Gem International, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 518 (N.L.R.B. 1973)

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gem International, Inc. and Retail Clerks Union
Local 1015 . Case 17-CA-5015
March 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On October 2, 1972, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in the above-entitled proceeding. Thereafter, the
Charging Party i and the General Counsel filed
exceptions and supporting briefs and the Respondent
filed a brief in support of the Decision of the
Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the
Administrative Law Judge made at the hearing and
finds that no prejudicial error was committed. The
Board has considered the entire record and the
attached Decision in light of the exceptions and the
briefs of the parties, and finds merit in certain
exceptions of the General Counsel and the Union.2 It
therefore adopts only those findings and conclusions
of the Administrative Law Judge as are consistent
with the following:
The complaint alleges that Respondent violated
Section 8(a)(1) and (5) of the Act by refusing to
bargain in a single unit consisting of Respondent's
two stores in Omaha, Nebraska.
The relevant facts are not disputed. The two stores
operated by the Respondent in the Omaha, Nebras-
ka, area are known as the Southway store and the
Northway store. These two stores are part of an
administrative division of nine stores in a four-state
area.
In 1965, pursuant to a card check conducted by a
neutral third party among the employees at the
Southway store, the Respondent recognized the
Union as the collective-bargaining representative of
its employees "in its present and future retail
establishments in the Greater Omaha, Nebraska
Trade Area."
At the expiration of the agreement in 1968, the
Respondent and the Union entered into a new
agreement to expire on August 31, 1971, which
contained an identical recognition clause. During the
I Hereafter referred to as the Union
2 The Union has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
term of the second agreement, the Respondent
opened the Northway store.
On March 16, 1969,3 the Respondent and the
Union entered into a written agreement for a card
check among certain of the employees at the
Northway store. The independently conducted card
check determined that a majority of the employees
designated the Union as their collective-bargaining
representative. Thereafter, on March 19, 1969, the
Respondent and the Union entered into an adden-
dum to the 1968-71 collective-bargaining agreement
entitled "Memorandum of Agreement" by which,
inter alia, they agreed that, effective April 14, 1969,
the collective-bargaining agreement "shall apply" to
the employees at the Northway store "in the same
manner as it applies to the employees at" the
Southway store.
The Administrative Law Judge recognized, and we
agree, that the alleged violation of Section 8(a)(5) of
the Act, as herein litigated, turns primarily on a
determination of the merits of General Counsel's
position that, in light of the bargaining history
between the parties, the existing unit at the time of
the refusal to bargain was one embracing all the
employees in the specified classifications who were
employed at the two stores operated by the Respon-
dent in the Omaha, Nebraska, metropolitan area.
The Administrative Law Judge found, however,
consistent with the contentions of the Respondent,
that the bargaining history had not effected a merger
of the two otherwise separable groups of employees
at the two stores into a single unit and that,
accordingly, each store's employees composed, at all
times here relevant, a separate appropriate unit. We
do not agree.
The Administrative Law Judge reasoned that, (1)
in their collective-bargaining agreement, the parties
had agreed to conduct their bargaining relationship
for retail stores in the Omaha, Nebraska, area on a
single multistore unit basis, and that, pursuant to that
agreement's recognition clause, an accretion of the
Northway employees to the preexisting unit of
employees at the Southway store was perfected when
the Northway employees' card check demonstrated
that a majority had expressed their desire to be
represented by the Union; but, (2) on March 19,
1969, when the parties executed the "Memorandum
of Agreement," they abrogated their prior agreement
to establish a multistore unit and entered into a new
one pursuant to which they now agreed that the
employees in the Northway store and the Southway
Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3) We have carefully
examined the record and find no basis for reversing his findings
3 We correct an inadvertent typographical error in the Administrative
Law Judge's Decision by substituting "March 16, 1969," for "March 16,
1967," in sec 111, par 6, of the Decision
202 NLRB No. 73
GEM INTERNATIONAL, INC.
store would each constitute a separate bargaining
unit . We agree with the first of the Administrative
Law Judge 's above findings , but not with the second.
There is nothing in the record which supports the
Administrative Law Judge 's interpretation of the
"Memorandum of Agreement " as an abrogation of
the prior contract 's relevant accretion provisions. To
the contrary , a reading of the memorandum and the
precedent facts surrounding its execution indicate
clearly that its only purpose was to establish an
effective date on which the collective -bargaining
agreement would apply to the employees who were
newly accreted to the unit and to insure that
individual store seniority would be maintained
within the unit. Thus, contrary to our dissenting
colleague , the memorandum actually reaffirmed the
existing contract , including its accretion provision.
Furthermore it is significant that the memorandum
was executed as an "addendum" to the collective-
bargaining agreement and therefore could hardly be
construed as abrogating the provisions contained
therein . In addition , our reading of the above
instruments is reinforced by the fact that , in the three
meetings held after the collective-bargaining agree-
ment was reopened for negotiations in June 1971, the
Respondent expressed no position inconsistent with
the prior agreement of the parties to conduct
bargaining on a multistore basis. We conclude,
therefore , that, as the only bargaining unit estab-
lished and agreed to by the parties was a single
multistore unit comprised of the employees at both
the Northway and the Southway stores, the Respon-
dent was obligated to continue to recognize and to
bargain with the Union in that multistore unit.
