McDonald's Drive-in Restaurant

National Labor Relations Board - Board Decisions

Jun 20, 1973

204 N.L.R.B. 299 (N.L.R.B. 1973)

UNITED STATES POSTAL SERVICE 299
Glenlynn, Inc. d/b/a McDonald's Drive-In Restaurant
and Hotel and Restaurant Employees and Barten-
ders Union Local No. 243, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO. Case 14-CA-6947
June 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 14, 1973, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel and Respon-
dent filed exceptions and supporting briefs, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings,' and
conclusions, as modified, of the Administrative Law
Judge and to adopt his recommended Order as modi-
fied herein.
The Administrative Law Judge found that after
July 1, 1972, Respondent's Alton store manager, Ben-
ton, questioned employee Klindworth about the
latter's filing of a grievance with the Union and ques-
tioned him about his resurgent interest in the Union,
but concluded that Benton's remarks amounted to
nothing more than innocuous inquiries free of any
coercive implication. For reasons hereinafter set
forth, we find merit in the General Counsel's excep-
tions to the Administrative Law Judge's conclusion.
Shortly before July 1, 1972, Klindworth filed a
grievance with the Union complaining about the
Company's failure to pay him in accordance with the
contract's overtime pay provisions. On July 1, the
Union, at a collective-bargaining meeting, presented
the grievance to Respondent's attorney and it was
settled in Klindworth's favor.
When Klindworth reported for work later in the
day, Benton, who had not been involved in the griev-
ance discussions, approached Kindworth, saying,
"What has gotten into you. How come you are filing
this grievance?" When Klindworth replied that he felt
he had been cheated and wanted to do something
i We agree with the Administrative Law Judge for the reasons stated by
him that Respondent violated Sec . 8(a)( I) by directing employee Klindworth
"to remove his Union button or go home "
about it, Benton remarked that Klindworth should
have come to him first. Benton then asked, "Who do
you think is running this store, me or the Union."
When Klindworth replied, "the Union," Benton
asked why Klindworth felt so strongly about the
Union. When Klindworth replied that it wasn't a local
union any more, that it had gone international and
was bigger and stronger, Benton responded that he
didn't think, based on past performance, that Klind-
worth would get much out of the Union even in the
future. Benton added that the Union was no good and
he recommended that the employees should stay out
of it. Benton also said that President Embry was not
going to sign another contract with the Union.
The next day Benton asked Klindworth if he want-
ed to be paid the additional overtime claimed in his
unsettled grievance. When Klindworth said that he
did, Benton paid him the money. A discussion then
ensued about the Union. Benton closed the conversa-
tion by saying he thought unions could be a good
thing but not this particular Union, and admonished
Klindworth that if he had any complaints in the future
to see him (Benton) first.
Our disagreement with the Administrative Law
Judge's conclusion stems from the timing and circum-
stances of Benton's remarks to Klindworth. Benton's
questioning came on the heels of the Union's success-
ful prosecution of Kl'indworth's grievance and co-
incided with the Union's campaign to resurrect em-
ployee interest at the Alton store. Nor were these
remarks isolated, for, as found above, several days
later Klindworth's wearing of a union button sudden-
ly became objectionable to Respondent and Klind-
worth was ordered "to remove it or go home." Al-
though, as found by the Administrative Law Judge,
Respondent was entitled to withdraw recognition
from the Union at the Alton store, Respondent was
not entitled to interfere with employee attempts to
revitalize the Union. We view Respondent's interro-
gation of Klindworth, when considered in conjunc-
tion with the other unlawful conduct found by the
Administrative Law Judge, as part of a course of con-
duct calculated to interfere, and which had the effect
of interfering, with Klindworth's Section 7 rights. Ac-
cordingly, we conclude that Benton's Interrogation of
Klindworth violated Section 8(a)(1) of the Act?
2 Chairman Miller dissents from this finding and would affirm the Admin-
istrative Law Judge 's conclusions as to this issue as well as to all the others
presented in the case . He finds that Benton 's questions likely were prompted
by curiosity as to why Klindworth would want to support the Union or seek
its help , in view of its past history of almost total neglect and disinterest in
the employees and their problems, the prior written announcement of disaf-
fection from the Union signed by most of the employees including Klin-
worth, and the employees' past practice of dealing directly with Respondent
(Continued)
204 NLRB No. 45
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSION OF LAW APPENDIX
Substitute the following for Conclusion of Law 3 of
the Administrative Law Judge's Decision.
"3. By interrogating employee Klindworth regard-
ing his filing of a grievance through the Union and his
union adherence and by directing him to remove his
union button before he could go to work, the Respon-
dent interfered with, restrained, and coerced him in
the exercise of his statutory rights in violation of Sec-
tion 8(a)(1) of the Act."
THE REMEDY
Having found that Respondent has engaged in cer-
tain additional unfair labor practices, we shall order
that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the
purposes and policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts the recommended Order of the
Administrative Law Judge, as modified, and hereby
orders that Respondent, Glenlynn, Inc. d/b/a Mc-
Donald's Drive-In Restaurant, Alton, Illinois, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, with the
following modifications:
1. Insert the following paragraph as 1(b) of the
Administrative Law Judge's recommended Order and
reletter the present paragraph (b) as (c):
"(b) Interrogating in a coercive manner employees
concerning their union activity or adherence."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
concerning their complaints; that, further, in view of these circumstances,
Benton 's remarks about the relative ineffectiveness of the Union as a bar-
gaining representative amounted to privileged expressions of opinion in the
absence of any threats of reprisal against Klindworth because of his union
sympathies and Benton 's assuring that employee that the choice of joining
or not joining the Union was Klindworth's. Viewed from this perspective of
the evidence , Chairman Miller is unable to find sufficient basis for converting
Benton 's noncoercive remarks from privileged expressions of opinion pro-
tected by Sec. 8(c) of the Act to unlawful interrogations supposedly compris-
ing part of an incipient plot by Respondent to defeat any rekindling of
employee interest in the Union. Unlike his colleagues , the Chairman is un-
able to discern any sinister motive or pattern in Benton 's conduct with
respect to the exercise by the employees of their Sec. 7 rights merely because
of the timing of Benton's remarks to the successful prosecution of a grievance
and the unrelated occurrence interfering with Klindworth's right to wear a
union button-an incident that appears to have arisen from the Respondent's
mistaken , but apparently honest, belief that the continued wearing of such
a button after the Union's loss of representative status would openly mislead
the public into thinking the store still was unionized.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit our employees from
wearing union buttons while working in our
drive-in restaurant.
WE WILL NOT interrogate our employees in a
coercive manner concerning their union activity
or adherence.
WE WILL NOT in any like or related manner in-
terfere with , restrain , or coerce employees in the
exercise of their right to self -organization, to
form labor organizations , to join or assist Hotel
and Restaurant Employees and Bartenders
Union Local No. 243, affiliated with Hotel and
Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO, or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing , to engage
in concerted activity for the purposes of collec-
tive bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
GLENLYNN, INC. D/B/A
MC DONALD'S DRIVE-IN
RESTAURANT
(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 , 210 North 12th Boulevard , Room 448,
St. Louis, Missouri 63101, Telephone 314-622-4142.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on October
30 through November 2, 1972, in St. Louis, Missouri, on the
complaint of the General Counsel issued on August 28,
301
1972,1 as subsequently amended , and the answer of Glen-
lynn, Inc . d/b/a McDonald 's Drive-In Restaurant , herein
called the Respondent or Company . In issue are the ques-
tions whether the Respondent , in violation of Section
8(a)(5) and ( 1) of the National Labor Relations Act, as
amended ,2 refused to bargain in good faith with Hotel and
Restaurant Employees and Bartenders Union Local No.
243, affiliated with Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO, herein called
the Union , as the exclusive representative of the Company's
employees at its Alton , Illinois , drive-in restaurant, and
whether the Respondent engaged in other acts of interfer-
ence, restraint , and coercion of employees violative of Sec-
tion 8(a)(1) of the Act . At the close of the hearing, the
parties waived oral argument but thereafter the General
Counsel and the Respondent filed briefs in support of their
respective positions.
1 The complaint is based on a charge filed by the Union on July 6, 1972,
a copy of which was duly served on the Respondent by registered mail on
the same day.
