Fabric Warehouse

National Labor Relations Board - Board Decisions

May 25, 1989

294 N.L.R.B. 189 (N.L.R.B. 1989)

FABRIC WAREHOUSE
Hancock Fabrics d/b/a Fabric Warehouse and
United Food & Commercial Workers, Local
400. Cases 5-CA-18590, 5-CA-18734, and 5-
CA-18943
May 25, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 28, 1988, Administrative Law Judge
Martin J. Linsky issued the attached decision. The
Charging Party, the General Counsel, and the Re-
spondent filed exceptions and supporting briefs,
and the General Counsel and the Respondent filed
answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions only to the extent consistent with this
Decision and Order.
The Meetings about Benefits Without the
Union and the Resulting Decertification
Petitions
The judge found that the Respondent violated
Section 8(a)(1) of the Act by asking an employee
to attend a meeting about company benefits and by
telling another employee it would be a good idea
to have a meeting to discuss company benefits. We
disagree.
The judge found that in October 1986 several
employees from the Respondent's two Richmond
stores told the Respondent's district manager, Cos-
sitt, that they were unhappy with the Union and
requested a meeting to discuss what their benefits
would be if there were no union. As a result of
these requests, Cossitt scheduled a meeting at each
of the stores to discuss the company benefits. On
the day before the meeting at store 138, Cossitt
i The Charging Party, the General Counsel, and the Respondent have
excepted to some of the judge's credibility findings The Board's estab-
lished policy is not to overrule an administrative law judge's credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect Standard Dry Wall Products, 91
NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully
examined the record and find no basis for reversing the findings
In adopting the judge's findings in this case, we note that the statement
from Reichhold Chemicals, 277 NLRB 639 (1985) (Reichhold Chemicals 1),
which he cited in sec III,A, of his decision, is no longer an accurate
characterization of Board law See Reichhold Chemicals, 288 NLRB 69
(1988) (Reichhold Chemicals II) This does not affect our decision here,
because his discussion of Reichhold Chemicals I involved only back-
ground evidence of the Respondent's motive on which we find it unnec-
essary to rely Member Johansen adheres to his dissenting opinion in
Reichhold Chemicals II
189
told employee Dodson there was going to be a
meeting the next day about the company benefits
and asked her to attend. Cossitt also told employee
Jackson before the meeting at store 138 that if the
employees wanted to they could have a meeting to
discuss the company benefits.
It is not unlawful for an employer to hold a
meeting to inform employees of the wages and ben-
efits enjoyed by its nonunion employees, so long as
it does no more than truthfully describe the wages
and benefits of its other employees and does not
make any implied promises that the wages and ben-
efits of the employees at the meeting will be adjust-
ed if the union is voted out. Viacom Cablevision,
267 NLRB 1141 (1983). The Respondent did not
initiate these meetings, but rather scheduled them
because several employees had requested a meeting
to discuss what their benefits would be if there
were no union. In these circumstances, it was not a
violation of Section 8(a)(1) to ask an employee to
attend such a meeting or to state that having such
a meeting would be a good idea. Although we are
finding in this case that the Respondent did make
unlawful promises of benefits at the two meetings
where it discussed the benefits it would provide to
the employees if there were no union, the state-
ments made before the meeting did not indicate
that such promises would be made and thus are
lawful. Accordingly, we shall dismiss these 8(a)(1)
allegations.
The judge dismissed the other complaint allega-
tions about these meetings, specifically finding that
the Respondent did not make any unlawful prom-
ises of benefits to undercut union support or solicit
its employees to circulate a decertification petition.
We disagree. Contrary to the judge, we find that
the Respondent did make promises of benefits at
these meetings and in the context here did solicit
employees to circulate a decertification petition.
The facts are as follows. District Manager Cos-
sitt held two meetings with employees at the Re-
spondent's two Richmond stores represented by the
Union, one on November 8, 1986, at its store 138
and one on November 15, 1986, at its store 241. As
noted above, Cossitt called these meetings because
several employees had asked him to have a meeting
to discuss what their benefits would be if there
were no union.
At the first meeting, which was attended by the
six most senior employees at store 138, the judge
found that Cossitt told the employees they would
be eligible for a 10-cent-per-hour merit wage in-
crease every 6 months under the company plan and
would be eligible for the company pension plan.
Under their union contract, these employees had
no retirement benefits and were not entitled to any
294 NLRB No. 4
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
further wage increases because they had reached
the top of the wage scale provided in the contract.
