Weber's Bakery

National Labor Relations Board - Board Decisions

May 31, 1974

211 N.L.R.B. 1 (N.L.R.B. 1974)

WEBER'S BAKERY
Erich R. Weber and Bernadine T. Weber, Co-Partners,
d/b/a Weber's Bakery and Retail Food and Drug
Clerks Union, Local 1550, Retail Clerks Interna-
tional Ass 'oeiation, AFL-CIO. Case 13-CA-12475
May 31, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 28, 1974, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Respondents filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,I and conclusions of the Administrative Law
Judge as modified herein, and has decided to adopt
her recommended Order.
The Administrative Law Judge found that in
March 1973, and thereafter, the Union represented a
majority of the employees in the appropriate bar-
gaining unit. She further found that because of their
course of conduct, Respondents may not rely on any
apparent loss of majority thereafter as justification
for refusing to bargain with the Union. She also
concluded that the evidence will not support a
finding that the Union did not represent an un-
coerced majority during the 10(b) period. In this
regard she found that all of the seven union members
who testified revealed that they continued to pay
their union dues at least through May 1973, and
expressed no complaints until sometime in May; in
May their major, if not sole , complaint concerned the
Union's failure to obtain -a contract; and the first
defectors from the Union came only after Respon-
dents made clear their reluctance to sign a contract,
and suggested an election by which time Respon-
dents had taken various actions clearly designed to
undermine the Union.
Respondents' main defense to the 8(a)(5) allega-
tions is a claim that the Union did not have an
uncoerced majority status on June 15, 1973, when by
i The Respondents in effect have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the cle4r preponderance of
all of the relevant evidence convinces us that the resolutions are
incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
211 NLRB No. 3
1
filing the RM petition Respondents refused to
bargain with the Union. In effect Respondents are
claiming that they did not violate Section 8(a)(5)
since June 15, 1973, by refusing to bargain because
Respondents, themselves, violated Section 8(a)(2) of
the Act by recognizing and contracting with a
minority union for over 11 years, and, because in
1972 after the expiration of the last contract,
Respondents and/or the Union "coerced" employees
to join the Union under a purported union-security
provision.
In No H. Denham and Geraldine A. Denham, d/b/a
The Denham Company, 469 F.2d 239, 245 (C.A. 9,
1972), enfg. 187 NLRB 434, the court stated:
. .. for we conclude that the statute of limita-
tions in § 10(b) . . . precludes us from looking to
any coercive effect antedating the six-month
period preceding the filing of the charge in the
instant case. [Citation omitted.] This is not a case
in which evidence of events occurring before the
six-month period is sought to be used to show
that matters within the period constituted unfair
labor practices. [Citations omitted.] Only if the
record shows that the coercive effect of the Union
security arrangement yielded a coerced majority
during the six-month period and subsequent
thereto would it be permissible to require the
withdrawal of recognition; therefore, we reject the
Company's argument that it should be permitted
to withdraw recognition... .
... If the coercion of workers constituting a
majority is attributable to unfair labor practices
that are not within the reach of the Board's
remedial powers, it is difficult to see why the
Union should be regarded any differently than
one whose majority is attributable to the coercion
of permissible union security provisions. There-
fore, since the record clearly shows that all or
nearly all of those workers belonging to the
Union were employed prior to the period begin-
ning six months before the filing of the charge in
the instant case, we cannot say that the Union's
majority was tainted or coerced.
Thus, it is clear that in the present case the alleged
coercion by Respondents and the Union in June
1972, and on December 7, 1972, which, according to
Respondents, shows a lack of uncoerced majority,
cannot be considered because of Section 10(b) of the
362 (C.A. 3, 1951). We have carefully examined the record and find no
basis for reversing her findings.
We hereby correct the following inadvertent error in the Decision of the
Administrative Law Judge which in no way affects her decision or our
adoption thereof: In fn . 7 the date regarding the pension fund should be
1972.
C
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, since here there is no evidence to indicate that
within the 6 monthsbefore the filing of the charge or
for that matter. within 6 months before the first
refusal to bargain on June 15 , 1973, any employee
was coerced either by Respondents or by the Union
into signing a membership card or that any of the 11
or 12 employees who formed the majority signed a
membership card after December 15, 1972.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Erich R. Weber and
Bernadine T. Weber, Co-Partners, d/b/a Weber's
Bakery, Chicago, Illinois, their officers, agents,
successors , and assigns, shall take action set forth in
the said recommended Order.
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge filed by Retail Food and Drug Clerks
Union, Local 1550, Retail Clerks International Associa-
tion, AFL-CIO (the Union), on July 3, 1973, a complaint
was issued on November 2, 1973 , against Erich R. Weber
and Bernadine T. Weber, co-partners , d/b/a Weber's
Bakery, Respondent, alleging that in the period February
through June 1973 Respondent violated Section 8(a)(1) of
the Act ' in various ways and since January 3, 1973, has
refused to bargain with the Union in violation of Section
8(a)(5) and (1).
Pursuant to due notice, a trial was held before me in
Chicago, Illinois, on December 4 and 5, 1973 . All parties
were represented by counsel and were afforded full
opportunity to be heard , to present oral and written
evidence, and to examine and cross-examine witnesses.
Respondent and the Charging Party presented short oral
arguments . Since the hearing, briefs have been filed on
behalf of the General Counsel and the Charging Party.
Upon the entire record, together with careful observation
of the witnesses and consideration of the briefs , I make the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
The complaint alleges, the answer admits, and I find
that:
A. At all times material herein Respondent has been
i National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519,
29 U.S.C. Sec. 151 et seq.).
2 Although the complaint and answer establish that Respondent is a
partnership consisting of Erich Weber and his wife, Mr. Weber identified
himself at the hearing as the "owner" and for all practical purposes the
business appears to be run as a one-man enterprise. Accordingly, for the
sake of linguistic convenience, Weber personally will be here referred to as
engaged in the manufacture and retail sale of bakery
products in Chicago, Illinois. During the past year, a
representative period , Respondent had a gross volume of
business from the sale of its products in excess of $500,000.
During that period Respondent purchased materials
valued in excess of $2,000 from points directly outside
Illinois and arranged to have said materials shipped
directly to its location within Illinois. Respondent is now
and at all times material herein has been an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
B. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A.- The Issues
Since 1961 Respondent has had collective-bargaining
agreements with the Union covering his 2 sales employees,3
the most recent agreement having been in effect from
October 13, 1969, through October 14, 1972. The com-
plaint alleges that after the expiration of that contract, and
during the 6 months preceding the filing of the present
charge (on July 3, 1973), Weber engaged in a course of
unlawful conduct "designed to undermine the Union and
destroy its majority status" and unlawfully refused to
bargain with the Union by engaging in dilatory tactics and
bad-faith bargaining, granting unilateral wage increases,
bargaining directly with employees and finally, around
June 15, 1973, withdrawing recognition and filing a
representation petition "without having objective consider-
ations to support its contention that the Union had lost its
majority status."
As stated by Respondent 's counsel in closing argument
at the hearing, his "contention is that these employees were
coerced into joining the Union, and that at no time did the
Union have a majority of the employees at Weber's
Bakery." This position was based on proffered evidence
that the employees who belonged to the Union had been
coerced into joining under threat of loss of their jobs in
July and December 1972.
It was the position of the General Counsel and the
Union that the collective-bargaining agreement in effect
until October 14, 1972, created a presumption of the
Union's continuing majority thereafter and that Respon-
dent could not attempt to rebut such presumption by
evidence of events occurring before the Section 10(b)
period. Since the "coercion" of the employees asserted by
Respondent's counsel occurred before the Section 10(b)
period, the General Counsel and the Charging Party
objected to Respondent's being permitted to present
evidence in support of its defensive position. I ruled that I
would permit Respondent to present "background" evi-
dence and a "reasonable" amount of evidence to make a
record in support of his asserted defense even if I should
the Respondent.
3 Although Respondent raised some questions concerning the unit
definition, as set forth below, there is no substantive dispute among the
parties that this case involved Respondent 's retail sales employees,
Respondent's only employees other than bakers, who are represented by
another union and are not involved in the present proceeding.
WEBER'S BAKERY
eventually rule that the defense was legally improper or
insufficient . In the main, I limited the "reasonable
background" period to a year before the beginning of the,
Section 10(b) period , or beginning on January 1, 1972.4
Although there were other issues , as the parties presented
the case, the basic issue was whether Respondent was
legally obligated to bargain with the Union as the majority
representative of the employees in 1973.
B. The Evidence
1. The General Counsel's case
a. Weber 's dealings with the Union
In the Chicago metropolitan area, collective bargaining
covering bakery salesclerks is conducted initially between
the present Union and "The Retail Baking Industry in the
Chicago Area." Normally, as a collective-bargaining
agreement is about to expire , negotiations are arranged by
the Union and the three largest commercial bakeries,
represented principally by an "Industry" attorney. Other
area bakeries , of which there are many,5 are invited to
participate in the negotiations. It appears, however, that
the participation of the independent bakeries in the
negotiations is neither widespread nor continuous. After
agreement has been reached between the Union and the
"Industry" (i.e., essentially the big three), the contract is
printed as a "master" and is presented to each of the other
area bakers for signature . There is no dispute that the
"Industry" group does not speak for any of the independ-
ents and the master contract is not binding on any bakery
employer until he has adopted it individually by signing a
copy. It further appears that the Union has never executed
any contract differing from the master agreement.
Respondent has a bakery and retail store at 63rd Street
in Chicago . Since February 1970 he has also maintained a
somewhat smaller retail store on Archer Street , in another
section of Chicago . It is the salesclerks with whom this case
is concerned . The total number of salesclerks at both stores
has been roughly 15 to 19 , of whom 2 or 3 have been full-
time employees, with the rest high school students working
part-time . Since 1961 Respondent has individually adopted
the successive 3-year master contracts, the latest being
effective from October 13, 1969, to October 14, 1972.
Gerald R. Gesiakowski , the union business representa-
tive assigned to Respondent's 63rd Street store, visited the
store around the end of June 1972.8 At that time, he
mentioned to Weber that negotiations for a new "Indus-
try" contract would probably be started soon. Apparently
Weber then suggested that he would like to negotiate his
own individual contract . Weber testified that he was told
such negotiations were not permitted . Under date of
4 By subpoena, Respondent sought to obtain the Union's membership
and dues records covering Respondent 's sales employees from 1961 to date.
