D & F Super Market

National Labor Relations Board - Board Decisions

Feb 4, 1974

208 N.L.R.B. 891 (N.L.R.B. 1974)

D & F SUPER MARKET
Glenn Spooner d/b/a D & F Super Market and Retail
Clerks International Association , Local Union No.
7. Case 27-CA-3658
February 4, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On May 8, 1973, Administrative Law Judge James
T. Rasbury issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in th.s proceeding to a three-member panel.
The National Labor Relations Board has reviewed
the rulings of the Administrative Law Judge made at
the hearing and finds no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the attached Decision, the
exceptions, the briefs, and the entire record in the
case , and hereby adopts the findings, conclusions,
and recommendations of the Administrative Law
Judge only to the extent consistent herewith.
The complaint herein alleges, inter alia, that
Respondent is a successor employer and violated
Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union which had recently been
recognized by the predecessor employer. The Admin-
istrative Law Judge concluded that Respondent was
a successor employer,' but that it had a good-faith
doubt of the Union's majority representative status
and, consequently, did not violate Section 8(a)(5)
and (1) by refusing to bargain with it.
The facts are fully set forth in the attached
Decision.2 Briefly, Respondent operates a single
1 No exception has been filed to the Administrative Law Judge's
conclusion that Respondent is a successor employer
2 Contrary to the implication in the dissent , we agree with and adopt the
Administrative Law Judge's findings of fact and credibility resolutions
3 Unless otherwise noted, all dates hereinafter refer to 1972.
4 This agreement provided, inter aha, for recognition of the Union in the
following unit
All grocery anc, produce department employees, including part-time
employees and courtesy clerks regularly working l day or more per
week employed by D & F Thriftway, Loveland, Colorado, excluding
the store manager, office clerical employees , janitors, meat department
employees , professional employees, guards. and supervisors as defined
in the Act
There is no contention in the instant case that the recognition of the
Union by Respondent's predecessor , Gates, was in any manner improper or
that at that time the Union did not possess valid authorization cards from a
majority of the unit employees . Although Gates never personally examined
these cards, it appears he rejected the Union's offer to have a neutral third
party do so. In addition, the instant case involves no issue with respect to
891
retail grocery store, which it purchased and began
operating on August 14, 1972.3 Prior thereto Respon-
dent learned from a third person that there had been
a "union problem" at this store, but this source did
not know the outcome of that matter. Respondent
sought additional information from the then current
owner and was told that a union had picketed the
store but agreed to stop in exchange for his
reinstating some employees; that there was no
agreement in writing between this union and him;
and that only three employees, whom he named, who
had picketed were currently on his payroll. There is
no evidence that Respondent knew more than the
foregoing prior to taking over the store on August 14.
In fact, the predecessor and the Union had signed an
agreement dated June 7 which provided, inter alia,
for recognition of the Union4 and they had ex-
changed collective-bargaining agreement proposals
and engaged in one negotiating session , although no
agreement was reached.
When Respondent began operating the store on
August 14, he accepted for employment all of the
employees who had worked for the predecessor that
reported to work that day.5 Seven unit employees,
including the three that the predecessor had named
as having participated in the picketing, were so
employed, plus the former assistant store manager,
who was hired as a stocker and checker. It appears
that five of these employees had signed union
authorization cards. In addition, four relatives of
Respondent, his wife, two sons, and a female whose
exact relationship is not revealed by the record, also
started working at the store on August 14. It thus
appears that the unit consisted of either eight or nine
employees, inasmuch as at least the spouse and
children of the Respondent would be excluded.
The Union learned of the sale of the store by a
letter dated August II from the predecessor's
attorney. Shortly after receiving this letter, the Union
contacted Respondent and arranged to meet with
him at the store on August 17. Prior thereto, on
the bargaining that took place between the Union and Gates. Contrary to
our dissenting colleague's suggestion , it is clear that the Union never
abandoned the single-store unit for which it obtained recognition Although
the Union did submit to Gates a contract proposal covering the three stores
owned by him , Gates specifically rejected this apparent attempt to expand
the bargaining unit and there is no indication that the Union persisted in its
efforts. Other than this proposal , the record herein is devoid of any evidence
that the Union "became preoccupied" with attempting to organize Gates'
other employees, as the dissent asserts.