2 Sec. 8(a)(5) makes it an unfair labor practice for an employer "to refuse
to bargain collectively with the representatives of his employees, subject to
the provisions of section 9 (a) " The latter section provides that the represen-
tatives selected by a majority of the employees in an appropriate unit "shall
be the exclusive representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages , hours of
employment , or other conditions of employment. . "
Sec. 8 (a)(l) of the Act prohibits an employer " to interfere with , restrain,
or coerce employees in the exercise of the rights guaranteed in section 7."
Insofar as pertinent , Sec 7 provides that "[elmployees shall have the right to
self-organization , to form , join, or assist labor organizations , to bargain
collectively through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection...."
7 Prior to the hearing , the Respondent served on the Regional Director for
Region 14 a subpoena duces lecum dated October 19 , 1972, requiring him to
produce at the trial scheduled to open on October 30, 1972 , certain docu-
ments described as employee petitions which had previously been submitted
in Case 14-UD-65. In addition , by letter dated October 19, 1972 , the Re-
spondent , pursuant to Sec 102.117(c) of the Board 's Rules and Regulations,
Series 8, as amended, requested the Board to direct the Regional Director to
provide the Respondent 's attorneys with an opportunity "to inspect and
copy" the documents described in the above subpoena duces tecum, upon
which it assertedly relied , in part , in questioning the Union's majority status,
one of the issues in the present case On October 27, 1972, the Board granted
the Respondent 's request , stating that the "[d]ocuments will be made avail-
able for inspection and copying at hearing scheduled for Oct . 30, 1972 " At
the hearing , the General Counsel 's attorney , however, declined to comply
with the Board 's October 27 directive and urged , instead , the revocation of
the subpoena duces tecum on the ground that the documents in question were
"immaterial and irrelevant to any issue ... in the case and under any
circumstances such material is not subject to being subpoened " I found no
merit in the General Counsel's position and ordered compliance with the
Board 's directive , reserving ruling on the admissibility of those documents
if and when the Respondent offered them in evidence . Consistent with the
Board 's directive, and in view of the fact that the requested documents
related to an issue involved in this case, the General Counsel's petition to
revoke the subpoena duces tecum was denied . The General Counsel's attorney
thereupon made the requested documents available to the Respondent. Later
in the hearing, the Respondent offered in evidence certain documents as
Resp . Exh. 11, 12 , and 14 . The record is not clear which of these exhibits came
from the Regions 's files. These documents were received in evidence over the
objection of the General Counsel and the Union as relevant to the
Respondent 's defense that it had a reasonable basis for doubting the Union's
majority status . The General Counsel then took an interim appeal to the
Board . On November 13, 1972, the Board issued an order denying the appeal
"without prejudice to raising the issue before the Board following the deci-
sion of the Administrative Law Judge ." In its brief to the Administrative Law
Judge , the General Counsel requests the Administrative Law Judge to recon-
sider his above rulings denying the petition to revoke the subpoena duces
tecum and receiving the indicated exhibits in evidence . As no convincing
Upon the entire record,4 and from my observation of the
demeanor of the witnesses , and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation with its principal
office in Wood River, Illinois, operates a McDonald's
Drive-In Restaurant at 2400 Beltline, Alton, Illinois, where
it is engaged in the retail sale and distribution of food and
beverages. This restaurant is referred to herein as the Alton
store. Another Illinois corporation, Alton Road Wood Riv-
er, Inc ., with the same principal office, maintains a Mc-
Donald's Drive-In Restaurant at 57 Edwardsville Road,
East Alton, Illinois, where it is engaged in an identical oper-
ation. This restaurant is referred to herein as the East Alton
store. The complaint alleges, and the Respondent admits,
that at all material times both restaurants have been affiliat-
ed businesses with common ownership and labor policy and
constitute a single-integrated enterprise. In the regular
course and conduct of their business, the Respondent and
Alton Road Wood River, Inc., annually sell and distribute
goods valued in excess of $500,000, and purchase goods
valued in excess of $50,000, which are directly transported
to their establishments from sources outside the State.
It is conceded, and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The evidence establishes that the Union is an organiza-
tion which admits to membership employees employed in
the food, beverage, and lodging industry. It also appears
that the Union exists for the purpose of negotiating collec-
tive-bargaining agreements with the employers of these em-
ployees covering terms and conditions of employment and
for the purpose of dealing with their employers concerning
their grievances. Accordingly, I find, contrary to the
reason was presented for reversing those rulings, the request is denied. More-
over , as shown in this Decision, I have considered these documents as part
of the total picture in making my ultimate findings below
° The motions of the General Counsel and the Respondent made after the
close of the hearing to correct the transcript of testimony are granted with
respect to the items to which no objections have been taken. As for the
General Counsel's other proposed changes which are challenged by the Re-
spondent, I only find merit in the proposed insertion of "not" after the word
"have" in 119, p. 77 The insertion accurately reflects the true import of my
remarks that , although I may issue a subpoena duces tecum upon the
Respondent's application, as I am required to do, it does not mean that I have
prejudged the Respondent 's entitlement to the requested documents when
the issue is raised on a petition to revoke the subpoena duces tecum . Regarding
the General Counsel's proposed changes on I 10, p 140, 1 accept the
Respondent's proposal which sufficiently clarifies the testimony and I there-
fore deny the General Counsel's requested insertion "to get an agreement"
With respect to the General Counsel's other proposed changes which are
contested (p. 314,1 12, 14, and 15, and p 379, 1. 6), 1 find it unnecessary to
resolve the dispute as whatever disposition is made will not affect my ultimate
findings and conclusions In sum, the transcript of testimony is hereby cor-
rected as indicated on Appendix B [omitted from publication] attached to
this Decision
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's contention, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act. The
fact that the Union might have been neglectful in policing
its bargaining contract with the Respondent or the fact that
a trustee was appointed on June 27, 1972, pursuant to the
International constitution to administer the Union's affairs
does not impair the Union's status as a labor organization
under the statutory definition.
111 THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The Respondent is charged with unlawfully refusing to
bargain with the Union, as the exclusive representative of
the Company's employees at its Alton store. As will be fully
discussed below, the Respondent questioned the Union's
majority status before and during contract renewal negotia-
tions which encompassed the employees at both the Alton
and East Alton stores.' It is the Respondent's position that
no 8(a)(5) finding can be made for three reasons. The first
is that the alleged Alton store unit is not the appropriate
bargaining unit as the only established unit comprised the
employees of the Alton and East Alton stores. Secondly, no
proof was adduced that the Union represented a majority
of the Alton store employees or that it was entitled to a
presumption of majority status which normally attaches to
an established contractual bargaining relationship. Lastly,
the Respondent, in any event, withdrew recognition because
it had a reasonably grounded, good-faith doubt that the
Union represented a majority of the Alton employees. In
addition to the refusal to bargain, the Respondent is
charged with independent violations of Section 8(a)(1) of
the Act consisting of interrogation of employee Bradley
Klindworth; efforts to dissuade him from supporting the
Union or utilizing the Union to pursue his grievances; ad-
justing a grievance directly with him; forcing him to remove
his union button he was wearing at work; and dealing with
the employees as a group in disregard of the Union with
respect to working conditions. We turn to the evidence.
B. The Evidence
East Alton store. Both establishments primarily employ
high school and college students.
The East Alton store was opened in January 1969, at
which time Embry signed a collective-bargaining agreement
with the Union for the employees there employed. The sec-
ond and only other contract covering the East Alton store
employees was executed on July 1, 1969, for a term expiring
on July 1, 1972, with provision for yearly automatic renew-
als in the absence of a 60-day notice of termination or a
desire to modify the contract. This agreement contained a
union-security clause.
The Alton store was opened on April 14, 1970. At or
about that time, Embry asked James Robertson, the
Union's then president, whether the East Alton contract
would apply to the Alton store. When informed that a sepa-
rate contract was necessary, Embry on April 15, 1970,
signed a contract identical to the East Alton one, without
any change even in the July 1, 1969-July 1, 1972, term.' At
the formal grand opening celebration of the Alton store on
April 25, 1970, the Union presented the Respondent with a
house card to be displayed in the Alton store to publicize
that it was a union restaurant.8
There is undisputed evidence that the Union neglected to
police its Alton and East Alton contracts or otherwise to
service the employees until the closing days of the contracts.
