J. J. Newberry Co.

National Labor Relations Board - Board Decisions

Jul 21, 1965

153 N.L.R.B. 1526 (N.L.R.B. 1965)

1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discussion of cited precedent
The General Counsel cited the case of N.L.R.B. V. Exchange Parts Company, 375
U.S. 405, in support of his proposition that the granting of the wage raise of $10 while
the union representation petition was on file violated Section 8 (a) (1) of the Act.
As Mr. Justice Harlan said in the Exchange Parts case, "the precise issue is whether
that Section '[8(a)(1)] prohibits the conferral of such benefits , without more, where
the employer 's purpose is to affect the outcome of the election ." In that case the
Board , affirming the findings to the Trial Examiner , found that the announcement of
the birthday holiday and the grant of overtime and vacation benefits were arranged
by Exchange Parts with the intention of inducing the employees to vote against the
union . Accordingly it found this conduct violated Section 8(a)(1) of the Act. In
the instant case there is no evidence tending to show that the wage raise was made
with the intention of inducing the employees to vote against the Union or to cause
a defection in the Union . Of course , as the court in the Exchange Parts case pointed
out "the danger inherent in well -timed increases in benefits is the suggestion of a fist
inside the velvet glove." But in this case the evidence is, as testified to by the employ-
ees, that the raise was given because of the New York minimum wage law. Further
there is no probative evidence that the raise was made after Respondent knew of a
request for an election.
For the reasons as set out earlier , the other cases cited by the General Counsel in
order to sustain his theory of the case are found inapplicable.?
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2 (2) of the Act.
2. Respondent did not violate Section 8 (a)(1) and (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is recom-
mended that the complaint be dismissed in its entirety.
7 These cases are Joy Silk Mills, Inc., 85 NLRB 1263; Jas. H. Matthews & Co., 149
NLRB 161 ; Galloway Manufacturing Corporation, 136 NLRB 405 ; and Fred Snow, Har-
old Snow and Tom Snow, d/b/a Snow k Sons , 134 NLRB 709.
J. J. Newberry Company and Retail Clerks Union Local 503,
Retail Clerks International Association , AFL-CIO. Case No.
17-CA-2096. July 21,1965
DECISION AND ORDER
On Febraury 2, 1965, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, Respond-
ent filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
153 NLRB No. 135.
J. J. NEWBERRY COMPANY 1527
The Board has considered the Trial Examiner's Decision, the excep-
tions and brief, and the entire record in the case, and finds merit in
certain exceptions of Respondent.
As the Trial Examiner noted, a representation petition was filed by
the Union on October 3, 1962, for an election in a unit of Respondent's
store employees. On October 23, 1962, the parties met with a Board
agent at a preelection conference. The matter of a consent election
arose and, in connection with the issue of voting eligibility, Respondent
telephoned its store manager to obtain certain information. During
this break in the approximately 2-hour meeting, Respondent's counsel
and the Union's representative engaged in general conversation about
the demands of their jobs and other personal matters. In the course
of this conversation, the Union's representative casually suggested
that Respondent could avoid an election by recognizing the Union on
the basis of a card check. Respondent's counsel stated his preference
for arranging an election. Thereafter, the parties returned to the
business at hand and completed arrangements for a consent election.
No further mention, either at the meeting or later, was made of the
possibility of according recognition on the basis of cards.
Contrary to the Trial Examiner, we do not believe that the union
representative's random suggestion at the October 23 meeting was
intended by him or understood by Respondent's counsel as a formal
demand for recognition on the basis of a card check to which Respond-
ent was expected to give serious consideration.' It is clear that the
parties were meeting on that day solely for the purpose of discussing
details for an election, the course on which they had both already
decided as the means for fully resolving the Union's representation
claim. In these circumstances, we cannot agree with the Trial Exam-
iner that the casual colloquy adverted to above sufficiently supports a
finding of a clear and unequivocal request to bargain made by the
Union and rejected by Respondent such as is a prerequisite to a con-
clusion that Respondent violated Section 8(a) (5) of the Act. We
shall accordingly dismiss the complaint?
[The Board dismissed the complaint.]
I The Union's authorization cards were not even brought to this meeting by its
representatives.