5 The record is unclear as to exactly how many unit employees had been
working for the predecessor immediately prior to August 14 or why some
employees reported that day and others did not . It appears from the record
that when the Union met with the predecessor on or about May 17 to
request recognition there were 13 unit employees . However. a strike
occurred shortly after this meeting and it appears that there was a decrease
in the number or unit employees between that date and Respondent's
assumption of the store 's operation This, however , is irrelevant in deciding
the present issue Lloyd A Fry Roofing Co, Inc, 176 NLRB 1025 , fn.4 at
1026
208 NLRB No. 119
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 16, two of the unit employees who had
worked for the predecessor approached Respondent.
They asked if he intended to go along with the Union
and indicated that they did not want the Union.
The following day Respondent and one of his sons
met with two union representatives at the store. After
Respondent requested proof of the Union's majority
representative status, one of the union representa-
tives replied that Respondent was obligated by his
predecessor's action and handed him a copy of the
aforementioned agreement between the Union and
the prior owner. After reading over this agreement,
the authenticity and validity of which Respondent
did not question, he again asked for proof of the
Union's majority status and received the same reply.
Following some general discussion, this meeting
ended with the understanding that the Union would
call Respondent in several days to arrange another
meeting. Thereafter, Respondent continued to insist
on proof of the Union's majority status, and further
discussion between the Union and Respondent
ceased after a decertification petition was filed on
September 6. The instant unfair labor practice charge
was filed shortly thereafter.
The Administrative Law Judge concluded that
Respondent had a good-faith doubt of the Union's
majority status and, consequently, did not violate
Section 8(a)(5) and (1) of the Act by refusing to
bargain with it. General Counsel, relying upon Keller
Plastics Eastern, Inc.,6 and Glenn Goulding d/b/a
Fed-Mart,7 contends, inter alia, that Respondent was
obligated by the predecessor's recent recognition of
the Union to bargain with it for a reasonable period
of time before he could lawfully question its majority
representative status. We agree with the General
Counsel but not for the reasons he asserts.
The Keller case cited by General Counsel involves
the application of the recognition-bar doctrine which
provides for bargaining, undisturbed by questions
concerning the labor organization's majority status,
for a reasonable period of time following the
establishment of a bargaining relationship based
6 157 NLRB 583.
7 165 NLRB 202.
8 The Supreme Court in N L.RB v. Burns International Security Services,
404 U.S. 272, noted the fact of the successor's knowledge of its predecessor's
bargaining obligation at 278:
It is undisputed that Bums knew all the relevant facts in this regard and
was aware of the certification and of the existence of a collective-
bargaining contract In these circumstances, it was not unreasonable
for the Board to conclude that the union certified to represent all
employees in the unit still represented a majority of the employees and
that Burns could not reasonably have entertained a good-faith doubt
about that fact.
However, in context it is not clear that a different conclusion is dictated in
any case where such knowledge does not exist at the time the successor
begins to operate the business.
9 Id at 295
10 Cf. Barrington Plaza and Tragniew, Inc., 185 NLRB 962,964; and Will
Coach Lines, Inc., 175 NLRB 518, 524. In view of our determination herein
upon lawful voluntary recognition. This doctrine was
applied to a successor in the Goulding decision.
However, unlike the instant case, the successor in
that case took over the employing enterprise with
knowledge of the bargaining relationship. Assuming
without deciding that those cases are distinguishable
because here, at the time it began to operate the
business, Respondent lacked knowledge of the
predecessor's recent recognition of the Union,8
nevertheless the determination of whether Respon-
dent violated the Act must be made as of the date of
the refusal to bargain,9 in this case August 17. It is
undisputed that Respondent learned of his predeces-
sor's bargaining obligation on the aforementioned
date when he met with the Union and was shown the
written agreement which he neither questioned nor
challenged in any respect. We find that Respondent,
having taken over the preceding owner's business,
equipment, and employees, is a successor who
inherited the obligation to bargain with the Union
unless Respondent had a reasonable doubt of the
Union's majority status and could validly raise that
issue.'° But the determination of whether or not
Respondent had such a reasonably based doubt must
be made on the basis of the totality of Respondent's
knowledge at the time of the refusal to bargain. We
find that Respondent had insufficient objective
considerations upon which a reasonably based doubt
of the Union's majority status could be formed.
Thus, the only reliable information in his possession
on the critical date was that two of the unit
employees had indicated their desire not to be
represented by the Union.ii Clearly, the single,
isolated expression of a personal desire by two
employees not to be represented by the Union
provides an insufficient foundation for a reasonably
based doubt of the Union's majority representative
status, particularly in view of the recency of its
recognition by the predecessor employer.12 Under
these circumstances, we conclude that Respondent
was obligated to bargain with the Union on and after
August 17.
that Respondent did not have a reasonable doubt of the Union's majority
status, we need not decide whether a reasonable time had elapsed since the
Union was recognized by the predecessor.