At my suggestion , without formal ruling on the Union's application to
revoke the subpoena , and without any decision as to relevancy or
admissibility of the subpoenaed evidence , the parties agreed to restrict the
subpoena to the period since January 1, 1972. The material specified in the
limited subpoena was produced . Pursuant to Section 102.31 of the Board's
Regulations, discussion of the subpoena matter as such does not appear in
the record.
5 The number was vaguely put at "a couple of hundred."
3
August 1, 1972, in what appears to be a form letter, over
the signature of Morrie D . Wishnick , Secretary-Treasurer,
the Union notified Weber of the Union's desire "to reopen
the Agreemnt for negotiations , pertaining to wages, hours
and working conditions ." The letter suggested that Weber
communicate with a representative of the big three
bakeries to learn the date of the negotiations . Weber did
not do so, and did not participate in the ensuing
"Industry" negotiations.
On or about September 19, 1972, Weber again said that
he would like to negotiate his own individual contract with
the Union. Gesiakowski replied that he had no authority to
negotiate, but would be happy to arrange for Weber to
meet the Union's "executive officer." Weber said that he
said he would take the offer under advisement.
In January 1973 Gesiakowski advised Weber that the
Union and the "Industry" were approaching agreement on
a contract. When Gesiakowski, in response to Weber's
inquiry, summarized the Union's demands in the pending
"Industry" negotiations , Weber indicated that he could not
meet such demands and again asked if he could negotiate
individually with Gesiakowski. Gesiakowski expressed
doubt that the Union would achieve its total demands and
again stated that he had no authority to negotiate but
would willingly arrange for Weber to talk to Wishnick.
Gesiakowski recommended that Weber act promptly.
Weber indicated that he was too busy for such a meeting at
that time.
The "Industry" master agreement was reached around
the middle of January 1973, effective October 15, 1972,
through October 18, 1975. Like the 1969-72 contract, it
contained, inter alia, a union-security clause and provisions
for payments into the Union's pension and health and
welfare trust funds.7 On January 18, 1973, letters summa-
rizing its terms were sent to the independent bakers. The
contract was then printed and became available for
distribution apparently in March 1973.
Around the middle of March, Gesiakowski took printed
copies of the master contract to Respondent's establish-
ment and asked Weber to sign. Weber requested an
opportunity to read and study the contract. Accordingly,
Gesiakowski left the two copies and said he would return
in about 2 weeks.
Gesiakowski returned to Respondent's bakery around
April 10. At this point Weber said he objected to several of
the contract's provisions, which he believed were ill-suited
to his small-scale operation . Gesiakowski said that Weber
should have done something before then, but that
Gesiakowski would consult his superiors in the Union and
return. Gesiakowski then did speak to his superiors, and
Business Agent Ronald Luesman was assigned to assist.
On April 19, Gesiakowski and Luesman visited Respon-
dent. Weber said that he had not had time to study the
B Gesiakowski first testified that his first contract with Weber was
around the beginning of July 1972. He later testified that around April 1972
he and Business Agent Ronald Luesman spoke to Weber, but the visit he
referred to happened around the end of June . At another point,
Gesiakowski said he had been to the store five or six times before that
occasion.
7 All the prior contracts had umon-secunty clauses The health and
welfare provision apparently began in 1966 and the pension fund provision
in 1969.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement in detail, but again indicated that he objected to
some of its provisions. The union representatives asked
that he study the contract and specifically jot down the
objectionable features before their return 2 weeks hence.
When Gesiakowski and Luesman returned on May 2,
Weber listed the following four objections to,the master
agreement : (1) Time-and-a-half for Sunday work by part-
time employees. He said that the "big three" presumably
agreed to that provision readily because they are not open
on Sundays. Weber suggested that he would be willing to
pay some premium for Sunday work, but not time-and-a-
half. (2) Union scale wages to employees during their first
30 days' employment, before they had learned their jobs.
(3) Health and welfare fund payments for part-time
employees .8 Weber felt that the part-timers did not need
the protection since , as young school girls, they probably
had sufficient coverage through their parents. (4) Pension
fund payments for part-time employees. Weber believed it
unnecessary to cover part-time employees in the pension
fund since they probably would not stay in the business
long enough ever to realize any pension benefits. The
union representative expressed personal sympathy for and
understanding of Weber's position. According to Weber,
the union representatives said , in effect, that they would
not strictly enforce the specific provisions which Weber
specified as too onerous . Weber, however, protested that
he wanted a contract he could obey. The union representa-
tive said they would discuss the matter with Wishnick, who
alone had authority to agree to variations from the master
contract. Weber said he would appreciate their doing so.
A meeting of Weber and Wishnick was later scheduled
for May 15, 1973. However, in a supposedly confirmatory
telephone call by Gesiakowski on May 14, Weber
cancelled the meeting on the plea that he was too busy.
On June 1 Gesiakowski telephonically advised Weber
that an "addendum" to the contract had been prepared to
meet Weber's objections to the master contract. It was
agreed that the union representatives would deliver the
addendum to Weber. On June 7, Gesiakowski and
Luesman visited Weber and attempted to give him copies
of the "addendum," but he refused to accept them. Weber
testified that in no uncertain terms he informed them that
he was not interested. Weber at this time mentioned
additional portions of the master contract to which he
objected. Principally he added an objection to the
"nondiscrimination" provision, which, according to the
credited testimony of Gesiakowski and Luesman, Weber
said might cause difficulty if he rejected the employment
applications of any Negro employees. The union represent-
atives stated that the nondiscrimination clause was
essentially a formality and did not add anything of
substance to the law as it then stood and that any potential
problems Weber envisaged were already present under the
law and would be unaffected by the contract provision.9
Weber said that he was having the contract examined by
"someone who understood these things" and then conclud-
ed the meeting by walking out.
The addendum, which had been approved by Wishnick,
met Weber's original objections as follows: (1) It provided
premium pay of 50 cents per hour, rather than time-and-a-
half, for Sunday work by part-time employees. (2) It left to
the employer's discretion wages to be paid employees
during their first 30 days (subject only to the Federal
minimum wage). (3) It eliminated from the health and
welfare fund provision part-time employees working less
than 26 hours a week, who, under the contract, were to be
covered as of October 1, 1974. (4) It excluded part-time
student employees from the pension payment requirement
during the first 6 months of their employment.
When Gesiakowski called Weber on June 13, 1972,
Weber said he would not sign a contract, but stated no
reason for his decision. Weber stopped making payments
to the pension fund after the one for April 1973. On June
15 Respondent filed a representation petition with the
Board.
b. Respondent's dealings with the employees
In February 1973 Weber granted his sales employees a
general wage increase retroactive to October 15, 1972.
Weber testified that the increases then granted were "very
similar" to those called for in the recently executed master
contract. Employee Carol Kite, a witness on behalf of
Respondent, testified that when she received the retroac-
tive raise she was told that it was "because of the new
contract." Thereafter Weber granted individual length-of-
service increases in accordance with the pattern of
ascending wage scales contained in the current master
contract and in the previous contracts. According to
employee Susan Gramont, Respondent also started to pay
time-and-a-half for Sunday work, as required by the
contract, instead of the 10-cent-per-hour premium he had
previously paid. Additionally, there was evidence that
Respondent began to pay all employees for holidays,
whereas he had formerly paid only those employees who
were scheduled to work those days.
All the testimony is confused, vague and inconsistent as
to dates. The following recital of the temporal evolution of
Weber's position in discussions with the employees is
based on a composite of the testimony systematized to
conform to the inherent probabilities.
It was probably in the latter half of March 1973 that the
Union sent copies of the "Industry" contract to the
employees, apparently with the monthly bills for union
dues, in accordance with its practice of enclosing bulletins
and notices with its bills. Thereafter, apparently beginning
toward the end of March, Weber questioned employees,
individually and in groups, concerning their opinions of
the contract and the Union. The employees betrayed their
lack of sophistication about such matters , and apparently
looked to Weber for enlightenment . He told them that he
felt the "Industry" contract was designed for the large
bakeries and was unsuited to and prohibitively expensive
for his small operation. He stated that he wanted to and
was trying to obtain an individual contract tailored to his
8 Under the contract , until October 1, 1974, only part-time employees contract to which he said he objected at some time during his talks with
regularly working more than 26 hours per week are covered by the health Gesiakowski, These provisions, such as the successorship clause, apparently
and welfare provisions . had been contained in the prior contracts that he had signed.
9 In testifying, Weber mentioned several additional provisions of the
WEBER'S BAKERY 5
particular operation . The employees apparently accepted
Weber's view and "stated their agreement that the "Indus-
try" contract was too onerous for him.
Some of the employees suggested that it was their own
idea that the contract was too expensive for Respondent.
For example, Gramont, called by the General Counsel,
testified as follows concerning a conversation with Weber
sometime in March or April: ,
He came in and he asked me if I had seen the
contract , the pink contract, and I said I had. And he
asked me what I thought about it , so I said , well, I had
read it over and didn't understand how he could pay all
that out because at our bakery we have mostly part-
time girls, and it would be foolish. And I said-and I
said he would end up going bankrupt.
Around the middle of May, Weber held employee
meetings , first at the Archer Street store and then at 63rd
Street . Weber stated that he was not going to sign the
"Industry" contract because it was too costly for his small
operation . He apparently also indicated that he was still
interested in obtaining an individual contract suited to his
particular situation. However, some of the employees had
begun complaining among themselves about the ineffec-
tiveness of the Union, as evidenced by the fact that no
contract had as yet been signed . Although so far as appears
none of the employees made any attempt to communicate
with the Union , at these employee meetings they passed
their complaints on to Weber. The following testimony by
employee Christine Nehmzow , called by the General
Counsel, is perhaps a fairly accurate summary of part of
the discussion at the Archer Street meeting:
[Weber] asked us if we read the contract and what
we thought about it. And our response to his question
was that it wasn't, you know , we have never seen a
contract before . I mean, we figured that he couldn't
afford it because it was quite big for a bigger bakery.
Q. Is that what you told him?
A. That is what we more or less asked him, and he
said that it was. He couldn't afford it because it was for
a bigger bakery.
• • s s
Well, we complained about paying Union dues once
a month and not getting anything out of it because he
didn't sign the contract. We talked about it. It seemed
too big for him to sign, too big like for a bigger store.
JUDGE: What did he say, if anything, when you
complained?
THE WfmEss : He said it was a big contract for a
bigger store , yet he would like to negotiate a contract
for his store.