2 Member Brown concurs in the result.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On January 7, 1963, Retail Clerks Union Local 503, Retail Clerks International
Association , AFL-CIO, herein called Local 503, filed a charge against J. J. Newberry
Company, herein called the Respondent , claiming that the Respondent had engaged
in conduct violative of Section 8(a)(5), (3), and (1 ) of the Act. By letter, dated
February 13, 1963 , the Regional Director for Region 17 advised the parties in interest
of his refusal to issue a complaint based on the charge for the reasons that the claimed
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(3) violation upon investigation was not shown to be supported by evi-
dence and that the Board's holding in Aiello Dairy Farms, 110 NLRB 1365, was
controlling in the circumstances of the case and precluded a finding that the Respond-
ent had violated Section 8(a)(5) of the Act. As to independent Section 8(a)(1)
violations charged, the Regional Director noted that these issues would be deter-
mined in another pending unfair labor practice proceeding involving the Respondent.
Local 503 thereafter appealed the Regional Director's refusal to issue complaint to
the General Counsel who, by letter to the parties dated July 22, 1964, noted his
remand of the case to the Regional Director with instructions to issue a complaint
alleging a Section 8(a)(5) and (1) violation by the Respondent. As reason for his
action, the General Counsel indicated that the Board's decision in Bernel Foam
Products Co., Inc., 146 NLRB 1277, issued May 1964, reversing Aiello, controlled
the Section 8(a)(5) issue raised by the charge. On August 21, 1964, the Regional
Director issued a complaint alleging that the Respondent had violated Section 8(a)
(5) and (1) of the Act. By amendment at the hearing the complaint further alleged
the merger on or about January 1, 1964, of Local 503 with Retail Clerks Union Local
322, Retail Clerks International Association, AFL-CIO, herein called Local 322,
with the consequence that Local 322 is now 503's successor, and that the Respondent
has violated Section 8(a)(5) and (1) of the Act by its refusal to bargain collectively
with Local 322. The Respondent's answer to the complaint and its amendment
denied commission of the alleged unlawful conduct and challenges the status of Local
322 as Local 503's legal successor. Copies of the complaint, the charge, and a notice
of hearing were duly served upon the parties. Pursuant to said notice, a hearing was
held before Trial Examiner Thomas N. Kessel at Springfield, Missouri, on Novem-
ber 4, 1964. All parties were represented at the hearing by counsel. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence was
afforded all parties. After the close of the hearing briefs were received from all the
parties and have been duly considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The complaint alleges and the answer does not deny that the Respondent is a
Delaware corporation maintaining a branch office and place of business in Spring-
field, Missouri, where it sells at retail various goods and products; that in the course
of its business operations the Respondent annually sells and distributes goods and
materials at retail with a gross value exceeding $500,000 and that in the operation
of its Springfield, Missouri, place of business it annually purchases goods and mate-
rials valued in excess of $50,000 received from points outside the State of Missouri.
From the foregoing undemed complaint allegations I find that the Respondent is an
employer engaged in interstate commerce within the meaning of the Act and that
the purposes of the Act will be effectuated by the Board's assertion of jurisdiction in
this case over its business.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 503 was during times relevant to this case, and Local 322 is, a labor organi-
zation admitting to membership the Respondent's employees.
III. THE UNFAIR LABOR PRACTICES
The General Counsel contends that the Respondent violated Section 8(a)(5) of
the Act by its refusal to recognize and bargain collectively with Local 503 as the
representative of its employees pursuant to its demand presented on October 23,
1962, and that the Respondent continues to violate Section 8(a)(5) by refusing to
recognize and bargain with Local 322 as successor to Local 503. The General
Counsel maintains that the Respondent's refusal to grant Local 503's request and its
simultaneous insistence that the desires of its employees be determined by a Board
election were motivated by a bad-faith intention to gain time to destroy Local 503's
majority by the commission of unfair labor practices. The Respondent defends that
Local 503 did not make a demand for recognition and bargaining as alleged and
hence there could have been no unlawful refusal, that it has not been proved in this
proceeding that Local 503 ever represented a majority of the Respondent's employees
in the appropriate unit so that even if Local 503 had demanded recognition and
bargaining there was no statutory obligation to comply, that the Respondent's refusal
J. J. NEWBERRY COMPANY 1529
was legally justified by its good -faith doubt that its employees desired to be repre-
sented by Local 503 , and that the General Counsel has not proved the claimed merger
of Locals 503 and 322 was effectively accomplished so that it may not be found in
this proceeding that the Respondent owes any obligation to Local 322 as successor
to Local 503 . The Respondent additionally insists that the Board 's holding in the
Aiello Dairy Farms case, supra, precludes a finding of violation herein.
