C & P Shopping Center, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1967

163 N.L.R.B. 686 (N.L.R.B. 1967)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL upon request , recognize and bargain with
Teamsters Local 822, as the exclusive collective-
bargaining representative of our employees in a unit
composed of all new- and used-car salesmen at our
Norfolk , Virginia , location, excluding office clerical
employees , professional employees , guards, and all
other employees and supervisors , as defined in the
Act, with respect to all matters of wages, hours, and
working conditions , and, if an understanding is
reached , embody the same into a signed contract.
WE WILL NOT change the wages, hours, or working
conditions of our employees in the aforesaid unit
without first bargaining with Teamsters Local 822,
regarding such changes.
WE WILL NOT change the wages, hours, or working
conditions of our employees for the purpose of
inducing them to abandon their support of Teamsters
Local 822, or any other union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form any labor
organization, to join or assist Teamsters Local 822, or
any other union, to bargain through representatives of
their own choice, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
and all such activities.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of
Teamsters Local 822, or any other union.
BRATTEN PONTIAC CORP.
(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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, Sixth Floor, 707
North Calvert Street, Baltimore , Maryland 21202,
Telephone 752-8460, Extension 2159.
C & P Plaza Department Store , Division of
C & P Shopping Center , Inc. and Local
1401 , Retail Clerks International Associa-
tion (AFL-CIO). Case 30-CA-261.
March 30, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 22, 1966, Trial Examiner Lee J. Best
issued his Decision in the above-entitled proceeding,
' Before this change , a food and variety store had been
operated at the Shopping Center location . After removal of the
variety store , the Food Store Division continued operations at the
original location.
Y The terminal date of the Plaza agreement was established to
coincide with the expiration date of the original contract which
covered the combined food and variety store operation . The Union
had maintained collective - bargaining relations with the Shopping"
163 NLRB No. 97
finding that the Respondent had engaged in and was
engaging 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,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel and the Charging Party filed
answering briefs.
Pursuant to the provisions of 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.
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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as amplified below.
As more fully set forth in the Trial Examiner's
Decision, the record shows that, in early 1960,
Respondent was organized as a separate division of
C & P Shopping Center, Inc., to operate the
Shopping Center's variety store, hereafter called the
"Plaza," which was removed from the Shopping
Center location and independently established at a
new location.' The Union was recognized, in
separate appropriate units, as the collective-
bargaining representative of employees at both
locations and executed an initial agreement with
Respondent to remain in effect from April 11, 1960,
through June 4, 1960.2 In February or March 1961, a
second Plaza contract was executed to be in effect
retroactively from January 1, 1961, through
December 31, 1962. On May 17, 1963, the Union and
Respondent executed the third Plaza contract which
was effective retroactively from January 1, 1963,
through December 31, 1964.3 On October 26, 1964,
the Union served timely notice on Respondent of its
desire to modify the agreement. However, as the
parties had done in the past, no attempt was made to
commence negotiations until after the expiration
date of the current agreement.
On January 14, 1965,' by request of the Union, the
parties met and Union Representative Peter Voeller
indicated that the Union wished to commence
negotiations. At the outset, General Manager
Russell J. Weber, also Respondent's labor relations
representative, took the position that since the
contract had expired, the Respondent was no longer
obligated to deal with the Union. He also complained
Center and its predecessor , C & P Drive-in, since 1948.
' This agreement contained a valid union -security clause
without checkoff, and also provided for automatic annual renewal
after December 31, 1964, with the customary 60 days' notice of a
desire to terminate or amend the agreement.
4 Unless otherwise indicated, all events hereafter set forth
occurred in 1965.
C & P PLAZA DEPARTMENT STORE
that the "[Union] had not organized what they
thought was a sufficient amount of their competi-
tion ." Respondent's president, Carl L. Payne,
who had entered the meeting after the foregoing
discussion, disclosed that Respondent had lost
$40,000 during 1964 and would have to change its
operations to more of a self-service type in order to
compete with the discount stores. He further stated
that these operational changes would necessitate
changes in the help and perhaps some reclas-
sifications. Voeller suggested„ and Respondent
agreed, that the old contract be extended for 6
months, the period required for the needed
changeover in operations according to Respondent's
estimation .5 However, Weber again stated that the
contract had expired in December 1964, and
therefore he saw no reason for the oral extension of
the contract, but Weber was overruled by Payne.
After the meeting, Voeller complained to Payne
about Weber's attitude. Payne thereafter assured
Voeller, "We're not going to try to throw you out of
here. I don't like the fact that you haven't organized
Kubley's, you haven't organized Sears, but I give you
my word that in six months we'll get this thing
straightened out. Don't worry about it." On April 27,
Respondent sent written notice of its desire to
terminate the contract on July 1.6
In the first week of July, Voeller called Weber to
arrange a meeting for discussion of a pending
grievance at the Food Store Division and also
indicated that he wished to discuss the Plaza
contract. Weber and Voeller met at Respondent's
office on July 8, and, after disposing of matters
relating to the grievance, Voeller suggested that they
talk about the Plaza contract. According to Weber's
testimony, he stated, "as far as I am concerned that's
a dead issue ." Weber further testified, "I told him
[Voeller] I had sent him a letter, we had had no
acknowledgement from him within the 60 day period
that he intended to do anything about it.... I told
him that I assumed on this basis he was going to let
the contract expire." Weber again took the position
that since the contract had expired, Respondent had
no obligation to bargain.' Weber also claimed that
Respondent had a serious doubt about the Union's
majority. Voeller then asked Weber if he was aware
of Payne's commitment to him 6 months ago that
this would be worked out and thereafter he asked to
While Respondent disputes the Trial Examiner's finding that
the Union agreed to postpone further negotiations during this
period upon condition that the old contract continue in full force
and effect, we find it immaterial whether negotiations were
suspended or the prior contract was renewed for a fixed period of
6 months The record shows, and we find, that the purpose was to
enable the parties to take any changes made in the operation of
the Plaza into consideration in their later negotiations
6 The claimed purpose of this notice, as testified on the record
by Respondent but not communicated in the notice to the Union,
was to terminate the contract because of employee dissatisfaction
which had been reported to Respondent While Weber testified
that he sent this notice upon advice of counsel, he admitted on
687
talk to Payne. When Weber reached Payne on the
intercom and advised him of Voeller's presence,
Payne said in a loud voice, "tell him I don't want to
have anything to do with it, I'm not coming up
there."
On July 14, Voeller directed a letter to Payne in
which he called attention to the verbal agreement of
January 14 whereby both parties agreed to
"suspend" further negotiations for a period of 6
months in order to enable Respondent to revise its
operations and make other necessary changes.
Voeller also called attention to Payne's assurances
at that time and to the events of July 8 which
appeared to be contrary to his word. Voeller
requested that Payne or his representative meet for
the purpose of negotiating a new agreement.
On July 16, Weber wrote Voeller pursuant to
Payne's request and advised Voeller that the latter
erroneously stated in his letter of July 14 that
negotiations were suspended. Weber stated that the
contract was extended by verbal agreement on
July 1, but "there were no assurances other than a
good faith effort" on Respondent's part. Weber
again referred to the Union's failure to contact
Respondent until after the contract had expired and
to Respondent's doubt of the Union's majority. He
suggested an informal election by an impartial third
party, but agreed to negotiate provided Respondent
did not waive its right to pursue the representation
question. Weber then proposed a meeting for
July 26.