According to the testimony of witnesses credited
by the judge, Cossitt also told the employees at the
first meeting that their vacation benefits would
remain the same as under the union contract, 2 their
wage rate would remain the same as it was,3 they
would be covered under the company health insur-
ance plan which paid 100 percent of costs after
yearly out-of-pocket costs to the employees of
$1000 or $1500,' and the Company would pay the
entire premium for health insurance coverage for
employees and their dependents.5 All of these ben-
efits were either better than their current benefits
under the union contract or were better than the
benefits the Respondent actually provided to its
nonunion employees at that time. According to
credited witnesses, at the end of this meeting Cos-
sitt told the employees they had to let him know
by the end of November which way they were
going to go, stay with the Union or go with the
company offer. The judge found that Cossitt told
the employees it was irrelevant to him which way
the employees went, but he thought they should go
with the company plan. According to the same
witness, Cossitt went on to say, "It is good insur-
ance, and the company will take care of you." The
judge found that, when asked by an employee how
they could be sure if they would really get these
benefits, Cossitt stated, while waving a set of
papers from which he had been reading at the
meeting , "It is in writing. It is their offer and
promise."
Four employees attended the second meeting at
store 241. The judge found that before discussing
the company benefits at this meeting Cossitt stated
that things would be better once there was no
longer a union in the store. The judge also found
that Cossitt told the employees they would be eli-
gible for a 10-cent-per-hour wage increase every 6
months under the company plan and would be eli-
gible for the company pension plan. Again these
employees had no retirement benefits under the
union contract and at least one of them was not en-
titled to any further wage increases because she
had reached the top of the wage scale provided in
the contract. The judge found that after a discus-
sion of the company pension benefits, Supervisor
Jacobs, a retired Navy man, stated that the Compa-
ny's pension plan was better than his Navy pen-
sion . According to the same credited witness, Cos-
sitt then stated that the company benefits were
better than the union benefits except for the eye-
glass coverage, but that they would more than
compensate for that by not having to pay union
dues .6According to the same witness, Cossitt also
stated that after a $100 deductible the company
health insurance would pay 80 percent of costs up
to $1000, that over $1000 it would pay 100 percent,
and that this was better than their current health
insurance.? According to two credited witnesses,
Cossitt stated during this meeting that the company
benefits were better and that in order to get these
benefits they would have to get rid of the Union.
The judge further found that, when Cossitt was
asked by an employee at the second meeting how
they could get rid of the Union, he stated that they
would have to circulate a petition and get the em-
ployees to sign it by December 6 or 9. According
to the credited witnesses, Cossitt also stated that if
they did not get the petition signed by that date it
would be too late and they "would not get a
second chance." According to the same witnesses,
when an employee asked how to do the petition,
Cossitt replied that he could get the petition typed
but he could not circulate it. Then the employee
who had requested the meeting offered to circulate
2 Cossitt admitted making this statement The vacation benefits under
the union contract were better than the vacation benefits provided to the
Respondent' s nonunion employees, because the union contract provided
for 2 weeks of vacation after only 2 years of service while the nonunion
employees only received 2 weeks of vacation after 3 years of service and
the union contract provided for 3 weeks of vacation after only 5 or 8
years of service (depending when the employee had been hired) while
the nonunion employees only received 3 weeks of vacation after 10 years
of service
3 The employees at this meeting , being the most senior , had already
reached the top of the wage scale in the union contract ($5 25 an hour),
which was more than most of them would have been making under the
nonunion wage progression for their years of service if their wage rate
did not remain the same as under the union contract
4 The health insurance under the union contract only paid a maximum
of $25,000 for major medical coverage per calendar year and had stated
maximum payments for other specified items, while the nonunion plan
had no maximum limits on most items
6 Although the union contract provided that the Company paid the
entire premium for the represented employees' health insurance (includ-
ing dependent coverage for health and dental care), the Respondent's
nonunion employees had to pay the full cost of dependent coverage for
dental care
it.
