F. Strauss and Son, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1975

216 N.L.R.B. 95 (N.L.R.B. 1975)

F. STRAUSS & SON, INC. 95
F. Strauss and Son, Inc. and Retail Clerks
International Association , Local 210, AFL-CIO.
Case 15-CA-5084
January 7, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On August 30, 1974, Administrative Law Judge
Louis S. Penfield issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
We find, as the Administrative Law Judge did, that
Respondent's chief negotiator amended the proposed
duration of the June 7 contract offer from 3 years to
9 days, the time remaining in the certification year,
by his remarks at the beginning of the November 29
negotiating session . We also agree that Respondent
bargained in bad faith by offering the Union a
contract whose duration was limited to the remain-
der of the certification year. The Administrative Law
Judge decided to treat this amendment as a nullity
because it was violative of the Act. Contrary to the
Administrative Law Judge, we give effect to this
amendment and, therefore, do not find that the
Union's subsequent acceptance of the original June 7
contract offer,' including its 3-year duration clause,
meant a contract had been formed. Accordingly, as
Respondent and the Union did not on November 29
or on any other occasion reach agreement as to all of
the provisions of a collective-bargaining contract, we
shall modify the recommended remedy by limiting it
to the requirement that Respondent, upon request,
bargain in good faith with the Union, and, if an
understanding is reached, embody it in a signed
contract.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
F. Strauss and Son, Inc., Monroe, Louisiana, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
herein modified:
1. Substitute the following paragraph for para-
graph 2(a):
"(a) Upon request, bargain collectively in good
faith with Retail Clerks International Association,
Local 210, AFL-CIO, as the exclusive representative
of its employees in the unit herein found appropriate
for collective-bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if an understanding
is reached, embody it in a signed contract."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Acting Chairman Fanning agrees with the reasoning of the Admimstra-
tive Law Judge and would affirm his recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had an
opportunity to present evidence, the Board has found
we have violated the National Labor Relations Act
and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any such
activities.
WE WILL, upon request, bargain collectively in
good faith with Retail Clerks International
Association, Local 210, AFL-CIO, as the exclu-
sive representative of certain of our employees at
our Monroe, Louisiana, facilities with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment, and,
if an understanding is reached, we will embody it
in a signed contract.
216 NLRB No. 18
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner,
interfere with, restrain, or coerce our employees
in the exercise of their rights.
I
F. STRAUSS AND SON, INC.
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD , Administrative Law Judge: This
proceeding was heard before me in Monroe , Louisiana, on
June 12 and 13, 1974, with all parties represented. The
complaint is based on a charge filed on November 29,
1973, by Retail Clerks International Association, Local
210, AFL-CIO, herein called the Union. The complaint
issued on May 9, 1974, and alleges that F. Strauss and Son,
Inc., herein called Respondent, engaged in certain conduct
violative of Section 8(axl) and (5) of the Act.
Upon the entire record, including briefs filed by each
party, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Louisiana corporation engaged in
warehousing, distributing, and selling food and related
products with an office and warehouses located in Monroe,
Louisiana . During the 12 months preceding the issuance of
complaint in the course and conduct of such business
Respondent purchased and received goods and materials
valued in excess of $50,000 which were shipped directly to
it from points located outside the State of Louisiana. I find
Respondent to be engaged in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
and assertion of jurisdiction to be appropriate.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This proceeding concerns Respondent 's alleged unlawful
refusal to bargain with the Union as the certified
representative of its employees by refusing to execute an
agreement allegedly reached between . itself and the Union
prior to the end of the certification year . Respondent
defends its conduct by asserting that it expressed willing-
ness to enter into a contract terminating at the end of the
certification year, but that it lawfully declined to extend
the duration of the agreement beyond that point because
of a good-faith and reasonably held belief that the Union
had lost its majority.