On July 26, Voeller and another union
representative, William A. Moreth, met with Weber
at Respondent's office. Voeller presented to Weber
30 recently signed authorization cards.8 Weber took
the cards and leafed through them briefly and
handed them back to Voeller, saying, "these cards
don't mean anything to us on the basis of the reports
that I have received about how you got them
signed." Weber stated further that an employee had
come to him and warned him not to pay any attention
to the cards. Voeller asked Weber if he wanted to
verify the signatures on the cards, but Weber said
that would not be necessary. Voeller stated that he
wished to begin negotiations. Weber agreed, but
stated, "I don't know what good it would do."
cross-examination that he had only received one report of
employee dissatisfaction when he first sought advice of counsel
' At this meeting Weber also disclosed to the Union for the first
time that Respondent had a doubt about the Union's majority
" The record shows that 46 employees were in the appropriate
unit represented by the Union As detailed in the Trial Examiner's
Decision , 13 cards were signed at a union meeting on July 14, and
the remainder were obtained by Moreth who contacted the latter
card signers at their homes It appears from the record that
Respondent was aware of these efforts by the Union to prove its
majority when Weber wrote to the Union on July 16 suggesting an
alternative means for establishing the Union 's majority
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, pursuant to a notice posted on the
bulletin board by Respondent on or about July 27,9
Respondent held a meeting of employees at the close
of business on July 30. Payne, Weber, and other
management personnel were present. Weber
testified he told the employees that in January the
contract had been extended orally for a 6-month
period; that on April 27 he had notified the Union of
Respondent's desire to terminate that agreement,
and that the Union did not respond to this letter in
any way; that, after receiving reports (of employee
dissatisfaction), Respondent had notified the Union
of Respondent's doubt of its majority status and
suggested an informal election held by an impartial
third party. After Payne assured the employees that
they were free to express their feelings pro or con
about the Union without fear of reprisals, Weber
asked for discussion of the questions which some of
the employees had raised with various members of
management.10 Afterwards, Weber, according to his
testimony, called for a vote as to how many
employees wanted the Union to be their bargaining
representative.11 However, Weber testified that
before the vote he told the employees that they were
free to vote as they pleased or that they did not have
to vote if they did not wish. Three employees raised
their hands in response to the question. Weber then
stated, "I guess this answers the question for us."
Thereafter, on August 6, Respondent filed a
representation petition with the Board in
Case 30-RM-32.
The -Union, in the meantime, submitted written
contract proposals to Respondent after the meeting
of July 26. Having expressed objections at that
meeting to further sessions with Voeller, Weber met
with Moreth on July 30 and on August 10 and 20.
Another meeting was scheduled for August 27 but
was canceled by Respondent, who refused to
negotiate further until a representation election was
held. Thereafter, the Union filed an 8(a)(5) charge,
and the instant complaint alleges that Respondent's
conduct on and after July 8 constituted an unlawful
refusal to bargain.
From a careful consideration of the foregoing
facts, and the record as a whole, we are persuaded
that Respondent's asserted doubt of the Union's
majority status was a pretext used by Respondent to
" As detailed more fully in the Trial Examiner 's Decision, on or
about July 23, employees Susan Peerenboom and Charlotte
Wickeren asked Store Manager Gerald Whitcomb if it would be
possible to have an election to determine whether most of the
employees wanted the Union to remain in the store Whitcomb
said he was not sure most of the employees wanted this, but
suggested that the two employees should post on the bulletin
board a notice calling for a meeting of all employees Peerenboom
and Wickeren decided not to post such a notice and so advised
Whitcomb
10 Weber testified that the purpose of calling the meeting was
to clear up the doubts and confusion and questions previously
asked regarding the union situation He further testified that
management had been asked if the Union still represented the
employees , if the employees had to continue to belong to the
mask an unlawful design to eliminate the Union as
the exclusive representative of its employees in the
appropriate unit.
The Respondent's opposition to the Union, and
desire to eliminate it as the employees'
representative, is abundantly clear. Respondent left
no doubt of its aim in its statements that the contract
had expired on December 31 and therefore it saw no
reason to continue having such a contract; its
complaints that the Union had not sufficiently
organized competing stores; and Payne's undenied
statements to McKitrick, quoted by the Trial
Examiner in his "Concluding Findings," that "I will
fight [this Union] with every penny I have and every
drop of blood in my body. If Pete [Voeller] was on
the sidewalk, I would kill him right now. I like some
unions, but I hate this one because they are a bunch
of Communists."12
This conduct, even standing alone, undermines
the Respondent's assertion of a question as to the
union majority status.13 But it does not stand alone.
Other circumstances support, and, in fact, render
inescapable, the conclusion that the Respondent did
not act from any good-faith doubt of its obligation to
continue bargaining with the Union. Thus, at about
the same time Respondent was claiming that it was
no longer obligated to deal with the Union because
the agreement had expired on December 31, Payne
was reassuring Voeller and giving his word that in 6
months the matter would be straightened out. Yet,
when Voeller sought to raise the matter with Payne
in July, after the 6 months had expired, Payne flatly
refused to see him or discuss the matter, and Weber
similtaneously attempted to nullify Payne's earlier
promises by saying that "there were no assurances
other than a good faith effort" on Respondent's part.
We note also that Weber sought to rely on the
Union's failure to contact Respondent until after the
contract had actually expired on July 1, although this
had been the practice of the parties in the past.
Not only does the Respondent's otherwise
inexplicable conduct reveal its unlawful purpose,
but the very nature of its statement of legal position
beginning in January bears the stigma of bad faith.
For, the Respondent asserts, in effect, that
whenever a collective-bargaining contract expires,
the representative status of the incumbent union
Union, and if Respondent wanted to negotiate with the Union He
also testified that management had been told that some of the
people who signed the authorization cards didn't sign them with
the idea of having the Union represent them When asked if the
reports about the cards were one reason for calling the meeting,
Weber responded that the cards were not discussed at the
meeting
i i Whitcomb recalled the question as being, "anyone in favor of
C & P continuing negotiations with the Union raise their hands "
Employee Irene Kamperschroer testified that Weber asked,
"those in favor or not holding a secret ballot raise your hands "
12 The Trial Examiner found that Payne's reference to Voeller
as a Communist occurred in May 1965 The record shows that this
remark was made in March or April
13 Palmer Asbestos & Rubber Corporation, 160 NLRB 723
C & P PLAZA DEPARTMENT STORE
ceases and an employer is relieved of the obligation
to bargain. No such proposition can be validly
maintained. On the contrary, it is well settled that
absent a good-faith doubt of majority status of an
incumbent, an employer must continue to bargain in
good faith with that union as the designated agent of
its employees, and the employer must demonstrate
by objective considerations that it had reason to
believe the union had lost its majority status.14 This
the Respondent has not done here, since it does not
appear that at any relevant time the Respondent had
cause to doubt its employees' continuing adherence
to the Union. The record does not support
Respondent's asserted reason for its contract
termination notice of April 27-reports of employee
dissatisfaction. And, the later conversations on
which Respondent relies virtually all occurred after
the Respondent refused to meet or deal with the
Union in early July or were comments by a few newly
hired employees to the effect that they had not been
asked and/or did not wish to join the Union.
But even apart from the above, the Respondent's
strongest reliance appears to be on the so-called
expression of wishes concerning continued union
representation in the poll taken at the employee
meeting on July 30. This reliance is misplaced. We
note first that the Respondent interrogated and
polled its employees in a coercive manner, and that
we could therefore place no credence in any
antiunion views expressed there by the employees.
Secondly, we are unable to discern how the
Respondent can draw any reasonable conclusions
from the failure of a majority to respond to the
question posed. For the Respondent unequivocally
states that its poll was preceded by the statement
that the employees need not vote if they did not wish
to do so. In the face of such an assurance, it cannot
be said that those who did not express an affirmative
vote were necessarily indicating a negative view. It
may well be that the nonvoters were merely
exercising their option to remain silent and refrain
from airing their preferences.
Finally, it is patent that Respondent's summary
rejection of the 30 signed authorization cards
proffered by the Union on July 26 was in furtherance
of its unlawful attempt to eliminate the Union.
Respondent was fully informed of the Union's
solicitation of the new cards at the July 14 meeting
and apparently was also aware of the Union's
comments to the employees at that time concerning
the need to reestablish its majority standing. In
addition, the general tenor of the remarks by most of
the employees who assertedly spoke to management
concerning their signing of the new cards was
generally to the effect that they had signed
voluntarily, but had mental reservations or had
subsequently changed their minds.15 One or two
others who expressed dissatisfaction were part-time
employees who felt that the Union was favoring
regular full-time employees at the expense of part-
timers. Of great significance is the fact that Weber
689
himself testified that in fact only one employee had
spoken to him at the time he rejected the cards on
the asserted ground that the Respondent had
received disturbing reports concerning the way in
which the cards had been secured, and even this
employee is claimed to have told him only that he
should "not pay any attention to the cards." Further,
when Weber agreed on or about July 23 to hold the
July 30 employee meeting concerning a possible
election, the Respondent expressed doubt that most
of the employees would want such a vote.16
In sum, the General Counsel has affirmatively
established that the Respondent acted in bad faith,
and the Respondent has failed to come forward with
sufficiently objective facts or considerations which
could furnish a reasonable basis for its asserted
good-faith belief that the Union had lost its majority
representative status at any time relevant herein.