Between about December 9 and 13, 1986, the
same employees who had requested the meetings
circulated separate but identical petitions among
the employees at both stores. At store 138, 10 out
of 12 unit employees signed a petition stating they
no longer wished to be represented by the Union,
and at store 241, 11 out of 12 unit employees
signed such a petition. Of the 21 signers, 13 had
not attended the meetings with Cossitt about bene-
6 The union health insurance provided $100 a year for eyeglasses,
which the Respondent's health insurance did not cover The represented
employees were paying $3 75 per week in union dues at that time
' As noted above, the health insurance under the union contract only
paid a maximum of $25,000 for major medical coverage per calendar year
and had stated maximum payments for other specified items, while the
nonunion plan had no maximum limits on most items
FABRIC WAREHOUSE
fits; however, the employees who had requested
the meetings and circulated the petitions testified
that all the employees knew about the meetings
and that a notice about the second meeting was
posted at store 241. Further, contrary to the
judge's finding, the testimony of the employees
who solicited signatures on the petitions indicates
that they did discuss what was said at these meet-
ings when they were circulating the petitions.
Thus, employee Weaver, who solicited signatures
at store 241, testified that she told employees that
they would have just about the same benefits if
they got rid of the Union and that she spent several
hours convincing employees to sign the petition.
Moreover, employee Cumber, who solicited signa-
tures at store 138, testified that she spent 2 or 3
days continuously soliciting signatures during the
week and a half the petition was circulating, that
not everyone signed it right away, and that she had
to go back to some employees because they wanted
to wait and see what the majority wanted to do.
On December 15, 1986, the employees who had
circulated the petitions presented them to Cossitt.
The judge concluded that the Respondent did
not make any express promises to the employees
during these meetings, finding that Cossitt's state-
ments were simply honest answers to questions
posed by inquiring employees who had a right to
know. The judge also concluded that the Respond-
ent did not solicit its employees to circulate a de-
certification petition, because there was no evi-
dence the Respondent participated in preparing or
circulating the petitions. We disagree with the
judge on both allegations.
Contrary to the judge, we find that the Respond-
ent made express promises to its employees at both
meetings that they would receive better benefits if
they got rid of the Union. The Respondent did not
merely compare the benefits it currently provided
its union employees with those it provided its non-
union employees or simply promise to maintain the
status quo if there were no union. Instead, the Re-
spondent told the employees they would receive a
certain package of benefits that combined some of
the best elements of both the union and the non-
union benefits it currently provided its employees,
thus offering them a better set of benefits than
either their own or the nonunion employees' cur-
rent benefits. Further, the Respondent told the em-
ployees that these benefits were better than the
benefits they currently received and that they had
to decide whether they wanted to go nonunion by
a specific date.8 At the second meeting, the Re-
8 We note that the deadline Cossitt gave these employees for going
nonunion coincided almost exactly with the beginning of the window
period for filing a decertification petition with the Board, which is 90
191
spondent stated directly that they could only get
these benefits if they got rid of the Union; and at
the first meeting, when questioned by employees
about whether the Company would keep its word
about giving them these benefits, the Respondent
explicitly said it was a promise. Express promises
of better benefits linked to getting rid of the Union
clearly tend to undercut support for the Union.
Accordingly, we find that these statements violated
Section 8(a)(1) of the Act.
Contrary to the judge, we find that in the con-
text here the Respondent solicited its employees to
circulate a petition to decertify the Union by its
conduct at these meetings. First, the Respondent
promised the employees better benefits if they got
rid of the Union. Then, the Respondent told them
they would be better off without the Union. Final-
ly, the Respondent told them they had to decide
whether to go nonunion by a certain date. At the
second meeting, when questioned about how the
employees could get rid of the Union, the Re-
spondent stated directly that they needed to circu-
late a petition and even offered to get a petition
typed for them.9 These statements would normally
tend to encourage employees to circulate a decerti-
fication petition, and that was the result here. Thus,
a few weeks after the second meeting, about the
time of the deadline the Respondent had given
them for going nonunion and getting the better
benefits, employees at both stores circulated identi-
cal petitions seeking to decertify the Union. i 0 Ac-
cordingly, we find that the Respondent violated
Section 8(a)(1) of the Act by soliciting its employ-
ees to circulate decertification petitions. See, e.g.,
Architectural Woodwork Corp., 280 NLRB 930
(1986).
