City Supply Corp.

National Labor Relations Board - Board Decisions

May 13, 1975

217 N.L.R.B. 950 (N.L.R.B. 1975)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City Supply Corporation and Teamsters , Chauffeurs,
Warehousemen and Helpers , Local Union No. 828,
affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America . Case 18-CA-4138
May 13, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On August 30, 1974, Administrative Law Judge
Thomas F. Maher issued the attached Decision in this
proceeding. Thereafter, Respondent Employer filed ex-
ceptions and a supporting brief, the General Counsel
filed cross-exceptions and a supporting brief, and the
Union filed a brief in support of the Decision and in
opposition to the Employer's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings' and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order:
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, City Supply Corporation, Mason City,
Iowa, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended Or-
der.
I In his Decision the Administrative Law Judge made certain inadvertent
errors In the second paragraph of sec III, A, he confuses the time of a
meeting with the filing dates of both the charge in this case and an earlier
charge, since dismissed In the fourth paragraph of the same section, the two
charges are again confused In the first paragraph of sec. III, B, the date of
employee Ewer's death is misstated as January 26 Instead of January 24
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Administrative Law Judge: Upon a
charge filed on March 5, 1974, against City Supply Corpora-
tion, Respondent herein, by Teamsters, Chauffeurs, Ware-
housemen and Helpers Local Union No. 828, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union,
the Regional Director for Region 18 of the National Labor
Relations Board, herein called the Board, issued a complaint
against Respondent on behalf of the General Counsel of the
Board on April 12, 1974, alleging violations of Section 8(a)(1)
and (5) of the National Labor Relations Act (29 U.S.C., Sec.
151, et seq.) as amended, herein called the Act. In its duly
filed answer Respondent, while admitting certain allegations
of the complaint, denied the commission of any unfair labor
practice.
Pursuant to notice a hearing was held before meat Mason
City, Iowa, at which all parties were present, represented, and
afforded full opportunity to call, examine, and cross-examine
witnesses, present oral argument, and file briefs. Briefs were
filed by the General Counsel and Respondent on July 1, 1974.
Upon consideration of all the foregoing, and upon the entire
record in this case, substantial portions of which were stipu-
lated by the parties, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE NATURE OF RESPONDENT' S BUSINESS
City Supply Corporation is an Iowa corporation maintain-
ing its principal office in Des Moines, Iowa. It maintains a
facility at Mason City, Iowa, where it is engaged in the whole-
sale sale of plumbing supplies and appliances. During the past
calendar year, a representative period, it purchased and re-
ceived at its Iowa facilities goods and services from sources
directly outside the State of Iowa valued in excess of $50,000.
Upon the foregoing stipulated facts, I conclude and find,
and it is admitted, that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
It is admitted by all parties and I accordingly conclude and
find that Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 828, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Sequence of Events
On or about October 2, 1972, Respondent purchased the
assets of L. H. Kurtz Co. of Mason City and since that time
has engaged in the same business operations as Kurtz, at the
same location with the same or similar customers and the
same work force.
Beginning in October 1958, and until its acquisition by
Respondent, Kurtz recognized the Union as employee repre-
sentative of a majority of its employees and maintained a
collective-bargaining relationship in a bargaining unit that is
not in dispute. The unit stipulated by the parties to be appro-
priate for bargaining purposes, and which I conclude and find
to be such, is the following:
All warehouse employees , truckdrivers and city desk
clerks at the employer's Mason City, Iowa, facility, but
217 NLRB No. 156
CITY SUPPLY CORPORATION
excluding professional employees , guards and supervi-
sors as defined in the Act.
Upon the acquisition of Kurtz by Respondent in October
1972, and since that time, there were a total of three em-
ployees in this unit, for whom Respondent continued to check
off dlues pursuant to the agreement . In this respect it had
initially been contended by the Union, in a charge filed
against Respondent with the Board , that Respondent, as
successor to Kurtz, was obligated to assume the existing
contract. On authority of N.L.R.B. v. Burns International
Security Services, Inc., 406 U.S. 272 (1972), the charge was
dismissed . There is no contention , however, that Respondent
was not obligated to continue recognition of Respondent's
employees , it being the successor in the same employing
industry.' Indeed, shortly following the charge in the in-
stant proceeding , at a meeting of representatives of the Union
and Respondent ,- this recognition was affirmed by an agree-
ment to commence negotiations for a new contract and, as
previously noted, union dues were continued to be checked
off.