11 Since it was clear at that time that the predecessor had not been
truthful with Respondent about the disposition of the "union problem,"
Respondent could not reasonably rely on any of the other information the
predecessor had given him concerning this matter , such as Gates' statement
that only three named employees who participated in earlier picketing were
still working for him , without some independent verification of that
information . There is no evidence that following the August 17 meeting the
Respondent made any inquiries about the matter. Contrary to the dissent's
assertion that we are requiring Respondent to prove that he did not
unlawfully refuse to bargain with the Union, it is well established that the
assertion of a reasonably based doubt of a union 's majority representative
status is an affirmative defense which must be proved by the party raising it
where, as here, General Counsel has presented a prima facie case.
12 Cf Terrell Machine Company, 173 NLRB 1480 ; and Kentucky News,
Incorporated 165 NLRB 777.
D & F SUPER MARKET 893
Accordingly. we find that, by refusing to bargain
with the Union on and after August 17, Respondent
violated Section 8(a)(5) and (1) of the Act.
C ONCLUSIONS OF LAW
1. The Respondent, Glenn Spooner d/b/a D & F
Super Market, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Retail Clerks International Association, Local
Union No. 7, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All grocery and produce department employ-
ees employed at Respondent's Loveland, Colorado,
store, including part-time employees and courtesy
clerks working 1 day or more per week, but excluding
office clerical employees, janitors, meat department
employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining.
4. The above-named Union has been and is the
exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing to bargain collectively with the
above-named Union on August 17, 1972, and
thereafter, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Retail Clerks Inter-
national Association, Local Union No. 7, as the
exclusive bargaining representative of its employees
in the appropriate unit found above, by failing to
recognize the Union as the majority representative of
such employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed them by 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 embody in a
signed agreement any understanding reached.
(b) Post at its store in Loveland, Colorado, copies
of the attached notice marked "Appendix." 13 Copies
of said notice, on forms provided by the Regional
Director for Region 27, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and ( 1) of the Act, we
shall order that it cease and desist therefrom and,
upon request , bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act; as amended, the National Labor
Relations Board hereby orders that Respondent,
Glenn Spooner d/b/a D & F Super Market,
Loveland, Colorado, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
MEMBER KENNEDY , dissenting:
I am unable to join my colleagues in their rejection
of the recommendation of the Administrative Law
Judge. In my view, his findings of fact, his credibility
resolutions, his conclusions of law, and recommend-
ed order are fully supported by the record. I would
adopt his Decision dismissing the complaint.
The crucial fact is that Respondent "had absolutely
no knowledge" at the time of purchase of any
"conduct on the part of the former owner which
might establish recognition of the union." Indeed,
Respondent had been told by Gates, the seller,
during negotiations for the purchase of the store that
only three named employees who had participated in
earlier picketing were then working for the predeces-
sor. My colleagues agree with the Administrative
Law Judge that "at the time it began to operate the
13 In the event that this Order is enforced by a Judgment of a United Judgment of the United States court or Appeals Enforcing an Order of the
"States Court of Appeals , the words in the notice reading "Posted by Order National Labor Relations Board."
of the National Labor Relations Board" shall read "Posted Pursuant to a
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business, Respondent lacked knowledge of the
predecessor's recognition of the Union." Under these
circumstances, I believe Respondent acted lawfully
when it expressed doubt of the Union's majority
status and later refused to bargain until the Union
offered proof of its majority.
This case is plainly distinguishable from the Burns
case.14 The Supreme Court there imposed a bargain-
ing obligation upon the new employer because it was
"undisputed that Burns knew all the relevant facts in
this regard and was aware of the certification and of
the existence of the collective bargaining contract."
Contrary to my colleagues, I think the Court would
have reached a different conclusion in Burns had the
facts with respect to knowledge been comparable to
those presented by this record.
I think it highly significant that before Respondent
learned on August 17 of Gates' recognition of the
Union, he was approached by two unit employees
who informed him of their desire not to be
represented by the Union. The statements of these
two employees, together with Gates' representation
that there was no agreement in writing between the
Union and him and that his work force then included
only three employees who had picketed, furnished
ample justification for the Respondent's requests on
August 17 and thereafter that the Union submit
proof of majority status.15 Failure of the Union to
furnish proof of majority, precludes a finding of
unlawful refusal to bargain.
