NLRB v. C & P Plaza Dept. Store, Div. of C & P Shop. Ctr., Inc.

• Decision Date: 14 August 1969
• Docket Number: No. 16907.,16907.
• Citation: 414 F.2d 1244
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, and Local 1401, Retail Clerks International Association, Intervenor, v. C & P PLAZA DEPARTMENT STORE, DIVISION OF C & P SHOPPING CENTER, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

414 F.2d 1244 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and Local 1401, Retail Clerks International Association, Intervenor, v. C & P PLAZA DEPARTMENT STORE, DIVISION OF C & P SHOPPING CENTER, INC., Respondent.

No. 16907.

United States Court of Appeals Seventh Circuit.

July 17, 1969.

Rehearing Denied August 14, 1969.

Marcel Mallet-Prevost, Asst. General Counsel, Harold B. Shore, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Lawrence M. Joseph, Atty., N. L. R. B., for petitioner.

John H. Bowers, Robert C. Kelly, Madison, Wis., John C. Carlson, Madison, Wis., for Local 1401, Retail Clerks International Association, Intervenor.

Joseph A. Melli, James K. Pease, Jr., Madison, Wis., for respondent.

Before CUMMINGS and KERNER, Circuit Judges, and HOFFMAN, District Judge.¹

KERNER, Circuit Judge.

Petitioners, National Labor Relations Board (Board) and Local 1401, Retail Clerks International Association (Union) seek enforcement of an order of the National Labor Relations Board. The Board found that respondent C & P Plaza Department Store (C & P Plaza) violated Section 8(a) (5) and (1) of the National Labor Relations Act by failing and refusing to bargain with the Union even though the Union represented a majority of the employees in an appropriate unit. The Board also found that C & P Plaza violated Section 8(a) (1) of the Act by conducting a poll to determine its employees' union sympathies and affiliations.

Between the years 1948 and 1960, C & P Plaza operated a combined food and department store. The Union won representation for the employees in 1948 with C & P Drive-In, a predecessor of C & P Plaza. In 1960, the department store operations were separated from the food store and established at a new location. The department store was named C & P Plaza Department Store. Following the separation, the Union was recognized as the collective bargaining representative at each store. The first department store contract was negotiated for the April-June, 1960, period. An industry-wide work stoppage intervened and the second contract of March, 1961, was retroactive, running from January 1, 1961, through December 31, 1962. A third contract dated May 17, 1963, was entered into for the period January 1, 1963, through December 31, 1964. The 1963-64 agreement contained a union security clause without check-off as in the 1961-62 contract and also provided for automatic annual renewal after December 31, 1964, unless either party served notice of a desire to modify the agreement 60 days prior to the expiration date.

Peter Voeller, the Union's Secretary-Treasurer, on October 26, 1964, informed C & P Plaza of the Union's desire to modify the 1963-64 agreement. As was their practice, no negotiation commenced until January 14, 1965, when a meeting took place between Voeller and General Manager Russell Weber and other company officials. Weber stated no contract was in existence since the contract expired December 31, 1964. Voeller and C & P Plaza President Carl Payne agreed to extend the contract to July 1, 1965, and negotiate a new contract at that time because of the probability of converting to a self-service store. Payne assured Voeller he had no intention of "throwing out" the Union. Twenty-two members of the Union attended a union meeting that evening and agreed to the extension of the contract for the six-month period and paid their union dues.

The Union records indicate that on January 1, 1965, thirty-nine of the forty-seven employees were union members. Six left the employment before July 1. Twenty-eight of the remaining thirty-three members paid union dues through the end of June. A new employee, beginning in March, paid his dues through September.

On April 27, 1965, Weber sent Voeller the following letter:

Dear Mr. Voeller:

By verbal agreement we extended the above contract to 1st of July 1965.

We write this letter to notify you of our desire to terminate that agreement on July 1, 1965.