In November 1973 two of the three employees in the bar-
gaining unit voluntarily quit and were replaced within several
weeks, in December 1973. Neither replacement belonged to
or joined the Union at this time . On January 24, 1974, em-
ployee Clarence Evers died. He was the last of the original
three union members employed by Kurtz prior to Respon-
dent's October 72 takeover, and the only union member
among Respondent 's employees between late November 1-973
and his death. In fact Union Representative Roger Morse
credibly testified at the hearing that upon Evers ' death the
Union had no current members in the bargaining unit and
that between November 1973 and Evers' death it had but one
member (Evers) of those employed in the unit.
Later in January, sometime after Evers' death , Morse pro-
cured signed union dues-checkoff authorization cards from
employees Terry. D. Frein and Douglas D. Kolb, the remain-
ing employees in the unit , and had them dated February 1,
1974. On this date Morse sent the cards to Respondent,
together with a request for a remittance of the dues and for
initiation fees which the two employees had agreed be
checked off. It is stipulated that these authorizations were not
received by Respondent until February 7. On February 11,
Evers was replaced and his replacement , now the third mem-
ber of the bargaining unit, signed a dues-checkoff cardwhich
was dated March 1 , but never submitted to Respondent.
Meanwhile , on February 5, Respondent , by its vice president,
Bernard Kurtz , wrote a letter to the Union, without knowing
of the intervening union affiliation of its two employees, not-
ing the demise of Evers as the "last remaining union em-
ployee at our Mason City operation." He also expressed the
desire of "final resolution" of the issues raised by the charge
in instant proceeding.
On February 22 Vice President Kurtz replied to the
Union's February- 1 submission of authorization cards, re-
turning the cards and stating that Respondent had no knowl-
edge of the validity of the cards or of the men 's desires for
representation . In this latter respect Respondent suggested
that if the Union were seeking recognition as representative of
i Cf Burns, supra.
951
the employees in the unit that it do so by recourse to the
processes of the Board, referring , of course, to an election.
At a meeting thereafter held between representatives of the
Union and Respondent , on February 26, it appears from
Attorney Phipps' notes of the meeting , that Vice President
Kurtz, when asked if Respondent denied the authenticity of
the authorization cards submitted by the Union, replied that
he would not deny that the men signed the cards but that he
did have "a real question as to whether or not the Union, in
fact, represented the men in a bargaining capacity ." Kurtz'
own notes of the meeting state : "I told him we felt that we
had good reason to wonder if the men really wanted to be
represented by the Union and we felt this because of the men's
newness in the organization and as a result not being conver-
sant with everything that had taken place in regard to the
entire labor situation in our Mason City office." Questioning
the Union's representative status Respondent specifically
refused to negotiate a contract , referring as an alternative to
the procedure suggested in their February 22 letter, a Board
election . Meanwhile, as previously noted, on February 11, the
vacancy created by Evers' death was filled by a new employee
who thereafter signed a dues-checkoff authorization card
dated March 1, 1974. This raised the existing union member-
ship complement to three.