As a specific item of expense under the contract, Weber
referred to the pension fund payments. He said that he was
required to pay into the union pension fund 5 cents per
employee hour. He proceeded to say that, since the
employees would probably not remain in the business long
enough to realize any pension benefits , he would rather
give the extra 5 cents per hour directly to them than pay it
over to the Union.
At the 63rd Street meeting, Weber raised the possibility
of having an election and volunteered to petition for one.
Although Respondent apparently maintains that the
employees generally indicated a desire to drop the Union,
the credited evidence establishes only that they indicated
their willingness to participate in an election. For example,
employee Margaret Smith, 10 a witness on behalf of
Respondent, testified as follows:
A. [Weber] had asked [the employees] while I was
there whether they would want to stay in the Union or
not. They all said they didn't.
Q. You heard the girls, each one of these girls:
Carol, Diane, Mary, and Cathy, all say, "I don't want
to stay in the Union"?
A. Yes. Not in those exact words, probably.
Q. But you heard them reply they didn't want to
stay in the Union?
A. Yes.
But after being shown a pretrial affidavit she had given to a
Board agent, she testified as follows:
In this affidavit I said I didn't know whether the girls
said yes or no, whether they wanted to stay or leave the
Union. But that is what I, in my mind, that is the way I
thought the meeting went.
JUDGE: What is your present recollection?
THE WrrNEss: That, well, Mr. Weber had said that
he would-he would file a petition if the girls wanted it.
So maybe I am just drawing the conclusion in my mind
that he wouldn't have stated that if they hadn't wanted
it.
JUDGE: In your present recollection do you recall
what, if anything, the girls said?
THE WITNEss: As far as in my present recollection I
recall them saying that they would like to have the
election, which would mean they would like to try to
get out of the Union.
At the meeting they said that they wanted the
election. They would like, you know-they were hoping
that Mr. Weber could get the election.
Q. [By Union counsel] And at a later time to you
personally they said they wanted to get out of the
Union?
A. Yes.
Employee Kite's testimony similarly reflects that some
employees expressed dissatisfaction but stopped short of
disavowal of the Union:
Q. What did you say?
A. Well, I didn't like the Union. Here the contract
was negotiated in February and ready to sign and here
it was May already and they were just coming around
with it. And I wasn't informed-I wasn't under the
contract yet, and I was paying dues here already. I
don't think I saw my Union representative twice after I
joined the Union.... I don't think it was fair to me
that I wasn't informed about things when I was in the
Union.
10 At the time of the hearing , Smith's name was Mrs. Bugho.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Do you recall if any of the other girls said
anything?
A. Well, most of them were just about of the same
opinion.
Q. What did they say to Mr. Weber?
A. Well, they sort of all agreed with part of what I
said, and I agreed with whatever they said almost.
Q. What did Mr. Weber say?
A. He said he was not planning on signing the
contract and that if we wanted the contract-if we
wanted to be in the Union it was up to us, that we
could try to get out of the Union if we wanted to, but
he wasn't pushing us to do it.
By June 1 Weber had apparently finally decided to
discontinue his relationship with the Union. Mary Ann
Seliga , a full-time employee at the Archer Street store from
February 1970 until October 1973, testified as follows
concerning a telephone conversation she had with Weber
around June 1:
Well, he called me up and he asked me if I had read
the contract, and I said I had read some of it but not
everything in it. And he said that he wasn't going to
sign the contract, that there was a lot of things in there
that he didn't care, like the packing and boxing and
stuff like that; and when it was about the pension plan,
he said he was paying in for the pension plan, and he
said it was costing him so much if he had to keep
paying in he would go bankrupt, and he said that if he
wasn't in the Union he could give us more money, but
if he had to stay he might have to cut some of our
wages because it was, you know, just too much for him.
Well, he told me that none of the girls were paying
the dues into the Union, that he wasn't in the Union
any more, didn't want to be, and he said that when we
get these statements from the Union that I could write
a note and put it in there and mail it back and say I
wasn't going to send no dues any more because we
weren't Union.
Weber rather clearly indicated his own preference by
saying, in effect, that he felt he could rely on the 63rd
Street employees but was not so confident about the
Archer Street girls. However, it is undisputed that Weber
assured the employees that the choice in an election was
entirely up to them and that he would abide by the results
of an election.
Respondent made no payments to the pension fund after
the one covering the month of April.it Shortly after the
May meetings , the employees were granted a general wage
increase of 5 cents per hour in lieu of the pension fund
payments.
It is most improbable that young inexperienced employ-
ees would spontaneously react to the new contract by
fearing that it might "bankrupt" their employer. This is
particularly true, where, as here, they have received a
substantial retroactive wage increase under the contract
and an additional increase equaling the cost of the
contractual pension fund. And it is also improbable that
the employees would spontaneously place the blame solely
on the Union for Respondent 's failure to execute a new
contract.
The evidence as a whole warrants the inference, which is
here drawn, that Weber instigated employee criticism of
the Union in an attempt to undermine its status.
Employee Seliga credibly testified as follows concerning
a conversation with Weber on or about June 15:
[Weber] called me in my home after I got off work,
and it was a Saturday, and he asked me if a Union man
was in my house. And I told him no. I said the Union
man did drive me home because it was raining and I
couldn't get ahold of my husband, and Union man said
as long as he was there he would drive me over to the
house. It was just around the block and through the
alley. [Weber] said I had no right of having the Union
man in my house . He said he had taken the Union sign
and thrown it out. He said the Union man had no right
in his store. If I was on duty and he came in I should
call the police and have them taken out.
There had been a union sign posted in the Archer Street
store since December 1972 but it never reappeared after
June 15.
As previously stated, Respondent filed an RM petition
on June 15. The charge in the present case was filed on
July 3.
In October 1973 Respondent granted a general wage
increase, as provided for in the current "Industry"
agreement . Weber testified that it was his customary
practice to grant a wage increase in October . Such practice
has been required under the collective-bargaining agree-
ments which he has executed since 1961.
2. Respondent's defense
Respondent's basic contention is that the Union never
represented an uncoerced majority of the bargaining-unit
employees. His method of supporting this contention was
to establish the size of the unit, identify the union
members, and then show that a sufficient number of the
memberships had been secured by coercion to negative a
majority. Maintaining that no evidence was admissible as
to the circumstances under which employees joined the
Union more than 6 months before the charge was filed, the
General Counsel and the Union objected to virtually all of
Respondent's evidence . The following statement is based
primarily on evidence adduced by Respondent, either
through his own witnesses or by cross-examination of the
General Counsel's witnesses , over objections.
Respondent's monthly lists of employees for the period
January 1972 through September 1973,12 show a maximum
of 19 salesclerks at any one time. While it is likely that, as
the General Counsel suggests in his brief, the size of the
unit has been somewhat overstated by Respondent,13 no
such specific finding is here made since it would not affect
the decision in this case.
11 In August 1973 the health and welfare trust instituted a judicial action omitted , apparently inadvertently , from those introduced into evidence.
against Respondent for an accounting of fund payments . That action is still 13 Although Weber testified that he had had an employee prepare the
pending . lists , each of them contains at least two names added at the bottom in
12 With the exception of June and July 1973, lists for which were handwriting totally different from the original list. None of the added
WEBER'S BAKERY 7
Respondent also introduced into evidence 12 union
membership application cards which had been provided by
the Union as its record of membership by Respondent's
employees, since January 1, 1972,= One of these cards had
been executed by Grace Kampwirth, who had left
Respondent's employ before the period here involved.
Another had been executed by a new employee in July
1973, after the crucial period.14 On the other hand, in
addition to the membership application cards, there was
considerable undisputed evidence that employee Lottie
Super, who was employed by Respondent during the
period involved, was a member of the Union. Thus, the
evidence shows that as of January 1973, the beginning of
the alleged refusal to bargain, 11 of the unit employees
were members of the Union. So far as appears, all these
employees remained members of the Union until early in
June 1973, when, as set forth below, three employees
withdrew from Union membership and stopped paying
dues.
It is Respondent's contention that at least 9 of 11 union
members were coerced into joining, and that therefore the
Union never represented an uncoerced majority. The
following is essentially a summary of the evidence adduced
relevant to the alleged coercion.
Weber testified, without contradiction, that from 1961,
when he signed his first collective-bargaining agreement
with the Union, it was understood and agreed between him
and Mr. Shippits, Gesiakowski's predecessor, that only one
of the sales employees had to join the Union and be
covered by the contract. After the Archer Street store was
opened in February 1970, the union representative de-
manded that a second employee be brought under the
contract. At some later time, apparently in 1971, a third
employee was added. As of June 1972 Respondent's three
full-time employees were members of the Union: Grace
Kampwirth, Martha Wolter, and Lottie Super. Kampwirth
left Respondent's employ in June 1972, but Wolter and
Super apparently stayed on through the period involved in
this case. None of the other employees, all part-time, were
union members.
Gesiakowski testified that on several occasions in the
first half of 1972 he asked Weber about the number and
identity of employees working at the store and accused
Weber of "hiding" employees, i.e., of not reporting all
employees, as required under the contract. According to
Gesiakowski, Weber indicated that, in addition to the full-
time employees who were in the Union and covered by the
contract, Respondent had only part-time, irregular em-
ployees who would not be covered by the contract.
Gesiakowski made no attempt to speak to any of the
employees and did not press Weber until around the
beginning of July. Gesiakowski testified that at around 6
a.m., one Sunday around the end of June, he happened to
pass the 63rd Street store and saw four or five employees
about to go to work. Shortly thereafter, Gesiakowski and
Luesman visited the store to require that additional
employees be required to join the Union.
According to Gesiakowski, the union representatives
asked Weber when it would be convenient to visit the store
to have the employees sign up . Weber said that he would
prefer taking care of it himself because he "didn't want to
cause any problems with back pay, and Union problems."
It was agreed that four15 additional employees would be
required to join the Union and be covered by the contract.
Weber thereupon picked the employees required to join
and instructed employee Mary Piszczer to have them
execute membership application cards and give her 2
months' dues.16 She did as instructed and then gave the
membership application cards and dues to Weber, who
transmitted them to the Union.17 Weber testified that he
did not want to force the employees into the Union but did
so out of fear engendered by the union representatives'
threats of "trouble" if he refused. Weber informed
Piszczer, and, through her, the other employees, that they
had to join the Union on penalty of discharge under the
union-security clause. Weber told the employees that they
would be better paid if they joined the Union.18
Two of the four employees who joined the Union in June
1972 testified. Diane Konieczny testified that she was not
present at the time the others signed but that Piszczer
telephoned her at home and "told me we were joining the
Union and how much I had to pay for dues." Konieczny
continued: "I just remember Mary saying that we were
joining and it wasn't like there was any question about it."
