunity to appear, to introduce evidence, examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs were filed by both the Respondent and the General Counsel. Upon the entire record in the case,' and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a corporation, is engaged in the operation of a retail grocery store in Desert Hot Springs, California. Respondent annually derives gross revenues in excess of $500,000 and annually purchases and receives goods and supplies valued in excess of $50,000 from suppliers located within the State of California who, in turn, purchase and receive said goods and supplies directly from suppliers located outside the State of California. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED DECISION STATEMENT OF THE CASE JAMES S . JENSON, Administrative Law Judge: This case was tried before me in Palms Springs, California, on October 23, 24, and 25, 1973. The Amended Consolidated Complaint which issued in Cases 21-CA-11803, 21-CA-11811 and 21-CA-12100 on September 26, 1973, pursuant to charges filed on May 15, May 21, and September 4, 1973, respectively, alleges that Alan D. Horton, Inc., d/b/a Horton's Market, herein called the Respondent, violated Sections 8(a)(1), (3), and (5) of the Act. Specifically, the consolidated complaint alleges that Respondent has refused to bargain in good faith with the Union following a third party certification that the Union was the bargaining representative of Respondent's employ- ees in an appropriate collective-bargaining unit, and that ' The General Counsel filed a motion to correct transcript of the record. In the absence of any opposition and with the exception of proposed correction 4, the motion is granted. Retail Clerks Union, Local 1167, Retail Clerks Interna- tional Association , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology of Events In late February or early March 1973,2 Respondent's employees commenced talking about joining a union. Carol Stan, one of the checkers, agreed to contact the Union and find out what had to be done. Upon being informed that she should "get up a petition" containing 51 percent of the employees' signatures, Starr prepared a petition which she circulated among her fellow employees during lunch hours and before and after work.3 Thirteen employees, including Starr and Charles Orr, the alleged discriminatees, signed the petition. By letter dated March 2 All dates herein are in 1973, unless otherwise stated. 3 Starr had previously worked in a union market and was currently on withdrawal. 211 NLRB No. 128 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 13, Starr forwarded the petition to the Union with a covering letter asking for assistance. On March 14, Respondent informed Charles Orr that he was being terminated for lack of work.4 Alan Horton, herein called Horton and Respondent, testified that he had also considered discharging Starr about this time and had gone so far as to make out her final paycheck but changed his mind and voided the check.5 Late in March, a union representative contacted Starr and asked that she arrange for a meeting with Respondent's employees. Accordingly, on April 4, nine employees and Carl Smith, an organizer for the Union, met at Staff's home. All nine signed an attendance sheet and authorization cards designating the Union as their exclusive bargaining representatives At or about this time , Vicki Croslin,7 who had been approached by Starr and several other employees regarding the Union, called Horton on the phone and told him the employees were organizing and that she wanted to talk to him about it away from the store premises. That evening, Mrs. Wiener met with Respondent at the latter's home and informed him that the employees were circulating a union petitions While Horton denied that the names of any employees were mentioned, Wiener's testimony with regard to the matter is as follows: He asked me to sit down and he said at first that he thought that something like this might be going on because he had been rather distant with his employees for several days. Then he asked me if I knew who it was that was trying to get the Union in the store and I said "Yes," but I was not going to mention any names. I just came to tell him that they were trying to get the Union in the store and I didn't feel it was fair that they were doing it behind his back. He then asked me if I felt the problem was from one of the previous union members and he then mentioned Chick in produce, Mike, the clerk, Carol, the checker, and Betty Lowe, a box girl. I said it could be but I didn't know. Q. Who is Chick that you referred to? A. Charles Orr. Then he went on and asked me if I 4 Orr testified without contradiction that in his application for employ- ment with Respondent he had listed previous employment with Alpha Beta, a "union supermarket" in Southern California 5 Starr testified without contradiction, that in early March, Jane Sandstol, Respondent 's bookkeeper , told her that Horton " . has found out where this [the Union ] has started " 8 Donna Morrow, a checker hired on March 2, testified for Resrgndent that Smith told the assembled employees " . that the Union would pick up the men's back pension for the time they had been at Horton's . . . there had been cases that it has been picked up and that he was sure the Union would pick it up." Conlon, an employee also called by Respondent, testified that at "The first union meeting there was no mention made of pensions, period." Smith 's testimony regarding the subject of pensions at the April 4 meeting was "I read off the summary where our pension after 20 years' services currently paying $400 a month retirement ." On the basis of the testimony of Conlon and Smith, I conclude and find that Morrow was mistaken as to what Smith said on April 4, and discredit her testimony in this respect 7 At the time of the trial, Croslin had remarried and become Mrs. Wiener . Reference will be made to her hereafter as Mrs Wiener. 