By letter dated October 1 , 1962, Local 503 notified the Respondent that it repre-
sented a majority of the employees at its Springfield store and that a representation
petition was being filed on that date , presumably with the Regional Director, to
secure certification as exclusive bargaining representative of these employees. The
letter further offered to establish Local 503's claimed majority status by a card check
with an impartial party, but added , should the Respondent be unwilling to submit
to this procedure , Local 503 intended to proceed to a representation election. All
this was suggested in order to expedite negotiations for a contract . The General
Counsel does not contend that Local 503 by this letter made a sufficient demand com-
pelling the Respondent to recognize and bargain collectively with it as the representa-
tive of the Springfield store employees.
Responding to the foregoing communication by letter dated October 4, 1962, the
Respondent advised Local 503 that it would not accede to a card check. The rest
of the letter merely noted the Respondent's assumption that if Local 503's represen-
tation petition would be processed to an election it would be advised as to that by
the Board.
A representation petition was filed on October 3 , 1962, by Local 503 for a unit
of the Respondent 's Springfield store employees . On October 23, 1962, a meeting
was held in Springfield attended by representatives of Local 503 and the Respondent
with the Board 's agent also present . The crucial fact concerning the meeting is that
a request was made by International Representative William F. Schreiber in behalf
of Local 503 to Attorney Edward F . Callan , representing the Respondent, for recog-
nition on the basis of a card check and that Callan rejected this request . There is
agreement between the parties that this happened . If there is any significant differ-
ence between them as to what occurred at the meeting it is only over the context in
which the matter was raised . Because of the importance attached by the Respondent
to the events of the meeting and the circumstances surrounding the request for recog-
nition and its declination , I shall advert in full to the testimonial accounts of the
witnesses.
Wayne King, an AFL-CIO regional representative who was assisting Local 503,
testified that he was at the October 23 meeting which he described as a "pre-election
conference or informal discussion" which took place in a Springfield motel. The
meeting, lasting 2 to 21/2 hours, opened with the inquiry of the Board's agent con-
cerning agreement for a consent election . Discussion ensued concerning the com-
position of the bargaining unit and the eligibility of voters in the election. A date
for the election , an eligibility list, and a consent agreement for an election were
finally reached . In the course of the discussion , and precisely at what point King
did not clearly state, International Representative Schreiber told Attorney Callan
that Local 503 had secured signed authorizations from a majority of the employees
and asked that the Union be recognized as collective -bargaining representative of
the Springfield store employees . Attorney Callan declined , whereupon Schreiber
offered to prove Local 503's majority claim by submitting its cards for a check to
an impartial party. Callan again declined and stated that he wanted the question
settled by an election as employees often sign authorization cards just to get rid of
a union representative soliciting their signatures.
Schreiber testified that the meeting was informal ; that difficult questions arose
concerning the inclusion of specific employees in the unit which necessitated time
out from discussions while telephone calls were made to the store; that there was
lengthy discussion before a date for the election was set; and that eventually agree-
ment was reached for a consent election. He related that at some point he told
Callan that Local 503 represented a majority of the employees and that he requested
recognition in its behalf but that Callan declined . Schreiber suggested a third party
card check but Callan was unwilling to accede because he felt authorization cards
do not necessarily reflect the true desires of employees who sometimes sign them
just to get rid of union solicitors . Schreiber remembered talking to Callan about
the nature of their respective jobs and the problems, including travel, which they
encounter . They spoke about stores in St . Louis which have union contracts, but
Schreiber did not recall specifically what was said . He conceded he had not then
and there offered to show Callan the authorization cards claimed to have been
secured and that in fact he had not brought these cards to the meeting.