The next day at work she signed a card and paid her dues.
At the time she was not told what, if anything, would
happen if she refused to join. Employee Kite testified that
Weber called her into his office and "said his girls had to
join the Union and that I would have to join." She could
not recall Weber's having said anything else. She then
executed a card and gave it, together with Union dues, to
Piszczer.
Around the beginning of December 1972, Robert Flossy,
the union business representative assigned to the Archer
Street store, informed Weber that the sales personnel at
that store would have to join the Union. With Weber's
knowledge and approval, Flossy, accompanied by Lues-
man, went to Archer Street and on December 6 and 7,
names were mentioned in the testimony . Since Weber testified that the lists
named "everybody that ever worked there" it is a reasonable inference that
the added names are those of irregular part -time employees , who would not
be included in the bargaining unit . In addition, the lists include the names
of Smith and Elsie Holzrichter , either or both of whom were considered by
Respondent and the Union as "managers" and thus outside the bargaining
unit.
14 An additional card , executed by employee Smith, was introduced by
the Charging Party. As set forth below, that card is not effective to establish
union membership.
is Weber said the number was five ; Luesman testified that the Union
"picked up" four members at that time . The membership application cards
introduced into evidence by Respondent contain only four signed at that
time: Mary P. Kerrigan , Catherine M. Jesionowski , Carol A. Kite, Diane
Komeczny . Weber listed "Donna Parker" in addition, but there is no card
by her name in the record.
16 Although it is not entirely clear on the record , initiation fees were
apparently waived, at Weber's request.
17 The record contains no card executed by Piszczer, a rank-and-file
employee . The absence of such a card is unexplained.
18 Weber testified as follows concerning this event
I gave the membership application cards to Mary, and I told the
girls, "You have to join the Union or you will get fired." ... I said,
"Mary, you collect the money from the girls and get it all together. Put
it in an envelope . Give it to me I will give it to the Union"
Q What did you do then?
A. Well, I had to give an explanation to these girls ... I said,
"Well, you will get paid more money, but I will have to put five girls in
or I will have a lot of trouble." They said, "All right." And they did.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1972, obtained membership applications and dues pay-
ments from five employees: Pauline Galenziewski, Chris-
tine Nehmzow, Mary Ann Seliga, Mary Ann Vatch, and
Susan Gramont. Concerning this event Luseman testified,
in part:
We told those employees we had a contract with
Weber's Bakery and that the contract required that
help be paid rates of pay according to the contract, and
that each and every one of them would receive an
increase in pay to what the current rate of pay was in
the bakery industry at that time.
• s s s w
In one case, one of the girls asked me if they had to
join the Union. . . . We told them there was a Union
shop clause in the contract that required all people to
become members of the Union... .
On further questioning, Luesman said that they told the
employees "that a new contract was currently being
negotiated . . . and they would receive an additional
increase when the contract had been finished being
negotiated."
Of the five Archer Street employees who joined the
Union in December 1972, four testified at the hearing.
Seliga testified that the union representatives (Flossy and
Luesman) came to the store, identified themselves, and
said they had talked to Weber, who knew of their visit to
Archer Street. The union representatives then told her that
the 63rd Street store "was Union," which she had not
known, and "they were coming to sign up for a Union."
She replied that it was "fine with" her and she signed a
card. Nehmzow testified that Flossy said the employees
"had to join the Union now." When she asked him what
would happen if they did not, Flossy "very bluntly put it to
[her] that [she] would lose [her] job if [she] didn't."
Gramont corroborated Nehmzow's testimony. Nehmzow
added that about a week later Weber asked her "how did it
feel to be in the Union" and she "said it was all right."
Vatch testified that on December 7, 1972, she was working
temporarily at the 63rd Street store. Weber told her -that
Flossy had spoken to the other Archer Street employees
and would be coming to talk to Vatch. Weber told her that
if she did not join, the Union would send him a notice
requiring that she be fired within 5 days. Later that day
Flossy came to see her. He "just explained ... what the
Union was about," but Vatch could not recall any of his
explanation . She could not "even remember if he said
anything to [her] at all about benefits." He said nothing
about whether she had any choice or not. She executed a
card and paid dues to Flossy.
Employee Smith's situation is revealing of the nature of
the relationship of the Union to Respondent and to the
employees. Gesiakowski testified that he first spoke to
Weber about having Smith join the Union around May
1972. Apparently Gesiakowski's attempt was unsuccessful.
Smith testified that shortly after Christmas of 1972,
Gesiakowski gave her a membership application card and
said she had to join the Union. She filled the card out but
did not submit it to the Union and thereafter threw it
away. Some months later, Gesiakowski asked her if she
had executed the card. When she replied that she did not
want to join the Union, Gesiakowski replied that she would
have to in order to keep her job. She then asked, in effect,
if she could continue in Respondent's employ as a "store
manager" without joining the Union. Gesiakowski replied
that Elsie Holzrichter was listed as the "store manager,"
obviously pursuant to the recognition clause of the
collective-bargaining agreement , which excluded from the
bargaining unit "one (1) store manager per store."
Smith then went to Weber for assistance . According to
her, Weber said he would see what could be done, but he
was afraid she would have to join the Union. Weber
testified that he spoke with Gesiakowski about Smith early
in 1973. According to Weber, Gesiakowski suggested that,
since Smith did not want to join the Union, she might be
designated as "store manager" and Holzrichter "put into
the Union." Weber thereupon spoke to Holzrichter, but
she refused to join the Union. Weber testified that he then
told Gesiakowski that neither of the two employees would
be put into the Union. However, Weber further testified
that, at some unspecified time, he "encouraged [Smith] to
join the Union" in order to secure its "insurance," which
he felt that she needed because, apparently recently, she
had been divorced. Weber apparently then reported her to
the Union as an employee covered by the trust funds. The
Union (or the trustees) rejected her application, explaining
to Weber "that she couldn't be in the Union and she
couldn't have insurance because she was a store manager."
Although Smith testified that she had never submitted an
executed union membership application, she acknowl-
edged her signature on a card introduced into evidence by
the Charging Party for the purpose of discrediting her. The
reasonable inference is that after Smith refused to join the
Union, Weber persuaded her to execute a membership
card for the purpose of obtaining "insurance" but her
application was rejected.19 Weber complained that it was
"discriminatory" to deprive Smith of the insurance.
Each of the seven employee witnesses testified concern-
ing her payment of union dues. As previously noted, Smith
testified that she never paid any union dues. Carol Kite
and Diane Konieczny sought to withdraw from the Union
early in June 1973 and at that time discontinued dues
payments. In addition, on June 8, 1973, employee
Catherine M. Jesionowski sent the Union a letter of
resignation in which she stated that she would no longer
pay dues. Vatch testified that she continued to pay union
dues "all the way up until October" 1973. Seliga paid until
September, when she left Respondent's employ to enter
college . Gramont testified that she paid until August when
she "just got behind" and "[i]t slipped [her] mind about
paying it." Nehmzow testified that she continued to pay
her dues until "three months ago," i.e., September 1973.
She volunteered that she "figured [she ] would keep paying
dues and see if they were going to negotiate and who was
going to do what." Respondent offered no additional
evidence of resignations or withdrawals from the Union or
cessation of dues payments.
The membership application cards he introduced into
19 Although the stated reason for the rejection was Smith's purported evidence in the present record does not establish that she had managerial or
status as "store manager," the true motivation may be quite different . The supervisory functions.
WEBER'S BAKERY 9
evidence show that in July 1973 Gale M. Schobert, a new
employee, joined the Union.
Absent any additional evidence, it must be assumed,20
and I accordingly find, that all the employees who had
joined the Union continued to pay their dues through May
and all but three continued to pay their dues thereafter.
C. Discussion
1. Section 8(a)(5)
a. Respondent's obligation to bargain
(1) Bargaining unit definition
The answer to the complaint denied the allegation as to
the appropriate bargaining unit. In argument at the
hearing, Respondent's counsel contended: "There is not
one scintilla of evidence regarding appropriateness of
unit."
The complaint defines the appropriate unit as: "All
employees engaged in sales, display, wrapping and stock-
ing, and cashiers, and cookie and donut machine operators
, but excluding store managers, guards and supervisors
... and all other employees...." This is substantially
the same as the unit definition contained in the recognition
clauses of the master contract which Respondent signed
for the period October 1966 to October 1972.21 That same
definition is carried in the "Industry" contract for the
period 1972 through 1975.
Although in many discussions with union representatives
Weber raised objections to several specific provisions in
the 1972-75 agreement, there is no evidence that he ever
questioned the unit definition in the recognition clause.
Nor has Respondent in this proceeding indicated the
nature or source of any ambiguity in, or disagreement
concerning, the appropriate bargaining unit.
The evidence as a whole leaves no doubt that Respon-
dent employs only two classes of employees: bakers,
represented by another union, and retail salesclerks. Weber
testified that he does not employ any "donut machine
operators," listed in the contractual definition and thus
adopted in the complaint. And salesperson Kite testified
that she sometimes works in the bakery "making sweet
rolls and streuseling." Despite this incidental or minor
production work by Kite and the suggestion that the
bakers may make doughnuts, there is no suggestion
anywhere in the record that the line of demarcation
20 Respondent had subpoenaed union membership and dues records
Pursuant to agreement reached by the parties on the Union's a"olication to
revoke the subpoena, the requested material was provided for the period
from January 1, 1972, to the date of the hearing Respondent offered no
further evidence of nonpayment of dues during the period here involved
2i The unit definition in the 1969-72 contract reads "all employees who
in a service or self-service store sell, display, wrap or stock on shelves retail
merchandise and cashiers and cookie and donut machine operators, but
excluding one (1) store manager per store .11
22 The General Counsel's failure to introduce the petition at the present
hearing is understandable Although Respondent had denied the unit
allegation in the complaint, it was not until Respondent's oral argument, at
the conclusion of the evidence, that, despite the long history of collective-
bargaining agreements and the course of negotiations in 1972 and 1973,
Respondent was seriously raising a unit issue
23 The definition contained in the two contracts covering September 10,
between the "bakers" and the "girls" has ever been
remotely blurred or questioned.