8 Wiener testified that this meeting with Horton took place approximate- ly a week prior to the April 12 meeting at Starr's home I find, therefore, that felt the problem was with the checker. I said that it could be. He then said that "Do you feel if we get rid of her we would be getting rid of our union problems?" I said, "I didn't come here to let you know if he or she but that the problem existed." Then he made a comment that he thought if he got rid of Chick, who is Charles Orr, he would be getting rid of the union problem and then I asked him what would happen if the union came in and so forth and he told me about the ten years ago that they tried the same thing but it wasn't successful and as I was leaving his home, he asked if I attended any union meetings and at the time I had not and I told him "No," and he asked me if I would then keep him informed of anything progressing with the matter and I said I would .9 On April 5, Horton informed employee Conlon "At last I have got something going on retirement," and showed Conlon a paper from Respondent's insurance camer.10 After reading the document, Conlon informed Horton that he had attended a union meeting the night before, after which Horton asked "Has it reached the point of no return?" to which Conlon replied "I couldn't say." Two days later, April 7, Starr was terminated. She was advised by Horton that ". . . business was slow and ... with my experience in checking I wouldn't have a hard time finding another job ...." Pursuant to arrangements made by telephone the previous day, on April 11, Smith met with Horton and his attorney, and upon being denied a card check, advised them that the Union would file a petition for an election.ii The evening of April 12, Respondent's employees again met with union representatives at Stair's home. During the day Wiener, who had been invited to the meeting, told Horton of the scheduled meeting and that she might attend. She testified that Horton's response was ". . . I didn't have to go if I didn't want to but if I did, would I let him know what it was the Retail Clerks Union had to offer his employees over what he could offer." Wiener attended the meeting along with 11 other employees. The following day Horton asked Wiener if she had attended. When she replied affirmatively, "He asked me who was there and I Wiener met with Horton at his home on or about April 5. 9 Wiener's manner of testifying and her demeanor in general leads me to believe she was a reliable and honest witness Horton admitted he met with Wiener at his home for 10 or 15 minutes and that she told him the employees were circulating a petition. He denied that any names were mentioned and that he had asked her any questions. Horton's bearing and manner of testifying indicated to me a desire to hide the truth. Moreover, he impressed me as being intent upon volunteering information unrelated to the case which he apparently felt would have an adverse effect upon Wiener's credibility. My impression was confirmed in Respondent's brief where, as a reason for not crediting Wiener's testimony, reference was made to "certain rumors" which Horton had purportedly heard about her Accordingly, I reject Horton's testimony wherever it conflicts with Wiener's io Conlon had approached Horton a month or two earlier regarding a pension or retirement plan ii Smith had first gone to the store on April 10 to talk to Horton who, it turned out, was absent. An altercation took place between Joe Horton, Respondent's son, and Smith, wherein Joe made a physical threat against Smith Joe, at Smith 's suggestion , called the sheriff, who refused to extricate Smith from the store. Joe Horton is in charge of the store in his fathers absence and possesses other indicia of supervisory authority I therefore find him to be a supervisor within the meaning of the Act HORTON'S MARKET said, 'Most of the employees' and he then wanted to know what it was the Union Representative Carl Smith talked about and I told him that they mostly talked about benefits, salary, vacations and medical." She further testified: Then he went on and asked me if they had said anything about the pension and I told him that they did, that Carl Smith had stated there might be a way for those who had union cards to pick it up when the store became union without any cost to them. He didn't promise but he said he would look into it. With that, Mr. Horton laughed and said it sounded like they had a good salesman and I laughed and said they did have a good salesman, that it sounded like he was trying to sell a Cadillac for the price of a Volkswagen. The only question that he asked me was if I attended any other union meeting again and I told him "No," and he stated that he saw cars parked outside Carol's house the other night and that ended the conversa- tion.12 Smith had informed the employees at the April 12 meeting that Respondent had denied the third party cardcheck and that he had therefore filed a petition for an election with the Board that morning. On April 17, Respondent forwarded to the Board (G. C. Exh. 11) a list containing 24 names, 16 of whom Respondent considered eligible to vote in an election.13 On April 18, Smith met with Respondent's attorney, Field, regarding a cardcheck. The meeting lasted several hours during which Field talked to Respondent several times by telephone. Field agreed to a cardcheck if Smith would agree to exclude the meatcutters which Smith stated he lacked authority to do but that he would get authorization. It appears from the evidence that a tentative agreement was reached regarding the eligibility of the 16 employees on the list which Respondent had forwarded to the Board, plus Hersch Davis, Starr, and Nadine Thompson.14 Smith later called Field and advised him that the Union would agree to exclude the meatcutters. At that time, Field took the position that Michael Mizer should be excluded from the list of eligibles on the ground he had been terminated and was in Texas. On April 20, Smith met with Horton at the store for the purpose of having an agreed-upon third party conduct a cardcheck. When the tax withholding statements contain- ing the signatures of the employees were produced, Smith noted that those for Mizer, Jefferson, Donahue, Starr, and Thompson were missing . Smith took the position that Starr 14 Horton admitted to having had several conversations with Wiener prior to the April 20 cardcheck , but denied that he asked her any questions. Horton was not a convincing witness, leaving me with the impression he was concealing facts. For the reasons set forth in fn . 9, 1 credit Wiener's testimony over his. 13 Five meatcutters, a confidential employee , Respondent's son , Joe, and Hersch Davis , who was listed as manager, were designated by Respondent as not eligible. 14 Hersch Davis had been listed on G. C. Exh. 1 l as manager and not eligible . The record , however, failed to establish Davis' supervisory status, and both Respondent and the Union agreed to include his name in the list of eligible employees for cardcheck purposes. While Field testified that no agreement was reached with respect to Nadine Thompson, Jeff Jefferson, or 993 and Thompson were eligible since there had been an agreement to reinstate them immediately with no loss of seniority or pay; that Mizer was on a leave of absence which Joe Horton had authorized; and that Jefferson and Donahue were on sick leave. Horton agreed to include each of those individuals and delivered their tax withhold- ing statements to Corsini, the third party, whom the parties had agreed should conduct the cardcheck. Corsini com- pared the authorization cards with the signatures on the tax withholding statements furnished by Horton and issued a certification of results of cardcheck which ". . . showed that the Union has been authorized by a majority of employees to be their exclusive bargaining agent, out of a total bargaining unit of (21) Twenty-One employees." Following the