While the union representatives advised the seller
that they represented a majority of his employees at
the Loveland, Colorado, store, the Administrative
Law Judge correctly found that they did not allow
Gates to examine the cards. Gates was never shown
the signatures on the cards nor were the names of the
employees who signed cards given to him.16 The
union representatives simply counted some cards in
front of Gates and read to him the dates on which
they were allegedly signed.17 In this connection, it
should be noted that Gates and the Union did not
engage in meaningful collective bargaining because
the Union became preoccupied with attempting to
organize Gates' employees in two stores located in
Fort Collins, Colorado. Indeed, the Union's pro-
posed contract to Gates covered a three-store unit
which included the employees working in the two
Fort Collins stores as well as the one in Loveland.
14 N.LR B v Burns International Security Servicer, 404 U.S 272
15 My colleagues ' holding that Respondent could not rely on the
representations of the predecessor about the "union problem" improperly
removes the burden of proof from the General Counsel and requires
Respondent to prove that he did not commit an unfair labor practice For, it
is unreasonable to assume, absent supporting record evidence , that the
Respondent had reason to doubt prior to August 17 any information given
him by the predecessor concerning the "union problem ." It was on August
17 that Respondent first learned of the earlier recognition My colleagues
Respondent's conduct throughout was marked by a
total absence of union animus. He accepted for
employment the three employees whom Gates had
identified as having picketed the Loveland store.
When the two employees stated on August 16 that
they did not want to be represented by the Union, he
replied that he would do whatever a majority of the
employees wanted. This is hardly the conduct of an
employer seeking to circumvent a statutory obliga-
tion. On the contrary, it clearly manifests Respon-
dent's willingness to abide by the wishes of a
majority of his employees.
When confronted on August 17 with a demand for
bargaining and Gates' recognition of the Union,
Respondent requested that the Union prove its
majority. Thus, his response was both reasonable and
logical, and, in my, view, lawful when considered
in conjunction with the aforementioned objective
indications of lack of majority support for the
Union.
In my opinion, Respondent did not actually refuse
to bargain until after the decertification petition was
filed on September 6. Prior to the filing of that
petition, Respondent voiced no opposition to a
bargaining relationship with the Union. Respondent
simply requested some proof that the Union repre-
sented a majority of his employees. The record does
not suggest that the Union ever asserted that it did,
in fact, represent a majority of Respondent's employ-
ees. The Union repeated its unchanging assertion
that Respondent could not question its majority
status.
When the RD petition was filed on September 6,
the Union called Respondent and accused him of
assisting in the filing of the petition. Respondent
denied the accusation and reiterated that he still
wanted proof of majority status. There is not the
slightest suggestion in this record that Respondent
sponsored or in any way encourage the employees to
file the decertification petition.
It was only after the RD petition was filed that
Respondent actually refused to bargain with the
Union. I would not find that Respondent's contacts
with the Union prior to September 6 constituted
either bargaining or a refusal to bargain. Rather, they
amounted to reasonable actions which any innocent
employer could have taken to assure himself that a
majority of his employees desired to be represented
require that he have independent verification of this information
16 Recognition agreements generally are executed after an examination
of cards and the employer's payroll by either a neutral party or the
employer Certainly the recognition letter in this case cannot be equated
with the Board certification and collective-bargaining agreement in the
Burns case
17 Union officials Dunich and Smith testified that they are not permitted
to show signed authorization cards to an employer
D & F SUPER MARKET
by a union seeking to bargain on their behalf. I find
that Respondent's doubt of the Union's majority
status was based upon objective considerations. The
decertification petition raised a real question con-
cerning representation and Respondent's refusal to
bargain thereafter was both lawful and proper. See
Teleautograph Corporation, 199 NLRB No. 117.
For all of the above reasons, I would affirm the
recommendation of the Administrative Law Judge
and dismiss the complaint in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT refuse to recognize and bargain
collectively with Retail Clerks International
Association, Local Union No. 7, as the exclusive
bargaining representative of the employees in the
following appropriate unit:
Al] grocery and produce department
employees employed at the Employer's
Loveland, Colorado, store, including part-
time employees and courtesy clerks working
1 day or more per week, but excluding office
clerical employees, janitors, meat depart-
ment employees, guards, and supervisors as
defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce the employees in
the exercise of their right to self-organization, to
form, join, or assist unions, to bargain collectively
through representatives of their own choosing, to
engage in coiicerted activities for the purposes of
collective bargaining or other mutual aid or
protection, or to refrain from such activities,
except to the extent that such right may be
affected by an agreement requiring union mem-
bership as a condition of employment, as author-
ized in Section 8(a)(3) of the Act.