The net effect of the Union's indifference was that Embry
ignored at both restaurants the agreed-upon terms and con-
ditions of employment, such as those relating to wage rates,
classifications, meals, uniforms, holidays, job duties, and
supervisory performance of rank-and-file work and, in their
stead, unilaterally imposed his own working conditions.
Whatever grievances or complaints employees had they
themselves discussed directly with management. It was only
during the last month of the contract term that the Union
for the first time submitted written grievances on behalf of
several employees. Underscoring the Union's disinterest in
representing the employees is the fact that it never even
attempted to enforce the contractual union-security provi-
sions which made membership a condition of employment.
Indeed, it appears that it was only when the contracts were
approaching their expiration date that the Union made any
effort to bring employees into its organization. It further
1. Bargaining history
As indicated above, the Alton and East Alton stores are
affiliated businesses, although separately incorporated.
They are under the control of David Embry, the president
of both corporations, who owns all the stock in the Respon-
dent and 60 percent of the stock in the other.6 These stores,
which are located 3 or 4 miles from each other, have a
common labor policy formulated and administered by Em-
bry. Under Embry is Jim Burns who oversees the manage-
ment of the Alton and East Alton stores. Bill Benton is the
manager of the Alton store while Keith Hering manages the
5 Although the Union also claims bargaining rights for the East Alton store
employees, the complaint does not allege an unlawful refusal to bargain with
resbpect to those employees.
Embry also has an interest, and holds an office, in six other corporations
which operate McDonald's Drive-In Restaurants not involved in this case
7 i credit the testimony of Robertson and Joe A McNutt, the Union's
former business agent , that a separate contract was signed covering the Alton
employees Embry testified that he did not think that he had signed a separate
Alton contract but that he simply agreed to extend the East Alton contract
to the Alton store However, the Alton contract admittedly contained
Embry's signature and I am not convinced that this doucment was signed by
him in blank a year before when the East Alton contract was executed, as
Embry testified Moreover, as later shown, Embry sent the Union separate
contract termination notices indicating the existence of separate contracts for
each store. In addition, Embry's pretrial affidavit also suggests that he had
signed a separate Alton contract.
The Respondent was not permitted to litigate the question of the Union's
majority at the time the Alton and East Alton contracts were executed, in
order to establish that no presumption of majority status should attach Sec.
10(b) of the Act, which provides that "no complaint shall issue based upon
any unfair labor practice occurring more than six months prior to the filing
of the charge with the Board," bars any attack on the Union's initial recogni-
tion Barrington Plaza and Tragniew, Inc, 185 NLRB 962; Dayton Motels, Inc
d/b/a Holiday Inn of Dayton, 192 NLRB 674.
8 The Union customarily furnishes a union house card to an employer with
whom it has a bargaining contract in fact, the contract has a provision
dealing with the subject.
303
appears that the few employee-members the Union had
during its incumbency were those the Respondent had cho-
sen to solicit and subject to an initiation fee and dues check-
off, although the contracts contained no checkoff
provision.9 Also of significance is the fact that Embry made
contributions to the health and welfare fund for only those
employees he designated and not for all the eligible employ-
ees, as he was contractually obligated to do. While the
Union requested on several occasions that contributions be
made for a greater number of employees, Embry continued
to do as he pleased, without the Union taking any measures
to vindicate the employees' contractual rights.
2. Alton store employees' dissatisfaction
with the Union; the efforts to compel them
to become members 10
It appears that during the first week of April 1972 11 few,
if any, employees at the Alton store were members of the
Union.12 At or about that time, the then business agent, Joe
A. McNutt, and another representative, William L. Dicker-
son, visited this store and requested Company President
Embry to sign up the employees for the Union and left a
supply of membership applications for such purpose. Em-
bry stated that he would try to induce the employees to join.
As the union representatives were leaving, Bill Benton, the
Alton store manager, called Embry aside and told him that
he had information that most of the employees did not want
to join the Union. Embry thereupon conveyed Benton's
information to the union representatives who simply re-
sponded that the employees were required to become mem-
bers or be fired. Embry then handed the membership
application forms to Benton who expressed doubt that he
could persuade all the employees to become members.
During the April 5 to 10 period, Benton advised employ-
ees that they were required to join the Union 'and to fill out
and sign membership applications which were available on
his desk. As a result of these efforts, of the 28 employees
then in the Company's employ at the Alton store,13 8 com-
pleted membership applications to which they affixed their
signatures, while 6 filled out their applications but refused
to sign them because they were opposed to the Union and
objected to joining it. 14 Benton was able to identify some
9 Resp Exhs. 19 and 20 show that a small minority of the employees at the
Alton and East Alton stores during each payroll period from April 3, 1970,
to July 8, 1972, had their dues deducted and remitted to the Union Although
the number of employees subject to a dues checkoff does not necessarily
establish the extent of union membership, the circumstances of the Union's
indifference to employee interests and its contract rights strongly suggest the
probability that only the employees solicited by the Respondent and placed
on checkoff were members. At least, no persuasive evidence to the contrary
was forthcoming.
10 As the refusal-to-bargain allegations relate only to the Alton store em-
ployees, it is unnecessary to discuss the East Alton store employees' dissatis-
faction with the Union's representation and the attempts to force them to join
that organization.
11 All dates refer to 1972 unless otherwise indicated.
12 The Respondent 's records show that none of the 28 employees on the
Alton payroll for the period ending April 1, 1972, was having his dues
checked off although during previous payroll periods there were dues deduc-
tions for a small number.
13 Company records show that for the various payroll periods from April
I through July 2, 1972, the Alton store employed 28 or 29 employees
nine employees, although there were others, who voiced
their displeasure with the Union when solicited or on other
occasions in April and May. Several of these employees
engaged him in more than one conversation in which they
repeated their antiunion views. Thus, Benton quoted em-
ployees as making the following statements to him: Allen
Halliday told him that he, like most other employees, was
against joining the Union. Jeff Rister said, in effect, that it
was not fair that he had to join the Union when he didn't
want to. Ramona Romain stated that she didn't like the
Union and resented that it was taking her money without
doing anything for her. Leah Clark called the Union a de-
rogatory name . John Dewey's remarks were of the same
general tenor as those of the other employees that he didn't
think that the Union was fair to take dues out of his wages
despite the fact that he had not signed a membership appli-
cation. Shawn Hanlon and his brother, Cullen, told Benton
that they didn't like the Union which did nothing for them
but take their dues. Jeff Northway stated that the Union
was not doing anything for him except taking his money.
Dana Freeman and Mary Longbottom objected that they
were required to join the Union they did not want.
Similar views were expressed by employees to Dennis
Kellim, an assistant manager, whom Benton requested to
speak to employees on his shift about filling out member-
ship applications. According to Kellim's uncontradicted
testimony, in April and May, he had conversations with 15
to 20 employees,15 some of whom he identified, wherein
they indicated, in substance, that they were dissatisfied with
the Union; the Union did nothing for them; they did not
want to belong to it; and they wanted to see it ousted from
the store. Kellim also testified that he conveyed this infor-
mation to his superiors.
On or about April 12, Embry personally delivered the
above-mentioned eight signed and six unsigned member-
ship applications to Nancy Sarhage, the Union's then secre-
tary-treasurer.16 He informed Sarhage that those were the
only applications he was able to secure from the employees
and that he would not deduct dues from their wages unless
she furnished him with a list of employees whose dues he
was authorized to deduct. Accordingly, on April 12, Sar-
hage sent the Respondent a letter in which she set forth the
names of 14 employees "who have made application and
whom you are to collect initiation fees from." This list in-
cluded the names of the six employees who had deliberately
refused to sign their applications because of their opposition
to the Union. The other eight were obviously those who had
signed their membership applications. 17 The evidence dis-
closes that several of these employees at various times
voiced their opposition to the Union. Indeed, all except one
(Piening) later signed the first employee petition and all but
two (Piening and Beckman) signed the second petition,
which will be discussed below. On April 17, following re-
14 The six employees were Allen Halliday , Dana Freeman , John Dewey,
Shawn Hanlon, Leah Clark, and Brian Tungett who, however , printed his
name.