Undisputed evidence establishes that on June 15, 1973,
Respondent filed a representation petition. In his brief the
General Counsel requests that I take official notice of the
contents of that petition and attach a copy. I hereby grant
the General Counsel's request.22
In Respondent's representation petition (Case
13-RM-1101, which was identified in the present com-
plaint), the unit is defined as "all employees engaged in
sales or wrapping and packing," excluding "all other
employees." In his brief, the General Counsel "concedes"
that Respondent's unit definition "is probably a more apt
description of the existing unit than the description
contained in the complaint." But it is clear, as the General
Counsel contends, "that the composition of the unit is
exactly the same, regardless of which description is found
to be appropriate."
Accordingly, on the entire record, I find that the
bargaining unit is defined with sufficient clarity to permit
determination of the Union's majority status as a basis for
the obligation to bargain. I find that the appropriate unit
consists of "all employees engaged in sales or wrapping
and packing" at Respondent's retail stores, excluding
supervisors 23 and guards and all other employees.24
(2) The Union's representative status
Respondent's Doubt
While Respondent's position was not precisely articulat-
ed, the General Counsel and the Charging Party apparent-
ly understand Respondent as maintaining that he was
under no obligation to bargain because of a genuine, well-
grounded doubt as to the Union's majonty.25 No such
contention is available to Respondent.
It will be recalled that perhaps as early as July 1972
Weber discussed a renewal contract with a union repre-
sentative and spoke of his desire to negotiate such a
contract. He continued to make such statements to the
union representatives at least through May 1973. At no
time did he express any doubt of its representative status.
The first notice the Union had of any such position by
Respondent was mid-June 1973, when he filed his
representation petition.
Similarly, in January or February 1973 Respondent
granted wage increases ostensibly in conformance with the
new contract which was then in negotiation. And from
1961, through October 15, 1966, defined the unit as "all retail salesclerks
working in the retail stores of the Company and excluding one (t) store
manager per store "
24 All the "Industry" contracts through October 15, 1972, provided for
the exclusion of one store managei per store In the current master contract
that provision has been changed The unit definition now excludes "store
managers as hereinafter set forth" and then provides "Effective June 1,
1973, a Company may employ a manager in any free-standing store
In view of Respondent's representation petition, and the General Counsel's
present agreement with the unit definition therein, I have made no specific
reference to managers as such in the unit finding contained herein
25 The General Counsel's and Union's understanding is reflected not
only in their briefs but in the allegation in the complaint that Respondent in
effect withdrew recognition unlawfully because it did not have "objective
considerations to support its contention that the Union had lost its majority
status"
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March through May 1973 Weber repeatedly told the
employees that he wanted to negotiate an individual
contract . Significantly, even in May, when Weber offered
to seek an election , he expressed no doubt as to the
Union's current status ; he merely suggested that the
employees might vote as to whether they wanted to "get
out of the Union. It was not until June that he announced
that the business was no longer "in the Union." Meanwhile
he had engaged in conduct clearly designed to undermine
employee support for the Union. It is sufficient to refer to
only the 5-cent-per-hour wage increase he granted in lieu
of pension fund payments called for in the contracts.
It is well established that an employer may not defend
against a refusal to bargain accusation by asserting a doubt
of the union's majority where he has engaged in conduct
designed to undermine the union or after he has embarked
on contract negotiations without asserting his professed
doubt. See, e.g., Daisy's Originals, Inc., of Miami, 187
NLRB 251, 255; San Luis Obispo County etc., Restaurant
and Tavern Association, 196 NLRB 1082, 1087-88. To
warrant refusing to bargain with an incumbent union an
employer's doubt of its majority status must not only be
based on objective facts but must also be asserted in good
faith . Bally Case & Cooler Inc. v. N.LR.B., 416 F.2d 902,
905 (C.A. 6, 1969); Terrell Machine Company v. N.L.R.B.,
427 F .2d 1088 , 1090 (C.A. 4, 1970); Cantor Bros., Inc., 203
NLRB No. 116 (pending on petition for enforcement, C.A.
9, No. 73-2380). "An employer may not avoid the duty to
bargain by demonstrating a loss of majority status arising
from its own unfair labor practices." N.L.R.B. v. Little
Rock Downtowner, Inc., 414 F.2d 1084, 1091, fn. 4. (C.A. 8,
1969); Massey-Ferguson, Inc. v. N.LR.B., 78 LRRM 2289
(C.A. 7, 1971); The National Cash Register Company, 201
NLRB 1034, enfd. 85 LRRM 2657 (C.A. 8, 1974). See King
Radio Corp., 208 NLRB 82.
b. Actual majority
Even though Respondent may not defend by showing a
doubt as to the Union's majority, he cannot be found
guilty of unlawful refusal to bargain unless the General
Counsel establishes the Union 's majority . An employer's
doubt as to the Union 's majority is entirely separate from
the actual absence of a majority . Celanese Corp. of America,
95 NLRB 664, 672-673; Automated Business Systems, 205
NLRB No. 35 . Regardless of his good or bad faith, an
employer is not required, or even permitted , to bargain
with a union that does not represent a majority of the
employees in an appropriate unit . I.L. G. W. U. [Bernhard-
Altmann Texas Corp.] v. N.LR. B., 366 U .S. 731 (1961).26
(1) Presumption of majority
At the hearing the General Counsel and the Union relied
on a presumption of majority status arising from the prior
collective-bargaining agreements . It is clear that the
se This does not necessarily mean that the Board may not order an
employer to bargain with a union not shown to enjoy majority support
where such action is required to remedy unfair labor practices and to
effectuate the policies of the Act. N.L.R.B. v. Gissel Packing Co., 395 U.S.
575 (1%9). Apparently to date the Board had not taken that course.
Automated Business Systems, supra, 205 NLRB No. 35 , dissenting opinions
of Chairman Miller and Member Kennedy, in. 30. In any event, this
General Counsel can meet his initial burden of proving a
union's majority status by showing a past agreement,
which gives rise to a rebuttable presumption of continuing
majority upon expiration. Automated Business Systems,
supra, 205 NLRB No. 35. It is further established that an
employer may not rebut the presumption of continuing
majority by proving that the collective-bargaining agree-
ment, valid on its face , was entered into in contravention
of the Act more than 6 months before the refusal-to-
bargain charge was filed . Barrington Plaza and Tragniew,
Inc., 185 NLRB 962, enforcement granted in part and
denied in part sub nom. Tragniew, Inc., 470 F.2d 669 (C.A.
9, 1972); Holiday Inn of Dayton, 192 NLRB 674, enforce-
ment granted in part and denied in part 474 F.2d 328
(C.A. 6, 1973); The Denham Company, 187 NLRB 434,
enfd. 469 F.2d 239 (C.A. 9, 1972); Howard Johnson
Company, 198 NLRB No. 98 , enfd . in part and setting aside
in part J-7368 (C.A. 9, 1974).
Placing major reliance on the Board 's decision in
Tragniew, the General Counsel and the Union contend not
only that Section 10(b) precludes Respondent from
defending on the ground that the past collective-bargaining
agreement had, in effect , been executed in violation of
Sections (aX2) and/or 8(bx1XA) of the Act, but that no
evidence is admissible which would show that the employ-
ees were unlawfully "coerced" into joining the Union.
Initially, without consideration of the effect of the court's
partial reversal of the Board's decision in Tragniew27 and
Holiday Inn, it is perhaps in order to point out the
difficulties in the General Counsel's and Union's position
as to the evidentiary question . The rationale of the
substantive rule in Tragniew and numerous additional
cases reaching the same result is the necessity to prevent
"resurrection of legally defunct unfair labor practices in
the guise of evidence." N.L.R.B. v. District 30, U.M.W.
[Blue Diamond Coal Co.], 422 F.2d 115 (C.A. 6, 1969). The
exclusionary rule thus appears to apply only to evidence of
unfair labor practices time-barred under Section 10(b),
with "background" evidence of other types of fact freely
admissible.
In the present case, as set forth above , Respondent
sought to show that four employees had been made to join
the Union in June 1972 and five in December 1972. Under
the General Counsel 's view of the case, in June there was in
effect an unassailable contract containing a union-security
clause . Thus, presumably the Tragniew exclusionary rule
should not have been invoked as to evidence that the
employees joined under threat of discharge , even though
such threats were made before the Section 10 (b) limitations
period. Whether such evidence would in itself be decisive,
it can hardly be doubted that it would be relevant in
determining whether the affected employees constituted
part of an "uncoerced" majority. On the other hand,
although there may be some question as to this point, the
question goes to remedy rather than to the existence and identification of
the unfair labor practices as such.
27 While the Board has apparently never expressly adopted the Ninth
Circuit's evidentiary ruling which resulted in reversal of the Board's finding
of a Section 8(aX5) violation in Tragniew, the Board has that decision
without expressing any disagreement. Roosevelt Walker d/b/a B & W
Maintenance Service, 203 NLRB No. 101.
WEBER'S BAKERY
parties now apparently agree that the 1969-72 collective-
bargaining agreement expired on October 14, 1972.28 This
being so, in December 1972 there was in effect no
apparently valid union-security clause under which em-
ployees could be made to join the Union. Thus, requiring
the Archer Street employees to join the Union would be
violative of Sections 8(axl) and (2) and 8(b)(1)(A) of the
Act. Accordingly, evidence of the December events would
be inadmissible.
While such a result may technically be required under
Bryan Manufacturing 29 and its progeny, it seems unrealistic
to conclude that evidence of "coercion " in June 1972
would be admissible while evidence of virtually identical
"coercion" occurring 6 months later would be inadmissi-
ble. It appears particularly anomalous when viewed in
conjunction with the General Counsel's reliance on the
expired agreement to establish the presumption of majori-
ty.
In any event, whatever the viability and scope of the
Board's Tragniew evidentiary rule in certain situations, the
present case is substantively distinguishable from Trag-
niew. In Tragniew the Board specially recited (185 NLRB
at 964) that "the record affirmatively establishes that
within the duration of the three contracts the Union
actively represented the unit employees and effectively
policed the various provisions in the agreements." The
Board has since made it clear that the foregoing finding
was crucial . See Bender Ship Repair Company, 188 NLRB
615, 616 n. 10.
Where the parties' practice under ostensible collective-
bargaining agreements has been such as to negate the
existence of a genuine collective-bargaining relationship,
the agreements create no presumption of majority status.
Bender Ship Repair Company, supra; Ace-Doran Hauling &
Rigging Co., 171 NLRB 645,646:
The evidence relating to the practice under the
agreements further makes it clear that the parties did
not intend them to be effective collective-bargaining
contracts, but instead merely regarded them as arrange-
ments under which Respondent agreed to check off
dues, health and welfare, and pension payments for
union members only. The acquiescence of the Union in
Respondent's failure both to enforce the union-security
provisions 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-
bargaining relationships.