WE WILL, upon request, bargain collectively
with Retail Clerks International Association,
Local Union No. 7, as the exclusive bargaining
representative of all employees in the appropriate
unit as found above.
895
GLENN SPOONER D/B/A
D & F SUPER MARKET
(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, Room 260, U.S. Custom House, 721
19th Street, Denver, Colorado 80202, Telephone
303-837-3551.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard in Loveland, Colorado, on February 13 and 14,
1973, upon a complaint I issued by the General Counsel of
the National Labor Relations Board (herein Board) and an
answer filed by the Respondent , Glenn Spooner d/b/a D
& F Super Market. The complaint alleges violations of
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended (herein Act), by conduct hereinafter
specified and the answer of the Respondent which admits
certain procedural aspects pertaining to the Act , but denies
that it has committed the unfair labor practices as alleged.
Helpful briefs have been received from both the General
Counsel and the Respondent and have been duly consid-
ered.
Upon the entire record in this proceeding and from my
observation of the demeanor and testimony of the
witnesses, I hereby make the following:
FINDING OF FACT
1. JURISDICTION
The Respondent is and at all times material herein has
been an individual proprietor doing business under the
trade name and style of D & F Super Market, a retail
grocery store with its principal office and place of business
at Loveland, Colorado. In the course and conduct of the
business operations of the store Respondent annually
purchases and receives goods and materials valued in
excess of $50,000 from suppliers located within the State of
Colorado, which suppliers received said goods and materi-
als directly from points and places located outside the State
of Colorado. In the course and conduct of the operation of
the store the Respondent annually sells products valued in
excess of $500,000. On the basis of these admitted facts I
find that the Respondent is now and at all times material
1 The complaint in this proceeding was issued on December 12, 1972,
based on a charge filed and served on Respondent on September 8, 1972
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
fl. IHE LABOR ORGANIZATION
The Retail Clerks International Association, Local
Union No. 7, is now and at all tunes material herein has
been a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Union started organizing the employees of the D &
F Thnftway in late April or May 1972,2 at which time the
store was owned by one Glenn Gates. On or about May 17,
Richard Dumch and Vic Scaff approached Gates and
advised him that they represented a majority of the
employees working in the store and indicated that they had
signed authorization cards from a majority of the employ-
ees. The union representatives did not allow Gates to
examine the cards, but told him that they would give the
cards to a third neutral party such as a priest , rabbi, or
judge to have the cards checked for authenticity. Within
the next 24 hours Gates discharged three employee
supporters of the Union. This resulted in the Union filing
unfair labor practice charges against D & F Thriftway in
Case 27-CA-3566 alleging that Gates had violated not
only Section 8(a)(3) of the Act by his unlawful discharges
but also Sections 8(a)(l) and (5) of the Act. A strike
followed which lasted approximately 2-1/2 weeks with 8 of
the 13 employees of the store participating in the picketing.
On June 6, 1972, a settlement agreement was negotiated in
the office of Gates' attorney and Attorney Walter C.
Brauer, III, who represented the Union. A settlement was
reached between the Union and Gates (see G.C. Exh. 4)
which resulted in the termination of the strike, the
reinstatement of the discharged employees with backpay,
recognition of the Union as representatives of the employ-
ees as described in the RC election petition which the
Union had filed, and the withdrawal of the unfair labor
practice charges and the RM petition filed by the Union.
Following the settlement agreement union representa-
tives met with Gates and his attorney on July 28 to
negotiate a contract (see G.C. Exh. 9). Some 2 hours were
spent discussing the union contract proposal but no
agreement was reached . It is important to note, however,
that the bargaining session was in terms of a three-store
unit which would have included two stores owned by Gates
that were located in Fort Collins, Colorado, as well as the
Loveland, Colorado, store. On August 2,3 the Union
received Gates' counterproposal. (See G.C. Exh. 7.) On or
about August 11, the Union received a letter from Gates'
attorney, Mr. Good, advising that the D & F Thnftway in
Loveland had been sold and that the new owner was Glenn
Spooner, the Respondent herein. (See G.C. Exh. 8.)
Mr. Spooner was never fully informed of the events
2 Hereinafter all dates will be in the year 1972 unless otherwise indicated
3 The transcript indicates that the counterproposal was received on
August 27 7 his is an obvious error and the General Counsel has moved that
the transcript be corrected to reflect the correct date as August 2. No
heretofore related prior to his agreement to purchase the
store. He testified that Gates had told him that there had
been some union problems at the store, but it had all been
settled and that there were only three employees on the
payroll that were prounion. Gates never informed Spooner
of the settlement agreement in which he (Gates) had agreed
to recognize the Union. Gates told Spooner that nothing
had been agreed to except the reinstatement of the three
discharged employees which had settled the matter.