The Respondent does not deny that it refused to
bargain with the Union on a multistore basis after a
decertification petition was filed on behalf of the
employees in the Southway store. In addition, the
Respondent does not dispute that it continued to
refuse to bargain with the Union on a multistore
basis even after the Regional Director properly
dismissed the decertification petition as well as the
Respondent's subsequently filed RM petition. Nei-
ther petition furnished a defense to the refusal to
bargain since neither raised a question concerning
representation in an appropriate unit . Both sought an
election in the Southway store unit only. Having
found that the historic unit was multistore in scope,
neither petition was valid under established Board
authority , since neither sought a unit coextensive
with the existing collective -bargaining unit . Accord-
ingly, there is no defense to the Respondent 's refusal
to bargain with the Union in the existing unit, and
we conclude that the Respondent , by refusing to
bargain with the Union in a multistore unit on and
519
after September 17, violated Section 8(a)(5) and (1)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Retail Clerks Union Local 1015 is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All regular full-time employees and all regular
part-time employees employed by Gem Internation-
al, Inc ., and by concession and leased and subleased
departments , in the retail establishments of the
Employer located at 6534 "L" Street and at 3030
North 90th Street , Omaha, Nebraska , and which
employees are engaged in handling or selling
merchandise , or performing other services incidental
to or related thereto, but excluding Overall Store
Managers , Overall Assistant Store Managers, Overall
Store Managers in Training , Store Controllers,
Assistant Store Controllers , Secretaries to the Store
Manager , Credit Managers , Front Office Supervi-
sors, the Public Relations Man at the retail establish-
ment located at 6534 "L" Street , Public Relations
Personnel at the retail establishment located at 3030
North 90th Street , Head Shoppers , Department
Managers , Pharmacists , employees in the Optical
Department , employees in the Grocery and Meat
Departments at the retail establishment located at
6534 "L" Street , employees in the Snack Bar and
Popcorn Departments, Assistant Managers in leased
or sub -leased departments at the retail establishment
located at 6534 "L" Street , Assistant Managers in
leased or sub- leased departments having four em-
ployees in said leased or subleased departments in
the retail establishment located at 3030 North 90th
Street , all guards, watchmen , confidential employees,
professional employees and supervisors as defined in
the National Labor Relations Act, as amended,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. The above-named labor organization has been
and now is the exclusive representative of all
employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about September 17, 1972,
and at all times thereafter , to bargain with the Union
in the previously described appropriate unit , Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
GEM International, Inc., Omaha, Nebraska, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Retail Clerks Union
Local 1015 as the exclusive bargaining representative
of its employees in the previously described appro-
priate unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guarantees them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its retail establishments located at 6534
"L" Street and 3030 North 90th Street, Omaha,
Nebraska, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 17,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
5 The text is as follows
WHEREAS , GEM International , Inc, (Omaha , Nebraska Division),
hereinafter called the Employer , has opened a retail establishment at
3030 North 90th Street , Omaha, Nebraska, and
WHEREAS , a card check conducted by Wayne H Hagen , I Pastor
has certified that Local # 1015 of the Retail Clerks Union, chartered by
the Retail Clerks International Association , AFL-CIO, represents a
majority of the employees in an appropriate bargaining unit at such
new retail establishment, and
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
CHAIRMAN MILLER, dissenting:
The issues in this case turn essentially upon
whether an RD petition filed by employees at the
Employer's Southway store furnished a defense to
the alleged refusal to bargain herein. There can be no
question that had that petition been processed and
considered valid, continued bargaining in a unit
including the employees covered thereby would have
been inappropriate until a determination by the
Board as to the Union's majority status. That
petition, however, was dismissed by the Regional
Director and there is no showing that said petition
was defective on grounds other than those relied on
by the Regional Director; i.e., that, in the face of a
bargaining history, the Board will not entertain a
petition seeking a unit which is not coextensive with
the established, recognized bargaining unit. I do not
believe a dismissal on that ground was proper here.
The "coextensive unit" rule is based on the Board's
reluctance to disturb a unit established by collective
bargaining, so long as the shape of that unit is not
repugnant to Board policy. It rests upon an accom-
modation of the competing statutory interests of
preserving stability in established bargaining rela-
tionships, on the one hand, and that affording
employees the broadest possible opportunities to
exercise their right to self-determination, on the
other. In applying that rule we must do so in a
fashion which does not unduly compromise the
Section 7 rights of employees.
In the instant case I believe the record shows, as
the Administrative Law Judge found, that there was
no clear meeting of the minds between the parties
that the bargaining was to take place in a single two-
store unit. I am unable to find that the Memorandum
of Agreements dated March 19, 1969, demonstrated
a clear and unambiguous intent by the parties to
WHEREAS, the Employer and the Union are parties to a collective
bargaining agreement covering employees at the Employer 's retail
establishment at 6534 " L" Street, Omaha , Nebraska,
Now, THEREFORE, the parties agree as follows
I Effective April 14, 1969, the said collective bargaining agree-
ment shall apply to the new retail establishment at 3030 North Maple
Street in the same manner as it applies to the employees at the
Employer's retail establishment at 6534 " L" Street
2 Said collective bargaining agreement shall continue in full force
and effect unchanged until its termination date of August 31, 1971
3 The application of said collective bargaining agreement shall be
distinct and separate for each of the Employer's said retail establish-
ments, that is, seniority shall be established and recognized by
department on a store basis
GEM INTERNATIONAL, INC.
accrete the Northway store employees to the preex-
isting Southway store unit. The Memorandum of
Agreement is ambiguous and surely does not indicate
on its face that the employees at both the Northway
and the Southway stores are intended to be merged
into a single unit for the purposes of collective
bargaining. Absent a clear and unambiguous state-
ment of such intent, we must look to bargaining
history. There we find only a very brief period of
time from the opening of the Northway store, and a
paucity of evidence that the nature of the bargaining,
grievance handling, or other indicia of intent was of
such a nature as to demonstrate any unification by
the parties of the employees at both of the Employ-
er's stores into a single overall unit.
In such a doubtful state of the record, I would not
deliberately disenfranchise employees in the name of
preserving a bargaining unit the very existence of
which is in doubt. Under such dubious circum-
stances, it is my view that the employees who desired
an election ought to have been permitted to have had
their petition processed. Instead, my colleagues
would use our unfair labor practice procedures to
help cement together units which the parties had left
in an uncertain state, while we refuse to grant the
employees access to our election processes. From
that holding, I must dissent.
For these reasons, I would dismiss the complaint.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Retail
Clerks Union Local 1015 as the exclusive repre-
sentative of the employees in the bargaining unit
described below.
