N.L.R.B. v. Homemaker Shops, Inc., 82-1646

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation724 F.2d 535
Docket NumberNo. 82-1646,82-1646
Parties115 L.R.R.M. (BNA) 2321, 99 Lab.Cas. P 10,709 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOMEMAKER SHOPS, INC., Respondent.
Decision Date06 January 1984

Page 535

724 F.2d 535
115 L.R.R.M. (BNA) 2321, 99 Lab.Cas. P 10,709
No. 82-1646.
United States Court of Appeals,
Sixth Circuit.
Argued Oct. 13, 1983.
Decided Jan. 6, 1984.

Page 537

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Abby Simms (argued), Detroit, Mich., for petitioner.

Lawrence J. Breskin (argued), Breskin & Gunsberg, Detroit, Mich., for respondent.

Before KENNEDY and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

Page 538

WEICK, Senior Circuit Judge.

The National Labor Relations Board has applied to this Court for enforcement of its order finding that Respondent, Homemaker Shops, Inc. (Company), violated Section 8(a)(1) of the Act (29 U.S.C. Sec. 158(a)(1)) by interrogating its employees about their union activities and by creating the impression among employees that their union activities were under surveillance. The Board further found that the Company violated Section 8(a)(2) and (1) of the Act (29 U.S.C. Sec. 158(a)(2) and (1)) by dominating, assisting, supporting and interfering with the operation and administration of the Homemaker Shops Representative Committee (Committee), a labor organization.

The Board ordered the Company to cease and desist from the unfair labor practices found, and from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights in any labor-related manner. Affirmatively, the order required the Company to withdraw all recognition from the Committee as the representative of its employees in the bargaining unit, to disestablish the Committee as representative, and to post an appropriate remedial notice. 261 N.L.R.B. 441 (1982).

We deny enforcement of the affirmative order and enforce only one of the unfair labor practice orders, for the reasons hereinafter set forth.

This cause arose from an unfair labor practice charge filed by the Retail Store Employees Union, Local 876, United Food and Commercial Workers International Union, AFL-CIO-CLC, with the Board, on November 26, 1979. A complaint was issued by the General Counsel for the Board on January 31, 1980, and subsequently amended on August 12, 1980, and the matter was heard by a Board Administrative Law Judge (ALJ) on September 2, 1980. The ALJ dismissed the complaint but the Board, while essentially adopting the ALJ's factual findings, reached different legal conclusions.


The Company operates a chain of 32 retail stores selling linens and related household goods in Michigan, Ohio, Kentucky, Indiana and Pennsylvania. Its principal office and corporate headquarters are located in Lathrup Village, Michigan.

On October 22, 1976, following a Board-supervised election, the National Labor Relations Board certified the Committee as the bargaining representative for the Company's non-managerial employees in a bargaining unit consisting of 16 stores in Michigan. 1 No evidence was presented in this case regarding the origins of the Committee; but three employee representatives sought recognition of the Committee as the bargaining representative for the Group I stores, and the Company then conditioned such recognition on a majority vote of the Group I employees in a Board-supervised election, and subsequent Board certification of the Committee. (Joint Exhibit 7a).

The Committee consists of one employee representative from each of the Company's 32 stores, elected each May for a one-year term by secret ballot of the non-managerial employees in the store. The employee, in each store, who receives the second-highest number of votes is thereby chosen to serve as alternate representative. The foregoing details of Committee structure and electoral procedure have been contained in the collective bargaining agreements negotiated by the Committee with the Company. (Joint Exhibits 2, 3, and 4).