The 8(a)(5) Allegations
The Charging Party and the General Counsel
have excepted to the judge's failure to make any
findings about the complaint allegation that the Re-
days before the expiration of the current collective-bargaining agreement
The union contract in this case was due to expire on March 7, 1987, and
thus the window period began on December 8, 1986
s It is undisputed that employee Weaver, who circulated the petition at
store 241 where the second meeting was held, had previously worked at
store 138 and actually spoke to employees Cumber and Bass , who circu-
lated the petition at store 138, about drafting and circulating such a peti-
tion
10 We note that, even though three employees had requested Cossitt to
hold a meeting to discuss what their benefits would be if there were no
union, this request would not by itself establish that they intended to cir-
culate a decertification petition regardless of what they learned at the
meeting about the Company's benefits Moreover, the record shows that
these three employees still maintained their membership in the Union at
the time of this request , although the Respondent's stores are located in a
right-to-work state where they were not required to do so Therefore, it
is not at all clear that these employees had any intention of circulating a
decertification petition before the Respondent encouraged them to do so
by its comments at these meetings
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent dealt directly with its employees. They
contend that the Respondent undermined the
Union's status as the employees' bargaining repre-
sentative when it held meetings with its represent-
ed employees where it promised the employees a
better benefit package without first making this
offer to the Union or giving the Union the oppor-
tunity to be present. We agree with these excep-
tions. It is undisputed that the Respondent had
never proposed any of the improved benefits it of-
fered to the employees at these meetings during
bargaining with the Union and that it did not
notify any of the Union's officials who were au-
thorized to bargain with it of these meetings. This
constitutes unlawful direct dealing that is inconsist-
ent with the Respondent's duty to bargain only
with the Union as the exclusive representative of
these employees. See, e.g., Ross Crane Rental
Corp., 267 NLRB 415, 416 (1983). Accordingly, we
find that the Respondent violated Section 8(a)(5)
and (1) of the Act by dealing directly with its rep-
resented employees.
The judge found that, based on the decertifica-
tion petitions signed by a majority of its represent-
ed employees, the Respondent had a reasonable
good-faith doubt as to the Union's continued ma-
jority status and thus did not violate Section 8(a)(5)
and (1) of the Act by withdrawing recognition
from the Union, refusing to bargain with the Union
for a new contract, and unilaterally changing terms
and conditions of employment. The judge found
that the Respondent's conduct at the two meetings
did not taint the petitions because the statements
made did not tend to undercut employee support
for the Union and were not so egregious as to war-
rant frustrating the will of the majority of the em-
ployees. In making this finding, the judge noted
that a majority of the petition signers did not
attend either of the meetings and found that they
thus could not have been influenced by what the
Respondent said at the meetings. We disagree with
all of these findings.11
It is well established that, where an employer has
engaged in unlawful conduct tending to undercut
its employees' support for their bargaining repre-
sentative, the employer cannot rely on any result-
ing expression of disaffection by its employees be-
cause its asserted doubt of the union's majority
status has been raised in the context of its own
unfair labor practices directed at causing such em-
ployee disaffection. Hearst Corp., 281 NLRB 764
1 i In reversing the judge on these points, we specifically do not rely
on his comments that times change, the employees may feel differently
(1986), affd. mem. 837 F.2d 1088 (5th Cir. 1988).
Further, such misconduct will bar any reliance on
a tainted decertification petition even though a ma-
jority of the petition signers profess ignorance of
their employer's misconduct. Id. at 765. In this
case, we have found that the Respondent did
engage in conduct designed to undercut its employ-
ees' support for the Union and aimed at causing
them to circulate a decertification petition. There-
fore, we find that the Respondent cannot rely on
the predictable results of this unlawful conduct to
justify its withdrawal of recognition from the
Union and its later refusals to bargain.
It is undisputed that beginning on December 16,
1986, the Respondent refused to engage in negotia-
tions for a new contract after being requested to do
so by the Union. It is also undisputed that, after the
contract expired on March 7, 1987, the Respondent
made unilateral changes in the terms and conditions
of employment of its represented employees with-
out notifying the Union or giving it the opportuni-
ty to bargain about these changes. Thus, the Re-
spondent instituted a new pension plan and new in-
surance plans in April 1987, changed the holidays
and disability pay it afforded employees in May
1987, granted wage increases in May and August
1987, and denied the Union access to its facility as
required by its expired contract in May 1987. Ac-
cordingly, we find that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing
recognition from the Union, by refusing to bargain
with the Union over a new contract, and by
making these unilateral changes in working condi-
tions.
The Other 8(a)(1) Allegations
We agree with the judge that the Respondent
violated Section 8(a)(1) of the Act by denying
Union Representative Colbert access to its store
and by calling the police to remove her from the
store under threat of arrest.12 In adopting the
judge's finding of this violation, we note that the
Respondent's most recent collective-bargaining
agreement with the Union gave the Union the right
to post notices on bulletin boards provided by the
Respondent and the right to visit the Respondent's
premises during working hours. Such a contractual
right of access survives the expiration of the agree-
ment. Gilberton Coal Co., 291 NLRB 344, 347
(1988).