WE WILL NOT in any' like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
521
All regular full-time employees and all
regular part-time employees employed by
Gem International, Inc., and by concession
and leased and subleased departments, in
the retail establishments of the Employer
located at 6534 "L" Street and at 3030 North
90th Street, Omaha, Nebraska, and which
employees are engaged in handling or selling
merchandise, or performing other services
incidental to or related thereto, but exclud-
ing Overall Store Managers, Overall Assist-
ant Store Managers, Overall Store Managers
in Training, Store Controllers, Assistant
Store Controllers, Secretaries to the Store
Managers, Credit Managers, Front Office
Supervisors, the Public Relations Man at the
retail establishment located at 6534 "L"
Street, Public Relations Personnel at the
retail establishment located at 3030 North
90th Street, Head Shoppers, Department
Managers, Pharmacists, employees in the
Optical Department, employees in the Gro-
cery and Meat Departments at the retail
establishment located at 6534 "L" Street,
employees in the Snack Bar and Popcorn
Departments, Assistant Managers in leased
or subleased departments at the retail
establishment located at 6534 "L" Street,
Assistant Managers in leased or subleased
departments having four employees in said
leased or subleased departments in the retail
establishment located at 3030 North 90th
Street, all guards, watchmen, confidential
employees, professional employees and su-
pervisors as defined in the National Labor
Relations Act, as amended.
GEM INTERNATIONAL,
INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 610 Two Gateway Center, Fourth at
State, Kansas City, Kansas 66101, Telephone
816-374-4518.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
This case came on to be heard before me at Kansas City,
Missouri, on August 4, 1972,1 upon a complaint2 issued by
the General Counsel of the National Labor Relations
Board and an answer filed by Gem International, Inc.,
hereinafter called the Respondent. The issues raised by the
pleadings in this proceeding relate to whether or not the
Respondent has violated, and is violating, Section 8(a)(5)
and (1) of the National Labor Relations Act, as amended,
by acts and conduct hereinafter specified. At the conclu-
sion of the hearing, the Charging Union and the Respon-
dent engaged in oral argument and, in addition, all parties
have filed briefs with the Administrative Law Judge, which
have been duly considered.
Upon the entire record in this proceeding, and from my
observation of the testimony and demeanor of the
witnesses , I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Gem International, Inc., is a Colorado
corporation engaged in the operation of retail stores,
including two retail stores located at Omaha, Nebraska,
the only portions of its operations involved in this
proceeding. On an annual basis, in the course and conduct
of its business operations at its establishments at Omaha,
Nebraska, the Respondent realizes gross revenues in excess
of $500,000, and purchases and receives goods and service
from sources situated outside the State of Nebraska valued
in excess of $50,000. The complaint alleges, the answer
admits, and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union, Retail Clerks Union Local 1015,
hereinafter called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
The General Counsel alleges that since on or about
September 17, 1971, the Respondent has violated Section
8(a)(5) of the Act by refusing to bargain with the Union as
the sole and exclusive bargaining representative of certain
employees employed at the two retail establishments
operated by the Respondent at Omaha. More particularly,
the General Counsel and the Union contend that,
notwithstanding the Respondent's agreement to continue
to bargain with the Union for the employees at the
Northway store, Section 8(a)(5) has been, and is being,
violated by the Respondent's continued refusal to extend
I The hearing in this proceeding was closed by an order issued by me on
September 5, 1972, a copy of which has been marked and received in
evidence as G C Exh I-J
2 The complaint in this case was issued on June 13, 1972, upon a charge
the bargaining relationship to the Southway store. In
defense of the allegations of the complaint, the Respondent
asserts that its obligation to recognize and bargain with the
Union for the Southway employees is the subject of a valid
question concerning representation, and that it was
precluded on and after September 17, 1971, from continu-
ing the bargaining relationship until the question had been
resolved.
This proceeding involves two essential issues, and the
second is contingent on the finding on the first issue. The
first issue to be decided is whether the employees in the
Southway store constitute an inappropriate unit by reason
that this unit is not coextensive with the bargaining unit
previously agreed to by the parties in a preexisting
collective-bargaining agreement. If that issue is decided
affirmatively, no valid question concerning representation
could be raised in a unit linuted to the Southway
employees, and the Respondent has refused to recognize
and bargain with the Union in violation of the Act. If, on
the contrary, it is found that the parties intended separate
bargaining units at the two stores, it must be determined
whether the Respondent's refusal to continue the bargain-
ing relationship with respect to the Southway store was in
good faith, and supported by objective considerations.
By way of background, the record reflects that Gem
International, Inc., which operates the Southway and
Northway stores at Omaha, is a part of Parkview-Gem
International, Inc. The two stores located in Omaha are
part of a division of nine stores consisting, in addition to
the Omaha operations, of four stores in Memphis, one in
Witchita, one in Kansas City and one in Overland Park.
The division is subject to the overall supervision and
control of an area administrator, Norman Westhimer,
whose office is located in Kansas City. Each of the Omaha
stores is supervised by a manager, and they are separately
responsible to Westhimer.
The Respondent's Southway store was the first in
existence in the Omaha area. On September 9, 1965,
following a card check conducted by a neutral third party
for the employees at the Southway store on August 19,
1965, the Respondent entered into a collective-bargaining
agreement, pursuant to which it recognized the Union as
the collective-bargaining representative in the following
described unit:
All regular full-time employees and all regular part-
time employees employed by Gem International Inc.
and by concession and leased and sub-leased depart-
ments, in its present and future retail establishments in
the Greater Omaha, Nebraska Trade Area, 3 and which
employees are engaged in handling or selling merchan-
dise, or performing other services incidental or related
thereto, but excluding Overall Store Manager, Overall
Assistant Store Manager, Overall Store Manager in
Training, Store Controller, Assistant Store Controller,
Secretary to the Store Manager, Credit Manager, Front
Office Supervisor, Public Relations Man, Head Shop-
per, Department Managers, Pharmacists, employees in
filed on February 10, 1972, and served on the Respondent on February 11.
1972
3 Emphasis supplied
GEM INTERNATIONAL, INC. 523
the Optical Department, employees in the Grocery
Department, employees in the Meat Department,
employees in the Snack Bar and Popcorn Departments,
Assistant Manager in leased or sub-leased departments,
all guards, watchmen, confidential employees, profes-
sional employees, and supervisors as defined in the
Act .4
The above-described collective-bargaining agreement
continued in effect for its term, and on September 26, 1968,
after negotiations, the parties entered into a new bargain-
ing agreement for the term September 1, 1968, through
August 31, 1971. The recognition clause in this second
agreement is identical to that contained in the 1965-68
agreement, including the reference to "present and future
retail establishments in the Greater Omaha, Nebraska
Trade area."