15 Several of these employees were the same ones to whom Benton had
spoken
"At present , Sarhage occupies the position of accounting secretary under
Trustee Hudson
17 They were Cullen Hanlon, Julre Ervin, Karen Short, Mike Beckman,
Mary Longbottom, Brad Klindworth, August Piening, and Jeff Rister
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceipt of the Union's letter, the Respondent deducted the
first installment of the initiation fee of $5 from the wages
of the listed employees and of another employee, Ramona
Romain, whom the Respondent added to the list. These
sums were remitted to the Union.18
There is evidence that the deductions caused resentment
among a number of employees. Two of them, Halliday and
Rister, went to the Union and angrily protested to Sarhage
that they were being forced to pay initiation fees and dues
to the Union against their will. Halliday and Rister then
returned to the store where they reported the union hall
episode to Manager Benton and Assitant Manager Kandler.
Probably the same day, Sarhage and Business Agent Mc-
Nutt visited the Alton store to complain about the conduct
of Halliday and Rister. As Sarhage was unable to identify
these employees, she asked Kandler whether he knew who
they were and demanded their discharge. Kandler denied
knowing who the asserted offenders were.
Upon being apprised of the union representatives' pres-
ence at the Alton store, Embry promptly went there arriving
at or about the same time as Union President Robertson
did. In the ensuing conversation, Embry was told of the
union hall incident in which the two employees were alleg-
edly abusive in demanding the return of the moneys that
had been deducted from their wages. Sarhage insisted upon
an apology from these employees or that they be fired. After
the union representatives' departure, Embry summoned
Halliday and Rister, whom he had learned were the individ-
uals involved, and related the conversation he had had with
the union representatives. Halliday denied that he or Rister
were abusive, asserting that the Union had no right to col-
lect dues from him since he had not even signed a member-
ship application. He further remarked that other employees
were also angry that they, too, were being required to pay
dues. In response to Embry's comment that the union repre-
sentatives wanted them to apologize, Halliday answered
with an unequivocal no, regardless how badly he needed his
job. The conversation ended with Embry dropping the mat-
ter.
3. The employee petitions and the
union deauthorization proceeding
Manifestly displeased with the Union and the fact that
they were required to join it , Alton store employees Halli-
day,19 Freeman , and Shawn Hanlon in the latter part of
April drew up a petition on the Respondent 's letterhead and
posted it on the store's bulletin board for 3 or 4 days for
employees to sign . The petition stated that "We, the under-
signed employees of McDonald 's restaurant . . . in Alton
... do hereby withdraw from the Hotel and Restaurant
Employees Union of the AFL-CIO." While the signed peti-
tion was on the bulletin board it was observed by Embry
and Benton 20 When the petition was taken down it had 21
employee signatures and was mailed to the Board's Region-
al Office in St. Louis where it was received on April 25.
Shortly thereafter, a Board agent telephoned Halliday to
ascertain the purpose of the petition. Halliday answered
that a majority of the employees did not want the Union.
At the suggestion of the Board agent, Halliday and two
other employees, Rister and Dewey, appeared at the Re-
gional Office on April 27. In an interview by another Board
agent, Halliday stated that the employees wanted to with-
draw from the Union which had done nothing for them;
they had not seen the business agent during the entire peri-
od the Union represented them; the employees were taking
their gripes directly to management from whom they were
getting a better deal; and they could do a lot better without
the Union. The Board agent then explained that there were
two types of proceedings-one, a deauthorization proceed-
ing where an election would be held to determine whether
to delete the union-security provision from the existing bar-
gaining contract, and, the other, a decertification proceed-
ing where the election would determine whether to
eliminate the Union altogether.21 The upshot of this meeting
was that the three employees agreed to proceed with a deau-
thonzation election. To support a formal UD petition, the
Board agent furnished the group with the language for a
second document to be signed and dated by the Alton store
employees, commenting that the first employee petition was
defective because the signatures were undated.
The second document was subsequently drafted with the
following suggested language: "The undersigned employees
of-[the Company's Alton store] hereby request an election
be held-to rescind the authority of-[the Union] to re-
quire, under the current agreement, union membership of
employees as a condition of employment." The document
was posted on the bulletin board on Friday evening, April
28, and remained there until May 1 when Halliday removed
it. On the latter date, Halliday and Rister brought the docu-
ment, which contained 18 employee signatures, to the Re-
gional Office where Halliday filed a formal petition
requesting the withdrawal of union-shop authority (Case
14-UD-65). At this time, the Respondent had already
served on the Union a 60-day notice for terminating their
bargaining contract.
When the Union received a copy of the UD petition in
the mails, Secretary-Treasurer Sarhage telephoned Embry
and told him to put a stop to it and fire the individual
responsible for filing the petition. In reply Embry stated that
he was unaware of the UD petition and declined her dis-
charge request.
In the early part of May, International Organizer Robert
Hudson, who later became trustee of the Union, visited
Halliday at his home. In the course of their conversation in
which Hudson tried to persuade Halliday to have the em-
ployees file a grievance against the Company, Halliday crit-
icized the Union for its lack of interest in the employees
18 The Respondent included in the remittance $10.25 as a contribution to
the health and welfare fund for Ramona Romam's account She, too, later
signed the employee petitions discussed below
19 Halliday testified that he told management that his major complaint
against the Union was being forced to join it.
20 Assistant Manager Kellim credibly testified that he, too, saw the signed
petition on the bulletin board and discussed it wth Benton In addition, he
credibly testified that he discussed the employee petition on more than one
occasion with Halliday who stated that he was opposed to the Union and
wanted to get it out of the store and that he was supported 100 percent by
the employees
2i In one of his conversations with Benton, Halliday explained the differ-
ence between deauthorization and decertification elections, which he had
learned from the Board agent
305
until the employees started their antiunion activities . Halli-
day also pointed out that the employees did not even know
who Business Agent McNutt was before these events, that
they were disillusioned with the Union, and that he (Halli-
day) was not interested in joining the organization . Toward
the end of May, Halliday told Assistant Store Manager
Kandler that the employees were still strong in their stand
against the Union.
On May 11 , a conference was held at the Board 's Region-
al Office to consider the UD petition. The Union was repre-
sented by Robertson, McNutt, Sarhage, and Attorney
Cook. Embry and Attorney Roach represented the Respon-
dent and employee Rister substituted for Petitioner Halli-
day. Although the UD petition involved only the Alton
store, the Respondent produced commerce data for both
the Alton and East Alton stores. On the basis of common
ownership and labor policy and other factors showing that
both stores constituted a single -integrated enterprise, which
is also conceded in the present unfair labor practice pro-
ceeding, jurisdiction was asserted in the UD case. This led
to a discussion of the appropriate unit. Upon being shown
a list of employees at both stores,22 which the Company had
produced, Robertson and McNutt remarked that the Union
could not possibly win an election. Sarhage thereupon cau-
tioned them to shut up. As the parties were unable to agree
on a consent election , the Board agent announced that the
unit question would be subsequently resolved and the con-
ference was closed.
On May 15, the Regional Director issued an order direct-
ing an election in which he found no question of representa-
tion existed and directed that an election be conducted
among the Alton store employees on June 1 "to determine
whether or not they wish to withdraw the authority of the
Union to require under its agreement with the Employer
that membership in the Union be a condition of employ-
ment." After the issuance of this order, the Union mailed
a letter dated May 18 to the Alton store employees, which
read, as follows:
As you know the National Labor Relations Board
has scheduled an election on June 1, 1972. If a majority
of the employees vote YES in this election, then the
Union Security Clause in our Union's Agreement with
McDonald will no longer be enforceable . Under the
Union Security Clause each employee is required to
join the Union by the 31st. day of his employment.
If the Union Shop Clause is voted out (that is if a
majority of the employees vote " Yes"), we doubt that we
shall any longer be the representative of the majority of the
employees. Under those circumstances we will not contin-
ue as the bargaining representative of employees at this
restaurant when our contract expires on June 30. We shall
not endeavor to negotiate a new contract under those cir-
cumstances.
We hope that you will show your support for the
22 During the consideration of the unit problem , Company Attorney
Roach submitted a contract signed by Embry and McNutt, as the only
contract the parties ever signed which assertedly covered both stores The
Uniun presented a contract for the Alton store which was signed by Embry
and Robertson . As indicated earlier in this Decision , I have found there were
separate contracts for each store.