1530 DEC16IONS OF NATIONAL LABOR RELATIONS BOARD
Callan testified that at the meeting's outset the Board's agent inquired concerning
agreement for a consent election and that he, Callan, indicated willingness to make
such an agreement provided there was mutual assent to the description of the unit
and an election date. After brief discussion with little difficulty encountered, the
parties agreed to the unit's description. Then questions arose concerning the voting
eligibility of specific employees. This required telephone communications with the
store. While these checks were being made by Ray Wise, the Respondent' s assistant
division manager, and the Board's representative, Schreiber suggested to Callan that
the Respondent accord Local 503 recognition and avoid the procedures with which
they were occupied as well as the necessity for an election. Callan, as he related,
replied that the Respondent had stated its position in its response to Local 503's
October 1 letter requesting recognition. He added that "if we had been prepared to
give recognition we certainly would have given it at that time and avoided my trip
out here." Schreiber referred to the Respondent' s stores in St. Louis where recog-
nition had been granted on the basis of card checks and asked why this could not be
done at Springfield. Callan then told him that he and the Respondent felt that
employees who sign authorization cards will not necessarily vote for the soliciting
union in a secret ballot election. Experience had shown him, he told Schreiber, that
when groups of three to five employees discuss the question of whether to join a
union there will be several in the group who are strong union adherents who have
already signed cards and who are trying to persuade the other employees to "go
along." He stated belief that in such circumstances employees might sign cards
"just to alleviate discussion and so as not to be subjected to pressure."
Wise was unable to come to the hearing to testify. The parties stipulated that he
would have corroborated Callan's account with testimony substantially like his.
Casting further light on the events of the October 23 meeting is the letter dated
November 12, 1962, sent by the Respondent to its Springfield employees urging them
to reject Local 503 in the consent election which had been scheduled at the meeting
for November 16. The letter contained the following paragraph:
Incidentally, you should know how this election came about. At the begin-
ning, the Union did not want an election by secret ballot. The Union asked
the Company to recognize it as the representative of our employees on the
basis of cards that had been signed by the employees. Your Company felt that
if each employee had a chance to vote secretly that a majority of the employees
would vote "NO," which means a vote against the Union. Accordingly, we
would not agree that this very important question should be determined by the
signing of cards but rather insisted on an election where each employee could
make a secret vote. Even at the time of the conference with the National Labor
Relations Board concerning the question of an election, the Union was still
seeking to persuade the Company to determine the question by a check of cards
rather than by secret ballot. As a result of our insistence the election for Friday
was scheduled. [Emphasis supplied.]
Concerning the claim by Local 503 that on October 23, 1963, when it requested
recognition by a card check it was the representative of a majority of the Respond-
ent's employees in the appropriate unit, there is the following evidence. By stipula-
tion it is established that on the foregoing date the Respondent employed 95 employees
in the unit. Local 503 should then have been authorized by at least 48 of these
employees to have been a majority representative. Fifty-three AFL-CIO and Retail
Clerks Union authorization cards were received in evidence bearing the signatures
of employees in the stipulated group of 95. It was shown, and I find, that these cards
were used in Local 503's organizing campaign and I am satisfied that it was under-
stood by the signing employees that they were designating Local 503 to represent
them, particularly as no other labor organization was seeking to organize them.
Testimony from witnesses who had solicited the cards in evidence officially authen-
ticated them as the timely authorizations of the signing employees to validate the
cards as proof that on October 23, 1962, Local 503 represented a majority in the
appropriate unit . The Respondent's attack on the validity on the cards is rejected.
Specifically, the Respondent raises questions concerning the completion of several
cards which were among a group of 25 cards claimed by employee Virginia Lane to
have been solicited by her from employees and signed by them before October 23,
1962. Lane testified that she had received the signed cards of all these employees
and had witnessed the signatures of 23 of them and turned their cards over to Local
503 before October 23, 1962. As to the remaining two cards, Lane testified they
were handed to her by the employees whose names they bear with their signatures
and dates already inserted. I was impressed with Lane's candor and am satisfied
that she testified credibly and with good memory.
J. J. NEWBERRY COMPANY - 1531
The Respondent asserts a doubt that the card of employee Eula Hale was dated
on October 1, 1962, as shown by the card, because "the date is written in a fuzzy
manner and indicates that a change of date may have been placed on the card."
Lane testified credibly she had obtained the signed card from Hale at her home.
She denied there had been a change of date on the card and explained that the date
as inserted is "not too plain" because the pen that had been used had not worked
well. I credit her explanation and am satisfied that Hale signed her card in Lane's
presence on October 1, 1962. The card is valid.
Employee Fern Harvill's card is challenged as invalid because the date, in the
Respondent's view, was inserted with a pencil different from that used for Harvill's
signature and other handwritten data on the card. Lane denied that two pencils
were used to complete the card. I believe her. Even if two pencils were used,
and I cannot follow the Respondent's logic to such conclusion, I do not perceive why
this should be reason for doubting the validity of the card. This also is a valid card.