cardcheck, Horton signed a recognition agreement granting ". . . exclusive recognition and repre- sentation rights to the Retail Clerks Union, Local 1167, for and on behalf of all of the employers' employees in an appropriate bargaining unit consisting of all employees in the store . . . excluding supervisors, and confidential employees as defined in the Act, and the meat department consisting of five (5) employees ...." He further agreed to begin negotiations on April 25. On May 7, William Brooks and William Sauriol, two of the Union's business representatives, met with Horton for the purpose of negotiating a collective-bargaining agree- ment. Brooks presented Horton with a copy of an agreement between independent retail operators, a mul- tiemployer association, and a number of retail clerks union locals, including Local 1167. The parties discussed various provisions in the proposed agreement. Horton ".. . mentioned to Mr. Brooks that several things had been told to us that there were retroactive pensions and that my contributions and some of the fringe benefits could possibly be put off until . . ." the "seasonal better business." 15 Brooks informed Horton ". . . that he didn't know of any retroactive pension rights [and] that the moment a contract was signed, all my obligations would start." Horton stated that Smith had told the employees that the Union would pay the contributions to the pension fund for the time they had worked at Respondent's market, and that the Union had obtained the authorization cards through misrepresentation. Horton then sent for employee Tom Caldwell and asked him to tell the union representa- tives what he had been told regarding pensions. Caldwell testified that he had been told he could receive additional pension benefits for the time he had worked at Horton's, but that he had called the pension fund and had been informed it was not possible.16 The meeting ended with Horton stating he wanted to contact his attorney. Maria Donahue , it is clear from the testimony of Field, Horton, and Smith that Thompson's name was discussed and that an agreement was reached to immediately reinstate both Starr and Thompson with all seniority rights and backpay for time lost by reason of their respective terminations. The record does not disclose the circumstances surrounding Thompson's termination. 15 Respondent's business is apparently seasonal with the peak occurring in the winter months and diminishing through the summer because of the hot weather. 16 Caldwell , on withdrawal from the Retail Clerks Union, was drawing a monthly pension of $100. He understood his pension payments would be increased to $400 per month if it was possible to make retroactive contributions to the pension fund for the period of his employment with Respondent. He testified that his fellow employees had told him he would (Continued) 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Horton called a meeting of all employees for 7:30 that evening after the store closed. The substance of his talk was that he might get into trouble over the meeting but that he wanted his employees to know that Smith had lied to them about the pension plan, and that he had checked with his insurance company about a pension plan which he might negotiate on "... if the entanglements with the Union were settled..." or if there was a termination of union activities.17 On May 9, Brooks made arrangements to meet with Horton on May 11. On the latter date, however, Horton's attorney declined to meet with Brooks until after he had talked with Smith. At approximately 11:30 p.m., the night of May 9, Starr received a telephone call from Joe Horton. Her testimony regarding the call, which, except for the possible threat of homicide, was adopted by Joe , is as follows: When the phone rang-I have an extension in my home-or my apartment at that time-my husband got up and picked up the extension and I answered the phone by the bed, and Joe said, "Carol?" And I said, "Joe?" And he said, "Yes." He said, "I want to talk to you." And I said, "Joe, do you want to come to my house or do you want to talk on the telephone?" He said , "I want to talk to you in private." I said, "Go ahead." He said, "If you don't call this union bit off my dad, I don't care what happens, I am not going to stand by and see him lose everything he's worked for and enjoyed for the past 22 years." And he said, "If you don't call it off," he said, "I'll have the union representative filing murder charges against me." And then he paused for a moment and I said, "Joe, is that all you wanted?" And he said, "Well, I know you served alcoholic beverages to minors at the union meeting in your home." I said, "No, you are wrong." He said, "I will see you in court over that." So then he paused again and I said, "Joe, have you finished?" He said , "Well, if you don't call this off my dad"-well, he told me: "It took you to start this." I said, "Joe, we are in it together. If I wanted to call it off, I couldn't because everybody else would carry it on." He said , "It took you to start it." I said, "I can't call it off." And he said, "It doesn't matter what happens. If you don't call it off, I am going to tell it all over town that you slept with me and Carl Smith." Then he paused again. I said, "Joe"- get credit for pension purposes for the time he had worked at Respondent's market, and that Smith had told hun that the Union was trying to get Respondent to ". . . sign a contract to give you all this " Caldwell did not sign a union card. 17 Based upon Horton's testimony. He said, "Furthermore, I am going to see that Jack finds out about it," which is my husband. And I said, "Jack is on the other telephone. You tell him." He said, "I don't care about Jack anyway," and he said, "you are nothing but a whore", and that was about the extent to the conversation except I said-th- en Joe paused again and I said , "Joe, is that all you wanted? If it is, I am going back to bed." And he said, "Who are you sleeping with tonight?" I said, "The same man I sleep with every night." He said, "Who? Carl Smith?" Then he paused for another few minutes and I said, "Is that all you want?" And he said, "Yes, and good night." And I said, "Good night." Starr tried to call Brooks immediately but was unable to reach him. The following morning she got word to him to call her. Brooks apparently called Horton that morning and told him that Joe had threatened Starr and asked that Horton have Starr call him. When Starr called, Brooks told her not to talk to Horton alone. She therefore contacted her husband who accompanied her to Horton's office. Starr and her husband had written the substance of the phone conversation with Joe on a paper which they read to Horton, and which Horton confirmed was substantially as Starr testified . Horton responded that Joe was an adult and he didn't have any control over him. In the meantime, Horton had called Joe and gotten a briefing on the previous nights' phone call. Horton