On an undisclosed date following execution of the
1968-71 bargaining agreement, the Respondent com-
menced operation of a second retail store (Northway) in
the Omaha area. On March 16, 1967, the Respondent and
the Union entered into a written agreement for a card
check among the employees at the Northway store. The
agreement recites that the card check was to be conducted
in the following described group of employees.
All regular full-time and all regular part-time
employees employed by the Employer and by all leased
and sub-leased or licensed departments in the retail
establishment of the Employer at 3030 North 90th
Street, Omaha, Nebraska, including and limited to
GEM employees and license employees engaged in
retail sales and service functions necessarily accompa-
nying same, however, excluding; overall store manager,
overall assistant store manager, overall store manager
in training, store controller, assistant store controller,
secretary to the store manager, credit manager, front
office supervisor, public relations personnel, head
shopper department manager, pharmacists, employees
in the optical department, employees in the snack bar
and popcorn departments, assistant manager in leased
or sub-leased departments having four (4) employees in
said leased or sub-leased departments, all guards,
watchmen, confidential employees, professional em-
ployees and supervisors as defined in the National
Labor Relations Act, as amended.
On March 19, 1969, after written certification that a
majority of the employees in the above-described voting
group had designated the Union as their collective-bar-
gaining representative, the parties entered into an adden-
dum to the 1968-71 bargaining agreement. The addendum,
entitled Memorandum of Agreement, provides in pertinent
part:
WHEREAS, the Employer and Union are parties to a
collective-bargaining agreement covering employees at
the Employer's retail establishment at 6534 "L" Street,
Omaha, Nebraska,
Now, THEREFORE, the parties agree as follows:
4 The Union represents a separate unit of grocery, produce , and meat
department employees at the Southway store The same departments at
Northway are operated by another employing entity, and the record is not
clear as to whether, or not these employees are also represented by the
Union
5 All dates recited hereinafter as in 1971 , unless specified
1. Effective April 14, 1969, the said collective-
bargaining agreement shall apply to the new retail
establishment at 3030 North Maple Street in the same
manner as it applies to the employees at the Employer's
retail establishment at 6534 "L" Street.
2. Said collective-bargaining agreement shall con-
tinue in full force and effect unchanged until its
termination date of August 31, 1971.
3. The application of said collective-bargaining
agreement shall be distinct and separate for each of the
Employer's said retail establishments, that is, seniority
shall be established and recognized by departments on
a store basis.
Thereafter, on June 22, 1971, in accordance with the
terms of the collective-bargaining agreement, the Union
served written notice on the Respondent of its intent to
open the contract for further negotiations. On August 3,
1971,5 Hollie H. Ham, Jr., the Union's then executive
secretary-treasurer, met Daniel S. Lumian, the Respon-
dent's director of labor relations, at Kansas City, and Ham
gave Lumian a copy of the Union's proposals. The
encounter arose by chance and there was no discussion of
the proposals, although Lumian apparently agreed to read
and consider them. Ham and Lumian met on the proposals
on two subsequent occasions, September 2 and 13, and Jim
Gourley, a district manager for the Respondent was also
present. Ham testified that the parties reached tentative
agreement on some issues, but Lumian testified that while
the proposals were discussed , all issues were passed to
future bargaining sessions. Whichever version is correct,
the record is clear and I find that the parties did not arrive
at a final and binding collective-bargaining agreement. It is
equally clear that there were no discussions in any of the
three meetings as to whether a combined store or single-
store units would be appropriate for bargaining.
On September 13, a decertification petition was filed on
behalf of the Respondent's employees at Southway,6 and,
on September 29, the Region issued a notice of representa-
tion hearing. In the interim on September 17, the
Respondent notified the Union in writing that it had
received a copy of the decertification petition, and under
the circumstances deemed it inappropriate to continue
negotiations pending a determination by the Board as to
the Union's majority status.?
Insofar as the record reflects, there was no formal or
informal contact between the Union and the Respondent
for a period of about 60 days following the Company's
notification of the discontinuance of negotiations. On
November 16, the Union sent a letter to the Respondent in
which it noted that the Southway store was the only store
affected by the RD petition, and demanded that the
Company agree to negotiate with respect to the employees
represented by the Union in the grocery department at
Southway and all the employees employed at Northway.
On November 18, the Respondent replied to inform the
Union of its continued willingness to meet and negotiate
6 17-RD-448, as amended on September 28, 1971
7 On October 27, the Union filed a charge alleging that the Respondent
had violated Sec 8(a)(2) of the Act by instigating and encouraging the
decertification petition, but on November 23 the charge was withdrawn with
the approval of the Regional Director
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the employees specified in the Union's November 16
letter, and suggested a meeting for December 1.
On December 1, Ham met with Lunuan and Gourley at
Omaha and discussed how the negotiations were to
proceed According to Ham, Lumian insisted that the
Respondent was willing to proceed on negotiations only
for the employees in the Northway store. Ham apparently
agreed, but, according to his testimony, conditioned the
agreement on the understanding that any bargaining
agreement reached would be subject to ratification by the
employees in both stores. Lumian testified that he and
Ham agreed to bargain only for the employees in the
Northway store and those in the separate grocery depart-
ment unit at the Southway store. Lumian denied that Ham
mentioned the subject of ratification at the December 1, or
any other, meeting.
For the reasons related below I discredit Ham's
testimony that he conditioned the continuation of the
bargaining on ratification of any negotiated agreement by
employees in both the Northway and Southway stores. On
cross-examination, Ham admitted, at least tacitly, that the
condition of ratification by the employees of both stores
was in all likelihood a mental reservation, left unexpressed
to Lumian and the Respondent. It is clear, moreover, as
Ham admitted, that no mention was made in the
November 16 letter to the Respondent of ratification, and
the Union's only demand was for continuation of bargain-
ing for the Northway employees and those employees in
the grocery department at the Southway store.
On November 26, the Regional Director for Region 17
issued an order withdrawing the notice of hearing, and
dismissing the decertification petition filed by the employ-
ees at the Southway store on grounds that the unit
requested was not coextensive with the unit previously
recognized in the recently expired contract. The Respon-
dent filed a request for review with the Board, which the
Board denied on December 7, on grounds that the
Regional Director's administrative dismissal of the decerti-
fication petition was a subject for appeal only from the
petitioner.