On March 1 Vice President Kurtz met with the three unit
employees and engaged them in an extended discussion relat-
ing to "our entire labor situation because . . . with them
being new employees [he knew] that they were not fully aware
of all the developments since City Supply Corporation had
purchased the plumbing, heating and air conditioning from
L. H. Kurtz Co., of Mason City Iowa." A summary of this
meeting prepared by Kurtz was incorporated into the record
on stipulation of the parties. This discloses that, in the course
of the meeting referred to, Kurtz made specific points to the
men which related to the Union. He assured them that insofar
as union membership was concerned they were free agents
and could do as they chose. He then told them that it was his
belief that the Company could do a better job than the Union
in representing them and that it would do so fairly; that there
would be a savings to them in letting the Company handle
their affairs instead of the Union , referring to the fact that
they would not have to pay dues; and finally , that by being
represented in a small bargaining unit such as the three-man
warehouse unit they were restricting their opportunities for
advancement in the Company beyond the warehouse opera-
tion . When asked to explain his basis for making the latter
observation relating to access to other employment within the
Company, Kurtz credibly testified as follows:
Well, in no way did I intend to imply to the men that
they would be restricted from not wanting to get in or
choosing as time went on to get into sales work or into
pricing or cataloguing , whatever it might be, but know-
ing the history of this particular business where there has
been representation by, for instance , a union, a local,
most of the fellows over the years have elected to stay
right back in the warehouse area, the drivers, and to
advance along as they could best advance along to the
notches that were in the contract , like an order picker or
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a driver or whatever it might be.2
Thereafter, on March 5, there was an exchange of tele-
phone calls between employee Douglas Kolb, a member of
the bargaining unit, and Vice President Kurtz. These calls
were initiated by employee Kolb and generated two further
calls by Kolb and a total of two responding calls by Kurtz.
Submitted into the record upon stipulation of the parties are
Kurtz' account of each conversation, the total of which con-
stitutes the entire record of what occurred on March 5. Be-
cause they best describe what occurred they are set forth here:
March 5, 1974; 10:30 a.m.:
I just had a telephone call from Doug Kolb saying that
they wanted to reach a conclusion about whether they
wanted the Company or the Union to represent their
interest and he wanted to know if there was anything I
could actually promise to them in the area of their own
betterment and I responded by saying that I hoped they
all would rely on the integrity of Art Petersen, myself
and the principles of this business in dealing with them
in as fair a way as we know how.
I further told him that this was all I could say pertain-
ing to this subject, that I was not in a position because
of the law to make promises . I told him I knew they were
concerned as I had mentioned to them on Friday eve-
ning, but that once again, it was my opinion as well as
the opinion of our attorney and the principles of this
business that Clarence's wife did qualify for benefit at
the time of Clarence's death. I told him that we wanted
them to be free in making the proper decision either way
and we knew in order for them to do this, they had to
be aware of everything we had gone through with the
Union back to the time City bought Kurtz inventory.
I also told him that I had no axe to grind with the
Union and that as I had told them I had good regard for
Roger Morse and Larry Squires whom I had dealt with
over the years.
Doug asked me to call him back as to a question he
had concerning his insurance coverage. I said I would.
March 5, 1974; 11:45 a.m.:
I phoned Doug Kolb back to relate to him the infor-
mation he wanted to know on his insurance coverage
and stressed once again that I hoped he and the men
would have confidence in Art Petersen, the principles of
this business and myself in being dealt with in a fair and
equitable way.
March 5, 1974; 1:30 p.m.:
Doug Kolb called me again wanting to know if there
wasn't some form of a guarantee we could give about
their future betterment and I indicated once again that
there was no guarantee that I could give and that all I
could ask of them was for confidence in me. I told them
that if they chose to request the return of their authoriza-
tion slips and not to be represented by the Union that
they should call the party to whom they returned the
authorization to and ask him to return them.
2 So that a complete understanding of this meeting may be available a
stipulated summary referred to above has been attached to this decision as
Appendix A and is incorporated by reference into this decision for all
purposes
I asked him to phone me if they decided that they
wanted the Company to deal with them directly so that
we would know how to proceed.
March 5, 1974; 4:00 p.m.:
Doug Kolb called to say that all the men had voted
unanimously that they wanted their authorization slips
returned to them by the Union and that they did not
want Union representation. I thanked him for the confi-
dence that he, in addition to the rest of the men, had
placed in us and I knew that we would be able to have
a good bargaining relationship
I told them I would be getting together with them
within the next several weeks to outline our proposal.
He told me that all of the men had signed union cards
because Morse had been there and signed Harlan Helps
up. He asked what they could do about those cards if
they really didn't want the union to represent them.