assured Starr there was no danger so she worked that day. At the end of the day Horton terminated her. Starr testified that Horton told her "I don't think you have very good taste in serving alcoholic beverages. After talking with Joe all day, I don't need you around the front anymore." Horton testified that he had been trying for some time to get Joe to take over more responsibilities in the checkout area and front of the store but that Joe wasn't doing it. After analyzing the situation, he now realized that Joe couldn't work in the checkout area because Starr was there and that now it would be impossible for the three of them to work in the same building together. Within a few days prior to May 10, Joe had told Jane Sandstoe, Respondent's bookkeeper, whom he character- ized as "almost like a second mother," that he had sexual intercourse with Starr in January . Sandstoe testified that Joe told her ". . . that Carol Starr had gone over to his apartment and they had a few drinks and dinner, and consequently, they went to bed together." Joe's testimony was that Starr arrived at his apartment about 9 p.m., that they initially talked about a project he was working on at the store, that they had two or three drinks and ".. . around 10 o'clock we adjourned to the bedroom," and between 10 and 10:30, Starr left through a side entrance and he left through the front entrance to meet friends in the parking lot in front of the building.18 Joe testified that he told Sandstoe about the purported January escapade 18 Starr emphatically denied any sexual involvement with Joe . In bearing and dehvery-demeanorshe impressed me as an honest witness. On the other hand, Joe's bearing and manner of testifying indicated to me that he was not telling the truth, but had in fact manufactured a bizarre story which he felt would rid the store of the principal union proponent . Aside from his HORTON'S MARKET because "I thought it would be a reason to rid myself of Carol Starr from the market. . . She was a problem to the market. She has been for the year that she had been there. By that time I knew she was one of the instigators of the Union." He further testified that "The main purpose of the [May 9] call was to rid the market of Carol Starr and the Union which was obviously the main attempt at that point,. but perhaps she would leave town. That would be the best thing that could happen to me." to On May 15, the charge in Case 21-CA-11803 was filed alleging a violation of Section 8(a)(5), and on May 21, the charge in Case 21-CA-11811 was filed alleging Starr's termination as a violation of Section 8(a)(3). At a June 15 bargaining session, the Union advised the Respondent that the pension trust did not contain provisions for retroactive payments, and consequently pension benefits could not be made retroactive. At a June 22 meeting, the Respondent proposed, inter alia, "retroac- tive pension rights funded by union for all present employees." At the July 2 meeting, the Respondent produced a copy of a spot commercial which had been carried over, presumably, a local radio station. Employee Bill McEwan had obtained the document from the radio station and Horton had made copies from it. The commercial, Respondent's Exhibit 2, reads as follows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n response, the union representative stated that the commercial had been placed by the International, and that while some parts of the country made provisions for retroactive pension benefits, it was not available in Southern California. Field then responded that ". . . we felt that the Union had misrepresented the retroactive aspects of the pension both to the employees and•to the employer and, therefore, we felt that the card check had demeanor, and further convincing me that the incident was fabricated, is the discrepancy in the story he told Sandstoe and his testimony at the trial, With his penchant for detail , had the incident actually taken place, he would have testified as he had told Sandstoe , that the two had dinner 995 been obtained through misrepresentation and fraud, coercion and intimidation and that it was our anticipation that we would file charges with the National Labor Relations Board on that basis." Brooks responded that the Union represented Respondent's employees and that "We would meet him on the street." The Union commenced picketing the Respondent's premises that afternoon and continued to do so at the time of the trial. On July 5, Respondent filed Section 8(b)(1)(A) and 8(b)(7)(C) charges against the Union. Both charges were dismissed by the Regional Director on July 18. No appeals were made from the dismissals . The charge in Case 21-CA-12100 was filed by Orr on September 4. B. Analysis 1. Interrogation and surveillance Paragraphs 12(a) and (b) of the amended consolidated complaint rest principally upon the testimony of Wiener, whom I have found to be a credible witness. She testified that in late March or early April she told Horton that the employees were circulating a union petition and that he had asked her if she knew who was trying to get the Union in; that when she declined to tell him, he asked if it was one of several "previous union members," whom he named, including Orr and Starr. While she declined to state who, Horton pressed further and asked if she felt the checker (Starr) was behind it, and further asked, when Wiener indicated it could have been Starr, "Do you feel if we get rid of her we would be getting rid of our union problem?" Horton then commented that he thought he had gotten rid of the "union problem" when he got rid of Orr. He then asked Wiener if she had attended any union meetings and if she would keep him informed on what was going on. Again, on April 12, Horton asked Wiener to let him know what the Union had to offer, and on the following day questioned her as to whether she had attended the meeting the previous night, who had attended and what the union representative talked about. He also asked if she had attended any other meetings and informed her that he had seen cars parked outside Starr's house "the other night," thereby indicating that he was keeping watch over the union meetings. In these circumstances I find that by questioning Wiener regarding the union sympathies of her fellow employees, whether she had attended union meetings, and asking her to keep him informed on what went on at union meetings, Respondent violated Section 8(a)(1) of the Act. Interroga- tion which seeks to place an employee in the position of an informer regarding the union activities of his fellow employees is coercive. Abex Corp., 162 NLRB 328. 1 also find that Horton's statement to Wiener that he had observed cars parked outside Starr's house, violated Section 8(a)(1) of the Act in that such statement created the impression of surveillance and is coercive since it tends to lead employees to believe that their union activities are being spied upon. See, for example, N.L.R.B. v. Borden Co., together before retiring to the bedroom. Accordingly, I discredit his testimony regarding the January incident. 