Voeller, who was out of town on union business, did not respond to the letter until early July, at which time a meeting was arranged at Weber's office for July 8. The conference terminated with Weber stating that there was no contract, that there would be no negotiation for a new contract and that he believed that the Union did not represent a majority of the employees.

Voeller called a union meeting which was attended by twenty employees, and Authorization of Representation cards were completed by thirteen of those present. By personal solicitation, an additional seventeen employees signed authorization cards, totalling thirty of the forty-six employees. Weber refused to accept the cards as evidence of majority representation, though he accepted the suggestion that bargaining sessions be held.

On July 27, the day following the Voeller-Weber meeting, management posted a notice for an employee meeting to be held on July 30. Management was represented by President Payne, General Manager Weber, and managers Witcomb and Hannon; twenty-seven employees attended. Weber stated that C & P Plaza felt that the Union no longer represented the employees, making no comment concerning the thirty authorization cards, and after stating that no one had to vote, asked the employees present how many wished to have the Union represent them. Only two or three responded.

Union proposals were submitted to the company on July 26 followed by bargaining sessions held on July 30, August 10 and 20. At each session, Weber stated any agreement would be dependent upon the results of an election. On August 6, the company filed an election petition with the Board, which was dismissed by the Regional Director.

An unfair labor practice charge was filed against C & P Plaza by the Union on August 13, 1965, and the Regional Director issued a complaint on November 11, 1965. The trial examiner held that the company refused to bargain under Section 8(a) (1) and (5) and that the polling violated Section 8(a) (1). The Board affirmed and now seeks enforcement of its order.

REFUSING TO BARGAIN

Respondent, C & P Plaza, contends that it did not violate Section 8(a) (1) and (5) of the Act because its refusal to bargain was based upon a good faith doubt that the Union continued to have a majority status. Joy Silk Mills, Inc. v. N.L.R.B., 85 N.L.R.B. 1263 (1949), enforced 87 U.S.App.D.C. 360, 185 F.2d 732 (1950). The Board, however, found that C & P Plaza lacked good faith and we conclude that the Board's finding is supported by substantial evidence.

Under this Court's decision in N.L.R.B. v. John S. Swift Co., Inc., 302 F.2d 342 (7th Cir. 1962), the conclusion as to the lack of majority representation must "have a rational basis in fact." 302 F. 2d at 346. The evidence here does not support such a conclusion. While twelve employees may have told Weber or other management officials that they were unhappy with the Union, four of the twelve were new and were unfamiliar with the Union's activities. Of the remaining eight, at least one claimed that he never spoke to management officials as to his union sympathies. Further, any good faith doubts that still persisted should have been resolved in favor of the Union after the presentation of thirty authorization cards.

Evidence of bad faith was the company's attempt to terminate the contract after 16 years rather than negotiate a new one. It had been the practice of respondent and the Union not to commence negotiations until after the expiration of the existing contract. The Union through Voeller had no reason to believe there would be any change in this practice when he served notice of modifying the 1963-64 agreement on October 26, 1964. At the January 14, 1965, meeting to negotiate a new contract, Voeller was informed by Weber that the contract had expired on December 31, 1964, and respondent had no obligation to negotiate. Weber complained that the Union had not organized the employees at competitive establishments. President Payne told Voeller that the company had suffered losses and he was considering a changeover to self-service that would take about six months to effect. It was agreed that the 1964 contract be extended for six months, and negotiation of the 1965 contract would take place after July 1, 1965. The Union relied on these oral promises that the contract would be honored and that a new one would be negotiated after the six-month period. However, on July 8, 1965, Weber told Voeller that the company had no intention of entering into a new contract.

Another incident evidencing bad faith was the failure of the company to attack the Union's representation of a majority of the employees until the contract had ended. The majority status was not questioned in 1964 or in the January meeting of 1965. Rather, the majority representation was first challenged in a conversation between Weber and Voeller at the July 8 meeting. Following this comment, Voeller sought and received the thirty authorization cards, representing a majority of the employees. A few of the thirty did testify they had regretted signing the cards. However, no one of them by any action with the Union sought to...