A. The Appropriate Unit and the Majority
On December 8, 1972, the Board certified the Union as
the exclusive collective-bargaining representative of all
employees in the following unit:1
F. Strauss and Son, Inc., 200 NLRB 812 (1972).
3 Ranchway, Inc, 203 NLRB 911(1973); Holly Farms Poultry Industries,
189 NLRB 663 (1971).
All full-time and regular part -time employees at
Employer's Monroe , Louisiana, operations , including
warehouse employees , cash and carry employees,
including cashier , stocker, loaders, unloaders, order
pullers, truck spotters , forklift operators, packroom
employees, garage employees , including mechanics and
utility service employees , warehouse equipment mainte-
nance and sanitation employees , truck drivers and
produce truck helpers, and warehouse clerical employ-
ees; but excluding all other employees , including office
clerical employees, professional employees , salesmen,
data processing employees , advertising and printing
department employees , cash receivable clerk, watch-
men and door guards, inbound and outbound checkers,
and all other supervisors as defined by the Act.
I find such unit to be appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
In accordance with established Board law , there is an
irrebuttable presumption that the Union maintained its
majority status for I full year following the certification on
December 8 , 1972.2 Accordingly, I find that at all times
between December 8, 1972, and December 8, 1973, a
majority of Respondent's employees in the unit described
above , had designated the Union as their collective-
bargaining representative in a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(a) and (b) of the Act.
It is clear from the record that Respondent did not
question the Union's continuing majority during the entire
certification year. The issue before us is whether or not
there existed circumstances that permitted Respondent
lawfully to limit the duration of a contract otherwise
acceptable to the term of the certification year. The
circumstances which give rise to this alleged defense will be
set forth below.
B. The Background the Prestrike Bargaining and
the Strike Itself
On October 15, 1971, there was a Board-conducted
election among employees of Respondent in the above-
described unit . Thereafter , election objections and unfair
labor practice charges were filed . A consolidated hearing
relating to both was held, and on December 8, 1972, the
Board issued its Decision finding Respondent to have
engaged in certain unlawful conduct including unlawful
interrogation , promises of benefit , threats of reprisal and
other matters, and at the same time certifying the Union as
the statutory representative of Respondent 's employees.3
Bargaining between the Union and Respondent com-
menced in early 1973. Some 19 bargaining sessions took
place thereafter during the course of the year.
On June 7, 1973, Respondent and the Union had
reached accord on most issues with the exception of a
significant wage matter and a union -security proposal.
Union counterproposals on such issues were rejected by
Respondent . It was stipulated that Respondent's complete
contract offer, including a provision that the contract
s F. Strauss and Son, Inc., supra.
F. STRAUSS & SON, INC.
should have a 3-year duration and including its proposals
with regard to the disputed issues, remained in existence
and on the "bargaining table" from June 7, 1973, until the
opening of the November 29 bargaining session which will
be considered below. On August 21, 1973, the union
membership, after learning that Respondent had rejected
the Union's counterproposal on the disputed issues, voted
to strike. On August 22, the strike commenced.
At the time of the strike, there were approximately 127
persons in the bargaining unit. According to the testimony
of union representatives, approximately 115 employees
initially went out on strike, and while the strike continued
only 5 or 6 abandoned it and returned to work. The Union,
however, offered no documentary evidence to support
these figures. Respondent offered payroll records purport-
ing to show that only approximately 74 employees went on
strike initially.
The strike did not bring about a cessation of Respon-
dent's operations in Monroe. Respondent brought in
supervisors from other plants initially, and then undertook
to hire replacements which enabled it to continue the plant
in full operation during the entire course of the strike. The
replacements were not as experienced as the strikers, and
while the strike was in progress additional employees were
required to carry on the Monroe operation. Under
circumstances to be described more fully below, the strike
ended on November 29. At that time, Respondent
employed a total complement of 138 employees in the
bargaining unit. With the end of the strike, Respondent
agreed to recall all strikers "as vacancies occurred by
seniority." Respondent's records establish that after the
strike ended, Respondent sent recall letters to 74 persons
who presumably were regarded as holding striker status.