19 In its brief, Respondent concedes that Joe's call was "... for the ill conceived purpose of coercing Carol Starr to terminate union activities." 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 392 F.2d 412, 414 (C.A. 5, 1968); Hendrix Manufacturing Company v. N.LR.B., 321 F.2d 100, 105 (C.A. 5, 1963); N.L.R.B. v. Harbison-Fischer Manufacturing Company, 304 F.2d 738 (C.A. 5, 1962); Fredeman's Calcasieu Locks Shipyard, Inc., 206 NLRB No. 104; Star Cooler Corpora- tion, 129 NLRB 1075. Contrary to the position of the General Counsel, I do not view as coercive Horton's asking Conlon, after Conlon volunteered the information that he had attended a union meeting the night before, "has it reached the point of no return?" Nor do I find the fact that Horton asked Caldwell if he had been contacted by the Union, followed only by the statement that the Union was in town trying to organize the store, coercive in that it created the impression of surveillance. 2. The discharges of Orr and Starr The General Counsel contends both Orr and Starr were terminated because they engaged in union or other protected concerted activities. The Respondent contends Orr was terminated solely for economic reasons, and "that termination of Carol Starr was mandatory for the morale of the store and the psychological peace of the Horton family. The embarrassment of a continued working relationship even merely between Respondent and Carol Starr would be such as to render that employment severely damaging to all concerned, and the termination was therefore justified, appropriate and should not be dis- turbed." Respondent's reasoning is not convincing. The sequence of events and the testimony of the witnesses whom I have credited convince me that the terminations of both Orr and Starr were unlawful. In late February or early March, the Respondent's employees sought union assistance. Starr was the principal union contact and circulated the petition among the employees. On March 13, after having obtained the signatures of 13 employees, she mailed the petition to the Union. Starr had been employed since April 1972, and until about this time Respondent had apparently registered no complaints about her work. However, with the advent of the Union, Respondent decided to terminate her and in early March went so far as to make out her final paycheck, but then changed his mind and voided it. Instead, he terminated Orr, purportedly because of a lack of business and because Orr's father was opening a new business and it would be easier for him to get a job. Respondent does not contend that Orr was an unsatisfactory employee, nor does Respondent dispute Orr's testimony that he had seniority over other employees. Starr had been entrusted to train new checkers, and one had been hired on March 2 despite Respondent's claim that he had to cut down the work force in March. Had the lack of business and consequent necessity to reduce the work force been a legitimate reason for laying off or terminating an employee, it is more logical that Morrow, the most recently hired employee,20 Mizar, who also had less seniority than On, or Starr, whom Respondent had already considered terminating, would have been selected. Respondent had in fact selected Starr, but then changed his mind. Only by resorting to Wiener's credited testimony regarding her conversation with Horton around the first of April, is the true reason for Orr's termination revealed. After telling Horton that the Union was organizing, Horton asked Wiener who was behind it and specifically mentioned four employees whom he referred to as former union members, among whom were Orr and Starr. He then asked Wiener if she felt the problem was with the checker (Starr), and then asked "Do you feel if we get rid of her we would be getting rid of our union problem?" Now realizing that he had selected the wrong former union member, Horton stated that ". . . he thought if he got rid of Chick (Orr) . . . he would be getting rid of the union problem ...." Realizing that he had not gotten rid of his "union problem" by terminating Orr, approxi- mately 2 days after talking to Wiener, Respondent terminated Stan 21 In light of the foregoing facts, I reject Respondent's economic defense as lacking in merit, and find that Orr was terminated on March 14 because Respondent believed he was behind the organizational drive. The "union problem" persisted however, culminating in the card check and third party certification that the Union represented the majority of the Respondent's employees. On April 21, Starr returned to work following the agreement made a few days earlier to reinstate her with no loss of pay or seniority. She was again terminated on May 10 following the phone call of the night of May 9 from Joe Horton. Joe's reason for calling her is clear, to coerce Starr into "calling off the Union," or "I am going to tell it all over town that you slept with me and Carl Smith." He testified further that "she was a problem to the market, she has been for the year that she had been there. By that time I knew she was one of the instigators of the Union ... . The main purpose of the call was to rid the market of Carol Starr and the Union, which was obviously the main attempt at that point, but perhaps she would leave town. That would be the best thing that could happen to me." Consideration of the foregoing convinces me, and I find, that Joe's conduct in making the phone call was dictated by his knowledge that Starr was a strong union supporter, and his hope that the threat to spread a rumor about her would cause her to call off the Union. The evidence is overwhelming that Joe Horton was discriminatorily moti- vated in making the threatening phone call which was used as an excuse for terminating Starr. Under the circum- stances, it is clear that her termination was in violation of the Act. Bechtel Corp., 195 NLRB 1013, 1020. Respondent contends, however, that in the circum- stances it would not be reasonable to presume that Respondent could be expected to retain Starr as an employee; that her termination was mandatory for the morale of the store and the psychological peace of the Horton family; that "the embarrassment of a continued working relationship even merely between Respondent and Carol Stan would be such as to render that employment severely damaging to all concerned, and the termination was therefore justified, appropriate and should not be disturbed." Respondent cites no authority in support of its argument and, I am sure, for good reason. The National 20 Morrow was hired on March 2 . Section 8(aX3) of the Act, it is not alleged in the consolidated complaint. 21 While it appears that Starr's April 7 termination was in violation of HORTON'S MARKET Labor Relations Act does not protect an employer from embarrassment wrought upon it by its own illegal conduct in terminating employees. 