The judge found that the eligibility provision of
the Respondent's pension plan, which states one of
now that a year has passed, and thus the Union might be able to mount a 12 We do not rely, however, on the judge's description of Colbert as a
successful organizing drive at this time These statements are not relevant young woman who had recently given birth to a child in finding this vio-
to our decision in this case lation
FABRIC WAREHOUSE
the requirements for membership in the plan is that
an employee "not be working under a collective
bargaining agreement ," did not violate Section
8(a)(1) of the Act because the Respondent's vice
president, Jensen, testified any pension plan for
represented employees would be a matter for nego-
tiations with the Union. In adopting the judge's dis-
missal of this allegation , we note that the Respond-
ent did not announce a new pension plan excluding
represented employees as a device to defeat the
Union and that the Union had never proposed a
pension plan during previous negotiations . We have
held that an employer's institution of a benefit plan
excluding its employees covered by a collective-
bargaining agreement is not a per se violation of
the Act, where the employer's represented employ-
ees had historically been excluded from coverage
under the employer 's nonunion plans and these
benefit plans had been the subject of negotiations.
Dallas Morning News, 285 NLRB (1987). We have
also held that an eligibility provision in an employ-
er's existing pension plan excluding its employees
covered by a collective-bargaining agreement does
not violate the Act, where the provision does not
automatically terminate employees ' benefits upon
selection of a union , but contemplates that retire-
ment benefits for the covered employees would be
the subject of good-faith bargaining. Lynn-Edwards
Corp., 290 NLRB 202, 203-204 (1988). As the Re-
spondent's represented employees have historically
been excluded from coverage under this pension
plan and retirement benefits for these employees
could have been negotiated during bargaining, we
agree with the judge that the eligibility provision
in the Respondent's pension plan does not violate
Section 8(a)(1) of the Act.
In addition, the General Counsel has excepted to
the judge 's failure to discuss a similar provision in
the Respondent's employee handbook, which states
that one of the requirements for membership in the
Respondent's pension plan is that an employee "not
be a member of any union." We find that this pro-
vision does violate Section 8(a)(1) of the Act be-
cause it suggests coverage under the plan will auto-
matically be withdrawn as soon as an employee
joins a union regardless of whether the union is a
bargaining representative that could bargain over
retirement benefits. See Handleman Co., 283 NLRB
451 at 452 (1987). Accordingly, we find the de-
scription of the pension plan membership require-
ments in the employee handbook violates Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By asking an employee to attend a meeting
and by telling another employee it would be a
193
good idea to have a meeting to discuss company
benefits, the Respondent did not violate the Act.
2. By promising employees that they would re-
ceive better benefits if they got rid of the Union,
the Respondent violated Section 8(a)(1) of the Act.
3. By soliciting employees to circulate petitions
to decertify the Union, the Respondent violated
Section 8(a)(1) of the Act.
4. By denying Union Representative Colbert
access to its store and calling the police to remove
her from its store under threat of arrest, the Re-
spondent violated Section 8(a)(1) of the Act.
5. By maintaining a provision in its employee
handbook that states that one of the requirements
for membership in its pension plan is that an em-
ployee not be a member of any union, the Re-
spondent violated Section 8(a)(1) of the Act.
6. By maintaining a provision in its pension plan,
which states that one of the requirements for mem-
bership in that plan is that an employee not be
working under a collective -bargaining agreement,
the Respondent did not violate Section 8(a)(1) of
the Act.
7. By holding meetings directly with its employ-
ees to offer them a better benefit package without
notifying or bargaining with the Union, the Re-
spondent violated Section 8(a)(5) and (1) of the
Act.
8. By withdrawing recognition from the Union,
the Respondent violated Section 8(a)(5) and (1) of
the Act.
9. By refusing to bargain with the Union for a
new collective-bargaining agreement , the Respond-
ent violated Section 8(a)(5) and (1) of the Act.
10. By unilaterally instituting a new pension plan
and new insurance plans , unilaterally changing the
holidays and disability pay afforded employees,
unilaterally granting employees wage increases, and
unilaterally denying the Union access to its store as
required under its collective -bargaining agreement,
the Respondent violated Section 8(a)(5) and (1) of
the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act. We shall order the Respondent, on request by
the Union, to rescind any unilateral changes it
made in wages and benefits; however, our Order
should not be construed as requiring the Respond-
ent to cancel any wage increase or other improve-
ment in benefits without a request from the Union.