Spooner took control of the store on August 14 and
testified that he accepted for employment all of the
employees that had worked for Gates that reported to work
on August 14.
B. The Refusal To Bargain by Respondent
The Union contacted Spooner shortly after receiving the
letter from Gates' attorney advising that the Loveland
store had been sold and arranged for a meeting with him
on August 17. However on August 16 Spooner was
approached by two employees and asked if he intended to
go along with the Union. The two employees indicated
they did not want the Union. Spooner replied that he
would be agreeable to what the majority of the employees
wanted.
Mr. Darnel Thorn, an assistant to the chief executive
officer of the Union, and Mr. Tracey Smith, president of
Local 7, met with Glenn Spooner and his son Ken
Spooner, the store manager, about 1 p.m. on August 17.
There is a conflict in the testimony as to just what occurred
at that meeting. Thorn testified he told Spooner the Union
represented a majority of the employees to which Spooner
replied that he didn't know for a fact that the Union did
represent a majority of the employees. Whereupon,
according to Thorn, "he [Spooner] went to the wall, took
the schedule off the wall for that week, and we went down
the schedule name by name, and I indicated to him
whether or not that particular person on that schedule had
signed a card. . . . After we finished going through the
entire schedule, he said, `Okay, I just wanted to clear that
point up.' " According to Thorn, Spooner then solicited
the Union's cooperation in developing a proper, helpful,
cooperative attitude among the employees. A tentative
date was arranged for a contract negotiating meeting.
Generally, Thorn's testimony was supported by Tracey
Smith. Smith testified, "He [Spooner] did not object when
Dan said, `I do still represent a majority,' after they recited
back and forth these names on the schedule."
According to Spooner he immediately indicated to
Thorn that he wanted proof of the Union's majority
representation and Thorn replied, "I do not have to prove
this to you because you're obligated with what Glen Gates
done." Whereupon Spooner asked, "What are you talking
about?" For the first time Spooner learned of the
settlement agreement that had been signed by Gates (G.C.
Exh. 4). At this point Spooner pulled the work schedule
from the wall or bulletin board and again asked Thom to
prove that he represented a majority of the employees.
objections to the motion have been received from Respondent . It is herewith
ordered that the date of August 27 as the date of receiving the
counterproposal be corrected in the record to read August 2
D & F SUPER MARKET 897
According to Spooner , Thorn looked at the schedule,
repeated that he did not have to prove that the Union
represented a majority of the employees (because Gates
had recognized the Union), and then raised a question
about Helen Jefferson being scheduled for only 37 or 38
hours instead of 40 . Mr. Glenn Spooner's testimony is
supported by the testimony of his son, Ken Spooner, who
was present during the meeting and in part by employee
Showalter who was working in the area and overheard
some of the conversation.
This meeting apparently ended on a quiescent note with
indications from the union representatives that they would
call and set up another - meeting with . Spooner . Another
meeting was arranged for August 30 following a phone call
from Thom to Spooner on August 24. The meeting did not
take place and Thorn called again on August 31 and a
meeting to be held in the Denver offices of the Union was
arranged for September 6. According to Spooner on each
occasion of these telephone calls he asked Thom for some
proof of majority-representation , but was told each time
that he [Spooner] was stuck with the recognition of the
Union by Gates.
Spooner and his son Ken went to Denver on September
6 and the Union presented them with 2 standard or form
contract which was "discussed" and a number of questions
were asked by . Ken Spooner . There was no indication from
the Spooners that they were agreeing to anything and
according to their testimony they were still seeking to be
shown proof that the Union represented a majority of the
employees . The meeting lasted between 1 and 1-1/2 hours.
According to the Spooners they had no intention of
negotiating until they were shown proof of majority status
of the Union.
Upon returning to the store in Loveland , Spooner
learned from employee Tom Smith that a decertification
petition had been filed with the Board 's Denver office (see
Resp . Exh. 3). Thereafter Spooner indicated in his letter to
the Regional Office that he would back the employees
(meaning he would not negotiate until an election
determining the wishes of the employees had been held).
Spooner also testified that he advised Mr. Thorn when Mr.
Thorn called on September 7 or 8 that he (Spooner) was
refusing to bargain until'the matter was settled.
Schmidt, Spooner replied that he could only be promoted
when there was an opening and if he had received some
training for the vacancy. Schmidt denied that she was
questioned about the Union or that Spooner had told
Cameron that he would only get ahead by getting rid of the
Union. Spooner's testimony of the incident is much like
June Schmidt's.