Union by not voting YES. We believe that it is self-
evident that the Union Shop Clause, requiring ev-
eryone to support Union representation is most fair to
all.
As you know, a Union is only as strong as its mem-
bers. If the members pay their dues, come to meetings,
and participate in contract negotiations, and work to
improve the wages, fringe benefits, and working condi-
tions; then we will have a strong Union, and we can
achieve the results that we seek. On the other hand, if
the attitude is-"let the other guy do it"-then neither
the Union or the employees will be able to achieve very
much. This election is really a "key" vote in determining
whether you want a Union or whether you want to fight
for your wages, benefits and working conditions on an
individual basis. If you vote YES, the Union will under-
stand that you don't want a Union to represent you. [Em-
phasis supplied.]
Within the next day or two, Embry noticed the Union's
letter posted on the bulletin board. He immediately made
a copy which he gave to his attorney, Roach, who advised
him that the net effect of the Union's letter was to notify the
employees that it was viewing the scheduled deauthoriza-
tion election as a decertification vote to determine whether
or not they desired union representation.
A few days before the scheduled June 1 election, Embry
went to the Union's office at Sarhage's invitation, to meet
International Organizer Hudson. In the ensuing conversa-
tion Hudson accused Embry of being involved in the insti-
tution of the UD proceeding. Although Embry denied the
accusation, Hudson warned that he would never let Embry
get away with it and alluded to the Union's financial re-
sources which he could use to break all Embry's stores.
Embry then stated that, while he thought that the Union
enjoyed support of a majority of the employm when he
signed the first bargaining contract, he doubted that the
Union commanded such support any longer. For this rea-
son, Embry added, he would not enter into another contract
with the Union unless he had assurance of the Union's
majority status. 3
On May 31, the Regional Director sent telegrams to the
parties notifying them that the scheduled June I election
was postponed "indefinitely pending investigation and dis-
position of unfair labor practice charge filed in Case 14-
CA-6877." This charge, which the Union filed on May 30
against the Respondent, alleged the Respondent's unlawful
involvement in the UD petition. On July 12, the Regional
23 The foregoing findings concerning the Embry- Hudson conversation are
based on the testimony of Embry who impressed me as having a better
recollection of that event Hudson admitted that he charged Embry with
supervisory involvement in the UD procedure and that he mentioned the
Union's huge defense fund Although Hudson made no reference in his
testimony to Embry's remark about the Union's lack of majority, he quoted
Embry as saying that he intended to get rid of the Union each of his
establishments when the applicable contracts expired I seriously o bt that
Embry would be as blunt as Hudson's testimony indicates Rather , it appears
to me that, in view of Embry's knowledge of the employees' disenchantment
with the Union, Embry would express his reservations about the Union's
majority status and refuse to negotiate another contract with the Union
unless his doubt was resolved Indeed, according to Hudson's testimony, he
asked Embry on this occasion for permission to set up a table in each store
for the purpose of soliciting employees to join the Union and Embry replied
that he had no objection but would check it out.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director declined to issue a complaint on the ground that
there was insufficient evidence to support the charge.
In the meantime, on June 2 or 3, Hudson and other union
representatives conferred with Embry and Jack Davis, a
McDonald official, at Embry's office. Noting that he nor-
mally enters a situation after matters become pretty well
messed up, Hudson proposed that the parties forget about
a contract for the Alton store for a couple of years and that
they negotiate a new contract for the East Alton store. This
proposition was not acceptable to Embry, who reiterated his
doubt of the Union's majority status and demanded an
election wherein the Union could demonstrate its majority
support before he would sign another contract. Hudson
replied that he was uncertain whether he could furnish
proof of majority?
The UD election was never held because on July 1 the
parties' union-security contract had expired. For this rea-
son, the Regional Director on August 4 issued an order
vacating his order directing an election and dismissing the
petition without prejudice.
4. Contract renewal negotiations; withdrawal
of union recognition
On April 27, pursuant to the terms of the respective expir-
ing contracts covering the Alton and East Alton stores,
Embry, as president sent the Union separate 60-day notices
terminating the applicable contract. Thereafter, from June
9 through July 1 six bargaining sessions were held between
the parties in the office of Attorney Roach who represented
the Company in the negotiations. 5 Jack Davis also attend-
ed at least the last three meetings on behalf of the Company.
Representing the Union at one or more meetings were Hud-
son, Sarhage, McNutt, and Dickerson. It is undisputed that
the negotiations related to both stores whose expiring con-
tracts were identical.
At the June 9 meeting, the grievance of one or two em-
ployees were first considered. The Union then submitted its
contract proposal for both stores consisting of proposed
changes in, and additions to, the existing contracts ,26 which
the Union proceeded to explain. The Respondent, there-
upon, requested the elimination of the exclusive recognition
clause embodied in the expiring contracts because of its
asserted doubt that the Union represented a majority of the
24 The findings regarding this conversation reflect Emby's uncontracdicted
and credited testimony. The only thing that Hudson could recall was that on
this occasion he also requested permission to solicit employees at the store
Although other union representatives were present during this conversation,
no one furnished testimony concerning this episode
25 As there is no question that the negotiations involved both stores, refer-
ence to the Company in this section of the Decision means the Respondent
and Alton Wood River, Inc, the owner of the East Alton store During the
period of these negotiations, Roach also engaged in separate negotiations
with the Union on behalf of other employers, such as Burger Chef
26 Roach testified that at this meeting , he indicated that the Company
wanted a single contract to cover both stores and that the Union did not
make any response . Hudson testified that he did not recall any discussion
regarding the subject . In view of the unit problem that was presented in the
UD proceeding and the disagreement between the Union and the Respon-
dent whether the parties had previously executed one or two contracts, it is
very probable that lRoach raised the subject and I accordingly credit his
testimony. Of course, his testimony does not establish that agreement was
actually reached with respect to that matter.
employees n Roach indicated that the Respondent would
withhold recognition until the Union established its majori-
ty status in the postponed UD election which, as shown
above, the Respondent viewed as tantamount to a decertifi-
cation election to determine whether or not the employees
desired union representation.28 The meeting ended with
Roach agreeing to present the Company's proposals in writ-
ten form.
The next day (June 10) the parties met again . As prom-
ised, Roach submitted to the Union the Company's written
proposals which provided, among other things,29 for the
elimination of the exclusive recognition and union-security
clauses embodied in the expiring contracts. Apart from a
further consideration of the grievances discussed at the June
9 meeting, there is no evidence that other contract matters
of significance were discussed on this occasion.
The question of union recognition was a critical issue in
the discussions at the third bargaining session held on June
14. However, the Respondent could not be persuaded to
recede from its determination to withhold recognition be-
cause it doubted the Union's majority status. For the same
reason, the Respondent rejected the Union's demand that
the union-security provision be retained with a change in
the grace period of 30 days to 31 days. When the Union
raised the question of contributions to the health and wel-
fare fund, Roach stated that he could not agree to such a
provision at that time because the Company had never
signed the trust agreement. Other matters were also dis-
cussed, such as, the grievance-arbitration procedure, post-
ing of work schedules, seniority, sick leave, and the
appointment of a steward. Tentative agreement was reached
on some inconsequential items 30
At the following two meetings on June 26 and 29, no
progress was made on the unresolved recognition problem.
The Union insisted that it was entitled to recognition by
reason of its contract while the Company adhered to its
repeatedly asserted doubt of the Union's majority status.
However, the Respondent continued to bargain with respect
to various items in dispute. Explaining at the June 29 meet-
ing why he was still negotiating in the face of its refusal to
grant exclusive recognition, Roach stated that he was aware
that the Union did represent some employees. 1 At the hear-
ing, Roach added another reason during his cross-examina-
tion that he wanted to dispose of as many bargaining issues
27 Roach testified that the withdrawal of recognition was based on infor-
mation the Company had which indicated that the Union did not represent
a majority of the employees. Among other things, he referred to the fact that
few employees were having their dues checked off; the expressions of em-
ployee dissatisfaction with the Union, the employee petitions and the then
pending UD proceeding , the Unior's May 18 letter to the employees , quoted
above , the filing of the unfair labor practice charge, which was ultimately
dismissed , to block an election, and the Union's lack of confidence in its
ability to demonstrate majority support
28 Whether or not the Respondent's view was correct, the UD election
would at least , demonstrate the Union's majority status if it won, although
if it lost, the election results might not necessarily establish the contrary.