According to the Company's policy (Joint Exhibit 9), the balloting for store representatives is to be conducted by the current representative, or the alternate, or the most-senior employee present, but the practice has been for the Company to supply the ballots, for the store manager to announce the time of such elections and their results,

Page 539

for the ballot box to be placed at or near the manager's desk, and for the manager or assistant manager to take part in tallying the results. No evidence was presented to show interference by management in the employees' choice of representatives to the Committee, though management officials reportedly vetoed, on two occasions, suggested changes in the term of office and electoral system for Committee members. 2

The Committee is an unincorporated entity, and has, apart from the collective bargaining agreement, no constitution, bylaws, or other governing instrument. No dues are charged by the Committee, and it maintains no permanent administrative structure (e.g., officers, secretarial staff) between meetings. The Committee meets annually in the fall, and occasionally has had special meetings. 3 All meetings are scheduled by the Company, with notices sent out to the store representatives by the Company's president, but the representatives are often polled in advance as to suitable dates for such meetings.

Committee meetings usually take place in two stages: (1) a private meeting among the store representatives; and (2) a meeting, held later the same day or on the following day, between the Committee and top management officials (the Company's president, vice-president, and general counsel). At the earlier meeting, held in a room at the Company's main office where chairs and coffee are provided by the Company, the store representatives, meeting alone, compile grievances, demands, and other proposals for presentation to management, and elect a negotiating committee of three to five Committee members 4 to act as spokespersons at the later meeting with management. In the subsequent meeting, the participants discuss the Committee's presentation of grievances, demands, and proposals, and also new store merchandise and sales policies. The store representatives are compensated by the Company for travel expenses, and for any lost work time, incurred as a result of attending these meetings between the Committee and management. Although no meetings of the store representatives have been held, other than those scheduled by the Company in conjunction with meetings between the Committee and management officials, the collective bargaining agreements have recognized the possibility of additional meetings, providing that the Committee negotiators could have "time off, without pay, for purposes of attending union meetings not more frequently than once each six months." (Appendix at 192).

At the time the Board's order was issued in this case, the Committee and management had negotiated and signed two collective bargaining agreements, covering the periods of January 2, 1977, through January 2, 1980, and January 2, 1980, through January 2, 1983, respectively. The negotiations for the latter agreement took place within the six-month period prior to the filing of the unfair labor practice charge, and are thus within the scope of this proceeding. 29 U.S.C. Sec. 160(b) (1976).

There is little evidence that the Committee negotiators engaged in "hard" bargaining with management. The 1979 negotiations were later described by the Group I negotiator as follows: "Basically, we just asked for what we wanted, if it was possible. It was discussed, and if not, it was

Page 540

usually no, and the reason why we couldn't have it." (Transcript at 26). However, the Committee was largely successful in obtaining management agreement to its proposals, at least in a compromise form, and both contracts mentioned in the record of this case were subsequently ratified by the employees. The 1980-83 contract included a ten-percent wage increase, an increase in employee life insurance from $2,000 to $5,000 over three years, an automatic cost-of-living increase provision, a dental insurance plan, bonuses for cashiers, and such benefits as funeral leave, increased weekends off for full-time employees, and random days off for perfect employee attendance. Most, if not all of these items, were included in response to Committee proposals. Those requests which were rejected by Company negotiators were characterized by the Group I Committee negotiator as "[l]ittle things, birthdays off." (Transcript at 37).

Another provision of these collective bargaining agreements is a four-step grievance procedure in which the employee's store representative or the Committee's negotiators are involved in all stages but the employee's initial complaint to the store manager. Although the store representatives who testified before the ALJ in this case had few recollections of grievance handling, one former representative testified, and another agreed, that there were few problems in the stores necessitating the filing of grievances. (Transcript at 39, 68-69). The latter representative could also recall no instance when management refused to listen to a grievance or problem presented by her. (Transcript at 68). Under the contracts, the store representatives are guaranteed compensation for work-time lost during grievance handling. (Appendix at 25).


The events giving rise to these proceedings began with a challenge to the Committee's representative status by Local 876 of the Retail Store Employees Union. That other union filed a petition with the Board on November 2, 1979, seeking a representation election at nine Detroit-area stores within the 16-store bargaining unit. Later in the same month, that union filed a charge with the Board, alleging that the Company had dominated and interfered with the Committee, and had provided it with financial and other support.

On November 30, 1979, a special meeting of the Group I store representatives was called, at which the Company's president,...

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