Accordingly, we agree with the Trial Examiner's
finding that the Respondent unlawfully refused to
bargain with the Union in violation of Section 8(a)(5).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, C & P Plaza
Department Store, Division of C & P Shopping
Center, Inc., Madison, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order. l7
" Palmer Asbestos & Rubber Corporation, supra, 730. The
Respondent relies heavily upon N.L.R.B. v Laystrom
Manufacturing Co , 359 F 2d 799 (C A. 7), enforcement denied
151 NLRB 1482 However, that case is clearly distinguishable
from the instant situation in a number of respects . Thus, we note
that here, inter alia, the Union reestablished its majority support
by securing new cards from a majority of the unit employees, and
the General Counsel has affirmatively established facts showing
that the Respondent was strongly opposed to the Union and could
have had no real doubt about its majority status.
15 It is well settled that an otherwise valid card is not rendered
invalid by the mental reservation of the employee (Southbridge
Sheet Metal Works, Inc., 158 NLRB 819, TXD discussion of cards
of Alfred Hevey, Guiseppe Risclutelli , and Eugene Blanchette;
River Togs, Inc, 160 NLRB 58, 76-77) or because the employee
changed his mind without notice to the Union (Southbridge Sheet
Metal Works, Inc., supra, TXD discussion of cards of
Charles Champagne, William Julian, Richard Liberty,
Eugene Blanchette, and Peter Bilinski, Indiana Rayon Corpora-
tion, 151 NLRB 130 at 136, discussion/of card of Irene Carlton)
"See fn 9, supra
14 For purposes of clarity, the notice attached to the Board's
Decision herein is substituted for the notice attached to the Trial
Examiner's Decision.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the policies of the National Labor Relations Act, as TRIAL EXAMINER'S DECISION
amended, we hereby notify you that:
WE WILL NOT interrogate and poll employees
concerning their organizational activities or
affiliations with Local 1401, Retail Clerks
International Association (AFL-CIO), in a
manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of
the Act.
WE WILL bargain in good faith, upon request,
with the above Union as the exclusive
representative of all our employees in the
bargaining unit described below with respect to
rates of pay, wages, hours of employment, and
other conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement. The
bargaining unit is:
All regular full-time and regular part-time
employees of the Respondent, working in
its department store at 209 Cottage Grove
Road, Madison, Wisconsin, excluding
janitors, temporary and intermittent
employees, store manager, store coman-
agers, full-time salaried manager trainees,
confidential employees, watchmen, and
guards, and supervisors as defined in the
Act.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist the above-named Union, or
any other labor organization, to bargain
collectively through representatives of their
own choosing, and to engage in concerted
activities for the purpose of collective
bargaining or other mutual aid or protection,
and to refrain from any or all such activities,
except to the extent that such right may be
affected by an agreement requiring
membership in ajalior- organization as a
condition of-em-ployment, as authorized in
Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure
Act of 1959.
C & P PLAZA
DEPARTMENT STORE
(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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 2nd Floor, Commerce Building, 744 North
4th Street, Milwaukee, Wisconsin 53203, Telephone
272-3866.
STATEMENT OF THE CASE
LEE J. BEST, Trial Examiner: This proceeding brought
under Section 10(b) of the National Labor Relations Act,
as amended, 29 U.S.C. Sec. 151, et seq. (herein called the
Act), was heard pursuant to notice at Madison, Wisconsin,
on January 10, 11, 12, 13, 14, and 17, 1966, with all parties
present and represented by counsel. Based upon an
original charge filed on August 13, 1965, by Local 1401,
Retail Clerks International Association, (AFL-CIO)
(herein called the Union or Charging Party), the General
Counsel of the National Labor Relations Board on
November 17, 1965, issued a complaint against
C & P Plaza Department Store, Division of C & P
Shopping Center, Inc. (herein called the Respondent),
alleging in substance that said Respondent has since on or
about July 8, 1965, engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
More specifically the complaint alleges that Respondent in
bad faith questioned the Union's longstanding majority
status as exclusive bargaining representative of its
employees in an appropriate unit at C & P Plaza
Department Store without any reasonable basis for
doubting the appropriateness of the unit or the majority
representation thereof by the Union; and continued to do
so even though the Union procured and presented to the
Respondent newly signed authorization cards from a
substantial majority of the employees in said unit; and
thereafter, without a reasonable doubt of the Union's
majority status, filed a representation petition on
August 6, 1965, seeking a Board-directed election when no
question of representation existed.
In due course, the Respondent filed an answer admit-
ting jurisdiction of the Board, but denying all allegations of
unfair labor practices. All parties were present at the
hearing, represented by counsel, were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, to present evidence pertinent to the issues
involved, and to file written briefs with the Trial Examiner.
Oral argument was waived by all parties. Written briefs
filed by all parties have been given due consideration.
Upon the entire recoid' in the case, and from
observation of the witnesses, I make the following:
FINDINGS OF FACT
I BUSINESS OF RESPONDENT
C & P Shopping Center, Inc., is a Wisconsin
corporation having its principal office and several stores at
Madison, Wisconsin, and vicinity. C & P Plaza
Department Store is a subsidiary division of
C & P Shopping Center, Inc., operating a department
store at 209 Cottage Grove Road in Madison, Wisconsin,
where it is engaged in the retail sale of general
merchandise. During the past calendar year (1964), which
is a representative period herein, the Respondent sold
goods, wares, and merchandise valued in excess of
$500,000; and during the same period purchased and
caused such materials valued in excess of $50,000 to be
transported in interstate commerce directly from points
' The Respondent's unopposed motion dated March 11, 1966,
and duly filed on March 14, 1966, seeking 14 specified corrections
in the official transcript of testimony iQ h-rehv eranted
C & P PLAZA DEPARTMENT STORE
outside the State of Wisconsin . I find , therefore, that
Respondent is and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
Supervisors of the Respondent within the meaning of
Section 2 ( 11) of the Act include Carl L. Payne ( president),
Russell J . Weber (vice president and general manager),
Gerald (Jerry) Whitcomb ( store manager), Robert Miekle
(assistant store manager), and Tom Hannon (hardware
department manager).
It. LABOR ORGANIZATION INVOLVED
Local 1401, Retail Clerks International Association
(AFL-CIO), is a labor organization within the meaning of
Section 2(5) of the Act existing in whole or part for the
purpose of representing employees in dealing with
employers concerning grievances , labor disputes , wages,
rates of pay , hours of employment , and conditions of work.
Representatives of this organization include Peter P.
Voeller (secretary -treasurer and business representative)
and William A. Moreth (business representative).
III. THE APPROPRIATE UNIT
All regular full-time and regular part - time employees of
the Respondent , working in its department store at 209
Cottage Grove Road , Madison , Wisconsin , excluding
janitors , temporary and intermittent employees, store
manager , store comanagers, full-time salaried manager
trainees , confidential employees , watchmen , and guards,
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. Historical Background
Labor relations between the Respondent and the Union
date back to a certification of referendum issued by the
Wisconsin Employment Relations Board on January 10,
1948 , authorizing C & P Drive-In (a predecessor of
Respondent) to enter into an "All-Union Agreement" with
Retail Clerks International Association , Local#1401,
AFL, as the designated representative of its employees in
an appropriate unit, as provided in Section 111.06,
Wisconsin Statutes . The partnership organization doing
business as C & P Drive-In was incorporated under the
laws of Wisconsin in November 1948, and approximately 2
years later its corporate name was changed to C & P
Shopping Center, Inc., under the same management
throughout . At all times from original recognition of the
Union to April 1960, C & P Shopping Center, Inc.,
operated a combination store for the sale of food and a
variety of other merchandise under a single collective-
bargaining agreement with the Union as bargaining
representative for an all-inclusive unit . In the early part of
1960, however , the variety store operation was separated
from the food store and independently established at a
new location under the name of C & P Plaza Department
Store. Thereafter, the Union was recognized as
representative for an all-inclusive unit . In the early part of
separate collective-bargaining agreements for an
appropriate unit at each division location . Respondent and
the Union executed their initial contract with respect to
the C & P Plaza Department Store to remain in effect
from April 11, 1960 , through June 4, 1960 , to coincide with
691
the expiration date of the contract negotiated at the Food
Store Division. Thereafter , the parties negotiated and
executed a collective -bargaining agreement on behalf of
the unit at C & P Plaza Department Store that continued
in effect from January 1, 1961 , through December 31,
1962. At the expiration of that contract, the parties
negotiated and signed a new 2-year agreement effective
from January 1, 1963, through December 31, 1964,
containing a valid union - security clause without checkoff,
and also provided for automatic annual renewal of that
contract after December 31, 1964 , unless notice of a desire
to terminate or of changes in this agreement be served in
writing on the other party at least 60 days prior to the
termination date. Following expiration of this ultimate
contract , the Union requested negotiations for a new
agreement , but Respondent objected to renewing such
negotiations until certain changes in the department store
operations were completed . Thereupon , the Union agreed
to postpone further negotiations for a period of 6 months
upon a verbal agreement with the Respondent to continue
the current contract in full force and effect until July 1,
1965. Having entered into such a verbal agreement with
the Union , the Respondent , thereafter , on April 27, 1965,
addressed a letter to the Union , as follows:
Mr. Peter Voeller
Retail Clerks Union
301 E . Johnson St.
Madison , Wisconsin
Re; C & P Plaza Department Store Contract
Dear Mr . Voeller:
By verbal agreement we extended the above
contract to the 1st of July 1965.