29 Included in the Company's proposal were provisions for the modifica-
non of the grievance-arbitration procedure, the elimination of health and
welfare benefits, and the right to submit additional changes, additions, and
deletions.
30 At this meeting, grievances of two other employees were presented by
the Union.
J1 Roach also testified that he knew that the Union's efforts to sign up more
employees were unsuccessful.
307
as possible and thereby minimize the amount of retroactive
pay the Respondent might be obliged to pay should the
Union achieve recognition by proving its majority status in
the election or by other means. At the June 26 meeting, two
new grievances were also filed by the Union on behalf of
Alton employees Klindworth and Romain . Klindworth's
grievance subsequently became the subject of an alleged
8(a)(1) violation later discussed.
The final bargaining session was held on July 1 where the
Union's demand for exclusive recognition , as well as union
security, met with the same adamant resistance by the Com-
pany. As a result, Hudson asked Roach, whether he would
grant recognition if the Union showed it represented a ma-
jority of the employees. Roach answered that "it would
materially affect out thinking because up to that time we
had no indication that they did." Probably, at this point,
Roach alluded to the postponed UD election as a means of
demonstrating the Union 's majority status 32 He, however,
reminded the union representatives that, apart from recog-
nition , a number of bargaining issues were still open which
would have to be resolved before a contract could be con-
cluded. At this meeting, the Klindworth grievance was also
discussed in depth and the part concerned with sixth and
seventh day overtime pay was adjusted.33 The Union re-
quested that the money due Klindworth be paid by July 6.34
No further bargaining meetings have been scheduled
since July 1, which was the expiration date of the contracts,
despite the Union's requests made to Roach for a resump-
tion of negotiations . Although the Union did not pursue its
requests with the law firm which subsequently succeeded
Roach as the Company's attorneys, it is perfectly clear that
the Respondent has shown no disposition to meet with the
Union. On July 6, the unfair labor practice charge in this
case was filed.
5. The Klindworth-Benton conversations
As indicated above, Klindworth's grievance concerning
overtime pay was settled at the July 1 bargaining meeting.
When he reported for work at the Alton store later in the
day, he and Manager Benton engaged in a conversation.
Benton asked Klindworth why he had filed this grievance.
When Klindworth answered that he was cheated , Benton
stated that he should have home to him first with his griev-
ance. Benton then asked Klindworth who did he think was
running the store , Benton or the Union . Klindworth replied
that it was the Union to a certain extent and , not unexpect-
edly, Benton disagreed. Benton, thereupon inquired why
Klindworth felt so strongly about the Union.35 Klindworth
replied that "it had gone international and that it was bigger
and stronger." Benton differed with him and commented
32 It appears that the question of unit and the East Alton store probably
came up in the discussion of the UD proceeding.
33 The unresolved portion of the grievance involved the rate of pay Khnd-
worth should receive when he worked the grill.
34 The foregoing findings relating to the July I meeting are based on those
parts of the testimony of Roach, Hudson, and Dickerson which I find reliable
and credible
35 It appears that during the preceding months Klmdworth had been crit-
ical of the Union and had signed the employee antiunion petitions previously
discussed
that the Union was a weak organization whose negative
performance for the past 3 years showed that the employees
had nothing to gain by joining it. However, he added that
it was Klindworth's choice whether or not to join. At one
point in the conversation, Benton told Klindworth that
President Embry would not sign another contract with the
Union, remarking that the first contract was signed under
threat of a picket line and that the contract was in violation
of law.
The next day, which was after the contract had expired,
Benton asked Klindworth whether he wanted to be paid the
money claimed in his grievance. Klindworth answered that
it would be silly for him not to accept it and Benton there-
upon gave him $23.80.36 Benton then told Klindworth that
if he had any complaints in the future to speak to him first 37
and concluded his remarks with the observation that it was
his experience that a union could be a good thing but not
the one involved herein.
6. The Respondent's order to Klindworth to
remove his union button
Klindworth started to wear a small union button in the
Alton store the last week in June. The button, which was
approximately three-quarters of an inch in diameter, bore
the initials R.H.E. (Restaurant Hotel Employees). During
the first week in July about noontime, Manager Benton
ordered Klindworth to remove the button. Other employees
were working in the area at that time . In reply to
Klindworth's question why he was required to remove his
button, Benton stated that since the bargaining contract had
expired'38 the wearing of the button would mislead the pub-
lic into believing that the store was a union establishment.39
Klindworth obeyed the order. After leaving the store during
a break in his workday, Klindworth returned at 5 p.m.,
wearing his union button again. Upon noticing the button,
Assistant Manager Kellim directed Klindworth to remove
it or go home. Klindworth refused to take off his button and
was sent home. Kellim, in answer to Klindworth's question,
told him that he was not fired and that he was to return to
work on his next scheduled date. Klindworth retorted that
when he returned he would probably be wearing his button.
To this remark, Kellim commented that he would probably
be sent home again . Klindworth thereupon left and visited
36 As found above, the Union at the July 1 negotiation meeting requested
that Klindworth be paid by July 6
37 There is no question that during the Union's incumbency until about the
last month of the contract term employees customarily presented their griev-
ances directly to management , without the intercession of the Union.
38 Benton credibly testified , without contradiction, that he observed sever-
al employees wearing union buttons in the store beginning about the middle
of May. There is no evidence that any employee was ordered to remove his
button before the expiration of the contract on July 1
39 After the contract had terminated, the Union withdrew the Union's
house card which it had previously furnished the Respondent when the Alton
store was opened Art V of the expired contract provided
ARTICLE V-HOUSE CARDS
The Union agrees to furnish without cost a House Card for each
establishment of the Employer, provided, however, that such are to
remain the property of the Union, which reserves the sole right to de-
termine whether or not an Employer is entitled to display the cards,
where the food or beverage department is in violation of this agreement
Where House lards are furnished to the Employer, they shall be promi-
nently displayed
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union hall where he was advised not to wear the button
while at work. Klindworth accepted this advice and re-
turned to the store without his union button and was permit-
ted to resume his duties.
7. The July crew meeting
In accordance with company practice of holding periodic
employee meetings to discuss store operations , Benton in
the middle of July called a meeting , which some 15 employ-
ees attended . It also appears that while the meeting was in
progress President Embry and another company official,
Burns, joined the group . Benton opened the meeting with an
announcement that the Company no longer recognized the
Union and that , as there was no contract in existence, it
would be necessary "to set up some guidelines or rules"
governing working conditions.40 Upon his invitation, the
employees made suggestions from the floor regarding ex-
tending breaks , pay for meeting attendance , assigning the
number of working hours on the basis of performance and
attitude , and a wage increase merit system . Benton com-
mented that the suggestions deserved consideration. Embry
expressed his approval that employees be paid for the time
spent at crew meetings , which he thought had always been
his policy . The foregoing was the extent of the discussion.
C. Concluding Findings
1. Withdrawal of recognition and refusal to bargain
Relying on a presumption of the Union's majority status
in the Alton store unit assertedly derived from the parties'
expired Alton store bargaining contract, the General Coun-
sel contends that the Respondent's withdrawal of recogni-
tion violated Section 8(a)(5) of the Act. He argues that the
Respondent failed to produce evidence of a good-faith
doubt of the Union's majority status based on objective
considerations sufficient to rebut the presumption and
thereby to justify its refusal to bargain. The Respondent's
defense against the 8(a)(5) allegations is three-pronged-
one, that the Alton store unit in which majority status is
claimed for the Union is inappropriate, the only appropriate
unit being a two-store unit consisting of the Alton and East
Alton employees; two, that a true bargaining relationship
between the parties never existed entitling the Union to a
presumption of majority status; and three, in any event, that
the Respondent entertained an honest and reasonably
grounded doubt that the Union enjoyed majority support.
It is elementary that a prerequisite for an 8(a)(5) finding
is that the labor organization claiming bargaining rights was
designated by a majority of the employees in an appropriate
unit as their exclusive bargaining representative. It is the
General Counsel's position that, while a two-store unit may
be appropriate,41 a single-store unit limited to the Alton
40 Klindworth 's recollection , that Benton indicated that the purpose of
receiving the suggestions was to consider them for inclusion in a contract the
Company intended to make with individual employees , did not impress me
as accurate.