The testimony from Cameron regarding another incident
was as follows:
Q. Okay; now, I direct your attention to the
following day . What happened that day, if anything?
[Aug. 30]
A. That day I was up front, and June Schmidt and
Mrs. Spooner were talking . And she-let's see-Mrs.
Spooner said that the store was too small to have a
union , and as soon as they get on their feet they would
pay union wages anyway.
Q. And who was present during that conversation?
A. June Schmidt and Mrs. Spooner and myself.
On cross-examination Cameron testified that Mrs. Spoon-
er's statement had not been voluntary, but rather he had
asked her, her opinion of the Union. Both June Schmidt
and Mrs. Spooner deny that any such conversation ever
occurred.
According to Cameron on August 9, "That was the day
right after I turned in my resignation notice. And I asked
Mrs. Spooner if she knew that I was quitting the next
Saturday, and she said, `That's good' because she didn't
want any of the people that supported the Union in the
store."
All of these incidents of alleged Section 8(axl) violations
of the Act I reject as not having been proven by a
preponderance of the creditable evidence . The version of
Mr. Spooner's statement to Cameron, as related by
Cameron, simply does not ring true. I credit, the testimony
of June Schmidt and Mrs. Spooner and shall recommend
dismissal of all the Section 8(axl) allegations as set forth in
paragraph V of the complaint.
Analysis and Conclusions
C. The Alleged 8(a)(1) Conduct by Respondent
There were four alleged acts of 8(a)(l) conduct by
Respondent and all were allegedly directed toward Gary
Cameron, a high school student working as a courtesy
clerk, who resigned on September 9 to return to school.
According to the testimony of Cameron, on August 29,
he was mopping the floor when Mr. Spooner passed by and
said, "The only way you're going to get ahead is to get rid
of the Union." Thereafter, according to Cameron, June
Schmidt, a checker, came over and Spooner asked her
opinion of the Union.
June Schmidt told a different version of this incident.
She testified that Cameron approached Spooner and asked
if he could talk to him. Cameron then asked how he could
get promoted to either a stocker or a checker and said the
Union had promised him that if the Union got in, he would
be a stocker and checker immediately. According to June
There is little doubt that Respondent is a successor to
Glenn Gates the prior owner of the Loveland store, who
had done business as D & F Thriftway. After Respondent
acquired the store he continued the same retail grocery
operation with the same name in front of the store in the
same location . The departments and products were the
same and both the internal and external appearance of the
store was the same . According to Spooner he hired all of
the former employees who reported for work on August 14.
(Which was at least 8 of the former figure of 13. Four
"Spooners" were added to the list of employees not
including Glenn Spooner. (See G .C. Exh. 10.) The record is
less than crystal clear as to what happened, or why, the
remaining employees of the predecessor employer did not
report for work .) In determining successorship "[t]he
critical question is ... whether Respondent continued
essentially the same employee unit .. Maintenance,
Incorporated 148 NLRB 1299. Accordingly, I find and
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that Respondent is a successor employer to
Glenn Gates
The real issue in the case then is, what were this
successor's obligations?
The General Counsel argues that Board precedent
clearly establishes that Respondent was obligated to
bargain with the Union for a reasonable period of time
because the predecessor had recognized and was bargain-
ing with the Union at the time of the sale and the Union is
entitled to a reasonable period of recognition. The General
Counsel cites several cases, but perhaps the most illuminat-
ing is Keller Plastics Eastern, Inc., 157 NLRB 583. This was
a 1966 case submitted to the Board for Decision and Order
on a stipulated record. While the Keller case was concerned
with alleged violations of Section 8(a)(1) and (2) involving
the validity of a contract executed with an alleged assisted
union, nevertheless the obligations which flow from
recognition of a union were carefully considered and
analyzed. The Board said at page 587:
With respect to the present dispute which involves a
bargaining status established as the result of voluntary
recognition of a majonty representative, we conclude
that, like situations involving certifications, Board
orders, and settlement agreements, the parties must be
afforded a reasonable time to bargain and to execute
the contracts resulting from such bargaining. Such
negotiations can succeed, however, and the policies of
the Act can thereby be effectuated, only if the parties
can normally rely on the continuing representative
status of the lawfully recognized union for a reasonable
period of time.