We write this letter to notify you of our desire to
terminate that agreement on July 1, 1965.
Sincerely
Russell J. Weber
Vice Pres. & Gen. Mgr.
C & P Shopping Center, Inc.
B. Refusal to Bargain
Following expiration of the aforesaid verbal extension of
the contract , Business Representative Peter P . Voeller
(secretary - treasurer of Local 1401) called General
Manager Russell J. Weber (vice president of
C & P Shopping Center , Inc.) during the first week of
July 1965 , and requested that a date be fixed for a meeting
to resume negotiations both concerning a pending
grievance at the Food Store Division and a new contract
for the unit at C & P Plaza Department Store. Pursuant to
agreement Voeller and Weber met together at the latter's
office on July 8 , 1965 . After first discussing payroll data
pertaining to the pending food store grievance, Business
Representative Peter P . Voeller requested negotiations
with respect to a new contract for the employees at the
C & P Plaza Department Store; but General Manager
Russell J . Weber expressed doubt that the Union now
represented a majority of employees in the unit , and took
the position that since the contract had expired
Respondent would not extend or continue any form of
contract with the Union at the department store division.
295-269 0-69-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereupon, Voeller requested a conference with President
Carl L. Payne. Weber called Payne by telephone, but he
refused to confer with the union representative.
Thereafter, the Union on July 14, 1965, posted a letter to
the Respondent, as follows:
Mr. Carl L. Payne, President
C & P Shopping Center, Inc.
108 Cottage Grove Road
Madison, Wisconsin 53716
Re: C & P Plaza Department Store Agreement
Dear Mr. Payne:
On October 26, 1964, proper notice was served on
your company of our desire to change this Agreement.
At a subsequent meeting held on January 14, 1965,
an agreement was reached whereby both parties
would suspend further negotiations for a period of six
months. This was to enable you to revise your
operations and make other changes which you felt
were necessary in that store. You assured me at that
time that, six months hence, "everything would be
worked out."
Last Thursday, July 8th, I met with your Mr. Weber
and he informed me that he did not care to discuss
any further the matter of a new Agreement for this
store. I attempted to have this confirmed to me
personally by you. Instead you informed Mr. Weber
that you cared not to even discuss the matter with me.
Isn't this contrary to your word, given to me six
months ago?
As the collective bargaining representative for
these employees, I am requesting that you or your
representative meet with me for the purpose of
negotiating a new Agreement. I would propose
meeting in your offices on Wednesday, July 21, 1965,
at 10:00 a.m. If this is not agreeable or should you
choose to refuse my request for further negotiations,
please inform me.
Very truly yours,
Peter P. Voeller
Secretary-Treasurer
PPV: dj
Reg. Mail
Ret. Rcpt. Req.
In reply to the foregoing , Respondent posted a letter to
the Union dated July 16, 1965, demanding proof of
majority representation and proposing to meet with the
union representative in Weber 's office on Monday,
July 26 , 1965, as follows:
Mr. Peter Voeller
Retail Clerks Union
301 East Johnson Street
Madison, Wisconsin
Dear Mr. Voeller:
Mr. Payne has referred your letter of July 14 to me
for reply.
First , I want to correct your statement that
negotiations were suspended . They were not. As
stated in my letter to you of April 27, 1965, the
contract was extended by verbal agreement to July 1,
1965. There were no assurances other than a good
faith effort on our part. It was for this reason we gave
you notice of termination in April.
Your failure to contact us until July 8 and
indications from our employees, among other things,
leads us to doubt that you are the bargaining
representatives of the employees. I raised this
question with you on July 8 because it concerns us.
Under the circumstances, we would like to have you
prove to us that a majority of our employees still want
your union to act as their bargaining representative.
Perhaps this problem could be resolved by an
immediate informal election conducted by an
impartial third party, rather than the formal NLRB
procedures. In any event, this matter should be
resolved as soon as possible. We are open minded as
to the method to be used, and will welcome a
discussion of this problem.
We do not refuse to negotiate with you, provided we
do not waive our right to pursue the representation
question; however, we do not think negotiations
would be as meaningful if the representative question
were hanging over our respective heads.
We cannot meet on Wednesday as you suggest, but
propose that we meet at my office on Monday, July 26,
at 9:00 a.m.
Sincerely
Russell J. Weber
General Manager
C & P Shopping Center, Inc.
RJW: rep
Pursuant to Respondent's letter of July 16, 1965,
Peter P. Voeller and William A. Moreth (business
representatives of the Union) met General Manager
Russell J. Weber in his office at 9 a.m. on July 26, 1965,
and at that time presented to him 30 authorization cards
recently signed by a majority of the 46 employees
contained in the appropriate unit . Without further
examination or investigation, the Respondent promptly
rejected all of the authorization cards as evidence of
majority representation, because of alleged reports
concerning the manner in which the signatures thereon
had been obtained and by reason of objections to their
acceptance by certain disgruntled employees. The
authenticity of signatures was not questioned. Reserving
the right to hold an election by secret ballot before signing
any contract, General Manager Weber requested the
Union to submit a written contract proposal and meet
again with Respondent on July 30, 1965. At the same time,
Weber suggested that he negotiate alone with Business
Agent Moreth because of ill feelings between
Peter P. Voeller and himself. To this suggestion the Union
readily agreed.
Thereafter, on July 28, 1965, the Union forwarded its
written contract proposals to the Respondent for
consideration prior to its proposed meeting with Business
Representative Moreth on July 30, 1965. For
approximately 1 hour from 9 to 10 a.m. at this meeting on
July 30, 1965, Moreth and Weber reviewed and discussed
the various paragraphs of these written proposals, and at
the request of Weber adjourned to meet again on
C & P PLAZA DEPARTMENT STORE 693
August 10 , 1965 . Without any notice whatever to the Union
the Respondent at the close of business on July 30, 1965,
held a meeting of employees in the basement of the
department store, and interrogated them concerning their
union representation by calling for a raising of hands as to
how many of those present wanted the Union to represent
them or would favor an election to determine whether the
Union should represent them . From the testimony of
Russell J . Weber it appears that only two or three of the
assembled employees raised their hands; and that by
reason thereof the Respondent assumed that all who did
not raise their hands were opposed to the Union.
Consequently , the Respondent on August 6, 1965 , filed a
representation petition with the National Labor Relations
Board in Case 30-RM-32.
Thereafter , General Manager Weber held meetings with
Moreth in his office on August 10 and 20 , 1965, to discuss
and review the various provisions set forth in the written
contract proposals submitted by the Union , but on each
occasion made it clear that any final agreements or the
signing of any contract would be contingent upon the
outcome of its position for an election before the National
Labor Relations Board . A final meeting of the negotiating
parties scheduled for August 27, 1965 , was canceled by
notice from the Respondent refusing to negotiate further
until a representation election was held. In the meantime
the original charge in the instant case was filed on
August 13 , 1965 , and pursuant to Board policy the
Regional Director for Region 30 thereupon dismissed the
representation petition pending determination of any
alleged unfair labor practices.
C. Proof and Doubt of Union Majority
Respondent contends that its refusal to recognize and
bargain with the Union after July 1, 1965 , was no violation
of Section 8(a)(5) of the Act, because at some time during
the verbal extension of the contract in the period from
January 1 to July 1, 1965 , a majority of employees in the
unit became disgruntled and objected to further
representation by that labor organization . It is agreed and
stipulated that during this critical period the appropriate
unit consisted of 46 employees , all of whom were
presumed to be members of the Union by reason of the
union- security clause in the current collective - bargaining
agreement . At a union meeting with 22 employees present
on the night of January 14, 1965 , Secretary-Treasurer
Peter P . Voeller explained to the membership that by
reason of changes to be made by the Respondent in
operations at the C & P Plaza Department Store, the
Company and the Union had verbally agreed to extend the
current collective -bargaining agreement to July 1, 1965;
and such agreement was ratified at this meeting.