On January 21, 1972, the Respondent filed a 9(c)(1)(B)
petition, hereinafter called the RM petition,8 in which it
described the unit involved in accordance with the unit
description in the expired bargaining agreement. On
February 9, 1972, the Regional Director issued a notice of
representation hearing, which he thereafter postponed
indefinitely by reason that, on February 10, the Union
filed the charge in the instant case. Thereafter, on
February 18, the Union sent a letter to the Respondent
demanding that the Company sit down and bargain with
the Union for the employees in both of Gem's Omaha
stores. In reply, on February 22, the Respondent advised
that for the reasons related in the prior correspondence
with Ham, it would not be appropriate for the Company to
negotiate for the two units at that time.
On June 13, 1972, the complaint in this case issued, and
on the same date the Regional Director issued an order
dismissing the petition in Case 17-RM-465. The Employer
filed a request for review, which was denied by the Board
on July 6, on grounds that the Regional Director's
dismissal was warranted under the Board's "blocking
charge" rule.
On or about June 22, 1972, the Union struck both the
Southway and Northway stores. The strike lasted for
approximately 10 days, and 18 employees from the
Southway store, out of a unit complement of 101,
participated in the strike. In contrast, 40 employees, out of
a unit complement of about 85, struck at the Northway
store . On June 28, in settlement of the strike, the
Respondent and the Union entered into a written under-
standing in which they agreed to return to bargaining
without prejudice to either party on the question of the
appropriateness of the bargaining unit at issue in this case.
The negotiations have continued, but, insofar as the record
reflects, no agreement has been reached.
As factual support for the 8(a)(5) violation alleged, the
General Counsel argues (1) that at the time of initial
recognition the Northway store was not in existence; (2)
that since 1969 the Respondent has operated two stores in
the Omaha area, separated geographically by only 8 to 10
miles; (3) that the Respondent's nearest other stores are
located at distances well over 100 miles from Omaha; (4)
that since March 15, 1969, the Union has represented the
employees at both the Southway and Northway stores; (5)
that the bargaining agreement entered into on September
1, 1968, included employees in "future retail establish-
ments in the greater Omaha, Nebraska Trade Area"; and
(6) that the employees at the Northway store were
"accreted" into the unit only after they had expressed their
desire to be represented by the Union in a card check
procedure. As legal precedent in support of the alleged
violation, the General Counsel relies on the Board's
decisions in White Front Stores9 and Smith's Management
Corporation.10
A considerable portion of the General Counsel's factual
argument is devoted to the issue of whether a unit
comprised of employees at both the Southway and
Northway stores is appropriate for the purposes of
collective bargaining. If this was the unit agreed to by the
parties, I find that it is neither repugnant to the Act nor the
Board's policies, and is an appropriate unit. I also find,
however, and for reasons related below, that the two-store
unit is not the only, or even the most appropriate, unit for
bargaining.
As related above, the Respondent's Northway store is
located at a distance of approximately 10 miles from its
Southway store. Each store is separately managed and
supervised by a manager, and each manager reports
separately to the area manager who has overall responsibil-
ity for the nine stores comprising the division. The
Southway store is somewhat larger in area than the
Northway store, and has some additional departments,
including leased or licensed departments, and handles
some additional lines of merchandise. Merchandise and
supplies are ordered separately for each store through
Gem's New York and Kansas City buying offices, and
8 17-RM-465 10 Smith's Management Corporation d/b/a Frazier's Market, 197 NLRB
9 Retail Clerks Union, Local 870 (White Front Stores, Inc), 192.NLRB No 177
No 33
GEM INTERNATIONAL, INC. 525
credit applications are processed separately by the control
office at each store.
With respect to personnel policies and procedures, the
manager for each store is responsible for hiring, assigning,
promoting, laying off, and discharging employees assigned
to his operation. The employees are paid and union dues
are withheld through the control office at each store, and
the manager for each store has the responsibility for
processing the grievances of employees within his opera-
tion. Under the terms of the expired bargaining agreement,
seniority for the employees at the Southway store is
separate from that accorded the employees at the North-
way store. As to employees in the bargaining unit, the
record reveals only two incidents of transfers between
stores, one permanent and one temporary, since the date
the Northway store became operational.
On the basis of the foregoing factors, particularly as they
reveal the autonomy of the store managers and the absence
of interchange between the employees assigned to the two
stores and, notwithstanding the geographic proximity of
the two locations, I find that single-store units of Northway
and Southway employees are appropriate for the purposes
of collective bargaining."
The initial issue to be decided here is not the appropri-
ateness of alternative units, but the intent of the parties in
entering into and extending the collective-bargaining
relationship. To this extent the record before me contains
no extrinsic oral evidence of what the parties intended
when they agreed to the unit description in the original
1965 agreement, what they intended when they extended
the bargaining agreement in 1968, or what they intended
when they applied the terms of the 1968-71 contract to the
employees at the newly opened Northway store. I am
bound, as perhaps I should fairly be, under the parol
evidence rule to the bargaining agreements and the
subsidiary written documents which gave rise to the
bargaining relationship.
The General Counsel asserts that the contractual
agreement encompassing a unit of present employees and
employees at future retail establishments opened by the
Respondent in the Omaha area, when coupled with the
evidence that the Northway employees were accorded a
form of self-determination by recourse to a card check,
establishes not only the appropriateness of the unit, but
also establishes the intent of the parties to bargain in the
two-store unit. To this end, as related above, the General
Counsel relies on the Board's decisions in White Front
Stores and Smith's Management Corporation, supra.
In White Front Stores the Board held that it was not a
violation of Section 8(b)(2) of the Act for a union to picket
an employer to force compliance with the terms of a
collective-bargaining agreement, which included a union-
security provision, so long as the union enjoyed majority
status among the employees who were the object of its
demand. In that case, as here, the union represented
employees at other retail establishments of the employer in
the immediate area, and the collective-bargaining agree-
ment in effect contained an accretion provision substan-
tially similar in import to that contained in the expired
bargaining agreement in this case. Accordingly, a majority
of the Board panel deciding White Front Stores also held
that the contractual commitment of the parties to future
operations of the employer, when coupled with the
evidence that the union enjoyed majority status among the
employees it sought to accrete to the unit, had effected a
valid accretion, and was grounds for dismissing the 8(b)(2)
allegation.