3. The refusal to bargain a. The appropriate unit The consolidated complaint alleges at paragraph 5 that all employees employed by Respondent at its grocery store in Desert Hot Springs, California; excluding all employees in the meat department, confidential employees, and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The Respondent contends that an appropriate unit should also exclude the janitor. Respondent's position appears to be based upon the fact the collective-bargaining agreement proposed by the Union on May 7 excluded persons engaged exclusively in janitorial and/or mainte- nance work. It is clear, however, that at all times prior to the cardcheck the Respondent contended the janitor should be included in the unit, and the parties agreed to include him in the unit at the time of the cardcheck and the signing of the recognition agreement on April 20. Accord- ingly, I conclude and find in line with Board precedent that a unit including the janitor is appropriate. See, for example, Food Marts, Inc., 200 NLRB No. 5. Respondent further contends that Carl Smith misrepre- sented to Horton the nature of the tentative agreement reached with Field regarding the eligibility of employees for the purposes of the cardcheck, apparently contending the cards of Mizar, Marie Donahue, Jeff Jefferson, Starr, and Nadine Thompson should not have been counted. The record makes it clear that Mizar was away on leave of absence authorized by Joe Horton, whom I have found to be a supervisor; that Donahue and Jefferson were both on sick leave; and that an oral agreement had been reached prior to the cardcheck election, and reduced to writing the day of the cardcheck, to rehire Starr and Thompson immediately without loss of pay or seniority by reason of their earlier terminations . 22 Horton was aware of the status and circumstances surrounding each of those individuals and agreed that they should be included. Their inclusion in the unit and eligibility to vote in a Board election under identical circumstances is beyond question. I therefore reject Respondent's contention that their inclusion "should be held to vitiate any purported recognitional agreements." b. The authorization cards and withdrawal of recognition By April 20, 18, out of the 21 employees in the unit, had signed authorization cards designating the Union, in clear and unambiguous language, ". . . as my exclusive bargain- ing representative for purposes of collective bargaining with my employer ...: . On April 20, the Respondent signed an agreement voluntarily recognizing the Union after an agreed-upon third party examined the Union's authorization cards and verified that it, in fact, represented 22 The agreement of April 20, G.C. Exhibit 18, reads : "As part of an agreement in having separate card checks for the meat and balance of store, 997 the majority of the Respondent's employees in the unit which I have found is appropriate for collective-bargaining purposes. Thereafter, on May 7, Respondent met with the Union to -negotiate a collective -bargaining agreement. During this bargaining session, for the first time, Respon- dent raised a question regarding the authenticity of the Union's representative capacity. Notwithstanding, Respon- dent met with union representatives on several subsequent occasions, until on July 2, it suddenly withdrew recognition from the Union and refused further bargaining, asserting that it now doubted the Union's majority status. It is well settled that a bargaining relationship estab- lished by voluntary recognition or Board certification is irrebuttably presumed to continue for a "reasonable time"-ordinarily I year-and a refusal to abide by that relationship during that period will violate Section 8(a)(5) and (1) of the Act. Brooks v. N.LRB., 348 U.S. 96, 98-104 (1954); N.LRB. v. Frick Company, 423 F.2d 1327, 1330-32 (C.A. 3, 1970); N.L.R.B. v. San Clemente Publishing Corporation, 408 F.2d 367, 368 (C.A. 9, 1969); N.LR.B. v. Montgomery Ward & Co., 399 F.2d 409, 412-413 (C.A. 7, 1968). See also N.LR.B. v. Universal Gear Service Corp., 394 F.2d 396-398 (C.A. 6, 1968); Keller Plastics, 157 NLRB 583 (1966). A bargaining relationship, once rightful- ly established, must be permitted to exist and function for a reasonable period in which' it can be given a fair chance to succeed. See Franks Bros. Co. v. N.LR.B., 321 U.S. 702, 706 (1944); NLRB. v. Broad Street Hospital and Medical Center, 452 F.2d 302, 305 (C.A. 3, 1971); Brooks v. N.L.R.B., supra at 102. This presumption applies to a voluntary oral recognition as well as Board certifications in order to assure the parties of the binding effect of such recognition, thereby encouraging the stability of the collective-bargaining process and the resort to voluntary recognition as a viable alternative to Board-certified elections. N.LR.B. v. Broad Street Hospital, supra, at 305. Plainly, under the principles set out above, when the Respondent voluntarily accorded recognition to the Union on April 20, a presumption of the Union's majority status arose that was irrebuttable for a reasonable amount of time. The Respondent does not assert that the period between the grant and withdrawal of recognition constitut- ed the passage of a reasonable period of time so as to invalidate the presumption or otherwise permit it to rely on any good-faith doubt of the Union's majority status as a basis for terminating the bargaining relationship. The Respondent contends, however,. that the Union made material misrepresentations to the employees with respect to retroactive pension benefits which ". . . must reasonably be expected to have a significant impact on the obtaining of authorization cards," and that the employer was prevented from making an effective reply. While the General Counsel carries the burden of proving all elements of an unfair labor practice, it is well settled that once he meets this burden of proof that the authorization cards were checked and that the Company was satisfied that the Union represented a majority, accorded recognition and began bargaining, the burden shifts to the Company to come forward with evidence casting serious doubt on the I agree to rehire Carol Starr and Nadine Thompson and pay what backpay is due. Further no unfair labor practices will be filed." 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's majority status . Jem Mfg. Co., 156 NLRB 643, 645 (1966); N.L.R.B. v. Frick Co., supra at 1331. See also Cumberland Shoe Corp., 144 NLRB 1268, 1269 ( 1963), enfd . 