Apparently no further union meetings were held until
July 14 , 1965 , when pursuant to written notice 16
employees met at Mac 's Cafe to hear and engage in further
contract discussions . Official minutes of that meeting
show that Secretary -Treasurer Peter P. Voeller reported
that on July 8, 1965, he had requested Respondent to
negotiate a new contract but had been rebuffed by General
Manager Russell J . Weber ; and that it might be necessary
to prove that a majority of the employees still belonged to
the Union and wanted a new contract . Thereupon , Voeller
requested that new authorization cards be signed.
Thirteen of the employees present signed authorization
cards and delivered them to Voeller . A strike vote by
secret ballot was also taken , resulting in 12 ballots for and
4 ballots against strike action . Following this meeting
Business Representative William A. Moreth visited other
employees in their houses to solicit additional
authorization cards. Seventeen additional authorization
cards were signed and delivered prior to July 26, 1965,
indicating that 30 out of 46 members of the bargaining unit
favored continued representation by the Union. New
authorization cards were signed and delivered to the union
representatives by (1) Margaret Baxter, (2) Florence B.
Carey, (3) Victor Chaplin, (4) Ida C. DuBois, (5) Robert
G. Endres, (6) Jennie A. Fenske, (7) Darlene J. Hustad,
(8) Helen Knudsen , (9) Irene Kamperschroer, (10) Ann
Larson, (11) Wayne A. Pickarts, (12) George Scott,
(13) Jo Ann Slinger, (14) Wiladean Addams. (15) Paulette
Baxter, (16) Milly Boyer, (17) Clara Brown , (18) Velma F.
Buffa, (19) R. W. Bultman , (20) Hazel Dobson, (21) Rosie
Huber , (22) Ruth Johnson, (23) Carol Lewis, (24) Florence
Marty, (25) Richard A. Martinson, (26) Janet Osterhaus,
(27) Roland M. Stanek, (29) Patricia Zeller, and (30)
Madelyn Zeller.
The Respondent seeks to establish a reasonable doubt
of the Union' s`,majority by reports from dissatisfied
employees in the bargaining unit.
Irene Kamperschroer (full-time employee) credibly
testified in substance that she had been employed by
Respondent for approximately 5 years, and since May 1965
has been working as a cashier-checker at the C & P Plaza
Department Store; that she attended the union meeting at
Mac's Cafe on July 14, 1965, where Business
Representative Peter P. Voeller told them that the
Respondent was not willing to sign another contract, and
had been very rough with him about it; that new
authorization cards were passed out at that meeting, and
she signed one at the request of Voeller, and had since the
meeting regretted that she did so, but did not have the
nerve to request the Union to give it back to her; that her
idea in signing the card was to help the Union get its
membership files up to date . Pursuant to a notice posted
on the bulletin board , President Carl'L. Payne before
worktime on July 23, 1965, met around a coffee table in the
department store with a group of full-time employees
including Margaret Baxter , Jennie Fenske, Ann Larson,
Irene Kamperschroer , and Store Manager Jerry Whitcomb
to answer questions about their relationship with the
Union. Among other questions , Jennie Fenske inquired
whether wages would be reduced if the Union was
dropped, and President Payne replied to the effect "that
he had never cut wages since he had the C & P, and didn't
think he would intend to ever." Thereafter, she attended
another meeting of employees on July 30, 1965, in the
basement of the store at night after worktime , which was
opened with a statement from President Payne and
General Manager Weber to the effect that they were there
to answer questions , but could not put words in their
mouths. Weber said that the Union had refused to agree to
an imformal election before a minister or a priest or other
impartial referee , and that he wanted them to indicate in
some way their desires about having the Union or not.
Thereupon , Linda Peerenboom (employee ) suggested a
show of hands to ascertain whether the employees were in
favor of a secret ballot for or against the Union. Nellie
Miller (employee ) asked President Carl L. Payne what he
wanted them to do, and Payne replied in substance "that
is a question I can ' t answer for you. You must make up
your own mind whether you want the Union." Thereupon,
a vote was taken by asking "all those not in favor of having
a secret ballot" to raise their hands . About three or four
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees raised their hands, and it was announced that
no alternative vote was necessary because so few
indicated they were against it; she was in favor of
management, and did not raise her hand.
Susan Peerenboom, as a witness for the Respondent,
testified that she is a student at the University of
Wisconsin, and works part-time as a saleslady for the
C & P Plaza Department Store at night and on weekends;
that she joined the Union but quit paying dues in March
1965 because the Union did not help her get a raise in pay,
and she felt that they were discriminating against students
by limiting their wages to $1.30 per hour. She attended the
union meeting at Mac's Cafe on the night of July 14, 1965,
when Peter Voeller related a history of his negotiations
with the C & P Plaza Department Store, and passed out
authorization cards for them to sign; but no cards were
signed that night by Charlotte Wickeren, Madelyn Zeller,
and herself. A vote was also taken concerning a boycott or
strike against the store. After the meeting she rode home
in a car with Charlotte Wickeren, Madelyn Zeller, and
Irene Kamperschroer; and discussed the Union with them
and other employees. Thereafter, in the presence of
Charlotte Wickeren, she related her dissatisfaction with
the Union to Store Manager Jerry Whitcomb and inquired
whether it would be possible to hold an election to
determine whether the Union represented a majority of the
employees in the unit. Whitcomb suggested that they take
the matter up with the National Labor Relations Board
and that they post a notice on the bulletin board calling a
meeting of all employees to consider the situation; but
Charlotte Wickeren and she decided that they did not
want to be the instigators in signing such a notice,
because it would arouse antagonism between prounion
and antiunion employees. Thereafter, she and Charlotte
Wickeren also related their dissatisfaction with the Union
to Tom Hannon (manager of the hardware department);
and also inquired of General Manager Russell J. Weber
whether it would be possible to have an election at the
store because of their dissatisfaction with the Union; but
they were not willing to sign their names to a poster on the
bulletin board. Thereafter, pursuant to a notice on the
bulletin board signed by either Store Manager Whitcomb
or General Manager Weber, she attended a meeting of
employees in the basement of the store after closing time
on Friday night, July 30, 1965. That meeting was
conducted primarily by General Manager Weber and
President Carl Payne, but also present were Store
Manager Jerry Whitcomb, Assistant Store Manager
Robert Miekle, and Hardware Department Manager Tom
Hannon. Russ Weber presided, and said that some of them
might be dissatisfied and that he wanted to find out
whether there was a reasonable doubt as to their feelings
toward the Union. President Carl Payne announced that
they should feel free to say whatever they wanted to say,
and that it would have no bearing on their fobs, wages, or
hours of work. Thereupon, a discussion ensued, and some
of the employees asked questions about the way the paint
department was being run, etc. Linda Peerenboom (her
sister) expressed the opinion that there was a reasonable
doubt whether the employees wanted a union, and
inquired whether it would be possible to have an election.
Then she left the meeting before any vote was submitted.
Madelyn Zeller, as a witness for the Respondent,
testified that prior to October, 1965, she was employed as
part-time saleslady at night and on weekends at the C & P
Plaza Department Store, and was at that time a member of
the Union; that she attended a union meeting at Mac's
Cafe on the night of July 14, 1965, when Peter Voeller
passed out authorization cards for them to sign, and
explained that these cards were pretty much the same as
cards they signed when they joined the Union, and were
for the union files so they would have a current up-to-date
roster of union members; that she did not sign the card
that night, because they were talking about strikes and
pickets, etc., and "that was one of the reasons I didn't
want to sign the card, because I want no part in any of that
sort of thing." Thereafter, William A. Moreth came to her
home, and in the presence of her daughter (Patricia Zeller)
again asked her to sign the card. She told Moreth that she
did not wish to sign the card when they were talking about
strikes and pickets and that sort of thing, and that she
wanted nothing to do with it. Then Moreth explained again
that the card was purely for office use, and that they would
have to hold a strike vote before going on strike.