In Smith's Management Corporation, which is also relied
on by the General Counsel, the Board held that an
accretion clause in a contract purporting to include in the
unit employees in future operations opened by the
employer did notjustify the employer's refusal to execute a
bargaining agreement negotiated by his representative. In
arriving at this finding, the Board related its established
rule that accretion of new employees into an existing unit is
a matter to be determined by the Board in the light of the
circumstances of each individual case .12 The Board also
related its established policy of refusing to compel a group
of employees in the employer's future stores, who may
constitute a separate appropriate unit, from inclusion in an
overall unit under the guise of accretion, without affording
the employees an opportunity to express their preference
for union representation.13 With these principles estab-
lished, the Board then held:
While the phrase "and future" by itself cannot effect an
accretion of a new group of employees to the unit, it is
a factor to be considered by the Board in resolving an
issue of accretion. Thus, the Board will give controlling
effect to such a contractual provision and accrete a new
group of employees to the existing unit where they have
indicated their clear desire to be represented by the
union representing the other employees. Retail Clerks
Union, Local 870 (White Front Stores, Inc.), 192 NLRB
No. 33 (1971). Since the Respondent's striking the
phrase "and future" results in a refusal to sign the
contract as negotiated in violation of Section 8(a)(l)
and (5) of the Act, and since we find no merit in its
arguments attempting to justify its actions, we shall,
accordingly, grant the General Counsel's Motion for
Summary Judgment.
In the instant case, it is uncontroverted that in 1965 the
Respondent and the Union entered into a contract in
which the Union was recognized as the collective-bargain-
ing representative in a unit encompassing the Respondent's
"present and future retail establishments in the Greater
Omaha, Nebraska Trade Area." The identical recognition
clause was incorporated in the successor bargaining
agreement executed by the parties in 1968. It is also
uncontroverted that in 1969, after the Respondent opened
the Northway store, the employees at this new location
were afforded the opportunity through recourse to a card
check procedure to express their preference for representa-
tion by the Union.
I have found above that, if agreed to by the parties, a
single overall unit of employees at the Respondent's
Southway and Northway stores would constitute an
11 Walgreen Co, Miami, Florida, 198 NLRB No 158
12 Citing Haag Drug Co, 169 NLRB 877, and Sav-On Drugs, Inc, 138 Kauai Corp, 177 NLRB 25,28
NLRB 1032, 1033
13 Citing Melbet Jewelry Co, 180 NLRB 107,109-110, and Sheraton-
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit for the purposes of collective bargaining.
This finding, coupled with evidence of the contractual
provision extending recognition to the Union for Respon-
dent 's "future retail establishments ," and the evidence that
the employees at the Northway store were accorded a form
of self-determination , are "circumstances" which support
the General Counsel 's contention that a valid accretion
was perfected within the standards promulgated by the
Board in the White Front and Smith 's Management cases.
But these are not the only relevant "circumstances"
revealed by the record in this case. The validity of the
accretion is exemplified by the recognition clause of the
1965 and 1968 bargaining agreements , as perfected by the
card check conducted among the Northway employees in
1969. In the light of other evidence in the record, the issue
to be decided is whether the perfected agreement for
bargaining in a single overall unit remained in effect or,
alternatively, whether that agreement was superseded by a
subsequent understanding pursuant to which the parties
agreed to bargain for a separate unit of Northway
employees.
Among the arguments advanced by the Respondent is
the contention that no card check would have been
conducted for the Northway employees if the parties had
intended to adhere to their agreement to bargain for
employees in all present and future retail establishments in
a single overall unit . I agree that the scope of the language
contained in the recognition clause of the 1965 and 1968
bargaining agreements is sufficiently broad enough to
warrant the construction that employees at future locations
would be accreted without recourse to any further
procedures. On the other hand, the card check for the
Northway employees may have been only a precautionary
device, utilized because of the awareness of the parties that
the Board would be unlikely to approve the accretion in
the absence of proof that the employees had been afforded
an opportunity to express their preference for or against
union representation . I find , accordingly , that the evidence
that a card check was conducted before the Respondent
extended recognition to the Union for the Northway
employees , is not , standing alone, dispositive of the issue of
whether or not the parties agreed to modify the preexisting
agreement to bargain in a single composite unit covering
all of the Respondent 's Omaha establishments.
There is, however, other evidence in the record, in
addition to the card check, which lends support to the
Respondent 's contention that its recognition of the Union
as the representative of the employees at the Northway
store was accomplished only on the condition that the
bargaining unit would be separate and distinct from the
unit of employees at Southway. In order to determine the
Union's claim of majority status among the Northway
employees, the parties entered into an agreement for a card
check. On its face the agreement simply specifies the
classifications of employees eligible to participate , and it is
silent on the issue of whether certification of the Union's
majority status would result in accretion of the Northway
employees into the existing unit as required by the terms of
the bargaining agreement.
Similarly, upon completion of the card check and
certification of the results, the parties executed a memoran-
dum of agreement , pursuant to which they extended most
of the terms and conditions of the existing contract to the
employees at the new location . If it was the intent of the
parties to adhere to the multistore unit specified in the
recognition clause of the current contract , the record offers
no explanation of why the parties entered into a separate
written agreement to accomplish what the precise terms of
the existing collective -bargaining agreement automatically
accomplished.
The mere fact of the execution of the memorandum of
agreement is not , moreover , the only evidence tending to
support the contention that the Union agreed to abandon
the multistore unit established by the 1965 and 1968
bargaining agreements . On the face of the memorandum
are two specific provisions which warrant the conclusion
that the recognition of the Union and the extension of the
contract to the Northway employees were conditioned on
the agreement between the parties that the employees at
the new location constituted a unit separate and distinct
from the unit covering the preexisting operation at
Southway. The second paragraph of the memorandum
recites the conduct of the card check and the certification
that the Union "represents a majority of the employees in
an appropriate bargaining unit at such new retail establish-
ment." Pursuant to the terms of the memorandum of
agreement , the parties then contracted to extend the terms
of the contract , for its full term , to the employees at the
new retail establishment , subject to the limitation ex-
pressed in paragraph 3 that "The application of said
collective bargaining agreement shall be distinct and
separate for each of the Employer 's said retail establish-
ments, that is, seniority shall be established and recognized
by department on a store basis."