The facts in the present case are markedly similar to
those in Glenlynn, Inc., d/b/a McDonald's Drive-In Restau-
28 The termination provision of the contract read: "This agreement shall
be in effect October 14 , 1972, at which time it shall automatically renew
itself from year to year, provided, however, that either party may give to the
other party not less than sixty (60) days' notice in writing prior to the
expiration date hereof or of any renewal , of its intention to change or
terminate said Agreement ." The Union's notice of August 1, 1972, referred
to its "desire to reopen this Agreement for negotiations , pertaining to wages,
hours and working conditions ." At one point Weber asked Gesiakowski
whether the contract would remain in effect until a new one was signed and
Gesiakowski said he did not know . The matter apparently was never
mentioned again.
As I read the contract , in accordance with the parties' apparent
agreement , the Union's notice of a desire to "reopen," i.e, to change, it
11
rant, 204 NLRB No. 45, in which the Board adopted, in
pertinent part, a decision by Administrative Law Judge
Bisgyer dismissing a Section 8(a)(5) allegation on the
authority of Ace-Doran and Bender Ship Repair. The
similarity between McDonald's and the instant case clearly
appears from the following excerpt from McDonald's:
Apart from the ambiguity thus surrounding the
scope of the bargaining unit, the evidence leaves one
highly skeptical that a real collective-bargaining rela-
tionship emanated from the execution of the .. .
contract . . . 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, meals,
uniforms, job duties, and holidays, but that were
subjected to working conditions unilaterally imposed
by the Respondent without any protest from the
Union. Moreover, whatever grievances or complaints
the employees had they personally presented to, and
discussed 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 employees to join.
In sum, I find that the parties never entered into a
true collective-bargaining relationship out of which a
presumption of the Union's majority status may apse.
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 benefit of lower costs." 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... .
It is true that in Ace-Doran, Bender Ship Repair, and
McDonald's there were also insufficiencies in the bargain-
ing-unit definitions. However, the opinion in each of the
three cases clearly indicates that the same result would
prevented automatic renewal of any part thereof Weber's granting the
retroactive increase and making payments into the pension fund were
insufficient to prevent termination of the contract. Proctor & Gamble Ind
Union v. Proctor & Gamble Mfg. Co, 312 F.2d 181 (C.A. 2), cert. denied, 374
U.S. 830.
In argument at the hearing union counsel suggested that Respondent
should be equitably estopped to deny the existence of an agreement by his
having made pension and health and welfare fund payments, which, under
Section 302(c)(5)(B) of the Act, would have been illegal without an existing
collective-bargaining agreement . However, in his brief union counsel
withdraws this contention.
2s Local Lodge No 1424, IA M., AFL-CIO [Bryan Mfg Co.] v.
N L.R.B., 362 U.S.'411 (1960).
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been reached solely on the basis of the parties'
practice under the purported agreements , without any
question as to the appropriate bargaining unit . It is also
true that in McDonald 's it was found that the employer
properly declined to bargain on the basis of an objectively
grounded doubt as to the union 's majority , a finding which
is not possible in the present case . But in McDonald's the
good-faith doubt finding was purely an alternative second-
ary ground for decision . As an alternative ground , the lack
of a genuine bargaining relationship cannot be disregard-
ed. Woods v . Interstate Realty Co., 337 U.S. 535, 537.
The evidence in the present case leaves no doubt that
until around the beginning of July 1972, a month before
the Union sent its notice to desire to reopen , there was, at
most , token compliance with the contract . Trust fund
payments were made only for the two or three full-time
employees . The part-time employees apparently did not
receive the contract wage rates . Nor were union cards
displayed in the store as required by the contract. The
Union did not "service" the employees in any manner.
Indeed , the part-time employees , who constituted around
75 percent to 85 percent of the unit , apparently did not
even know they were "represented" by a union or covered
by a collective-bargaining agreement.
According , on all the evidence, I find that the past
purported collective -bargaining agreements between Res-
pondent and the Union were sham and did not give rise to
any presumption of majority status on the part of the
Union.
(2) Evidentiary basis
The absence of a presumption of majority does not
necessarily end the matter. The 8( a)(5) allegation in
McDonald's was dismissed only because the record was
"devoid of independent evidence of the Union's majority
status ." (204 NLRB No. 45.)
Since the General Counsel and Charging Party made no
attempt to establish the Union's majority by evidence, and,
indeed, objected to the receipt of proffered evidence
directed to that issue, it may be argued that rejection of the
presumption of majority ends the matter so far as the
refusal-to-bargain allegations are concerned. However, in
his brief the General Counsel relied on the evidence of
actual majority contained in the record.
Although the relevant evidence was introduced by
Respondent, it is available to the General Counsel so as to
meet his burden of proof of majority. This conclusion is
supported by numerous decisions holding that, under the
Federal Rules of Civil Procedure, by presenting evidence a
defendant waives his motions for dismissal or for directed
verdict based on the plaintiff's failure to prove his case.
The final verdict or decision is thereafter made on the basis
of all the evidence, including the defendant's. Cf. United
States v. Doyle, 468 F.2d 633, 635-636 (C.A. 10); A & N
Club v. Great American Insurance Co., 404 F.2d 100, 103
(C.A. 6); Baymon Thom McAn, Inc. v. Miranda, 409 F.2d
968, 971 (C.A. 1); United States v. Mountain State
Fabricating Co., 282 F.2d 263, 265 (C.A. 4). In Dindo v.
Grand Union Company, 331 F.2d 138 (C.A. 2), the plaintiff
in a negligence action relied on the doctrine of res ipsa
loquitur and therefore produced no evidence as to how the
accident happened. However, a witness for the defendant
testified as to precisely what had occurred. Judgment for
the plaintiff was sustained on the basis of the defendant's
evidence, even though the court held that res ipsa loquitur,
which is essentially a presumption, was inapplicable.
Thus, the question in the present case becomes whether
the evidence in the record as a whole establishes the
Union's majority status. Normally, that question would
have to be determined on the basis of only such evidence
as was properly admitted. Improperly admitted evidence
cannot be used as the basis of findings against a party who
duly objected to the evidence. Warner v. Kewanee Machin-
ery & Conveyor Co., 411 F.2d 1063, 1065 (C.A. 6). But here
Respondent did not object to the evidence. On the
contrary, the bulk of the evidence relevant to the Union's
actual status was introduced by Respondent himself, over
objection by the General Counsel and the Union. It may
be added that, while a showing of actual majority is not the
theory on which the General Counsel presented his case, it
is intimately related to Respondent's tendered defense,
which was, in effect, a claim of actual lack of majority.
Accordingly, without reconsideration of the admissibility
of the evidence involved, we now turn to the question
whether the record establishes the Union's majority status
at the relevant time.
The evidence establishes that as of December 8, 1972, 11
or 12 employees had joined the Union. Since, according to
Respondent's employee lists , the bargaining unit never
exceeded 19 on or after December 1972, it is clear, at least
prima facie, that the Union had a majority. Even if it be
assumed that Respondent was properly permitted to show
that the employees did not originally join the Union
"voluntarily," but rather were "coerced" by the Union
and/or Respondent under a purported union-security
provision,30 it does not necessarily follow that the Union
did not represent an uncoerced majority during period of
alleged unfair labor practices.
All of the seven union members who testified at the
hearing revealed that they continued to pay their union
dues at least through May 1973. So far as the evidence
discloses, they expressed no complaints until sometime in
May. And then their major, if not sole, complaint
concerned the Union's failure to obtain a contract. The
undisputed evidence thus requires the inference that a
majority of the employees wanted a union contract. The
first defections from the Union came only after Respon-
dent made clear his reluctance to sign a contract and
suggested an election. By this time he had taken various
actions clearly designed to undermine the Union. Perhaps
the most revealing was the wage increase of 5 cents per
hour in lieu of pension fund payments.
In view of Respondent's conduct, it is perhaps remarka-
30 Although employees, such as Smith and Holzrichter, who refused to testified that they affirmatively objected to joining when they did.
join the Union were not discharged, it is here assumed, though not decided, Employees Seliga and Gramont testified, in effect, that they affirmatively
that union memberships solicited under threat of discharge pursuant to a expressed satisfaction with joining . Employee preference for union
union-secunty clause would not tend to establish the union 's "uncoerced" representation is not inherently inconsistent with the existence of a union-
majority. However, it may be noted that none of the present employees security clause.
WEBER'S BAKERY 13
ble that only three employees withdrew from the Union
and stopped paying their dues . The employees had no
uliioh"cdht>^8ct'gnd'Ites 'ondent had granted even more in
the way of wage increases than the new contract called for.
Since Weber professed that he was attempting to obtain a
contract, at least impliedly placing on the Union all blame
for his lack of success, it is understandable that the
employees might feel , as they came to, that they were not
getting their money's worth from the union dues they were
paying. To be sure, the Union apparently made no special
effort to keep these employees adequately informed or
reassured and the employees made no inquiries of the
Union. But Weber was manifestly something of a father
figure to the employees. It was apparently customary for
the employees to seek his advice and counsel and to trust
him implicity.
It is most significant that, except for the three employees
who withdrew from the Union early in June, the employee
members continued their memberships , even after Respon-
dent told at least one employee that "he wasn't in the
union any more" and filed his representation petition.
Indeed , Respondent's evidence shows that one new
employee joined the Union after the petition was filed.
Even the three withdrawals and discontinuance of union
dues payments would not necessarily establish the Union's
loss of majority support. The employees involved apparent-
ly were simply unwilling to continue paying union dues
when they did not have the protection of a union contract.
There is nothing to show that the three resigning members
wanted the Union to stop attempting to negotiate an
agreement with Weber.31 Cf. Harpeth Steel, Inc., 208
NLRB No. 86.
In short, on the evidence as a whole, including that
introduced by Respondent, I find that in March 1973 and
thereafter the Union represented a majority of the
employees 32 Further because of his course of conduct,
Respondent may not rely on any apparent loss of majority
thereafter as justification for refusing to bargain with the
Union.
c. Refusal to bargain
Having found that the Union represented a majority of
the employees in the appropriate bargaining unit, we now
turn to a consideration of the specific conduct by
Respondent which is alleged to have derogated from his
bargaining obligation.