Thereupon, she filled out the authorization card in her own
handwriting, told Moreth that she would not sign if it was
for the purpose of getting permission for the Union to call a
strike, but agreed to sign the card to be used only "if and
when it was decided to negotiate for a new contract, and I
would have to belong to the Union, then he would be
authorized to be my bargaining agent, and that was the
only use." During her next work period at the store, she
had a discussion with Sue Peerenboom, Charlotte
Wickeren, Irene Kamperschroer, Margaret Baxter, and
Tom Hannon (manager of hardware department) around
the coffee table, told them about Moreth coming to her
home to get her to sign the card, and that she was sorry
that she signed it. I don't recall any other discussions with
members of management about it. Thereafter, pursuant to
a notice on the bulletin board she attended a meeting along
with other employees in the toy department basement of
the store in the presence of President Payne, General
Manager Weber, Store Manager Jerry Whitcomb, and
Tom Hannon (manager of hardware department).
Russell J. Weber was presiding, and the others were
sitting or standing around. President Payne announced
very clearly that they were to feel free to ask questions and
not be afraid to say anything that they wished to say, and
that it would have no bearing on their jobs or be any
reflection on them whatever. General Manager Weber told
them what had been going on; said that the Company was
wondering whether the employees wished to retain the
Union as their bargaining agent; that they should feel
perfectly free to express themselves; that the Company
wanted to know what the employees wanted, and whether
they wanted the Company to ask for an election; that the
employees should indicate in some way what they wanted
the Company to do. Nellie Miller asked President
Carl Payne: "what do you want us to do"; and Payne
replied: "Nellie, it's up to you people to -decide. This is
your decision, and whatever you want is what we want,
and I cannot decide for you." Then Russell Weber said:
"How many here would be in favor of just keeping the
Union?" Three people raised their hands, so they decided
they would petition for an election. Weber told them that
the vote was conducted to see if they should file a petition
for an election-to find out whether the employees wanted
an election or not.
Patricia Zeller, a witness for the Respondent, testified
in substance that she was first hired at the C & P Plaza
Department Store on June 14, 1965, and since that date
has worked as a part-time checker. Thereafter, Business
Representative William A. Moreth came to her home
about the middle of July 1965, informed her that she was
C & P PLAZA DEPARTMENT STORE 695
required to join the Union by reason of the contract with
her employer , and persuaded her to sign a union
membership application card , but she has never paid any
union dues or attended any meetings ; that Moreth also left
with her an authorization card to be signed after talking
the matter over with her mother (Madelyn Zeller). At a
later date both she and her mother signed authorization
cards and gave them to Business Representative Moreth,
but made it very clear that they were signing the cards
under the condition that the Union could represent them if
the store wished to negotiate a new contract with the
Union, but if management did not wish to negotiate the
cards would be worthless . About 2 days later she
discussed the matter with Tom Hannon , and told him that
she was sorry that she signed the card . She talked to Tom
Hannon on three different occasions . Thereafter , she saw
a notice on the bulletin board calling for a meeting of
employees on July 30 , 1965, but did not attend that
meeting.
Hazel Dobson , a witness for the Respondent , testified in
substance that she is a full-time employee of Carnes
Corporation at Verona , Wisconsin , and since March 1965,
has also worked one night per week and on weekends as a
checker for C & P Plaza Department Store. She did not
join the Union until July 1965, when Business
Representative William A . Moreth came to her home, and
persuaded her to sign an application for membership and
also an authorization card . She filled out in her own
handwriting the information called for in each of these
cards, so that the Union could put her name on its mailing
list. Next day she discussed the Union with Charlotte
Wickeren , Sue Peerenboom , and Store Manager Jerry
Whitcomb , and found out that some other employees had
also signed cards for the Union . She was somewhat
embarrassed about signing the card , and told Store
Manager Whitcomb that she signed it thinking that it was
for mailing list purposes . Some of the group suggested
calling a meeting of all employees to find out what was
going to happen , and Charlotte Wickeren asked Store
Manager Whitcomb to post a notice of such meeting,
because none of the gins wanted to assume responsibility
for doing so. Whitcomb at first objected to posting such a
notice because he was a part of management , but finally
agreed to sign and post notice of a meeting of employees to
find out whether they wanted the Union to represent them
or not . Pursuant to such a notice, she attended a meeting
of employees with management in the basement of the
store on Friday night , July 30 , 1965. At this meeting
General Manager Russell J . Weber stated that they
wanted to know whether the employees wanted or did not
want the Union . A discussion ensued and an oral vote of
some kind was taken , but she does not remember what
was said or how the question was proposed to the meeting.
She does remember that Sue Peerenboom spoke out in
opposition to the Union , but does not recall what she said.
Department Manager Tom Hannon, a witness for the
Respondent , testified in substance that he has been
employed at C & P Plaza Department Store since
August 13 , 1962 , and on October 1, 1964 , was promoted to
the position of manager of the hardware department. As
supervisor , he had frequent conversations about the Union
with employees under his supervision, including Nancy
Boyd, Margaret Baxter, George Bernhagen, Hazel Dobson,
Irene Kamperschroer, Wayne Pickarts, Sue Peerenboom,
Linda Peerenboom, Jack Southerland, Jr.,2 Charlotte
Wickeren, Madelyn Zeller, Patricia Zeller, and others (all
of which he reported to Store Manager Whitcomb); that in
January 1965, Charlotte Wickeren told him that she had
not paid union dues for the months of November and
December (1964), and sought advice from him as to
whether she should do so; that in March 1965, Hazel
Dobson told him that she had never been requested to Join
the Union, and did not want to be a member, but after the
July 14, 1965, union meeting at Mac's Cafe told him that
she had signed a card, thinking it was an address card, but
did not understand what it was all about; and that she did
not intend for this card to be used against the C & P Plaza
Department Store; that in March 1965, George Bernhagen
told him that (after 3 months' employment) he had not
been approached to join the Union, and did not care to
belong to the Union, because it was the most mismanaged
organization that he had ever seen; that in June 1965, both
Elanore Drager and Jack Southerland, Jr., told him (after
employment for more than a year) that they had not joined
the Union, did not care to do so, and inquired whether they
could be required to join that organization; that in June
1965, Madelyn Zeller talked to him on several occasions,
expressed her opinion that Carl Payne was the greatest
man alive, that she had no fear of Payne or Weber, and
that she would like to have a meeting with them and hold
an election as soon as possible to see what could be done
about getting the Union out. After the union meeting at
Mac's Cafe on July 14, 1965, Madelyn Zeller told him that
cards had been passed out, that people signed them
without knowing what they were going to be used for, and
that she did not sign at that time, but later during that
week she and her daughter (Patricia) signed cards when
the union representative came out to her house; but that
she did not want it used against the C & P Plaza
Department Store; that Irene Kamperschroer was on one
occasion present with Madelyn Zeller, and said that Carl
Payne would never be unfair to any of his employees, and
that she would like to get the Union out. After the union
meeting on July 14, 1965, Irene told him about the cards
being signed, and said that some of the signers thought
they were either address cards or some type of card to
show they were registered with the Union, but did not
know they were to be used against C & P and did not
intend for them to be used that way; that in June 1965,
Margaret Baxter expressed her dislike for Peter Voeller,
and said that she did not want a drunken bum leading her
arQund;3 that management of the Union was not doing a
good job, and had never approached some employees in
the store after employment for a long time; that the people
who signed cards did not realize what they were signing,
and that she did not want the Union to represent her; that
Nancy Boyd told him that she was not in favor of the
Union, and wanted to do something to eliminate it.
Tom Hannon testified further concerning his
conversation in June 1965 with a group of employees
consisting of Nancy Boyd, Wayne Pickarts, Sue
Peerenboom, Charlotte Wickeren, and Patricia Zeller,
who inquired about having a meeting with President
Payne and General Manager Weber to start group action
2 Jack Southerland, Jr , credibly testified that his father was
manager of the paint department, and that he has never joined the
Union or mentioned it to Tom Hannon or any other member of
management
' When called by the General Counsel as a witness in rebuttal,
Margaret Baxter denied such conversation with Tom Hannon or
any other member of management
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get the Union out of the store. Wayne Pickarts told him
that many of the employees had not been approached by
the Union, but as freeloaders were receiving the same
benefits; that he was dissatisfied with the way the Union
was being run, and did not believe it represented a
majority of the employees. Pickarts also inquired whether
he would get a raise in pay or would there be a cut in wages
if the Union was put out; that he told Pickarts that it would
depend on the individual effort put out in his work. After
the union meeting on July 14, 1965, Pickarts told him that
when the cards were passed around and signed that some
of the employees did not know what they were signing, and
that some thought they were address cards; and that he
would like to have a meeting with Payne and Weber to
hear their side of the story, because it would be very
lopsided to hear one side without being able to hear the
other side. Sue Peerenboom asked for a meeting with
Payne and Weber, and said: "Why can't you tell us?" She
inquired whether they could start a petition to get the
Union out, because the Union did not represent her; that
she was not in favor of the Union, and believed that many
other people had the same feelings about it. Patricia Zeller
in June 1965 told him that she did not want to join the
Union, and inquired whether she would be required to do
so. He said: "No." Then she asked what could be done
about it, and he said that he did not know, and could not
answer questions concerning her membership and
relations with the Union. After the union meeting on
July 14, 1965, she told him that people who signed the
cards did not understand what they were signing, and did
not want them to be used against the C & P Plaza
Department Store; that he told her that he could not give
her any advice about the cards.'