I told him that it is an employees right to be repre-
sented by the Union or not as they pleased. I also told
him that they had a right to have the cards returned if
they didn't want to be represented. I suggested he con-
tact the man who gave him the card.
He said they had already talked to Roger Morse about
getting the cards back. Morse had the cards with him
that morning at the office but now said he had sent them
to the attorney.
March 5, 1974; 4:00 p.m.:
After I talked to David Phipps on the phone about this
situation, I called Doug Kolb back. I told him that the
company would not tell them what to do but I felt if I
were in their shoes that I would direct a personal letter
to the Union asking for the return of the authorization
slips and that I would keep a copy.
He said they would do this.
On the same day, March 5, by letters to the Union, the
three .members of the bargaining unit requested that their
authorization cards be withdrawn, and this was done.
B. Analysis and Conclusions
In charting the bargaining obligations of a successor em-
ployer, N.L.R.B. v. Burns International Security Services,
Inc., 406 U.S. 272, the Supreme Court made an observation
that has surface appeal in the treatment of the issues herein.
Thus it is stated (at 279, fn. 3):
Where an employer remains the same, a ioard certifica-
tion carries with it an almost conclusive presumption
that the majority representative status of the union con-
tinued for a reasonable time, usually a year. See Brooks
v. N.LR.B., 348 U.S. 96, 98-99. After this period, there
is a rebuttable presumption of majority representation.
Celanese Corp. ofAmerica, 95 N.L.R.B. 664,672 (1951).
If there is a change of employers, however, and an al-
most complete turnover of employees the certification
may not bar a challenge if the successor employer is not
bound by the collective-bargaining contract, particularly
if the new employees are represented by another union
or if the old unit is ruled an accretion to another unit.
CITY SUPPLY CORPORATION
But here , it must be remembered , the membership of the
Union was not merely depleted. Indeed, upon the death of
Evers it became nonexistent. At that point the Union was
admittedly not merely a minority representative, but, in fact,
a representative of no one at all. Certainly it was not the
intent of the Supreme Court to underwrite continuing recog-
nition where no one was , in fact, represented by the organiza-
tion seeking it. Accordingly, I would conclude at this junc-
ture that such issues as employee turnover , presumptions of
continuing majority status, and the continuing obligation of
a successor employer to recognize it all evaporated with the
demise of the last union member on January 26.
What is significant in the circumstances present here is that
,.on February 1 two of the then employees of the unit, em-
ployees Frien and Kolb, selected the Union to represent them
by signing union dues-checkoff cards which were thereupon
presented to Respondent. It is Respondent's negative reaction
at this time to the Union's implicit request for recognition
at this time, and not what happened earlier, and as far back
as November, that is the crux of this case.
The question really raised here is whether, by presentation
of authorization cards for two of the three employees in the
bargaining unit, the case is not in the category of those re-
served for future consideration by the Supreme Court in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969),
wherein it stated (at 601, fn. 18) that "a union's right to rely
on cards as a freely interchangeable substitute for elections
where there has been no election interference is not put in
issue here." For reasons which follow I am not persuaded
that this is among the cases devoid of election interference
and hence is not one of those beyond the contemplation of
Gissel.
Clearly the determinate of such a question is whether or
not "there has been no election interference." And to this end
further consideration must be given to Kurtz' March 1 visita-
tion with the three employees in the bargaining unit and to
the series of telephone conversations with Employee Kolb on
Maich 5 which culminated in the employees' withdrawal of
their union dues -checkoff authorizations.
A review of Kurtz' summary memorandum submitted by
stipulation into the record discloses that apart from back-
ground information and general matters which he conveyed
to the men he did indulge in comments concerning the Union
and their membership that are of questionable propriety.
Specifically he told them the Company could do a better job
representing them than the Union could; that there would be
a savings to them, presumably of union dues; and that the
limited classifications comprising the bargaining unit in
which the Union represented them would inhibit their ad-
vancement elsewhere in the plant, a factor which Kurtz
elaborated on in his testimony.
