 CRISPO CAKE CONE CO., INC.309Crispo Cake Cone Company,Inc.andLeather Goods,Plastics& NoveltyWorkers Union,Local 160,AFL-CIO. Case 14-CA-5528January 17, 1973SUPPLEMENTAL DECISION ANDORDERBY CHAIRMAN MILLER ANDMEMBERSFANNING AND JENKINSOn May 17, 1971, the Board issued its Decisionand Order' finding,inter alia,thatRespondentviolated Section 8(a)(5) and (1) of the NationalLabor Relations Act, as amended, by refusing tobargain with the Leather Goods, Plastics & NoveltyWorkers Union, Local 160, AFL-CIO,2 in separateunits of warehouse and office clerical employees.The Board found, in pertinent part, that the officeclerical unit,3 at all times between February 16, 1970,and August 1, 1970, consisted of three employeesand, although two of the employees had left theiremployment prior to the hearing, Respondent failedto submit evidence to establish that this was not atemporary reduction but was one of a permanentnature thus rendering the unit inappropriate as aone-employee unit.4 The Board, therefore, requiredthat Respondent bargain collectively with the Unionas the exclusive representative of employees in theaforesaid unit.On July 7, 1972, the United States Court ofAppeals, Eighth Circuit, enforced the Board's Or-der.5 The court concluded that the record warrantsthe issuance of a bargaining order and added, atfootnote 2, the following:If the Company can in fact establish that itsclerical unit consisted of only one employee sincetheAugust 1970 hearing and that the unit hasbeen permanently decreased to one employee, itwould appear that only a waste of time and effortfor all concerned would result from an attempt toseek compliance with the bargaining order withrespect to clerical employees. The Board's counselsuggests that the appropriateness of the unit canbe re-examined in connection with complianceprocedure.Thereafter, in the compliance stage of the proceed-ing the Regional Director for Region 14 caused aninvestigation to be made and concluded that sincethe hearing in August 1970 it appears that theRespondent has had in its continuous employ onlyone office clerical employee on a permanent basisand that Respondent does not now employ, nor willRespondent employ in the future, more thana singleoffice clerical employee.On October 13, 1972, counsel for the GeneralCounsel filed a Motion for Reconsideration notingthat, since it now appears that the office clerical unithas permanently been decreased to one employeeand as it appears that such situation will continue,the unit heretofore found appropriate by the Boardhas become a one-employee unit and therefore is nolonger appropriate for the purposes of collectivebargaining.6 The counsel for the General Counsel,therefore, moved that the Boardissue aSupplemen-talDecision and Order, deleting therein any require-ment that Respondent bargain with respect only tothe office clerical unit.?Pursuant to the provisions of Section 3(b) of theNationalLaborRelationsAct, as amended, theNational Labor Relations Board has delegated itsauthority in this proceeding to a three-member panel.In the absence of opposition to the GeneralCounsel'sMotion for Reconsideration, such motionshallbe, and hereby is, granted and the Ordercontained in the original Decision in this proceedingshall be modified accordingly.SUPPLEMENTAL ORDERBased on the foregoing and on the entire record inthis case, the National Labor Relations Board herebyaffirms its Order issued in this proceeding on May17, 1971, with the following modifications:1.Substitute the following for paragraph 1(a):"(a)Refusing to bargain collectively in good faithconcerning rates of pay, wages, hours of employ-ment, or other terms and conditions of employment,withLeather Goods, Plastics & Novelty WorkersUnion,Local 160,AFL-CIO, as the exclusiverepresentativeof its employees in the followingappropriate unit:All regular warehouse employees at its St.Louis,Missouri, plant, excluding over-the-roadtruckdrivers,officeclericaland professionalemployees, guards, and supervisors as defined inthe Act."2.Delete paragraph 2(a) and reletter the remain-ing paragraphs accordingly.3.Substitute the attachedAppendix for theBoard's previous one.Crtspo Cake Cone Company, Inc.,190 NLRB No 60zHereinafter referred to as the Union{The unit found appropriate consisted of all office clerical employees atthe Respondent's St Louis. Missouri,plant,excluding all other employees,professional employees, guards, and supervisors as defined in the ActIChairman Miller dissented on this facet of the caseinitially.Both thenand now he was and remains of the view that the Board should not issue abargaining order in a one-man unit.SN L R B v. Crispo Cake Cone Company,Inc., 464F.2d 233 (C A 8,1972)6WestinghouseElectric Corporation,179 NLRB 289.7All parties to the proceeding were duly served.201NLRB No. 33 310DECISIONS OF NATIONALLABOR RELATIONS BOARDAPPENDIXNOTICE TOEMPLOYEESPOSTED BY ORDER OF THENATIONALLABOR RELATIONS BOARDAn Agency of the UnitedStatesGovernmentWE WILL NOT refuse to bargain collectively ingood faith with Leather Goods,Plastics&Novelty Workers Union, Local 160, AFL-CIO, asthe exclusive bargaining representative of ourwarehouse employees.WE WILL NOT reduce the number of overtimehours of work for our employees to punish themfor joining and supporting the Union.WE WILL NOT coercively interrogate our em-ployees about their union sympathies and activi-ties,or the union sympathies and activities oftheir fellow employees.WE WILL NOT threaten our employees with lossofprivilegesduringworking time, such ascoffeebreaks,visitinga lunch truckcanteen,warming up automobiles in winter, and speakingwith spouses because they join or support theUnion.WE WILL NOTthreaten our employees with lossof overtime work for joining or assisting theUnion.WE WILL NOT threaten our employees withclosing the plant if they join or assist the Union.WE WILL NOT threaten our employees withdischarge for selecting the Union as their bargain-ing representative.WE WILL NOTpromise economic benefits toemployees if they reject the Unionas theirbargaining representative.WE WILL NOT promise continued employmentto employees in the event they abandon unionrepresentation.WE WILL NOT create the impression that we arespying on the union activities of our employees.WE WILL NOTinterferewith our employees'right to assist the NationalLaborRelations Boardin investigating unfair labor practice charges.WE WILL NOTdirect employeesto conveythreats of reprisals and promises of benefits toother employees for engaging in or refrainingfrom union activities.WE WILL NOTunilaterally grant wage increaseswithout consulting and bargainingwith theUnion,except that nothing herein contained shallbe construed as requiring the Respondent torevoke anywage increases it has heretoforegranted.WE WILL NOT in any othermanner interferewith,restrain,or coerce our employees in theexercise of rights guaranteedthem bySection 7 ofthe Act.WE WILLmake Jessie Butler wholefor any lossof earnings sufferedby reasonof the discrimina-tion practiced against him.All our employeesare free to become,remain, orrefrain from becoming or remaining,members of theabove-namedor any otherlabor organization.CRISPO CAKE CONECOMPANY, INC.(Employer)DatedBy(Representative)(Title)This is anofficial notice and must notbe defacedby anyone.Thisnotice mustremain posted for 60consecutivedays from the date of postingand must not bealtered, defaced, or covered by any othermaterial.Any questionsconcerningthis notice or compli-ance withitsprovisionsmay be directed to theBoard'sOffice,1040 Boatmen's Bank Building, 314North Broadway, St. Louis,Missouri63102, Tele-phone (778)217-3405.
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