Store Manager Gerald Whttcomb testified in substance
that on several occasions he discussed the Union with a
group of employees consisting of Sue Peerenboom, Hazel
Dobson, Charlotte Wickeren, Wayne Pickarts, and others;
that Wayne Pickarts told him that the Union was not
offering him any wage protection, and he did not think it
was going to do any good, and since there was no union
contract in force he was well satisfied with things as they
were; that about July 7-8, 1965, a group composed of Sue
Peerenboom, Hazel Dobson, Charlotte- Wickeren, and
Wayne Pickarts came to him and inquired whether it
would be possible for the employees to hold a meeting;
that Hazel Dobson told him about the circumstances under
which she signed an authorization card, and was making a
kind of joke out of it; that on July 23, 1965, Sue
Peerenboom and Charlotte Wickeren told him they
wanted to have an election, and since some of the full-time
employees had already met with President Carl Payne,5
they would like to have another meeting at night when
more people could attend; that he assured them that
management would meet with them at anytime, and
suggested that they post a notice on the store bulletin
board; but they objected to putting their names on a notice
because they did not want everybody in the store mad with
them; so it was agreed that a notice would be signed and
posted by the store manager after ascertaining the best
time for President Payne to be present. Thereafter he
discussed the matter with General Manager
Russell J. Weber, who conferred with President Payne,
and agreed to attend such a meeting on Friday night,
J Nancy Boyd, Wayne Pickarts, and Charlotte Wickeren did
not appear as witnesses in the case
5 A prior meeting had been held in the early morning of July 23,
July 30, 1965. Thereupon, he prepared, signed, and posted
a notice inviting employees to attend the meeting to
discuss and ask questions about the Union. Pursuant to
that notice, 27 employees assembled in the basement of
the store after worktime on the night of July 30, 1965, in
the presence of President Carl L. Payne, General
Manager Russell J. Weber, Store Manager Gerald
Whitcomb and other supervisors. Russell Weber opened
the meeting with a summary of information as to what had
happened between the Union and the Company since
January 1, 1965, and assured the employees that they
should feel free to express their views at this meeting
without fear or worry about their jobs, because the
Company would like to know how they felt, and what they
wanted the Company to do. Robert G. Endres (employee)
remarked that the paint department was the only one in
the store making any money, and ought to be increased in
size. Richard A. Martinson (employee) inquired why the
"carry-out" boys in the grocery store were making more
money than he was making. Thereupon, General Manager
Russell J. Weber explained that economic conditions in
each industry were different; that wage scales were set up
based upon the demand made throughout the particular
industry; but in their type of operations this was not
possible because the volume and turnover was not
comparable with a grocery store operation. Several other
employees made comments, and then Nellie Miller
(employee) asked President Payne to tell them what to do,
but Payne said they would have to make their own
decision; that he would go along with whatever they
decided. Linda Peerenboom then suggested that a vote be
taken. Thereupon, General Manager Weber proposed that
all in favor of continuing negotiations with the Union raise
their hands. After that, Weber announced: "I think that
we know your desires. We'll ask for an election so that you
may express yourself"; and thereupon the meeting
adjourned.
This witness testified further that during the period
January-July 1965, Tom Hannon made frequent reports to
him as to what was going on in the store; and that he in
turn reported these things to General Manager
Russell J. Weber. Among other things he told Weber that
Margaret Baxter had expressed antagonism to the Union;
related the circumstances under which Margaret Baxter
and Hazel Dobson had signed cards, and reported his
conversations with several employees concerning their
failure to pay union dues, etc.
General Manager Russell J. Weber testified in
substance that in February 1965, Assistant Store Manager
Robert Miekle reported a discussion with Carol Lewis
(employee) in which she expressed dissatisfaction with the
union contract because wage increases were based on
seniority alone rather than merit , and cited an example of
its application to herself as a full-time employee in the toy
department; that in March 1965, Store Manager Gerald
Whitcomb reported that George Bernhagen (employee),
after working several months, had inquired whether there
was a union in the store, said that nobody had approached
him about it, and that he definitely did not want to belong
to a union; that during the spring of 1965,
Jack Southerland, Jr. (employee), had inquired whether he
would be required to join the Union, and said that he had
no desire to join the Union; that in March 1965. Elanore
!965, around a coffee table in the store, when only full-time
employees were present
I
C & P PLAZA DEPARTMENT STORE 697
Drager (employee) had expressed dissatisfaction among
the employees about the Union , and inquired whether she
would be required to join it . 6 Weber testified also
concerning reports made to him by Store Manager Gerald
Whitcomb ; that Hazel Dobson (employee ) in March 1965
said she was definitely not interested in joining the Union;
that in July 1965 , Hazel Dobson had signed a card for the
Union to bring their files up to date , but after discussion
with other employees was very much disturbed to learn
that she had signed an authorization card designating the
Union as her bargaining representative ; that at the union
meeting on July 14 , 1965 , Irene Kamperschroer had signed
an authorization card , but thereafter expressed regrets
that she had done so; that in April and June 1965, Wayne
Pickarts (employee ) expressed resentment because some
of the employees were freeloaders (not paying their dues);
and that a group consisting of Wayne Pickarts , Charlotte
Wickeren , and Sue Peerenboom had expressed
dissatisfaction with the Union and suggested that
management arrange for a meeting with employees and
tell their side of the story; that in June 1965 , Madelyn
Zeller had expressed high regard for President
Carl L . Payne, felt that employees would not be treated
unfairly without a union, and inquired about methods of
getting rid of the Union ; that later in July 1965 , Madelyn
Zeller became very much disturbed because she had
attended a union meeting and thereafter signed a union
authorization card on condition that it would be used only
in the event President Payne desired to negotiate with the
Union ; that in June 1965 , Patricia Zeller indicated that she
had no desire to join the Union ; that back in January 1965,
Charlotte Wickeren received notice from the Union that
action would be taken against her unless she paid her
dues. Weber testified further that during the period
July 29-26, 1965 , Sue Peerenboom came to him saying
that she had been talking to Charlotte Wickeren and
Madelyn Zeller , and warned him that cards were being
signed by some employees that did not know what they
were doing. At that time Sue Peerenboom requested him
to hold a meeting of employees to discuss the situation;
and he agreed to find out whether he could properly do so.
Concluding Findings
Contrary to the contentions of the Respondent, the
records of the Union show that a substantial majority of
employees in the appropriate unit paid their union dues fot
the entire period beginning January 1 and ending July 1,
1965 . Furthermore , the nonpayment of dues does not
necessarily imply loss of majority representation . Most of
the complaints or dissatisfaction expressed by employees
to management came from newly hired people who had
never joined the Union or from those who became
disgruntled during the period when Respondent was
making changes in its operations at the department store
due to which the Union had more or less been relegated to
a standby basis under a verbal continuation of the old
contract until the operating changes were completed. The
verbal extension of the contract implied that the Union
should be notified when changes were completed, so that
negotiations already demanded by the Union for a new
contract could be resumed . Failure of the Respondent to
notify new employees and other inquirers during the 6-
month period from January 1 to July 1, 1965 , that the old
contract including the union -security provisions were in
full force and effect by verbal agreement , indicated bad
faith by the Respondent during this critical period . Having
failed to furnish information to its employees during this
period concerning the status of the collective -bargaining
agreement , thereby encouraging the impression that they
were being neglected or abandoned by the Union, the
Respondent cannot now claim the benefit of such
complaint to it by employees as the basis for a reasonable
doubt of the Union ' s majority status at the expiration of the
verbal extension of the contract . President Carl L. Payne
revealed his animosity towards Business Representative
Peter Voeller in May 1965 by addressing him as a
Communist ; and later in October 1965 , told May
McKitrick (former employee at the food store division) that
he would assist her in getting unemployment
compensation if she would drop the Union ; and said
"they 're a bunch of Communists . I will fight them with
every penny I have and every drop of blood in my body. If
Pete (Voeller) was on the sidewalk , I would kill him right
now. I like some unions, but I hate this one because they
are a bunch of Communists ."7 After the first year of
certification or in the absence of certification , where an
incumbent union has a long and continuous history of
recognition as a collective-bargaining representative, there
is a rebuttable presumption of continuing majority status,
and the burden is upon the employer to overcome that
presumption by strong and convincing evidence before
there can be a valid basis for the assertion of a reasonable
doubt of the union 's majority status.8 The Respondent first
asserted its alleged reasonable doubt of the Union's
majority status on July 8, 1965 , followed by its letter of
July 16 , 1965, demanding proof of a continuing majority.