These remarks, directed as they obviously are to Kurtz'
opposition to the unionization of his employees, can best be
assessed by his subsequent behavior. This took form in a
series of telephone calls admittedly initiated by employee
Kolb, and set forth in full above. Therein it is apparent that
Kurtz resumed the same theme of his March 1 meeting after
giving his attention to Kolb's personal insurance problems
and to his expression of the men's concern for the welfare of
the widow of the deceased, employee Evers. Thus when Kolb
asked him what guarantees Respondent would provide for
953
the fairness which Kurtz had promised in his earlier tele-
phone conversations and at his March 1 meeting with the
men, Kurtz asked only that they have confidence in him; and
then suggested the method whereby the employees could
withdraw their union authorization-asking them to tele-
phone him back if the men wanted to deal directly with him.
The men complied with his suggestion in a matter of hours,
withdrew their authorizations, and so informed Kurtz.
It is well established that the lending of assistance by an
employer in an employee's withdrawal from a union, or the
suggestion of the means and manner by which this can be
accomplished , encourages and assists employees in their
withdrawal and thereby interferes with, restrains, and coerces
such employees in the exercise of their statutory right to
retain union membership , and is in violation of Section
8(a)(1) of the Act.' As this is precisely what Kurtz accom-
plished here I conclude and find that he violated the Act in
these respects.
Suffice it to say the procuring of union authorization with-
drawals go to the heart of the election process, an absence of
at least some evidence that employees wish an election, the
so-called 30 percent showing of interest being sufficient to
preclude the holding of the election itself.
Kurtz' efforts to procure employee withdrawal may like-
wise be viewed as a final step in the effort at employee dissua-
sion which commenced in his March 1 meeting. Linking the
two, as indeed Kurtz in his telephone conversation linked the
foresaking of the Union with his talk to the group 5 days
earlier, it is clear that the several factors raised by him in
opposition to the Union and in concern for their alleged
naivete was something more than the expression of free
speech permitted the employer in such matters. On the con-
trary, they constituted a prelude to the withdrawals that were
accomplished at his importuning on March 5. I accordingly
conclude and find that Respondent through the statements of
Kurtz in which he urged upon the men that (1) the employer
could do a better job than the Union at representing their
interest, (2) that they would effect a personal savings by not
paying union dues, and (3) that their area of advancement
would be improved without the Union, all constituted further
interference, restraint, and coercion. This I conclude and find
to constitute a further violation of Section 8(a)(1) of the Act.
Against such a backdrop as is formed by the foregoing
findings of interference, restraint, and coercion, Respondent's
rejection of the Union's request to bargain based upon the
Respondent's alleged doubts that the employees did not really
want the Union now becomes transparent, to say the least. In
language equally applicable to the Respondent's claim here
the Supreme Court in Gissel Packingnoted (395 U.S., at 607):
We cannot agree with the employers here that employees
as a rule are too unsophisticated to be bound by what
they sign unless expressly told that their act of signing
represents something else.
Here the two employees whose cards were presented to Kurtz
by the Union had been employed since late November 1973.
To attribute to them such a lack of understanding or naivete
3 Cumberland Shoe Company, 160 NLRB 1256, 1259 (1966), Fortrex
Manufacturing Company, Inc., 184 NLRB 22 (1970); Ingress-Plastene, Inc.,
177 NLRB 481, 489 (1969)
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as Respondent suggests does not realistically assess the intel-
ligence of men whom they would retain in their employ.
Specifically I do not credit this stated reason but find it to be
a pretext . Indeed , nowhere has it ever been held that the
benefits granted employees by Section 7 of the Act might
require an employer's counseling before they become viable.
On the contrary , Respondent's protestations of the em-
ployees' lack of understanding of the Company's labor rela-
tions situation become hollow when considered with Kurtz'
telephone conversation with employee Kolb on March 5.
What Respondent really wanted and what it got was a with-
drawal of the employees from the Union . Indeed this was the
only way it could accomplish its stated desire to deal directly
with the men . And it is this that has already been found to
constitute unlawful interference , restraint , and coercion. In
such a posture I would reject out of hand any suggestion that'
Respondent doubted , in good faith, its employees ' desire to
be represented by the Union.