While it appears that Respondent's payroll records may
not in all instances reflect striker status with complete
accuracy, generally speaking I view such records as more
accurate than the undocumented estimates of the Union,
and I will rely on the foregoing figures to the extent they
may be needed to reach any conclusions on the issues in
this proceeding.
C. The November 20 Meeting, the Decertification
Attempts and the November 29 Meeting
No bargaining meetings between Respondent and the
Union took place between the August 22 strike date and
November 20 . In November union representatives , appar-
ently concluding that their bargaining position was
deteriorating , requested another meeting with Respondent.
Such meeting was held on November 20. At this time the
Union first inquired if Respondent had in any manner
changed its earlier proposals , and on being informed that it
had not, the Union made certain new counterproposals.
There was some discussion concerning the return of
strikers to work in the event of a settlement . No definitive
understanding on this issue was reached , although Respon-
dent indicated it would be willing to take back returning
strikers . Respondent agreed to consider , among other
things, the Union's counterproposals. A later meeting for
this purpose was scheduled for November 29.
Following the November 20 meeting union representa-
tives agreed among themselves that should Respondent
97
reject the Union's counterproposals the Union would then
accept in toto Respondent's entire June 7 package,
including those issues which the Union had theretofore
resisted , call off the strike, and negotiate concerning the
return of strikers.
During the interim between the November 20 and 29
meetings , a development transpired at Respondent's
Monroe establishment . According to the testimony of
Thomas Mulhearn, president of Respondent , on Novem-
ber 22 an employee named Dan Pierria came to his office
and advised Mulhearn that he was "tired of this union,"
and wanted "to know what [he could] do to get rid of this
union." Mulhearn told Pierria that he could not give him
advice on such a question, and suggested that Pierria
communicate with the Regional Office of the Board. On
the following Monday, November 26, Pierria again visited
Mulhearn's office and this time told Mulhearn that "last
night [he] mailed a petition to the National Labor
Relations Board in New Orleans and there were 71 names
on that petition." Mulhearn conveyed this information to
Frederick A. Kullman, an attorney who was Respondent's
principal negotiator . Kullman sought to confirm the
existence of such a petition by communicating directly
with the Regional Office in New Orleans. He learned that a
communication had been received from an employee of
Respondent, but that no representation petition had been
accepted or docketed. The Regional Office confirmed the
fact that the communication contained a list of names
purporting to be employees of Respondent listed under the
following caption : "We the voting unit of F. Strauss and
Son, Inc ., no longer wish to have the Retail Clerks Union
represent us, and we strongly petition the NLR Board to
call for another election ." The Regional Office did not
show Kullman the list or give him either the names or the
number of names appearing thereon. Respondent under-
took to subpena the list for use during the course of this
proceeding. General Counsel's petition to revoke such
subpena was granted both on the grounds of relevancy and
privilege.
Carl E. Colvin, a union official and one of the union
negotiators , learned on Sunday, November 25 , that some
employee was circulating a petition seeking to get other
employees to repudiate the Union. According to Colvin, it
was reported to him that management representatives were
behind the circulation of such a petition. It does not appear
that at any point prior to the November 29 bargaining
meeting, Colvin or any other union representatives learned
any details concerning the petition, including the number
or identification of persons signing it, or the fact it had
been sent to the Regional Office in New Orleans.
The bargaining session of November 29 took place as
scheduled . The Union was represented by Michael Christy,
Carl Colvin, and Irwin Socoloff. Christy and Colvin had
previously participated as negotiators for the Union.