Employee Gertrude Huffman's card is undated. Lane testified that Huffman had
signed the card in the ladies' room and had handed it to her as she came out. The
work bell had already rung and there was a rush to return to duty. In the circum-
stances she failed to have her insert the date. Lane had some difficulty recalling the
exact time when she obtained the card, but was certain it was one of the first she
had secured and that this had occurred in September or early October 1962. I am
satisfied she obtained Huffman's card before October 23, 1962, and that it was
properly counted to establish Local 503's majority.
Employee Mildred I. Blankenship's card shows the insertion of the date, October 15,
1962, with a pen and color ink different from that used by the employee to insert
her name and other data on the card. Lane was certain she had obtained the com-
pleted card from Blankenship at her home on the date shown on the card, but could
not explain the different ink and pen used for the date. I find that the signing
employee had not herself inserted the date. It may reasonably be inferred that the
date was inserted after Lane had secured the card and departed from Blankenship's
home. It may also be reasonably inferred that it was inserted by someone other
than Lane for, had she done so herself, she would have recognized her writing and
identified it as her own. A doubt is therefore logically raised whether Blankenship's
card was signed on October 15. I am satisfied, however, whether this card was
signed then or later, it was timely signed because, as Anna Mae Renfroe, Local 503's
secretary until January 1964, testified, the card had been among those received by
her before the October 23 meeting with the Respondent's representatives.
The card of employee Amanda Carter is attacked because the date thereon appears
as "Oct 10-19" without completion of the year. Lane did not explain the employee's
failure to insert the complete date, but testified credibly that it had been signed in
her presence. There can be no doubt this card was obtained in 1962. Furthermore,
because Renfroe credibly testified this card was received by her before the October 23
meeting, I am satisfied it was timely signed in Lane's presence and is a countable
card establishing Local 503's majority.
Employee Barbara Ray's card is challenged because the date was inserted as
"Oct 21" with no year shown. Lane credibly testified she had witnessed Ray's sig-
nature at her home when she obtained the card. She could not explain the incom-
pletion of the date. There is no reason to doubt that the card was signed in 1962.
I am, moreover, satisfied from Renfroe's testimony that she had received this card
before the October 23 meeting and that it was therefore timely signed and is
countable.
The cards of employees Edna Baker and Josephine Waddell are both dated Sep-
tember 27, 1962. Although Lane acknowledged that she was not sure these cards
were signed in her presence and did not recall the circumstances regarding the com-
pletion of the cards, she also credibly testified that she saw these employees at the
September 27, 1962, meeting at Inez Foraker' s home, and that she saw their cards
turned over to International Representative King at the meeting. Lane testified that
she had seen other cards signed or turned in with signatures already on them at the
meeting. I am satisfied from these facts that Baker and Waddell turned in their
signed cards that night and that they were timely received by Local 503 for purposes
of establishing its majority.
Finally, the Respondent challenges the card of employee Letha Norris which bears
the date "September 28" but not the year of signature. This card was obtained by
employee Helen Massey who acknowledged she had not seen Norris sign her card.
She credibly testified, however, that she had secured the completed card from Norris
at her home on September 29. Although no reference was made by Massey to
the year it was clear she was referring to 1962. She further testified that she is
familiar from close friendship and association at work with Norris' handwriting and
recognized her signature on the card. After obtaining the card Massey gave it to
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 503 Secretary Renfroe. Any doubt that the card was signed in 1962 is further
dispelled by Renfroe's testimony that Norris' card was one of those in a group of
14 received before the October 23, 1962, meeting. Norris' signed card was timely
received and is countable to establish Local 503's majority.
I find no merit in the Respondent's contention that the General Counsel was
required to call as witnesses the employees who had signed cards in order to have
each identify her signature and establish by her testimony that she had signed her
card before October 23, 1962. The timely signing of authorization cards was prov-
able by the testimony of the solicitors who obtained them and by other relevant
circumstances including the fact that at the October 23, 1962, meeting, when Local
503 made its recognition request, it invited the Respondent to satisfy itself that the
cards (40 of which were then in the Regional Director's possession and the remain-
ing 14 in Local 503's possession) were authentic, an invitation which the Respondent
did not accept.' Furthermore, the Respondent does not contend that the signatures
are not genuine and there is nothing to suggest that the signatures were forged or
that the employees were coerced or deceived in the procurement of their signatures.
Local 503 lost the November 16, 1962, election. It thereupon filed timely objec-
tions to the Respondent's conduct claimed to have affected the results of the election.