Equally without merit is its repeatedly stated willingness to
go to an election . Quite apart from the good faith that would
have been manifest - in this area by Respondent itselffiling a
petition for an election,4 the circumstances , as they deve-
loped by Respondent 's conduct , made it impossible for the
Union to petition for an election . Respondent, by procuring
the withdrawals of employees Frein and Kolb, had effectively
destroyed the 30 -percent showing of interest administratively
required by the Board for the consideration of an election
petition.
This, then , presents the classic case where an employer had
effectively frustrated the very means of determining the em-
ployee choice by an election. And if ever the use of cards has
warrant under the terms of N.L.R.B. v. Gissel Packing Co.
supra, this is it. I accordingly conclude and find that by
rejecting the proffer of two authorization cards of unques-
tionable validity , as majority status evidence in the three-man
bargaining unit, when it wrote the Union its letter of Febru-
ary 22, and thereafter by procuring the withdrawal of these
employees from the Union , and by at all times refusing to
bargain with the Union as their representative, Respondent
has thereby refused to bargain in good faith with the repre-
sentative of a majority of its employees in an appropriate unit,
the Union herein , in violation of Section 8(a)(5) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth herein in section I,
above, have a close' 'intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section
8(a)(1) and (5), I shall recommend that an order issue requir-
ing that it cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive represen-
tative of the employees in the unit found appropriate herein.
4 Cf San Luis Obispo County, et at, 196 NLRB 1082, 1087 (1972)
I shall also-recommend that Respondent be ordered to post
appropriate notice of compliance with such order as is issued
herein.
Upon the foregoing findings of fact and conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent, City Supply Corporation, Mason City
Iowa, its officers , agents, successors , and assigns , shall:
1. Cease and desist:
(a) Suggesting or urging employees to withdraw from or
lending assistance to employees to withdraw from member-
ship in Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 828, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization. -
(b) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployees' employment with the aforesaid labor organization as
the exclusive representative of its employees in the following
unit found to be appropriate for the purposes of collective
bargaining:
All warehouse employees, truckdrivers and city desk
clerks at the employer's Mason City, Iowa, facility; but
excluding professional employees, guards, and supervi-
sors as defined in the National Labor Relations Act as
amended.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the rights guaranteed them by
Section 7 of the Act. -
2. Take the following affirmative action which it is found
will effectuate the policy of the Act.
(a) Upon request bargain with the above-named labor or-
ganization as the exclusive representative of all the employees
in the aforementioned appropriate unit, with respect to rates
of pay, wages, hours, and other terms and conditions of em-
ployment, and if an agreement is reached reduce such agree-
ment in writing.
(b) Post at its Mason City, Iowa, facilities copies of the
attached notice marked "Appendix B."6 Copies of said no-
tice, on forms provided by the Regional Director for Region
18, after being duly signed by Respondent's authorized repre-
sentative, shall be posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
5 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
6 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of The United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
CITY SUPPLY CORPORATION 955
(c) Notify the Regional Director, in writing, within 20 days
from the date of this Order, what steps it has taken to comply
herewith.
APPENDIX A
MEMORANDUM
In Re: Mason City Labor Situation Visit I had with the three
warehousemen
On Friday evening, March 1, 1974, at approximately 6:15
p.m. after we had returned from having dinner because we
were working inventory on that particular evening, I told
everyone, even Harlan Kolb that I would like to visit with
them in the City Desk area. Art Petersen accompanied me
with the three warehousemen and Harlan Kolb elected to do
some work in the office.
I opened my visit by telling them that I wanted to meet with
them in a place common to their ordinary every day work and
that my purpose for calling them together was to make them
conversant on our entire labor situation because I knew that
with them being new employees that they were not fully
aware of all the developments since City Supply Corporation
had purchased the plumbing, heating, and air conditioning
from L. H. Kurtz Co. of Mason City, Iowa.