Socoloff was an attorney for the International who had
been sent out from Washington to join the negotiators at
this meeting. Respondent was represented by Frederick
Kulhnan, its attorney, and by John Paul Jones and Bill
Crowder. All had previously represented Respondent in
negotiations . At the November 29 meeting , Kullman acted
as spokesman for Respondent . At the opening of the
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting Kullman advised union representatives of the
report he had received from Mulhearn indicating that a
petition had been circulated among employees at the plant
which had been signed by 71 employees indicating that
they wished to withdraw from the Union. Kullman further
advised the Union that this petition had been sent to the
Board's Regional Office in New Orleans and that he had
been advised by Regional Office representatives "that a
petition had not been filed, but they had received a list of
names ." Kullman stated that "based on this, and the
turnover ... we feel we have the right to question your
certification." Kullman went on to say that "after the end
of the certification year, if [the employees] don't file a
petition, then [Respondent] will file it." Kullman next
stated that "based on these circumstances we cannot offer
you a contract except to the end of your certification
year."4 Following these statements by Kullman, the union
representatives left the meeting to caucus among them-
selves. Upon their return, with Socoloff acting as spokes-
man, the Union stated that it was now accepting
Respondent's entire contract proposal precisely as it had
existed since June 7 including its 3-year duration. At the
same time, Socoloff announced that the Union was
forthwith calling off the strike, that all strikers were
unconditionally offering to return to work and that the
Union was prepared to discuss the conditions of their
return. Kullman replied that the Union's attempt to accept
in toto the June 7 proposal was impossible since the
proposals were no longer on the table in that form, having
been amended by Kullman at the outset of the meeting to
limit the duration of any contract entered into to the
certification year. Socoloff took the position, in substance,
that Respondent's attempted amendment as to duration
was inappropriate and could not be made in good faith.
Socoloff stated that under the circumstances he considered
the Union to have accepted the valid outstanding offer,
and to have entered into a binding 3-year collective-
bargaining contract with Respondent.
On the day following this meeting, Kullman sent a
confirmatory letter to the Union. Respondent's position is
set forth in this letter in the following language:
I also want to take this occasion to confirm the
statement which I made at the outset of our meeting on
the 29th. In view of the turnover which took place
during the 3-months strike period and in view of the
fact that the company had been advised that certain
employees were seeking to file a decertification petition
and have actually submitted to the local office of the
National Labor Relations Board petitions signed by
substantial majority of the present work force stating
that they no longer wanted to be represented by your
Union, the company doubted your continuing status as
bargaining representative. For this reason I told you
4 Testimony of union representatives suggests that Kullman told the
Union, in substance , Respondent would not bargain with the Union at all
beyond the end of the certification year. Kullman is a knowledgeable labor
attorney well aware that the expiration of a certification year does not
automatically extinguish the duty to bargain, even though after that time
there might be a question concerning representation raised . Thus , I view it
as unlikely that Kullman made the statement that the union representatives
appear to attribute to him On the contrary, I am convened and find that
that the company would not be willing to enter into any
bargaining agreement with you for a term beyond the
end of the current certification year, which expires on
December 8, 1973. I also told you that if the employee
petition of which we had been informed, was not
actually filed, the company would, after December 8,
file its own petition, in order to have the question of
representation determined.
Following this information, Mr. Socoloff asked for a
recess . Upon his return, he stated that the strike was
called off and the Union was unconditionally offering
to return all strikers to work. Mr. Socoloff, likewise,
stated that the Union accepted the company's last offer
in toto for a 3-year contract. I advised you that there
was no such contract offer on the table, it having been
withdrawn at the outset of the meeting.
On December 5, Union Representative Colvin advised
Kullman by telegram that at the November 29 meeting, the
Union had ended its strike and had accepted the
Company's contract proposal in toto. The telegram went on
to advise Kullman that the contract had now been ratified
by the employees and that the Union was now ready to
sign the contract.
D. Discussion of the Issues and Conclusions
This case involves an application of the Board's well-
established doctrine that a union's continuing majority is
conclusively presumed for a year following a Board
certification.5 The doctrine itself is not challenged, but we
are called on to consider if there exist circumstances which
permit an employer within the certification year to limit
the contract term to the duration of the certification year
itself without violating its duty to bargain. The conduct
which joins the issue here took place at the bargaining
meeting of November 29. We need first to consider the
events leading up to the meeting, and then evaluate the
lawful or unlawful nature of the position Respondent took
at that time.