41 Indeed , the General Counsel could not very well argue otherwise since,
as shown above , he relies on the common ownership and labor policy and
the integrated nature of the Alton and East Alton enterprises to justify the
employees is also appropriate unless bargaining history
demonstrates that the Alton store unit had been effectively
merged into a more comprehensive unit. He argues that, not
only is there no evidence of such a merger, but, on the
contrary, the only contract the Respondent executed with
the Union acknowledged the Alton store as a separate bar-
gaining entity. However, assuming that, absent a bargaining
history on a broader basis, the Alton store may comprise an
appropriate unit, I nevertheless find that the evidence is not
too clear as to establish that the parties actually regarded
and treated the Alton store as a distinct bargaining entity
independent of the East Alton store. It appears to me to be
equally reasonable to infer from the circumstances sur-
rounding the execution of the Alton store contract that the
parties viewed the Alton facility as an accretion to the estab-
lished East Alton unit and therefore extended the terms of
the latter contract to the Alton store at the time it opened
up. Thus, the record is devoid of any evidence that the
parties engaged in any independent negotiations for a con-
tract covering the Alton store employees. Instead, the evi-
dence reveals that on April 15, 1970, President Embry, at
the instance of the Union, signed a contract for the Alton
store identical to the one he had signed 9 months earlier
covering the East Alton employees, including the July 1,
1969, to July 1, 1972, duration period therein provided. In
fact, the Alton contract identified the employer as "Mc-
Donald's" rather than the Respondent which operated the
restaurant.42
Moreover, the events that followed the execution of the
Alton contract also do not significantly help to clarify the
scope of the unit on which the parties purported to maintain
their bargaining relationship. Apart from the fact that the
Union failed to administer the Alton and East Alton con-
tracts, as shown above, it is quite apparent that when those
contracts came up for renewal as their termination date was
approaching the parties conducted the renewal negotiations
for both stores at the same time without any reference to
their independent existence. Indeed, the Union's contract
proposals were admittedly intended to apply to both stores.
Furthermore, although the Respondent's attorney, Roach,
indicated at the inception of the negotiations that he pre-
ferred a single contract for both stores, the Union raised no
objection 43
Considering the foregoing bargaining history, I am led to
the conclusion that the unit on which the parties established
and maintained their bargaining relationship with respect to
the Alton store employees is, at best, ambiguous. However,
in view of my disposition of other issues presented in this
case, I find it unnecessary to pass on the scope of the appro-
priate unit in determining whether or not the Respondent
unlawfully refused to bargain.
As indicated above, the General Counsel offered no inde-
pendent evidence that the Union represented a majority of
the Alton store employees but relied on a presumption of
the Union's continued majority status which he claimed
Board's assertion of jurisdiction over the Alton store
42 There is no evidence how the employer was described in the East Alton
contract which was not produced at the hearing.
43 As indicated above , it appears that, although the scope of the bargaining
unit was in question in the union deauthorization proceeding (Case 14-
UD-65), neither the Union nor the Respondent clarified its position
derived from the Union's Alton store contract. It is, of
course , well settled that a collective -bargaining contract,
lawful on its face, normally raises a presumption that the
contracting union 's majority status continues during the life
of the contract and after the contract 's expiration.44 Howev-
er, the Board has held that this presumption may not attach
following the termination of the contract where the contract
does not define the bargaining unit with sufficient clarity or
where the practices thereunder demonstrate that the parties
never intended to establish a real bargaining relationship 45
Guided by these principles, I am not persuaded that the
Union is entitled to the presumption of majority status to
support a finding of a refusal to bargain in the Alton store
unit. As previously discussed, there is too much uncertainty
here as to the unit appropriate for collective-bargaining
purposes. Although the expired Alton store contract mani-
festly relates to the employees there employed, bargaining
history seems to indicate that the Alton contract was execu-
ted to reflect the Alton employees' accretion to the already
established East Alton unit. Indeed, when the contracts for
both stores came up for renewal , the ensuing negotiations
were conducted as if the employees at both stores comprised
a single unit.
Apart from the ambiguity thus surrounding the scope of
the bargaining unit, the evidence leaves one highly skeptical
that a real collective-bargaining relationship emanated from
the execution of the Alton contract.46 As previously dis-
cussed, it is undisputed that the Union neither administered
the contract nor serviced the employees. As a result, not
only were the employees deprived of contractual benefits
pertaining to such matters as wage rates , health and welfare
fund contributions,47 meals, uniforms, job duties, and holi-
days, but they were subjected to working conditions unilat-
erally imposed by the Respondent without any protest from
the Union. Moreover, whatever grievances or complaints
the employees had they personally presented to, and dis-
cussed with , management and it was not until the closing
days of the contract that the Union undertook to submit
several employee grievances to the Company. In addition to
the Union's indifference to employee interests, it did not
serve its own much better. Although the contract contained
union-security provisions, it did not bother to enforce them.
Apparently, the Union was content with the few employees
the Respondent periodically signed up for the Union and
with the initiation fees and dues the Respondent deducted
from the wages of these employees. It was only near the end
of the contract term that the Union took more affirmative
steps to enlist the Respondent 's assistance to force the em-
ployees to join.
44 Dayton Motels, Inc, d/b/a Holiday Inn of Dayton, 192 NLRB 674, Bar-
rington Plaza and Tragniew, Inc., 185 NLRB 962. Contrary to the
Respondent 's contention , this presumption may not be challenged by evi-
dence time barred by the limitations provisions of Sec. 10(b) of the Act that
the Respondent 's initial recognition of the Union was unlawful Dayton
Motels, and Barrington Plaza, supra
45 Bender Ship Repair Company, Inc., 188 NLRB 615; Ace-Doran Hauling
& Rigging Co, 171 NLRB 645
46 A similar conclusion may be drawn with respect to the East Alton store.
47 It appears , however, that the Respondent made contributions for a few
employees it selected While it appears that the Union occasionally requested
the Respondent to contribute for more employees , the Union did not take
affirmative action to enforce its contractual rights
309
In sum, I find that the parties never entered into a true
collective-bargaining relationship out of which a presump-
tion of the Union's majority status may arise. At best, the
relationship was a token one where "the Union was willing
to exact little in the way of contract enforcement and .. .
[the Respondent was] satisfied to reap the financial ber.efit
of lower costs." 48 In these circumstances, and in view of the
equivocal nature of the bargaining unit, I find the evidence
insufficient to support a presumption that the Union was
the majority representative of the employees in the alleged
Alton store unit .49 As the record is devoid of independent
evidence of the Union's majority status in that unit, the
8(a)(5) allegations of the complaint must be dismissed.
Assuming, arguendo, that a presumption of majority did
arise from the expired Alton store contract, I, nevertheless,
find that the Respondent entertained a good faith doubt of
the Union's representative status justifying its withdrawal of
recognition. There is no question that, notwithstanding this
presumption, an employer may successfully defend its re-
fusal to bargain after the expiration of the bargaining agree-
ment if it can "demonstrate by objective considerations that
it has some reasonable grounds for believing that the union
has lost its majority status." 50 I find that the Respondent
has sustained its defense.