On the basis of the documentary evidence reviewed
above, I find that until March 19 , 1969, the date of the
execution of the memorandum of agreement pertaining to
the Northway employees, it was the agreement of the
Union and the Respondent to bargain collectively in a
single overall unit encompassing employees in like classifi-
cations at all retail establishments operated by the
Respondent in the "Greater Omaha, Nebraska Trade
Area." I further find , in accordance with Board precedent,
that the validity of the accretion agreed to by the parties
under the terms of the collective -bargaining agreement was
assured when a majority of the employees at the Northway
store designated the Union as their collective-bargaining
representative . The foregoing findings notwithstanding, I
further find that by the events of March 19, 1969, and
particularly upon the contents of the memorandum of
agreement executed on that date , the parties abrogated
their prior agreement to bargain in a multistore unit, and
agreed to bargain for the Northway employees in a
separate unit.
I am aware, as the General Counsel and the Union
argue, that by the memorandum of agreement the parties
agreed to extend the terms of the existing contract to the
Northway employees, and that, subsequent to the execu-
tion of the memorandum , the parties met on two occasions
for negotiations without any discussion of whether the unit
appropriate for bargaining was a single-store or a multi-
store unit . The application of a single collective-bargaining
GEM INTERNATIONAL, INC. 527
agreement to employees in separate bargaining units is not,
without more, proof of accretion or an agreement to
bargain on a multistore basis.14 As to the negotiation
meetings which were held after the Union served notice of
intent to renegotiate the 1968-71 agreement, the silence on
the issue of what unit would prevail for the negotiations
process is no more persuasive of the General Counsel's
contention than the extension of the contract. Joint
negotiations for employees in two separate units, like
execution of a single contract, is not sufficient to warrant a
finding of accretion, or to vitiate the appropriateness of
prior existing separate bargain units.15
I am also aware, again as the General Counsel and the
Union argue, that it is possible to construe the third
numbered paragraph of the memorandum of agreement of
March 19, 1969, as providing for separate and distinct
application of the contract to each retail establishment,
only insofar as the seniority provision of the contract is
concerned. This is a fair construction of the language of
the provision, but, assuming that this was the intent of the
parties, I find it insufficient to contradict the finding that
the parties agreed to abandon the prior commitment to
multistore bargaining. As the Union admitted on the
record in this case, seniority is a fundamental provision of
any collective-bargaining agreement. As the Board has
held, moreover, separate seniority provisions, albeit con-
tained in a single bargaining agreement eventuating from
joint negotiations, are a primary factor in support of a
finding that the negotiating parties intended to maintain
the separateness of the preexisting bargaining units.16
The denial of the contentions raised by the General
Counsel and the Union, referred to immediately above,
does not mean that all events and circumstances occurring
after execution of the memorandum of agreement of
March 19, 1969, are irrelevant to the issue of which of two
alternative units was agreed upon by the parties for the
purposes of collective bargaining. The finding above that
the parties agreed by the memorandum of March 19, 1969,
to abrogate the prior agreement to bargain in a multistore
unit is supported in substantial part by the evidence of the
Union's conduct after the filing of the decertification
petition by employees at the Southway store. On Septem-
ber 17, 1971, a few days after the decertification petition
was filed in the region, the Respondent notified the Union
that it desired the discontinuance of negotiations pending a
Board determination of the Union's majority status.
Insofar as the record before me reflects, the Union made
no protest, and it was not until approximately 60 days later
that the Union demanded the resumption of negotiations.
When this demand was made, however, the Union did not
suggest any obligation on the part of the Respondent to
resume negotiations for all of the employees it now
contends were included in the multistore unit. On the
contrary, the Union demanded that, insofar as the
decertification petition applied on to the Southway store,
negotiations should be resumed for the separate unit in the
grocery department at Southway and the employees at the
Northway store. The Respondent agreed, and negotiations
were resumed on December 1, 1971. On the basis of the
evidence credited above, I find that the Union was content
to bargain for those employees specified in its letter of
November 16, 1971, and raised no assertion that the
appropriate unit for bargaining included the employees in
the Southway store. It was not until February 18, 1972,
nearly 3 months after the Regional Director had adminis-
tratively dismissed the decertification petition, that the
Union demanded that the Respondent bargain in a
multistore unit encompassing both the Northway and
Southway employees. Silence does not always connote
acquiescence in the position advanced by the other party,
but upon the whole of the record before me I find that the
Union's conduct, on and after the date of the filing of the
decertification petition on behalf of the Southway employ-
ees, clearly indicates that it had previously committed itself
to bargaining for_ a separate unit of employees at the
Northway store.
Upon the foregoing, and all of the relevant evidence in
the record, I find and conclude that at the time the
Respondent's violation of Section 8(a)(5) of the Act is
alleged to have occurred, it was the agreement of the
Union and the Respondent that a recognized and appro-
priate unit for the purposes of collective bargaining was a
unit of employees in specified classifications at the
Respondent's Northway retail store. Ergo, as the Respon-
dent's Southway store was the only other segment of its
Omaha operations in which the Union enjoyed the right to
represent the employees, the employees in the Southway
store also constituted a separate unit appropriate for the
purposes of collective bargaining. It was the decertification
petition filed on behalf of the Southway employees which
gave rise to the Respondent's refusal to continue the
bargaining relationship until the question concerning
representation had been resolved. As related above, the
decertification petition was dismissed on grounds of the
inappropriateness of the unit, and it is axiomatic that the
unit appropriate for the purposes of a decertification
petition must be coextensive with the bargaining unit
previously certified or recognized. The Board has held,
nevertheless, that where a multioperational unit has been
previously certified or recognized, a union and an
employer may, by a course of conduct, fracture the
composite unit into separate single operational units, each
appropriate for a decertification election.i7 By the execu-
tion of the memorandum of agreement of March 19, 1969,
the Union agreed to fracture the previously established
multistore unit, and to bargain instead in separate units for
the Northway and Southway employees.