The parties had been bargaining since January 1973
following the certification. While the Board had found
Respondent had engaged in pervasive unfair labor practice
preceding the certification, Respondent apparently had
complied with the Board's order relating thereto. The
negotiations , though possibly suggesting hard bargaining,
must be deemed lawful. Respondent's full contract
proposal was on the bargaining table by June 7 with an
accord at that time on all but a few disputed issues . In mid-
August, the Union called a strike. A majority of the unit
employees joined the strike. Respondent continued its
operation thereafter using needed replacements. There was
a dropoff in picketing activity after the first few weeks of
the strike, but few of the striking employees returned to
Kullman was relying on the turnover and decertification activities as giving
Respondent the right to limit the duration of the contract to the certification
year, and that he so represented to the Union in substantially the manner
set forth above.
S Ray Brooks v. N.LR.B., 348 U.S. 96 (1954); Ranchway Inc., 203 NLRB
911 (1973); Holly Farms Poultry Industries, 189 NLRB 663 (1971); Keystone
Valve Corporation, 186 NLRB 64 (1970).
F. STRAUSS & SON, INC
work while the strike continued. Respondent regarded the
replacements as less efficient than the strikers, and
expressed its willingness to recall strikers when the strike
ended.
With the strike in the third month, and apparently not
accomplishing its desired goals, the Union undertook to
resume bargaining with the intention of capitulating to
Respondent's proposals if it could not succeed in getting
favorable modifications at the resumed negotiations. At
the time of the November 20 meeting, no decertification
activities had taken place. In the interim between this
meeting and the one scheduled for November 29, the
Union learned of a petition being circulated among plant
employees aimed at repudiation of the Union. Prior to the
November 29 meeting, it is not shown that the Union was
fully cognizant of the scope of the so-called decertification
activities, or that it learned that 71, or any other number, of
employees' signatures had been obtained and sent to the
Board's Regional Office. Thus, the Union came to that
meeting with minimal information regarding the decertifi-
cation activities but with full knowledge that, despite the
length of the strike and its lack of success, the majority
who had struck were still out on strike, with very few
having defected and returned to work. Under the circum-
stances, I am satisfied, and find, that the Union ap-
proached the November 29 meeting convinced that it
retained solid support among the strikers Respondent had
expressed willingness to recall, that it possessed only
cursory knowledge of the nature of efforts being made
among the nonstrikers to repudiate the Union, and that it
had the intention of bringing an end to the strike by getting
the best agreement possible, accepting if necessary the full
package of employer proposals.
It is against this background that we come to the
November 29 meeting itself. Respondent's information
concerning the nature and scope of the decertification
activities has been outlined above. In its brief, Respondent
characterizes, and I think properly so, Kullman's proposal
at the outset of this meeting as an amendment to
Respondent's existing proposals in only one hmited
aspect-duration. This so-called amendment was ad-
vanced ostensibly because Respondent was now claiming
that it had reasonable doubt as to the Union' s continuing
majority because of "turnover . . . during the 3 months
stake period" and because Respondent had been advised
that "certain employees" constituting "a substantial
majority of the present workforce" had submitted a list of
names to the Board purporting to repudiate the Union as
their bargaining representative. These factors are asserted
to be the kind of "unusual circumstances" that would
justify an employer, not to question the Union's continuing
majority during the remainder of the certification year, but
to limit the duration of any contract entered into to that
year itself.
To support its position, Respondent relies on a line of
cases which hold that, despite the presumption of continu-
ing majority during the entire certification year, there may
be "unusual circumstances" indicating that a majority in a
6 Hede and Douche Paper Co, 104 NLRB 847 (1952); Vulcan Steel Tank
Corporation, 106 NLRB , 1278 (1953), Lloyd A Fry Roofing Company, 123
NLRB 647 (1959)
99
bargaining unit have repudiated the Union, and if so, the
employer may be permitted to limit the duration of any
contract to which it agrees to the certification year itself
and still fulfill its bargaining duty.6 Such a limitation,
however, is permissible only where the so-called "unusual
circumstances" are objective in nature and quantitatively
sufficient to be viewed as supporting a reasonable doubt
that a union's presumed majority still exists. Thus, an
employer's subjective belief that a union has lost its
majority will not suffice to support a limitation on
duration, nor will objective information that only a few in
the unit are repudiating the union.?