Business representatives of the Union tried in good faith to
satisfy Respondent 's demand by obtaining new
authorization cards from its members in an open meeting
and by also visiting them in their homes. Evidence of fraud
or misrepresentation in obtaining these cards , which is
relied upon by the Respondent to justify its summary
refusal to consider or investigate their validity, is weak,
vacillating , and unworthy of consideration . The Union
submitted newly signed authorization cards from 30 out of
46 employees in the appropriate unit . The validity of only
four cards, signed by Hazel Dobson , Irene Kamperschroer,
Madelyn Zeller , and Patricia Zeller , was attacked by
testimony of the signers thereof. In my opinion this
testimony does not invalidate either of these cards; but if
all 4 be eliminated , there remains a majority of 26 out of 46
whose cards remain unchallenged , and from which I find
majority representation by the Union of all employees in
the appropriate unit . In most cases these cards were filled
out completely in the handwriting of the signers, all of
whom were intelligent, educated people; and it would be
preposterous under the circumstances here to find that
any fraud or misrepresentation was practiced upon them
by the Union of which they were already dues-paying
members, and by whom this particular unit had been
represented for approximately 5 years since separation
from the food store unit. From a preponderance of all the
evidence in the case , I am constrained to find that no basis
9 Neither Assistant Store Manager Robert Miekle, Carol
Lewis, George Berghagen , or Elanore Drager testified as a
witness, and Jack Southerland , Jr, denied any such
conversations with management.
' President Payne did not testify as a witness to deny the
testimony of Peter Voeller or May McKitrick
8 See: Laystrom Manufacturing Co , 151 NLRB 1482
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a reasonable doubt as to exclusive representation by
the Union of all employees in the appropriate unit existed
on July 8, 1965, or at any time thereafter pertinent to this
case. I find, therefore , that Respondent has at all times on
and since July 8, 1965, refused to negotiate and bargain in
good faith with Local 1401, Retail Clerks International
Association (AFL-CIO), as the exclusive bargaining
representative of all employees in the unit herein found
appropriate for the purposes of collective bargaining. In
the absence of a good-faith doubt of such representation, I
further find that by holding a meeting of its employees in
the presence of management on July 30, 1965, whereat
attending employees were interrogated and polled with
respect to their affiliation with the Union, the Respondent
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed by Section 7 of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship 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.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that it cease and desist therefrom,
and also take certain affirmative action designed to
effectuate the policies of the National Labor Relations
Act.
It will also be recommended that the Respondent, upon
request , bargain collectively with Local 1401, Retail
Clerks International Association (AFL-CIO), as the
exclusive bargaining representative of its employees at
C & P Plaza Department Store, Division of C & P
Shopping Center, Inc., in the unit herein found to be
appropriate ; and if an understanding is reached,
incorporate such understanding in a signed agreement.
Further finding from hostility expressed by the
Respondent towards representatives of the Union and the
principles of collective bargaining that further unfair labor
practices may be expected unless effectively restrained, I
shall further recommend that Respondent cease and
desist from in any manner infringing upon the rights
guaranteed to employees in Section 7 of the Act to form,
join, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
Upon the basis of the foregoipg findings of fact, and
upon the entire record in the case, I make the following:
Conclusions of Law
1. C & P Plaza Department Store, Division of C & P
Shopping Center, Inc., is an employer engaged in
commerce within the meaning of Section 2(2) of the Act.
2. Local 1401, Retail Clerks International Association
(AFL-CIO), is a labor organization within the meaning of
Section 2(5) of the Act.
3. By virtue of Section 9(a) of the Act, Local 1401,
Retail Clerks International Association (AFL-CIO), was
on July 8, 1965, at all other times pertinent herein, and
now is the exclusive bargaining representative of
employees in the unit herein found to be appropriate,
consisting of "All regular and full -time and regular part-
time employees of the Respondent , working in its
department store at 209 Cottage Grove Road, Madison,
Wisconsin , excluding janitors, temporary and intermittent
employees, store manager , store comanagers , full-time
salaried manager trainees, confidential employees,
watchmen and guards, and supervisors as defined in the
Act."
4. By interrogating and polling its employees
concerning their organizational activities on or about
July 30, 1965, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. By failing and refusing at all times on and since
July 8, 1965, to bargain in good faith with Local 1401,
Retail Clerks International Association (AFL-CIO), as the
exclusive bargaining representative of its employees in the
appropriate unit , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. 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,
conclusions of law, and the entire record in the case, I
issue the following:
RECOMMENDED ORDER
C & P Plaza Department Store, Division of C & P
Shopping Center, Inc., its agents, supervisors, successors,
and assigns , shall:
1. Cease and desist from:
(a) Interrogating or polling its employees concerning
their organizational activities or affiliations , thereby
interfering with , restraining , or coercing them in the
exercise of the right to form, join, or assist labor
organizations , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection ; or to refrain
from engaging in any or all such activities.
(b) Refusing to bargain with Local 1401, Retail Clerks
International Association (AFL-CIO), as the exclusive
bargaining representative of its employees in the unit
herein found to be appropriate for the purpose of collective
bargaining.
(c) In any other manner interfering with, restraining, or
coercing its employees , or infringing upon the rights
guaranteed to such employees in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
Local 1401, Retail Clerks International Association
(AFL-CIO), as the exclusive representative of all
employees in the aforesaid appropriate unit , with respect
to wages, hours , grievances , and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Post at its department store at 209 Cottage Grove
Road, Madison, Wisconsin, copies of the attached notice
YOUNG METAL PRODUCTS CO.
marked "Appendix." Copies of said notice, to be
furnished by the Regional Director for Region 30, after
being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent
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
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, 744
North Street, Milwaukee, Wisconsin, in writing, within 20
days from the date of this Recommended Order, what
steps the Respondent has taken to comply therewith. 10
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Tnal Examiner" in the
notice In the further event that the Board's Order is 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 "
10 In the event that this Recommended Order is 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 "
Young Metal Products Company, and
International Brotherhood of Boilmakers,
Iron Shipbuilders , Blacksmiths , Forgers
and Helpers , Lodge 1012 , AFL-CIO. Case
14-CA-3985.
March 30,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On December 22, 1966, Trial Examiner Owsley
Vose issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging 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, the Respondent filed
exceptions to the Trial Examiner's Decision, and a
supporting brief.
Pursuant to the provisions of 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.
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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
699
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Young Metal
Products Company , Granite City, Illinois, its
officers , agents, successors , and assigns , shall take
the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This proceeding was
heard in St. Louis, Missouri, on August 23, 1966, pursuant
to a charge filed on June 2, 1966, by the Charging Party,
hereinafter called the Boilermakers, and a complaint
issued on July 12, 1966, and amended on July 18, 1966.
The case involves the question whether the Respondent,
hereinafter called the Company, engaged in interference,
restraint, and coercion in violation of Section 8(a)(1) of the
Act by posting a notice prohibiting all "union talk" in the
plant.
Upon the entire record, and after due consideration of
the briefs filed by Respondent and the General Counsel, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE COMPANY
The Company, which has its principal office and place
of business in East Chicago, Indiana, operates, among
others, a plant at Granite City, Illinois, where it is engaged
in the manufacture of nestable corrugated metal pipe for
the United States Department of Defense. Eighty-five
percent of its finished products'are shipped directly to
Vietnam, by air, if possible. The rest is sent to army depots
to be sent to Vietnam later on. During the year ending
June 30, 1965, a representative period, the Company had
shipped to its Granite City plant from out-of-State sources
more than $50,000 worth of raw materials.
Upon these facts, I find, as the Company admits, that it
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers,
Lodge 1012, AFL-CIO, hereinafter called the
Boilermakers, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In a prior decision involving the Company's Granite City
plant , the Board found , in summary, as follows (157 NLRB
408): The Company hired its first employees on July 23,
1964 , and the four employees hired that day were assigned
to cleaning up the plant in preparation for the installation
163 NLRB No. 117