On January 31, 1963, the Regional Director issued his report on objections and
determination finding certain of the objections to be meritorious. He voided and
set aside the results of the election and ordered that a new election be held at a
time and place to be determined later. No new election has been held or scheduled.
On October 1, 1962, Local 503 had filed a charge in Case No. 17-CA-2059 assert-
ing the commission of unfair labor practices by the Respondent herein. On Decem-
ber 20, 1962, that charge was amended. On December 28, 1962, the General Counsel
issued a complaint based on the charge and its amendment alleging violations of
Section 8(a) (1) and (3) of the Act. A hearing was held in the case on February 19
and March 6, 1963, before a Trial Examiner of the Board, who, on May 22, 1963,
issued his Intermediate Report (now Trial Examiner's Decision) finding that the
Respondent had engaged in conduct violative of Section 8(a)(1) and (3) of the
Act and making appropriate remedial recommendations. Upon exceptions to this
report, the Board, on August 20, 1963, issued its Decision and Order, reported at
144 NLRB 33, adopting the Trial Examiner's findings, conclusions, and recommenda-
tions. Thereafter the Respondent complied with the Board's Decision and Order.
I have judicially noticed these proceedings.
The Trial Examiner found in the foregoing case that Local 503 had started its
organization of the Respondent's Springfield store employees on September 18, 1962,
at a meeting held at the home of employee Inez Foraker; that it discharged Foraker
on September 28, 1962, on the pretext that her work had been unsatisfactory whereas
the real reason was the Respondent's desire to get rid of her because of her activity
in behalf of Local 503. Her discharge in these circumstances was held violative of
Section 8(a) (3) of the Act. The Trial Examiner further found that the Respondent
had violated Section 8(a)( I) of the Act by interrogating two employees on Septem-
ber 28 and October 1, 1962, concerning their union sympathies and that "in the
latter part of October" and "on another occasion" the Respondent had violated the
Act by stating or implying to another employee "that if the Union came into the
plant Respondent would withdraw certain privileges previously accorded employees."
FINDINGS AND CONCLUSIONS
The evidence is undisputed that International Representative Schreiber had asked
Attorney Callan at their October 23 meeting that the Respondent accord Local 503
recognition as representative of the Springfield store employees and had offered to
establish Local 503's status as representative of a majority of these employees by an
impartial card check. Callan's version of what transpired at the meeting does not
controvert this clear fact. What his more elaborate recital of the conversations on
that occasion purports to show is that Schreiber had not demanded recognition in a
"serious manner" but had done so "facetiously and in a light vein." Schreiber may
well have made his proposal in the course of pleasant conversation with Callan over
topics of personal interest unrelated to the business at hand. This should have
provided no cause for doubting that he had meant what he had so plainly said. I
am satisfied that Callan's admitted response to Schreiber shows that he had not
3 Sea View Industries , Inc., 127 NLRB 1402; Irving Taitel, et al., d/b/a I . Taitel and
Son, a partnership , 119 NLRB 910, enfd . 261 F. 2d 1 (C.A. 7).
J. J. NEWBERRY COMPANY 1533
regarded his request as a bit of meaningless humor or idle banter, for he had
seriously rejected Schreiber's proposition. He had not in turning it down told
Schreiber that he was only joking and had not seriously proposed voluntary recogni-
tion . Instead, he soberly noted the Respondent's past refusal to recognize Local 503
by a card check and indicated that its position was unchanged. The Respondent's
serious regard of Schreiber's request is further revealed in its November 12, 1962,
letter to its employees. Schreiber may have entertained little, if any, hope that the
Respondent would be inclined to grant his request, but this is not reason for finding
that he had not made a valid demand. Otherwise, a labor organization aware of an
employer's unyielding refusal to grant recognition short of certification following a
Board-conducted election could not lay the necessary predicate for a Section 8(a)(5)
violation which requires a showing of a valid demand. A request for recognition and
bargaining need not follow a prescribed form. So long as the request is explicitly
and unequivocally phrased it contains the essential elements of a valid demand .2
Schreiber's request could not have been more clearly expressed.
I have found that Local 503 had secured the signed authorizations of 54 of the 95
employees in the appropriate unit before it made its October 23 recognition demand.