The General Counsel also quotes effectively from Glenn
Goulding d/b/a Fed-Mart, 165 NLRB 202 (1967), which
case reiterates the position expressed by the Board in
Keller, supra, and then applies it to a successorship
operation. There is one critical distinction, however,
between the Glenn Goulding case and the instant case. The
Respondent in the case at hand had absolutely no
knowledge of the settlement agreement, or knowledge of
the conduct on the part of the former owner which might
establish recognition of the Union .4
An additional difference, which I feel removes this case
from the general rule expressed by the Board in Keller,
supra, is the fact that the negotiations between the
predecessor and the Union related to a three-store
bargaining unit. The Respondent only acquired one store.
The Board has held that even though a purchaser or
acquirer of a business is a "successor employer" a change
in the bargaining unit may affect the new employer's
bargaining obligations. See G. T. & E. Data Services Corp.,
194 NLRB 719.
The factual situation then is one of a successor, totally
unaware of any recognitional obligations, that has a good-
faith doubt of the Umon's majority. This good-faith doubt
is supported by a decertification petition (Resp. Exh. 3).
4 This determination is based not only on the credited testimony of
Glenn Spooner who denied any knowledge of the settlement agreement but
also on the logical belief that Glenn Gates' desire to sell would have caused
him (Gates) to minimize or "carefully evade" a full disclosure to any
prospective purchaser
There is no substantial evidence in the record of any
misconduct by the Respondent except his insistence that
the Union prove that it represented a majority of the
employees. This was never done for Respondent and only
occurred for the predecessor by way of a majority of the
predecessor's employees participating in a strike. Since the
sale of the store there has been a substantial turnover in
personnel and I have not been persuaded that under all the
circumstances of this case, or Board decisions, that a
bargaining order should issue.
There have been a number of cases of recent vintage in
which the Board has, after carefully determining that
objective considerations justified Respondent's doubt
concerning the Union's majority status, dismissed the
complaint.5
In the instant case we have a Respondent that is totally
free of any misconduct toward the employees; 6 a Respon-
dent that is an innocent successor; a Respondent that has a
good-faith doubt of the Union's majority status-objec-
tively supported by a decertification petition; a substantial
turnover in personnel; and a change in the bargaining unit.
In a slip opinion rendered December 11, 1972,7 the
Ninth Circuit Court of Appeals in affirming the findings
and enforcing an 8(a)(5) and (1) order of the Board, said:
This does not mean that the NLRB cannot or should
not reexamine the present circumstances to see whether
a fair election could now be held under the protection
of the NLRB. N.LR.B. v. LB. Foster Company, 418
F.2d 1, 6 (9th Cir. 1969), (concurring opinion of Judge
Ely). 29 U.S.C. § 160(e) allows the NLRB to modify its
findings by reason of additional evidence adduced by
leave of this court. In the instant case, leave was not
sought. Nevertheless, it is alleged that subsequent to the
NLRB decision, there was a substantial change in this
minuscule bargaining unit, which was not brought about
by any impropriety on the part of the Company. Under
the unique facts presented in this case and in the
interests of forwarding the policy of the National Labor
Relations Act, new evidence on this particular issue
may be presented to the NLRB. 29 U.S.C. § 160(e). We
will allow, but do not order, the NLRB to reconsider its
findings in light thereof. Obviously, a bargaining order
based upon authorization cards must be considered less
desirable than the free-will expression of employees in a
fair election whenever the latter can be accomplished.
[Emphasis supplied.]
It is the attitude expressed by the Court in the quote
above which I feel should prevail in the instant case. There
appears to be no reason why a free expression of the
employees desires should not be permitted. I shall
recommend dismissal of the complaint . In so doing I have
given consideration to General Counsel's alternative
argument that Respondent's own conduct amounted to a
recognition of the Union. Spooner testified that on each of
his contacts with the union representatives prior to the
5 See Southern Wipers, Inc., 192 NLRB 816 ; Taft Broadcasting, 201
NLRB No. 113
6 Cf. Green Briar Nursing Home. Inc, 201 NLRB 503
7 N.LR.B v. Coca-Cola Bottling Co of San Mateo, 472 F 2d 140 (C A. 9,
1972), enfg. 188 NLRB 590.
D & F SUPER MARKET
Denver meeting he had requested proof of majority. In the
absence of something more, I cannot conclude that
Respondent's own conduct amounted to a recognition. At
most Respondent was guilty of "dragging his feet" and that
could have been prevented if the Union had provided
proof of their majority.8
CONCLUSIONS OF LAW
899
General Counsel has failed to prove that Respondent has
violated Section 8(a)(1) and (5) of the Act as alleged in the
complaint.
[Recommended Order omitted from publication.]
8 Cf Telautograph Corporation, 199 NLRB No. 117, and Shea Chemical
Corporation, 121 NLRB 1027