Except for the decertification activities, I find nothing
else in the record which properly may be characterized as
objective evidence suggesting possible loss of the union
majority. A dropoff from the early strike picketing activity
does not necessarily suggest defection from the strike,
particularly where, as here, there was little, if any, known
defection among the strikers themselves. Turnover among
nonstrikers or their replacements, absent affirmative and
known expressions of their sentiment, does not necessarily
suggest alienation from the Union. Resumption of the
bargaining after 3 months of an unsuccessful strike may
suggest some apprehension that union support is lessening,
but without independent corroborative evidence it scarcely
constitutes objective evidence of loss of a continuing
majority. Accordingly, I find none of these circumstances,
either considered jointly or severally, as sufficient to
support a claim of reasonable doubt as to the Union's
presumed continuing majority.
This brings us to the significance to be attached to the
decertification activities which came to Respondent's
attention. These so-called decertification activities center
on only one employee alone. Pierna told Mulhearn that he
himself was repudiating the Union, and this may be
characterized as objective evidence of such fact, but
Pierria's representation that 70 others had signed the
petition also rejecting the Union as their representative
falls short of establishing this as something upon which
Respondent is entitled to rely. At best, this was a hearsay
representation which may or may not have been true. It
may have served to nurture Respondent's subjective
conviction that the Union was losing support, but it fails as
objective evidence indicating that a majority of those
working had in fact expressly repudiated union support.
Nor does the corroborated knowledge that the list of
names had been sent to the Board buttress the evidence.
Even had the Regional Office told Respondent that there
were 71 names on the petition it would have been
meaningless. Respondent was told that the so-called
petition was being treated as nothing more than a
communication and that it was not being docketed as a
decertification petition. Thus, Respondent was made aware
that the validity of the listed names had not been, and was
not being, officially evaluated by the Board. Nevertheless,
Respondent elected to rely on Pierria's representations as
to the number of defections together with what it had
learned from the Board and such obviously subjective
7 Insulating Fabricators, Inc, 144 NLRB 1325 ( 1963); Grand Rent-a-Car,
d/b/a Avis Rent -A-Car, 169 NLRB 731 (1968); Holmes Tuttle Broadway
Ford Inc, 186 NLRB 73 (1970), Henry Heide, Inc, 107 NLRB 1160 (1954)
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations as diminished strike activity and turnover as
sufficient evidence to support its alleged doubt of the
Union's continuing majority.
I view the foregoing as insufficient grounds for support
of Respondent's contention. Were such insubstantial
considerations to be accepted as "unusual circumstances"
we would do violence both to the basic certification year
concept, and to its qualification in situations where there
may be truly "unusual circumstances ." The purpose
behind the certification year concept is to further the
collective-bargaining process . It constitutes a recognition
of the fact that it takes time to negotiate a collective-
bargaining contract, and that such contracts are the
ultimate goal of an employee representative. Unfettered
freedom by unit employees to change or abandon a chosen
representative at will and for an employer to act on even
objective evidence that it had done so could render it
impossible ever to negotiate an agreement. On the other
hand, the limited duration concept seeks to recognize that
circumstances may arise which could result in forcing an
unwanted representative on the employees for an extended
period of time. Each concept undertakes to place bounda-
ries on the rights. of both employer and employees
calculated to achieve its respective objective. The conclu-
sive presumption of continuing majority for an entire
certification year, however, is not to be abandoned lightly.