(1) Bad-faith and dilatory bargaining
The complaint alleges that since January 3, 1973, which
was 6 months before the present charge was filed,
Respondent "engaged in dilatory tactics" and acted in bad
faith "by agreeing to certain terms and conditions of
employment . . . and then withdrawing from such agree-
ment, by arranging appointments for meeting with union
representatives . . . and then cancelling these meetings,
31 Respondent introduced into evidence employee Jesionowski 's letter of
resignation dated June 8 , 1974. It reads: "... after thinking about how
senseless my membership is, and of how poorly I am represented in your
union, 'I wish to resign . I am not going to pay my dues for July or any
months thereafter." Jesionowski did not testify.
32 On the figures viewed most favorably to Respondent , a clear majority
and by bargaining . . . with no intention of reaching an
agreement."
At the outset note is taken of Respondent's apparent
contention that he could not have been guilty of bad-faith
or dilatory bargaining because neither Gesiakowski nor
Luesman had any authority to "negotiate" contracts.
While it is true that neither union representative had any
power to commit the Union to contract terms differing
from those of the master agreement, there is no doubt that
they were duly authorized to represent the Union in
preliminary explorations and to make recommendations to
the union official with final authority. They offered to and
then did arrange for Weber to meet with that official. And
they later were authorized, on behalf of the Union, to offer
contract terms differing from the master agreement.
Clearly Weber's contract discussions with Gesiakowski
and Luesman were part of the negotiating process and
constituted "bargaining."
The Union's August 1, 1972, notice of its desire to
modify the current contract amounted to a bargaining
demand. Such demand was a continuing one. However,
although Gesiakowski and Weber occasionally spoke
about a renewal of Respondent's contract, it cannot be
said that the Union pressed its bargaining demand on
Weber until March 19, when Gesiakowski presented
printed copies of the master agreement which he asked
Weber to sign. At that point Gesiakowski agreed to
Weber's reasonable request for an opportunity to study the
contract. It was by Gesiakowski's choice, or at least with
his acquiescence, that there was no further contact until
April 10, 1973. Weber said there were provisions in the
master contract that he could not live with. While Weber's
statement undoubtedly alerted Gesiakowski that there
might be some previously unexpected problems in obtain-
ing an agreement, it cannot be said that Weber's position
at that time was indicative of a determination to "stall" or
of bad faith. Gesiakowski apparently did not think Weber
was being dilatory or unreasonable since Gesiakowski
volunteered to discuss the problems with his superiors. The
fact that in the meantime Weber had probably discussed
the contract with some of the employees does not in itself
establish bad faith. So far as appears, Weber's conversa-
tions with employees before April 10 were totally noncoer-
cive. It is not violative of the Act for an employer
noncoercively to seek the views of his employees as
assistance and guidance to him in negotiating a contract
with their union. F.W. Woolworth Co., 109 NLRB 196, 198;
Hoffman Beverage Co., 163 NLRB 981, 982.
On April 19, 1973, when Gesiakowski returned to the
store, accompanied by Luseman, a change in Weber's
attitude was evident. At this point-around 3 months after
he was advised of the provisions in the master agreement, a
month after he had actually received copies, and over a
week after he had specified his objections-he pleaded that
he had not had time to study the agreement. Meanwhile
the tone of his discussions with employees appears to have
of the unit employees were members of the Union in each month January
through May 1973. The record does not contain employee lists for June and
July. In August and September , after the 3 withdrawals from the Union,
there were 9 union members in units of 18 and 19 , respectively . However, in
both instances the unit figures include Smith (who was designated a
"manager") and apparently two part-time irregular employees
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken a new direction. Instead of merely asking their views
as to the contract, he had begun to persuade them, even if
by a "soft sell," that the master contract was not in their
interests , was not suited to his type of business, and was so
onerous that he could not and would not sign it.
On May 2 Weber specified four substantive objections to
the contract and apparently readily accepted the business
representatives' offer to arrange a meeting with Wishnick,
the union official with authority to negotiate final
agreements . Weber's acceptance of this invitation, howev-
er, proved evanescent. He cancelled the scheduled meeting
and on May 22 declined to schedule a later one, all on the
plea that he was too busy. Whether or not Weber really
was unusually busy, it was his legal obligation to bargain
either in person or through an authorized agent. The
pressure of other demands on his time could not excuse his
failure to bargain. A. W. Cullum & Co., 182 NLRB 16, 24,
and cases there cited.
It does not appear when Weber first consulted counsel.
However, on June 7, 1973, when he refused to accept or
look at the contract "addendum" which the union
representatives tendered, Weber indicated that he was
consulting "someone who understood these things."
Neither the 1969-72 nor the current master contract
specifies the time for making pension fund payments.
However, since such payments are based on actual hours
worked and are to be paid monthly, it is reasonable to
assume that the payment for April was made early in
May.33 By the middle of May, when he held the employee
meetings and granted the 5-cent-per-hour wage increase in
lieu of pension, he had obviously decided not to bargain
further. Yet he did not reveal that to the Union until
sometime in June. Accordingly, on all the evidence I find
that from on or about May 15, 1973, Respondent engaged
in dilatory tactics and bad-faith bargaining.
The evidence does not, however, sustain the specific
allegation that Respondent withdrew from any substantive
agreements reached. So far as appears, no agreement was
reached on any specific items , although the area of active
disagreement, as originally defined by Weber, was limited.
I do not deem Weber's granting of retroactive wage
increases in February 1973 or his making payments into
the trust fund (or funds) as constituting agreement to the
relevant provisions of the master contract, particularly
since the coverage of the wage rates and the pension fund
were under active consideration and the Union later
offered concessions on these points.
Although the foregoing finding of bad faith and dilatory
bargaining renders unnecessary disposition of the remain-
ing specific 8(a)(5) allegations (A. W. Cullum & Co., supra,
182 NLRB at 24), they will be briefly discussed.
(2) Unilateral wage increases
The complaint alleges that Respondent unlawfully
granted a unilateral wage increase on February 8, 1973.
The reference is to the retroactive wage increase given in
apparent conformity with the newly executed master
contract. Weber did not discuss this increase with the
Union. But there is no reason why he should have
bargained. Weber and the Union were then acting in
accordance with what they mutually believed was an on-
going bargaining relationship. The Union had notified the
independent bakers of the increase provided in the
"Industry" contract and Weber adopted it. The Union did
not object to the grant of that increase, after Gesiakowski
went out of his way to ascertain from the employees that it
had been granted. On all the evidence, therefore, it is found
that the General Counsel had not established an unlawful
unilateral wage increase in February 1973.
The undisputed evidence, however, clearly establishes an
unlawful unilateral increase of 5 cents per hour in May.
Reference here is made to the wage increase given in lieu of
payments to the pension fund. This conduct blatantly
derogated from the Union's status and violated Respon-
dent's obligation to bargain. Although this increase was
not specifically alleged in the complaint, it was fully
litigated and fell within the general scope of the refusal-to-
bargain allegations of the complaint. Omark-CCI, Inc., 208
NLRB No. 52.
(3) Bypassing the Union
The complaint further alleges that in April and May
Respondent "bypassed the Union and bargained directly
and individually with its employees." I find that this
allegation is supported by the evidence of Weber's
discussions with the employees in May 1973, particularly
those concerning the pension fund payments and the wage
increase in lieu thereof and his volunteered offer to seek an
election.
(4) Withdrawal of recognition
The complaint alleges that on June 15, 1973, Respondent
filed a representation petition "and thereafter refused to
meet or bargain with the Union without having objective
considerations to support [his] contention that the Union
had lost its majority." It has been found that Respondent
was precluded from defensively alleging any doubt of the
Union's majority status and that the "objective-considera-
tions" principle is inapplicable to the question of the
Union's actual status. However, I have also found that the
Union did represent a majority at the time in question.
Accordingly, I find that, by filing its representation
petition and thereafter refusing to bargain with the Union,
Respondent committed unfair labor practices within the
purview of Section 8(a)(5).34
2. Section 8(a)(1)
In a separate section, the complaint alleges several acts
by Respondent as independently violative of Section
8(a)(1) of the Act. Although much of the alleged miscon-
duct has already been fully considered in the light of
33 The contracts call for health and welfare fund payments, which are a to the remedy to be adopted for violations of Section 8(a)(l) rather than to
flat monthly amount per regular employee , on the 10th of each month . the question whether Section 8(aX5) had been violated . In any event, any
34 The complaint adds the conclusory allegation that the alleged further specific findings in this respect would be superfluous at this point in
violations of Section 8(a)(1), discussed below, "were designed to undermine view of the finding of ma jority.
the Union and destroy its majority status." This allegation appears pertinent
WEBER'S BAKERY
Section 8(a)(5), the specific allegations will here be briefly
considered under Section 8(a)(1).
(a) The complaint alleges that the February 1973 wage
increases were "designed to undermine [the employees']
support for the Union."
The retroactive increases granted in February were, in
effect, compliance with the anticipated collective-bargain-
ing agreement . Although the record indicates that Respon-
dent had not previously adhered completely to the
contractual wage rates,35 the February increases in general
conformed to those provided in the new master agreement.
Employees were informed that the increases were the result
of the new contract. Gesiakowski checked to see that they
were granted . Thus it cannot be found that the raises were
designed to undermine the Union. Accordingly, it is found
that the February 1973 wage increases were not violative of
Section 8(a)(1).
The May increase of 5 cents per hour in lieu of pension
payments, however, is a different matter. That increase was
clearly in direct derogation of the Union's status and could
have no anticipated effect other than to lure employees
away from the Union. As such it would have been
independently violative of Section 8(a)(1) even if Respon-
dent had not been legally obligated to bargain with the
Union. Although, as noted above, this increase was not
specifically alleged in the complaint, it fell within the
general scope of the complaint and was fully litigated.
Accordingly, on all the evidence I find that Respondent
violated Section 8(a)(1) by granting an increase in May in
order to undermine the Union.
(b) The complaint alleges that in February 1973 Weber
"told an employee that he was not going to sign any
collective-bargaining agreement with the Union." There is
no credible evidence to support this allegation. The
evidence establishes that from February or March 1973
through at least part of May, Weber told the employees
that he would like to execute a contract tailored to his
small-scale operation. Until around the beginning of June
he said only that he would not sign the "Industry" contract
as it stood. Such statements did not violate Section 8(a)(1).
(c) and (d) The complaint next alleges that in May and
June 1973 Weber "interrogated employees concerning their
union membership and activities." The reference obviously
is primarily to the two employee meetings, the first at the
Archer Street store and the second at 63rd Street.
Again the allegations are not supported by the record.
There is no evidence that Weber questioned any employees
about "their union membership and activities." Indeed,
Weber had no need to engage in such questioning. He
knew which employees were union members, not only
through having been instrumental in their joining, but also
through his current payments to the pension fund. So far as
appears, none of the employees ever engaged in any union
activities and the work situation and the relationship
between Weber and the salesclerks was such that he
undoubtedly knew that fact.