It was, therefore, the representative of a majority on that date of the Respondent's
Springfield store employees. The Respondent could not with legal justification have
refused to grant Local 503's demand and insisted that it establish its majority in an
election unless it had a good-faith reason for doubting the majority claim.3 It has
long been held by the Board that an employer violates Section 8(a)(5) of the Act
by refusing to recognize or otherwise bargain with the labor organization repre-
senting a majority of its employees until its majority status is established in an
election when the refusal comes after the employer has engaged in unfair labor
practices directed toward the dissipation of the labor organization's majority status.4
The Board has already determined that on September 28, 1962, the Respondent
unlawfully discharged an employee for her activities in behalf of Local 503 and
that about the same time the Respondent committed other violations of the Act by
coercively interrogating employees concerning their union sympathies and threaten-
ing them with reprisal if Local 503 were to succeed in organizing them. In the face
of this unlawful conduct, obviously undertaken to prevent the unionization of its
employees by Local 503, it may reasonably be inferred that the Respondent' s declina-
tion of Local 503's recognition request on October 23, 1962, shortly after commission
of the foregoing statutory violation was motivated, not by any good-faith doubt that
Local 503 represented a majority, but by its intention to frustrate collective bargain-
ing and to evade the statutory bargaining obligations of the Act. This inference has
not been overcome by the mere fact that the General Counsel did not prove the
Respondent's commission of other unfair labor practices subsequent to the refusal
to recognize Local 503. The injury having already been inflicted , the Respondent
could now, motivated by the same unlawful rejection of the Act's collective-bargaining
principle as before, refrain from further misconduct while it awaited Local 503's
anticipated defeat in the election to which its earlier unlawful conduct would con-
tribute. Furthermore, it may from the commission of these earlier unfair labor
practices have reasonably been anticipated, as the Board customarily states in its
remedial provisions, that the Respondent would commit other unfair labor practices.
Had the Respondent not been satisfied that Local 503's chances of winning the elec-
tion had been destroyed by its misconduct, it may reasonably be assumed that other
misconduct would have been committed after the declination to accomplish this
result.
For the foregoing reasons it may fairly be said that the Respondent's conduct in
this case should be judged unlawful by the application of the Board's Joy Silk Mills
doctrine that an employer's refusal to bargain violates Section 8(a)(5) of the Act
where the "insistence upon such an election to prove the union 's majority is motiv-
ated, not by any bona fide doubt as to the union's majority, but rather by a rejection
of the collective bargaining principle, or by a desire to gain time within which to
undermine the union." I accord no merit to the Respondent's contention that this
doctrine is applicable only upon a showing of unfair labor practices committed by
an employer after rejection of a request for recognition and insistence upon an
election.
2 Barney's Svpercenter, Inc., 128 NLRB 1325, 1327
3Joy Silk Mills, Inc, 85 NLRB 1262, enfd. 185 F. 2d 732 (C.AD.C.), cert. denied 341
U S. 914.
1 Consolidated Machine Tool Corporation, 67 NLRB 737, 740.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I add that the Respondent's rejection of Local 503's October 23 recognition demand
could have been found unlawful even without regard to the evidence of the Respond-
ent's statutory violations. The only reason ever asserted by the Respondent for
doubting Local 503's claim to have secured the authorization of a majority of its
employees to represent them is the possibility that employees who sign cards for a
union may later change their minds in an election. An employer has no absolute
right to insist upon an election where confronted, as here, by a union's majority
claim backed by a willingness to prove its majority by an impartial card check. It
may insist upon an election if it has a valid reason for doubting the Union's claim.
The belief that the employees who signed Local 503's cards might later change their
minds was not such a reason. See Fred Snow, et al., d/b/a Snow & Sons, 134 NLRB
709, 710, enfd. 308 F. 2d 687 (C A. 9).
I find that the Respondent violated Section 8(a)(5) of the Act by its refusal to
recognize and bargain with Local 503 pursuant to its October 23, 1962, request.
There remains for consideration the issue as to Local 322's successorship following
its merger with Local 503 and whether the Respondent's continued refusal to recog-
nize and bargain with Local 322 is violative of the Act.