351 F.2d 917 (C.A. 6, 1965), cited with approval N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 606-609 (1969). In its effort to cast serious doubt on the Union's majority status by establishing that fraud, misrepresenta- tions and/or coercion regarding retroactive pension bene- fits had a significant impact on the signing of cards, the Respondent called as witnesses four unit employees,23 a nonunit employee ,24 and the husband of one of the unit employees 25 I have previously discredited Donna Morrow's testimony regarding statements she attributed to Smith on April 4. Moreover , while she testified on direct examination that she had been influenced in signing a card by what Smith had said about pensions , when confronted on cross- examination with an affidavit she gave a Board agent during the investigative stages of these cases, she confirmed her statement that: "What Mr. Smith said about the pension plan did not affect my signing it," and that she had in fact signed because everyone else was signing . Accord- ingly, I find the Respondent has failed to establish that Morrow 's authorization card should be invalidated be- cause of fraud , misrepresentation or coercion. Tom Caldwell attended only one union organizational meeting , the meeting of April 19. He testified that Smith had told Hersch Davis and him about retroactive pension benefits and ". . . what we were trying to get Mr. Horton to do was sign a contract to give you all this ." Caldwell had already heard the retroactive pension benefit rumors from his fellow employees , and had checked with the pension fund 26 and been informed that the fund did not contain a provision for retroactive fund contributions . Even if Caldwell had signed an authorization card , which he did not, the evidence is insufficient to have invalidated it for fraud , misrepresentation , or coercion. George Cawthon signed an authorization card on April 5 "... before I ever heard of Mr . Smith." Accordingly, I find that the Respondent has failed to prove Cawthon's card was obtained through fraud , misrepresentation or coercion. Jim Conlon, who signed an authorization card on April 4, testified that he had signed the authorization card "before I ever heard about pensions ." I find, therefore, that the Respondent failed to prove any irregularity in the signing of his card which might invalidate it. Jane Sandstoe testified that on an unspecified date employee Bill McEwan told her over the phone that "If the Union got in there , I would stay for one more year-I was there nine years-I would have ten years in if I stayed another year towards a pension , and that at retirement age, that I would receive $100 a month ." McEwan also showed her a copy of the radio spot commercial [Resp . Exh. 2 ] and asked what she thought of it, to which she replied, "Bill, it doesn 't pertain to the store in any way," having concluded that it applied to department stores. Respondent 's Exhibit 2 reveals that the spot commercial was "aired 6/23" more than two months after the cardcheck election and voluntary recognition. Accordingly, I find that the spot commercial did not influence either the employees or Respondent at any time material to this case . Don Morrow testified that he attended the April 19 meeting with his wife at Starr's home ; that Smith stated ". . . that Herschel [Davis ] and George [Cawthon ] would get credit for all their non-union years. These would all be picked up and counted for union dues towards their pension;" that he felt Bruce [Martinelli ] was coerced into signing an authoriza- tion card since he was a "kid" of 18 or 19 years, and there were "adults 35 or over giving him the needle ... He could do nothing else but gain by it, and he ... definitely-didn't want to sign , it didn't appear to me like it, and it was almost-the kid was completely flushed and he finally did sign. He couldn't possibly say no, under the circumstances ." On the basis of his testimony, I conclude that Martinelli was, at the most, encouraged to sign an authorization card . It is clear that no promises or threats were made which might conceivably be the basis for invalidating his card . Furthermore , Davis had signed an authorization card several days earlier, and Cawthon had signed his on April 5 before he had ever heard of Smith. Based on all of the foregoing and the entire record, I find that the Respondent has failed to prove that the Union obtained its authorization cards from Respondent's em- ployees by threats, misrepresentations, fraud, coercion, or promises of benefit , and that the Respondent did not have a good-faith doubt of the Union's representative status on May 7, when it first questioned the authenticity of the Union's majority, or on July 2, when it withdrew recognition from the Union .27 Broad Street Hospital and Medical Center, supra Toltec. Metals, Inc., 201 NLRB 952; Moisi & Sot, Trucking, Inc., 197 NLRB 198. Accordingly, I conclude and find that following the cardcheck and lawful recognition , the Union was entitled to a reasonable time to negotiate a collective-bargaining agreement, and the Respondent , by withdrawing recognition and seeking a Board election without a valid ground therefor, was in violation of its statutory obligation to bargain in violation of Section 8(aX5) and ( 1) of the Act. c. Direct bargaining with employees In view of my determination that the Respondent was under the statutory obligation to bargain with the Union as the exclusive representative of the Respondent 's employees in an appropriate unit following the April 20 cardcheck and recognition agreement , I find that on May 7 when Horton met with Respondent 's employees following the bargaining session with the Union, and informed them that he had checked with his insurance company about a pension plan which he might negotiate on ". . . if the entanglements with the Union were settled ..." or if there was a termination of union activities, he was attempting to wean the employees away from the Union and to deal 23 Donna Morrow, Tom Caldwell, George Cawthon, and Jun Conlon . 27 At the conclusion of Respondent's evidence , the General Counsel 24 Jane Sandstoe , the bookkeeper, whom the Union and Respondent moved to dismiss the Respondent 's affirmative defenses of fraud , mlarepre- excluded from the unit as a confidential employee . sentation and other illegal acts in obtaining the Union's majority 25 Don Morrow, who is not employed by Respondent . representative status . In view of my finding herein that the Respondent 26 Caldwell was already drawing a union pension . failed to sustain its burden of proof, the motion is granted. HORTON'S MARKET directly with them concerning matters on which it was obligated to bargain with the Union . By such conduct, Respondent not only interferred with the employees' Section 7 rights in violation of Section 8(a)(1) of the Act, but also undermined the Union and its legitimate bargain- ing position in violation of Section 8(a)(5) of the Act. See, for example, Romo Paper Products Corp., 208 NLRB 96, fn. 3. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operation 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 Having found the Respondent has engaged in, and is engaging in, certain unfair labor practices , I shall recom- mend that Respondent cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Charles J. Orr on March 14, and Carol Starr on May 10, I shall recommend that Respondent offer Charles J. Orr and Carol Starr immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or any other rights or privileges previously enjoyed by each, dismissing, if necessary, any employee hired since the date of termination of each, having less seniority . It is further recommended that Respondent make Orr and Starr whole for any loss of pay each may have suffered by reason of the discrimination against them . Said loss of pay shall be based on the earnings each would normally have earned from the date of discharge or layoff until he or she is offered reinstate- ment, less the net earnings of each during such period. Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716. Having found that Respondent engaged in unfair labor -practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and bargain collectively with the Union as the exclusive representative of all employees in the unit set forth above, and, if an agreement is reached, embody such understanding in a signed agreement. It is also recommended that Respondent be ordered to make available to the Board, upon request, all payroll and other records to facilitate checking the amounts of earnings due. In view of the nature of the unfair labor practices ss 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. 999 committed, the commission of similar and other unfair labor practices reasonably may be anticipated. On the basis of the foregoing findings of fact, and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities and the union activities of fellow employees, and by engaging in activities which created the impression of surveillance of Respondent's employees, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. By discharging Charles J. Orr on March 14, and by discharging Carol Starr on May 10, because of their support and activities on behalf of the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by Respondent at its grocery store in Desert Hot Springs, California; excluding all employees in the meat department, confidential employees, and supervisors within the meaning of the Act. 6. The Union is the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 7. By refusing to recognize and bargain in good faith with the Union as the exclusive representative of its employees in that unit, on and after May 7, Respondent has violated Section 8(a)(5) and (1) of the Act. 8. By engaging in direct bargaining with employees, in the aforesaid unit, at a time when the Union was the exclusive bargaining representative of a majority of said employees, Respondent has violated Section 8(a)(5) and (1) of the Act. 9. 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 basis of the foregoing findings of fact and conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER28 Respondent, Alan L. Horton, Inc., d/b/a Horton's Market, its agents , successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off, or otherwise discriminating against employees for engaging in union or concerted, protected activities. 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. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Interrogating employees concerning their union activities and the union activities of fellow employees, and engaging in activities which create the impression of surveillance of Respondent 's employees' union activities. (c) Refusing to recognize and bargain in good faith with Retail Clerks Union, Local 1167, Retail Clerks Internation- al Association, AFL-CIO, as the exclusive representative of its employees in the above-mentioned unit. (d) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of their rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Charles J. Orr and Carol Starr, immediate and full reinstatement to their former jobs, or if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make said employees whole as set forth in the remedy section above, for any loss of earnings suffered as a result of the tscrimination against them. (b) Preserve , a d upon request, make available to the Board or its agents, for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due these employees under the terms of this recommended Order. (c) Upon request, bargain in good faith with the above- named Union, as the exclusive representative of all employees in the unit set forth above and, if an under- standing is reached , embody such understanding in a signed agreement. (d) Post in conspicuous places at Respondent 's place of business in Desert Hot Springs, California, including all places there where notices to employees are customarily posted , copies of the notice attached hereto, and marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing , within 20 days from the date of receipt of this Order, what steps Respondent has taken to comply herewith. sa 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OP THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The trial held in Palm Springs , California , on October 23, 24 and 25, 1973, in which we participated and had a chance to give evidence , resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended , and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT unlawfully interrogate employees concerning their or other employees ' union member- ship, sympathies and activities. WE WILL NOT engage in activities which create the impression of surveillance of our employees' union activities. WE WILL NOT discharge , lay off, or in any other way discriminate against any of our employees because of their activities in behalf of Retail Clerks Union, Local 1167, Retail Clerks International Association, AFL-CIO, or any other labor organization, or because of other concerted activities protected by the Act. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exercise of any right guaranteed them by the Act. WE WILL offer to Charles J. Orr and Carol Starr immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other privileges. WE WILL make whole Charles J. Orr and Carol Starr for any loss of earnings and other benefits suffered because of the discrimination against them. WE WILL NOT refuse to bargain in good faith with Retail Clerks Union, Local 1167, Retail Clerks Interna- tional Association, AFL-CIO, as the exclusive repre- sentative of our employees in the following unit: All employees employed by Alan L. Horton, Inc., d/b/a Horton's Market at its grocery store in Desert Hot Springs, California; excluding all employees in the meat department, confidential employees , and supervisors within the meaning of the Act. HORTON'S MARKET WE WILL bargain in good faith with the above- named Union on wages, hours, and conditions of employment, and any agreement we reach will be put in writing and signed. WE WILL NOT engage in direct bargaining with our employees at a time when the above-named Union is the exclusive bargaining representative of our employ- ees. ALAN L. HORTON, INC., D/B/A HORTON'S MARKET (Employer) Dated By 1001 (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229.