The duration concept will come into play only in the
presence of clearly defined and substantial evidence
signifying the likelihood that the unit employees may not
wish to continue with their chosen representative beyond
the term of the certification year. The duration limitation
exists not so much to test the employer's good faith
approach to his bargaining duty as to protect employees
against being required to keep an unwanted representative
for an unduly long period. The "unusual circumstances"
which will suffice to support the duration Imitation may
be many and varied but at a minimum they must include
more than evidence that one or even a number of
employees seek to abandon the Union. On the one hand
Respondent here came to the November 29 meeting
knowing that a majority of the employees in the unit at the
time of the strike were still out on strike, and presumably
still supporting the Union. On the other hand it knew for
sure at this time that only one of its employees had
repudiated the Union, and was engaging in activities
calculated to, and which it believed to, have caused others
to follow suit. However, other' than the representations of
this employee alone, it had no objective evidence that in
fact he had been joined by a majority of the working
employees, or indeed by any one of them. This does not
suffice to meet the "unusual circumstances" test , and thus
does not provide Respondent with lawful justification for
amending its earlier proposal to limit the duration of the
contract to the certification year, and I so find. According-
ly, I find that under the circumstances set forth above,
Respondent breached its statutory duty to bargain by
seeking to limit the contract term to the certification year,
and thereby Respondent engaged in conduct violative of
Section 8(aX5) and (1) of the Act.
There remains the question of whether or not the
Union's acceptance of the June 7 proposals created a
binding contract. This must be answered in the affirmative.
As set forth above, Respondent's June 7 proposals were
still on the table when the November 29 meeting opened.
Respondent made no attempt to amend any proposal but
the duration clause. Presumably had the Union accepted at
this point a contract effective for the remainder of the
certification year would have came into being. I have
found above that this attempt was a breach of Respon-
dent's statutory bargaining duty, and was in effect a
nullity. The Union, thereupon, undertook to accept in toto
those proposals to which Respondent had been prepared to
bind itself since June 7. It would be a manifest injustice if
Respondent were now permitted to avail itself of a breach
of its own statutory bargaining duty, and to say that no 3-
year contract, or any contract at all, exists. Accordingly, I
find that by its acceptance on November 29 of Respon-
dent's June 7 contract proposals, a 3-year contract
embodying such proposals came into being, and I shall
direct that Respondent execute a contract of such nature.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. F. Strauss and Son, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Retail Clerks International Association , Local 210,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees of the employer in the bargaining
unit, more particularly described above , constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. On November 29, 1973, and at all pertinent times
thereafter , the Union was the exclusive representative of all
employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. Respondent has engaged in and is engaging in unfair
labor practices violative of Section 8(aX5) and (1) of the
Act by insisting that any contract executed with the Union
have a duration limited to the certification year, and by
refusing on and after November 29, 1973, to execute a
collective-bargaining agreement with the Union embody-
ing all of its proposals which had been on the bargaining
table since June 7, 1973, and which had not been
effectively amended thereafter with regard to duration.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
• The Remedy
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices affecting
commerce, I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the purposes of the Act.
It will be recommended that Respondent bargain with
the Union as the certified representative of its employees in
the unit heretofore found appropriate for the purposes of
collective bargaining by executing a collective-bargaining
F. STRAUSS & SON, INC. 101
agreement embodying the provisions contained in the
proposals submitted to the Union on June 7, 1973, and
which remained thereafter on the bargaining table until
accepted by the Union on November 29, 1973.
Upon the foregoing findings of fact and conclusions of
law and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDERS
Respondent, F. Strauss and Son, Inc., Monroe, Louisia-
na, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith with Retail Clerks International Association, Local
210, AFL-CIO, as the exclusive representative of its
employees in the unit herein found appropriate for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act, except to
the extent such rights may be affected by an agreement
8 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
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.
requiring membership in a labor organization as a
condition of employment as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Execute a collective-bargaining agreement with the
Union embodying all the proposals on the bargaining table
since June 7, 1973.
(b) Post at its Monroe, Louisiana, facilities copies of the
attached notice marked "Appendix." 9 Copies of said
notice on forms provided by the Regional Director of
Region 15, after being duly signed by Respondent's
authorized representative, shall be posted by it immediate-
ly upon receipt thereof, and maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing 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 15, in
writing, within 20 days from the date of this decision what
steps Respondent has taken to comply herewith.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."