I indicated that were were not convinced that they really
wanted the Union to represent their interests and therefore I
wanted to tell them of all the developments that had taken
place. I went on by telling them that at the time of City's
purchase of the plumbing, heating and air conditioning inven-
tory that I visited with the warehousemen and told them that
City Supply would like to have them come into their employ
if they wanted to and that City Supply would continue them
on at, their same rate of pay and that the only thing I could
not commit myself on was the vacation- and sick leave that
they would be entitled to because we would be considering
them as new employees. I told them the Union subsequently
said that these people should be continued along at their
seniority level and therefore should have all of the vacation
they had earned over the years as well as sick leave. I told
them that the Union in Des Moines did not see it this way
and that the people that came from Kurtz to City in Des
Moines had to start over again gaining seniority. I also told
them that when Kurtz bought Crane that the people had to
start over again. I indicated that we had not paid any pension
on the men in Mason City because the matter of seniority had
not been resolved.
I indicated the Union was still sticking firm to their convic-
tions and ultimately filed suit in court against City Supply
Corporation and after that filed the claim through the
NLRB . I told them I thought it would be well if I would read
the claim the Union had made against us which I did and then
said That I felt they should know exactly what the response
of the NLRB was. Thus I read the response.
I told them that each person had the right to belong to the
union, that there was still an open shop law in the State of
Iowa, and no one could force them either way.
I said that I knew they were concerned about the widow of
Clarence Ewers being cared for with what Clarence had
earned in the pension program over the years. I told them
that it was the conviction of our attorney in•Des Moines, as
well as the Company in addition to myself, that Mrs. Ewers
would qualify right at the point of the City takeover because
Clarence had earned the privilege to retire at that time and
all payments had been made for him to that point. I told them
that should we be proved wrong there was another solution
to it. I further told them that if anyone should have interest
in Clarence it would be Art and myself because we had
worked with him for many years and would want to see
something worked out for his widow's best interest.
I told the men that I felt the Company could do a better job
than the Union in representing them and they could expect
the Company would be fair with them in every way. I also
told them I had regard for the Union agents I had been
dealing with in Mason City. I pointed out the savings to them
in letting the Company handle their affairs rather than the
Union. I told them that the Company had a high regard for
them and they would never have hired them if they felt they
could, not advance. I told them that there were very limited
job classifications represented by the union in the warehouse
and there were several areas of advancement in the overall
company-operation. I told them in conclusion that I wanted
them to be aware of the entire situation so that they were
truly making their decision in the right frame of mind and
that this was to be solely a visiting session in laying the facts
before them.
Terry Frein asked if questions could be directed and I said it
was not my intention that this be a question and answer
period and he immediately said, "Well, we are concerned
about Mrs. Ewers." I told him I could appreciate his concern
and went over again that part of the conversation that I had
had with the men concerning this point. Then Harlan Helps
immediately spoke up and said, "What can be guaranteed to
us in the way of benefits?" and I told him that I wasn't in a
position to guarantee him anything but that they could only
rest upon the integrity of Art Petersen and myself as well as
with the principles of the business in being fair with them. I
then thanked them for listening to me and said that we would
return to the inventory, which we did.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suggest to or urge our employees to
withdraw from membership in Teamsters, Chauffeurs,
Warehousemen and Helpers , Local Union No. 828, af-
filiated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, or
any other labor organization.
WE WILL NOT lend assistance to our employees in with-
drawing their membership from the aforementioned
Union or any other labor organization.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain with Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local Union No. 828, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the
exclusive bargaining representative of our employees in
the following bargaining unit:
All warehouse employees, truckdrivers and city desk
clerks at the employer's Mason City, Iowa, facility;
but excluding professional employees, guards, and
supervisors as defined in the National Labor Relations
Act.
WE WILL, upon request, bargain collectively with the
aforementioned Union with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment, and if an understanding is reached, we will em-
body such understanding in a signed contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of
your rights guaranteed by the National Labor Relations
Act.
All of you, our employees, are free to remain, or become,
or to withdraw from, or to refrain from becoming, members
of Teamsters, Chauffeurs, Warehousemen and Helpers, Lo-
cal Union No. 828, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
CITY SUPPLY CORPORATION