Weber did, however, question the employees concerning
their opinion of the new "Industry" contract. There also
35 Although not entirely clear , the evidence strongly suggests that the
wage and other provisions of the contracts were applied only to union
members.
15
was some passing evidence that he asked them their views
as to the Union, but the nature of his questions was not
further specified. As stated above, if Weber was merely
seeking guidance in negotiating a contract mutually
advantageous to himself and the employees, his conduct
was permissible. There is no basis for concluding that the
questioning was done in a coercive manner. It was
conceded that when Weber suggested that an election be
held, he assured the employees that they were free to vote
as they wanted and that he would abide by the results of
the election.
While it may be that Weber improperly initiated or
aggravated antiunion feeling, the evidence does not
establish that he employed coercive interrogation as one of
his tools in the campaign. I reach the same conclusion with
respect to the alleged interrogation of an individual
employee (manifestly referring to employee Seliga) in the
first half of June 1973.
(e) The complaint next alleges that Weber "told an
employee not to send in her union dues, that he would
never sign a union contract because he was trying to get
the Union out." Employee Seliga's testimony, quoted
above, in substance supports this allegation. Although
there is no direct evidence that Weber instigated the three
employee withdrawals from the Union early in June, there
is no doubt that his statements to Seliga , as credibly quoted
by her, were designed to encourage defection from the
Union. Continued union membership would obviously be
futile if, as Weber said, "he wasn't any longer in the
Union." Accordingly, I find that around the beginning of
June 1973 Respondent interfered with his employees'
Section 7 rights by discouraging continued union member-
ship.
(f) Similarly, it is found that, as alleged in the complaint,
Weber interfered with his employees' Section 7 rights
when, around the middle of June; he told Seliga that he
had removed the union sign from the Archer Street store.
There is no requirement that the sign be kept posted in the
store, since , as previously found, the contract requiring
such posting had expired.36 However, the manner and
timing of Weber's informing Seliga of its removal were
clearly coercive and designed to induce Seliga to withdraw
from the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning
of the Act.
2. By granting a wage increase to discourage employee
adherence to and support of the Union, by bypassing the
Union to deal directly with employees, and by inducing
employees to stop paying dues to the Union, Respondent
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by Section 7 of the Act,
thereby engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and 2(6)
and (7) of the Act.
3. All full-time and regular part-time employees en-
36 The removal of the union sign from Respondent's premises is not
alleged as violative of the Act.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in selling or wrapping and packing goods at
Respondent 's retail stores, excluding supervisors and
guards, as defined in the Act , and all other employees,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 8(b) of the Act.
4. The Union was on January 3, 1973, and has been at
all times thereafter , the exclusive bargaining agent of
employees in the aforesaid unit , within the meaning of
Section 9(a) of the Act.
5. By failing to bargain in good faith with the Union on
and after May 15 , 1973; by granting his employees
unilateral wage increases and bypassing the Union to deal
directly with the employees sometime in May 1973; and by
withdrawing recognition from the Union and filing a
representation petition in June 1973 Respondent has failed
and refused to bargain , in contravention of Section 8(ax5)
and (1) of the Act.
6. The evidence does not establish that Respondent has
engaged in any unfair labor practices other than those
found in paragraphs 2 and 5 above.
THE REMEDY
It is uniform policy to issue a bargaining order against
any employer who has been guilty of a refusal to bargain in
good faith with the authorized collective-bargaining agent
of his employees . In such situations, a bargaining order is
normally the means by which the parties can be placed
most nearly in the position they would have been had there
been no unfair labor practices.
In the present case , however, it is virtually impossible to
restore statutory rights to the employees , for whose
protection Section 7 of the Act was designed. On the
present record , there can be little doubt that Respondent's
course of conduct since at least May 1973 had rendered a
fair, impartial , and informed election unattainable at this
time.
On the other hand , although it has been found that the
Union had a majority when Respondent refused to
bargain , it cannot be gainsaid that the Union never earned
employee support . Membership was initially foisted on the
employees and the Union thereafter did little or nothing to
keep the employees advised of efforts being made on their
behalf.
In the course of Respondent 's argument at the hearing, I
raised with counsel the question whether Respondent
should be equitably estopped from attempting to defend
against the present complaint by demonstrating , in effect,
that he had been guilty of longstanding violation of Section
8(a)(2). Only the Union has addressed itself to this
question , maintaining that "It would not be fair to penalize
employees simply because the employer might be caught in
some sort of `equitable estoppel .' " It ill behooves the
Union to protest "penalizing" the employees in view of its
history of highhanded disregard of the employees' rights.
Although the Board has on occasion applied the
principle of equitable estoppel,37 I should refrain from
doing so in the present case against Respondent because,
as I view the evidence , Respondent and the Union are in
pari materia. Were this case concerned with the mutual
rights and obligations of Respondent and the Union, I
should leave the parties precisely where they placed
themselves , i.e., with Respondent refusing to bargain with
the Union. However, the interest of the employees must be
decisive.
Although the employees were never in a position initially
to decide whether they wanted to be represented by the
Union, as heretofore found, a majority knowingly and
voluntarily continued their membership and evidenced
their desire for a union contract . Whatever dissatisfaction
was eventually expressed centered on the Union's failure to
obtain a contract , for which, on the present record,
Respondent must assume responsibility.38 The Union's
subsequent apparent loss of majority followed Respon-
dent's commission of serious unfair labor practices,
"particularly the grant of a general increase to all
employees." Royal Aluminum Foundry, Inc., 208 NLRB No.
8.
Without minimizing the Union's past derelictions vis-a-
vis Weber's employees , on balancing the various conflict-
ing considerations, I am of the opinion that the employees'
statutory rights will be most nearly vindicated by requiring
Weber to bargain with the Union even if the Union did
eventually lose its majority . Penn Pike & Supply Co., 208
NLRB No. 5. Accordingly, I shall recommend issuance of
a bargaining order.
In addition , because Respondent's entire course of
conduct reflects an attitude of exclusive self-interest, in
total disregard of the statutory rights of his employees, I
shall recommend a broad cease-and-desist order. And, of
course, I shall recommend the usual notice-posting
requirement.
In his brief the General Counsel requests "an order
requiring Respondent to pay all the sums of money it
should have paid since April 1973 to the Pension Fund
under the terms of the old contract." 39 At no time does the
General Counsel expressly contend or attempt to establish
that the "old contract" survived its stated expiration date.
If, as has been assumed herein, that contract expired in
October 1972, under H.K. Porter Co. v. N.LR.B., 397 U.S.
99, it would be impermissible for the Board to order
pension fund payments, which require a contractual basis.
It is also possible that such payments would violate Section
302(cX5XB) of the Act. As noted above, the health and
welfare fund trustees have pending an action against
Weber for an accounting. It is believed that a court rather
than the Board is the appropriate forum to adjudicate any
questions with respect to the pension fund , which present
essentially contract issues rather than unfair labor prac-
tices . Accordingly denial of the General Counsel's request
will be recommended.
Upon the basis of the foregoing findings of fact,
conclusions of law , and the entire record in this proceed-
37 E.g ., Brooks Biddle Chevrolet Co, 177 NLRB 495. It cannot be assumed that previous contracts with other employers were
38 Ralph Lorenzetti , the union director of organization , testified , without sham contracts like Weber's.
contradiction , that Weber was the only baker previously under contract 39 No similar request is made as to the health and welfare fund,
who had not signed the renewal contract by the time of the present hearing . concerning which the present record contains very little clear evidence.
WEBER'S BAKERY 17
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended.40
ORDER
Erich R. Weber and Bernadine T. Weber, co-partners,
d/b/a Weber's Bakery, their agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Granting their employees wage increases to induce
the employees to abstain from membership in Retail Food
and Drug Clerks Union, Local 1550, Retail Clerks
International Association, AFL-CIO, bypassing said
Union to deal directly with employees, or granting any
wage increases or other benefits unilaterally and without
consultation with the said Union.
(b) Persuading or advising employees not to retain
membership in or pay dues to the Union.
(c) Refusing to bargain with the Union as the exclusive
representative of the employees in the unit herein found to
be appropriate, with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to be members
of or to assist and support the aforenamed Union, to
bargain collectively through representatives of their own
choosing, and to engage in other mutual aid or protection
guaranteed in Section 7 of the Act, or to refrain from any
or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization;,as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Bargain in good faith with the aforenamed Union,
upon request, `with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment as the exclusive representative of the employees in
the unit herein found appropriate.
(b) Post at its retail stores at 3425 West 63rd Street and
7053 West Archer Avenue, both in Chicago, Illinois, copies
of the attached notice marked "Appendix." 41 Copies of
said notice , on forms provided by the Regional Director
for Region 13, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
40 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
Section 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.
41 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found that
we, Weber's Bakery, violated the National Labor Relations
Act, and ordered us to post this notice. We intend to carry
out the Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things
(except to the extent that such right may be
affected by an agreement in conformity with
Section 8(a)(3) of the National Labor Relations
Act, as amended).
WE WILL NOT grant or promise employees wage
increases or other benefits to induce them to forego
adherence to Retail Food and Drug Clerks Union,
Local 1550, Retail Clerks International Association,
AFL-CIO.
WE WILL NOT refuse to bargain collectively with the
said Union as the exclusive representative of our
employees in the appropriate bargaining unit described
as follows: All full-time and regular part-time employ-
ees engaged in selling or wrapping goods at our retail
stores, excluding supervisors and guards, as defined in
the Act, and all other employees.
WE WILL NOT make any change in the wage rates or
other terms and conditions of employment of any of
the employees specified above without notifying the
Union of what we want to do and giving the Union the
opportunity to bargain about it with us.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL, upon request, bargain in good faith, in a
sincere effort to reach a collective-bargaining agree-
ment, with the Union concerning the wages, rates of
pay, hours, and terms and conditions of the employees
specified above.
ERICH R. WEBER AND
BERNADINE T. WEBER
D/B/A WEBER'S BAKERY
(Employer)
Dated By
(Representative) (Title)
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by ing this notice or compliance with its provisions may be
anyone. directed to the Board's Office, Everett McKinley Dirksen
This notice must - remain posted for 60 consecutive days Building, Room 881, 219 South Dearborn Street, Chicago,
from the date of posting and must not be altered , defaced, Illinois 60604, Telephone 312-353-7572.
or covered by any other material . Any questions concern-