There remains for consideration the additional issue as
to whether the Respondent's discontinuance of the
negotiations with the Union for the employees in the
Southway bargaining unit was in good faith, and attended
by objective considerations that the Union had lost its
majority status. This rule was promulgated by the Board in
the U.S. Gypsum case,18 and is applicable to 9(c)(1)(B)
representation petitions filed by an employer who seeks to
14 Wyandotte Chemicals Corporation , 116 NLRB 972, 974-975
15 Remington Office Machines, Minneapolis Branch, 158 NLRB 994, 996.
and Wyandotte Chemicals, supra
16 Wyandotte Chemicals, supra, at 974-975
17 Clohecy Collision, Inc, 176 NLRB 616, 617
18 United States Gypsum Company, 157 NLRB 652, 656
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question the majority status of an incumbent bargaining
representative. The Board held in U. S. Gypsum:
... in petitioning the Board for an election to
question the continued majority of a previously
certified incumbent union, an employer, in addition to
showing the union's claim for continued recognition,
must demonstrate by objective considerations that it
has some reasonable grounds for believing that the
union has lost its majority status... .
The alleged question concerning representation which
gave rise to the Respondent's refusal to continue the
bargaining relationships for the Southway employees arose
on a decertification petition filed on behalf of the
employees, and not, initially, on a petition filed by the
Respondent under Section 9(c)(1)(B) of the Act. In this
circumstance, the rule promulgated in the U.S. Gypsum
case is not strictly applicable. The General Counsel and the
Union contend, nevertheless, that the Respondent had no
good-faith doubt of the Union's continuing majority as the
representative of the Southway employees, and they argue
that under Board precedent the pendency of a decertifica-
tion petition does not, necessarily, justify an employer's
refusal to bargain. I agree that in some limited situations,
such as where the parties are within the certification year,
this is Board law. In other situations, as where the
employer instigated or sponsored the decertification
petition, or where the employer's bad-faith bargaining
tactics have fomented the employees' dissatisfaction with
union representation, the Board will not treat the pendency
of a petition to oust the union as a defense to a refusal to
bargain. These are not, however, the facts of this case. The
parties are not within the certification year, or even in the
first year of the bargaining relationship. There is no
evidence that the Respondent instigated, sponsored, or
contributed to the filing of the decertification petition, and
a prior charge filed by the Union to this effect was
withdrawn. Similarly, there is no allegation and no proof
that the Respondent bargained with the Union in bad
faith, or that it utilized tactics designed to undermine the
Union and destroy its majority status. In the presence of
these circumstance, a valid decertification petition, neces-
sarily supported by a 30 percent showing of interest as
required by the Board's rule, warrants the conclusion that
the Respondent's doubt of the Union's majority status was
asserted in good faith.
The Respondent, nevertheless, filed the RM petition
after the Regional Director had administratively dismissed
the RD petition on grounds of the inappropriateness of the
unit. The record reveals that at the request of the Region
the Respondent supplied a list of objective considerations
which caused it to question the Union's continuing
majority status, and the Regional Director thereafter
noticed the RM case for hearing.
At the hearing in this proceeding, the Respondent again
proferred evidence of those events and circumstances
which caused it to question the Union's majority status and
file the RM petition. Of primary importance among such
events and circumstances was the decertification petition
which had been filed on behalf of the Southway employees
on September 13, 1971, and which I have found above was
a valid RD petition, untainted by any overt or covert
conduct on the part of the Respondent. In addition,
however, Charles W. Jinuson, manager of the Southway
store, testified that at the time the decertification petition
was filed only 29 out of a complement of approximately
101 unit employees had executed authorizations for the
checkoff of their union dues. Jimison also testified that,
during the period before and after the decertification
petition was filed, 18 to 20 employees personally expressed
dissatisfaction to him about the Union. Jimison identified
three letters, dated both before and after the,filing of the
decertification petition, which employees had sent to the
Union, with copies to the Respondent, by which the
employees withdrew from membership in the Union.
Jimison also identified a copy of a letter, dated March 20,
1972, given to him by an employee, in which 13 signatory
employees requested the Regional Director to add their
names to the decertification petition. In addition, Jimison
testified to additional reports from managerial and
supervisory personnel at the Southway store of conversa-
tions in which employees expressed dissatisfaction with the
Union's representation, and Jimison also related that only
18 Southway employees participated in the strike which
began on June 22, 1972.
It is clear from the record, as the General Counsel and
the Union assert, that some of the events and circum-
stances relied on by the Respondent as grounds for its
doubt of the Union's majority transpired after the
decertification petition, and some transpired even after the
Respondent had filed the RM petition. It is equally clear,
again as the General Counsel and the Union assert, that,
under Board precedent, such circumstances as the number
of employees on checkoff and the degree of participation
in the strike are not, at least standing alone, sufficient
evidence of the Union's majority status to support an
assertion of good-faith doubt.19 I find, nevertheless, that in
the face of a pending decertification petition, the objective
considerations advanced by the Respondent are sufficient
to support its asserted good-faith doubt under the rule of
U.S Gypsum, supra. The Respondent initially discontinued
the bargaining relationship for the Southway employees
when the RD petition was filed, and it refused to resume
the bargaining relationship in this unit after the Regional
Director noticed the decertification petition for hearing.
Although the General Counsel argues that the mere filing
of the decertification petition was insufficient to support
the Respondent's assertion of good-faith doubt because of
the absence of proof that more than 50 percent of the
employees in the unit had signed the petition,20 I find no
merit in this argument. Both before and after the filing of
the decertification petition the Respondent was the
recipient of information indicating employee dissatisfac-
tion with the Union's representation of the employees. In
filing the RM petition after dismissal of the decertification
petition, the Respondent acted in good faith, and the
validity of its objective considerations is supported by the
evidence that the Regional Director accepted them and
noticed the RM case for hearing.
is Terrell Machine Company, 173 NLRB 1480, 1481 language of the Trial Examiner in Wabana, Inc, 146 NLRB 1162, 1172,
20 In support of this argument the General Counsel relies on certain which I find inapposite to the facts of this case
GEM INTERNATIONAL, INC.
In summary , I find and conclude that the General
Counsel has not sustained the burden of proving that the
Respondent has violated , or is violating, Section 8(a)(5) of
the Act by refusing to bargain with the Union , and I shall
recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
529
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent has engaged
in, or is engaging in, any unfair labor practices alleged in
the complaint.
RECOMMENDED ORDER
I hereby recommend that the complaint herein be
dismissed in its entirety.21
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
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