The minutes of Locals 503 and 322 show that the memberships of these organiza-
tions on March 18 and April 27, 1963, respectively, voted to merge. On October 9,
1963, the membership of Local 503 by formal resolution voted to consummate the
merger in accordance with the terms and conditions set forth therein. At the same
time Local 322's membership voted to accept Local 503's merger resolution. By
"letter dated November 12, 1963, both locals advised the president of the Retail Clerks
International Association of their decision to merge and forwarded a copy of the reso-
lution embodying the terms and conditions for the action. The November 26, 1963,
answering letter from the International's president approved and instructed Local
322 to surrender its existing charter so that a new charter might issue reflecting
its expanded jurisdiction after the merger. The letter noted that instructions would
be sent to both locals for implementation of the merger resolution. On January 1,
1964, the International issued a charter to Local 322 which states in part: "This
charter re-issued to reflect the merger of Local 503, chartered June 1, 1964 [sic], with
Local 322, chartered July 28, 1941.;
There are in evidence the International's constitution and the bylaws of Local
322. Local 503 had not adopted any bylaws. There are no procedures provided by
these documents for the accomplishment of mergers between locals and the successor-
ship of one to the other. The Respondent contends that absent constitutional or
bylaw provisions for merger and successorship pursuant to which the claimed merger
and successorship between Locals 503 and 322 occurred, it may not be found in this
proceeding that these actions legally took place and that Local 322 is Local 503's
successor with which the Respondent is obligated to bargain for its Springfield store
employees. The General Counsel argues otherwise.
The Respondent's attack upon the legal proprieties of the merger and successor-
ship is misplaced in this case. The Board's concern is not with the de lure questions
raised but with the more significant issue whether as a result of the merger the suc-
cessor organization would insure to the members of Local 503 "a continuity of their
present organization and representation." 5 The terms and conditions of merger
contained in the formal resolution therefore provided that Local 503 shall fill 5 of
the 16 positions in the executive board of the newly chartered Local 322 and that
two of these positions shall be vice presidents, a third recording secretary, and a
fifth, advocate reporter. While the record does not show the respective size of the
memberships in both locals before the merger, the March 18, 1963, minutes of Local
503 show that 16 members voted for the merger with none opposing, and the April 27,
1963, minutes of Local 322 show that 37 members voted for the merger with
none opposing. These voting figures are a reasonable indication of the size of the
memberships of these organizations. It does not appear that Local 503's member-
ship was so engulfed in the merger by the larger membership of Local 322 as to
lose its identity. In these circumstances I am satisfied that Local 503 was insured
by the merger of a sufficient continuity of its organization and representation in the
newly chartered Local 322 to warrant the finding that Local 322 is Local 503's suc-
cessor to its right to represent the employees of the Respondent's Springfield store.
c Chmax Molybdenum Company , 146 NLRB 508; Lloyd A. Fry Roofing Company, 118
NLRB 587.
J. J. NEWBERRY COMPANY 1535
Local 322's August 21, 1964, letter to the Respondent apprised it of the January 1
merger with Local 503 and requested recognition as representative of the Springfield
store employees and collective bargaining. The Respondent's September 16, 1964,
letter rejected these requests. The Respondent's refusal to recognize Local 322 as
the collective-bargaining representative of these employees and to bargain with it
for them is violative of Section 8(a) (5) of the Act.
The Respondent's Aiello reasons for opposing the Section 8(a) (5) violations here-
inabove found need not here be discussed in view of the Board's reversal of Aiello
in Bernel Foam , supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to recognize and bargain collectively with Local 503 and thereafter
with Local 322 as the former's successor in behalf of its employees at its Springfield,
Missouri store. I shall, therefore, recommend that the Respondent cease and desist
therefrom and, upon request, bargain collectively with Local 322 with respect to
wages, hours, and other terms and conditions of employment for the foregoing
employees , and, if an understanding is reached , embody such understanding in a
signed agreement. -
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. J. J. Newberry Company is an employer within the meaning of Section 2(2)
of the Act and is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Retail Clerks Union Local 322, Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of the Act and is the successor
to Retail Clerks Union Local 503, Retail Clerks International Association, AFL-CIO,
formerly before its merger with Local 322, a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time sales and fountain employees, stock clerks,
window trimmers, and information girls at the Respondent's Springfield, Missouri,
store, excluding office clerical employees, porters, manager trainees, guards, profes-
sional employees, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. On October 23, 1962, and until its merger with Local 322 on January 1, 1964,
Local 503 was the representative of a majority of the Respondent's employees in the
appropriate unit described above for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act. From January 1, 1964, and at all times there-
after, Local 322, as successor to Local 503, was and now is the representative of a
majority of the Respondent's employees in the appropriate unit described above
for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on and after October 23, 1962, to bargain collectively with Local
503 as the exclusive representative of all its employees in the above-described appro-
priate unit, and by refusing on and after September 16, 1964, to bargain collectively
with Local 322 as the exclusive representative of all its employees in the above-
described appropriate unit, 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 com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]