Summarizing the evidence which prompted the
Respondent's withdrawal of recognition, it is clear that the
Union failed to administer its contract or otherwise service
the Alton employees until the closing days of the contract
term. Certainly, this neglect, unquestionably apparent to the
Respondent, would not endear itself to the employees, very
few of whom joined the Union despite the union-security
provisions in the contract. Those who became members did
so at the instance of the Respondent which deducted the
employees' initiation fees and dues from their wages and
remitted the money to the Union. When in April 1972 the
Respondent, at the Union's urgent request, undertook to
sign up employees, it encountered resistance from the em-
ployees who expressed displeasure with the Union and their
opposition to joining that organization. Contrary to the
General Counsel's literal interpretation of employees' quot-
ed remarks, I find that, in the context of the Union' s remiss-
ness, these statements, which were repeated in subsequent
occasions, reveal a rejection of union representation and not
48 Bender Ship, supra
49 Id, to the same effect , see Ace-Doran, supra, 645, where the Board also
denied the union the presumption of majority status, not only because the
"agreements" did not define the bargaining unit with sufficient clarity, but
also "because the practice under the 'contracts ' makes it evident that the
parties had no intention of entering into real collective -bargaining relation-
ships." The Board observed (at 646) that the parties
merely regarded [the "contracts"] as arrangements under
which Respondent agreed to check off dues , health and welfare, and
pension payments for union members only The acquiescence of the
Unions in Respondent 's failure both to enforce the union -security provi-
sions of the agreements and to pay health and welfare contributions for
all employees (as ostensibly provided by the "contracts"), makes it clear
that the parties did not believe that they were in true collective-bargain-
ing relationships
In Bender Ship the Board distinguished that case and Ace-Doran from Bar-
rington Plaza, supra, where the presumption attached on the ground that in
Barrington Plaza "the Union actively represented the unit employees and
effectively policed the various provisions of the agreement"
so
United States Gypsum Company, 157 NLRB 652, 656; Dayton Motels,
supra, Barrington Plaza, supra
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
simply a refusal to become members and pay dues. It is not
without significance that, of the 28 unit employees at the
Alton store, the Respondent in its last solicitation efforts
succeeded in inducing only 14 employees to fill out mem-
bership applications forms with only 8 employees being
willing to sign them.51 Moreover, shortly thereafter, in an
obvious attempt to rid themselves of union representation,
21 employees, to the Respondent's knowledge, signed a peti-
tion declaring their withdrawal from the Union.
Also contributing to the Respondent's doubt that the
Union commanded majority support was the union deau-
thorization proceeding (Case 14-UD-65) initiated by an
employee petition containing 18 signatures. At a conference
at the Regional Office, two union representatives remarked
in the Respondent's presence that the Union could not pos-
sibly win an election. In addition, although a union deau-
thorization petition does not raise a question of
representation, as the General Counsel correctly points out,
the Union, however, sent employees a letter, which the Re-
spondent saw posted on the bulletin board, stating that an
affirmative vote to delete the union-security clause from the
contract would be interpreted by the Union as a vote
against union representation and should that occur it would
not negotiate a new contract for the employees. Thereafter,
both before and during bargaining meetings, the Respon-
dent conditioned continued recognition of the Union on the
Union's demonstration of majority support in the UD elec-
tion or by other proof. The Respondent's doubt of the
Union's representative status was further confirmed at a
prenegotiation meeting of the parties on June 2 or 3 by the
Union's proposal to defer for a few years bargaining for a
new contract for the Alton store if the Respondent would
be willing to bargain for a contract for the East Alton store.
All the foregoing facts persuade me that the Respondent's
withdrawal of recognition was predicated on a reasonably
grounded, good-faith doubt that the Union enjoyed support
of a majority of the Alton store employees. For this reason,
I find that the Respondent did not breach its statutory
obligation. As the General Counsel has thus failed to sustain
his burden of proving that the Respondent violated Section
8(a)(5) of the Act, dismissal of those allegations of the com-
plaint is recommended.
2. Interference, restraint, and coercion
The General Counsel contends, that the Respondent vio-
lated Section 8(a)(1) of the Act when Manager Bender, in
the course of his conversations with employee Klindworth
on July 1 and 2, 1972, previously discussed, interrogated
Klindworth concerning his union activity and filing of a
grievance through the Union; indicated the futility of union
representation; urged him to withdraw from the Union; and
dealt directly with him in resolving his grievance in disre-
51 While it is true that, standing alone, a showing that less than a majority
of the employees in the bargaining unit were union members or paid dues
does not necessarily establish a lack of majority support for union representa-
tion (Terre!! Machine Company, 173 NLRB 1480, 1481, enfd 427 F.2d 1088,
1090 (C A. 4, 1970), cert. denied 398 U S. 929), the employer may neverthe-
less take this into account along with other evidence in assessing in good faith
whether the union continued to enjoy majority status Ingress-Plastine, Inc
v NLRB, 430 F 2d 542, fn. 6 (C.A. 7, 1970)
gard of the Union. I, however, find nothing in Benton's
statements or conduct on these occasions infringing upon
employee self-organizational rights. Specifically, I find that
Benton's question to Klindworth as to why he filed a griev-
ance without first speaking to him about his complaint,
which was the established practice in the store, was, in the
context of the Union's known indifference to employee in-
terests , an innocuous inquiry free of any coercive implica-
tions. Similarly uncoercive was Benton 's inquiry of
Klindworth why he felt so strongly about the Union in view
of its past record of nonperformance.
As for Benton's statements to Klindworth that employees
had nothing to gain from joining the Union which was a
weak organization, they were plainly privileged expressions
of opinion, especially since Benton assured Klindworth it
was his choice whether or not to become a member.
Benton 's remark in the same conversation that the Respon-
dent would not sign another contract with the Union was
also protected since, as found above, the Respondent law-
fully withheld recognition unless the Union established its
majority status. I further find that Benton's paying Klind-
worth the money claimed in his grievance did not amount
to improper dealing with an employee in derogation of the
employees' bargaining representative. As shown above, not
only was the payment made after the Respondent and the
Union had adjusted the grievance at the July 1 negotiation
meeting, but the Union no longer was the bargaining repre-
sentative of the employees.
Turning to the incidents in which management officials
directed Klindworth to remove his union button while at
work, I agree with the General Counsel that this conduct
constituted an unwarranted interference with an employee's
legitimate union activity.52 I find no valid business consider-
ations or other special circumstances presented to justify
depriving Klindworth of his statutory right to wear union
insignia . I am not impressed by the Respondent's conten-
tion that, in its business judgment, the prohibition against
wearing the union button was necessary to prevent mislead-
ing the public into believing that the store was unionized.
Unquestionably, the right to wear a union button does not
depend on the designated labor organizations's status as the
employees' statutory bargaining representative. Nor does
the purity of the Respondent's motives in imposing the pro-
hibition exonerate it from its otherwise unlawful conduct.
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act by ordering Klindworth to remove his
union button in the store.
Finally, the General Counsel argues that the Respondent
violated Section 8(a)(1) of the Act in dealing directly with
the employees at the July 1972 crew meeting and thereby
undermined the Union. He concedes, however, that if the
Union at that time no longer represented the employees as
their exclusive representative, no unfair labor practice was
committed. As I have found above that the Respondent
lawfully withdrew recognition from the Union, its conduct
at that meeting did not violate the Act.
52 Buddies Supermarkets, Inc., 192 NLRB 1004, enfd 462 F 2d 847 (C.A
5, 1972), Eckerd's Market, Inc, 183 NLRB 337, Floridan Hotel of Tampa,
Inc, 137 NLRB 1484, 1486, enfd . as modified on other grounds 318 F 2d 545
(C.A 5, 1963), cf Republic Aviation Corporation v. N L R. B, 324 U. S 793,
802 (1945). -
311
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease and
desist from engaging in the unfair labor practice found and
like and related conduct and take certain affirmative action
designed to effectuate the policies of the Act.
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. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By directing employee Klindworth to remove his
union button before he could go to work, the Respondent
interfered with, restrained, and coerced him in the exercise
of his statutory rights within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent did not refuse to bargain with the
Union in violation of Section 8(a)(5) of the Act or engage
in other conduct in violation of Section 8(a)(1) of the Act
except as found above.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:53
ORDER
The Respondent, Glenlynn, Inc., d/b/a McDonald's
53 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations, and recommended Order herein shall, as
provided in Sec 102 .48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes.
Drive-In Restaurant, Alton, Illinois, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Prohibiting employees from wearing union buttons
while working at its drive-in restaurant.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their right
to self-organization, to form labor organizations, to join or
assist Hotel and Restaurant Employees and Bartenders
Union Local No. 243, affiliated with Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its store in Alton, Illinois , copies of the at-
tached notice marked "Appendix A" 54 Copies of said no-
tice, on forms provided by the Regional Director for Region
14, after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 14, in wnt-
ing, within 20 days from the receipt of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the com-
plaint, as amended, that the Respondent refused to bargain
in violation of Section 8(a)(5) of the Act and engaged in
other conduct in violation of Section 8(a)(1) of the Act
except as found herein, be, and they hereby are dismissed.
54 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."