See, e.g., Elias Mallouk Realty Corp., 265 NLRB
1225 fn. 3 (1982). We shall also order the Respond-
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent to make its employees whole by reimbursing
them for any wages or benefits they may have lost
as a result of its unlawful unilateral changes, with
interest.13 Finally, we shall order the Respondent
to pay any contributions it has failed to make on
behalf of unit employees to fringe benefit funds as
required under its collective-bargaining agreement,
if the Union requests it to cancel a unilateral
change in benefits and reinstate the contractual
fringe benefit fund payments instead, and to make
its employees whole by reimbursing them for any
other expenses ensuing from its failure to make
such required contributions, with interest.14
ORDER
The National Labor Relations Board orders that
the Respondent, Hancock Fabrics d/b/a Fabric
Warehouse, Richmond, Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising its employees that they will re-
ceive better benefits if they get rid of the Union.
(b) Soliciting its employees to circulate petitions
to decertify the Union.
(c) Denying representatives of the Union access
to its stores and calling the police to remove repre-
sentatives of the Union from its stores under threat
of arrest.
(d) Maintaining a provision in its employee hand-
book that states that one of the requirements for
membership in its pension plan is that an employee
not be a member of any union.
(e) Holding meetings directly with its employees
to offer them a better benefit package without noti-
fying or bargaining with the Union.
(f) Withdrawing recognition from the Union as
the exclusive bargaining representative of its em-
ployees in the following appropriate bargaining
unit:
All full-time and part-time employees em-
ployed by Respondent at its Richmond, Vir-
ginia facilities, but excluding Store Managers,
Assistant Store Managers, Management Train-
19 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 6621
14 The Board does not provide for the addition of interest at a fixed
rate on unlawfully withheld fund payments Instead, see Merryweather
Optical Co, 240 NLRB 1213, 1216 In 7 (1979), for the method of deter-
mining any additional amounts owed to such funds as reimbursement for
losses attributable to the unlawfully withheld contributions However, the
Board does provide interest at a fixed rate on amounts owed to individual
employees for their losses attributable to the unlawful withholding of
benefit fund contributions Kraft Plumbing, 252 NLRB 891 In 2 (1980),
enfd mem 661 F 2d 940 (9th Cir 1981) Interest on such amounts shall
be computed in accordance with our decision in New Horizons, supra
ees, guards, watchmen and supervisors as de-
fined in the Act.
(g) Refusing to bargain over a new collective-
bargaining agreement with the Union as the exclu-
sive bargaining representative of the employees in
the bargaining unit.
(h) Unilaterally instituting a new pension plan
and new insurance plans, unilaterally changing
holidays and disability pay, unilaterally granting
wage increases, or unilaterally making any other
changes in the terms and conditions of employment
for bargaining unit employees without notifying or
bargaining with the Union.
(i) Unilaterally denying representatives of the
Union access to its stores as required under its col-
lective-bargaining agreement.
(j) In any like or related manner interfering with,
restraining, or coercing its employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Amend its existing employee handbook to
eliminate the provision that states that one of the
requirements for membership in its pension plan is
that an employee not be a member of any union.
(b) Recognize the Union as the exclusive bar-
gaining representative of its employees in the bar-
gaining unit.
(c) On request, bargain with the Union about the
terms and conditions of employment for its em-
ployees in the bargaining unit and, if an under-
standing is reached, embody the understanding in a
signed agreement.
(d) On request, cancel the new pension plan; the
unilateral changes in insurance plans, holidays, and
disability pay; the unilaterally granted wage in-
creases; and any other unilateral changes in the
terms and conditions of employment for bargaining
unit employees it has made without notifying or
bargaining with the Union.
(e) On request, grant representatives of the
Union access to its stores as required under its col-
lective-bargaining agreement.
(f) Make its employees whole by reimbursing
them for any wages or benefits they may have lost
as a result of its unlawful unilateral changes, with
interest, in the manner set forth in the remedy sec-
tion of this Decision and Order.
(g) If the Union requests it to cancel a unilateral
change in benefits and reinstate the contractual
fringe benefit fund payments instead, pay any con-
tributions it has failed to make on behalf of unit
employees to fringe benefit funds as required under
its collective-bargaining agreement and make its
FABRIC WAREHOUSE
employees whole by reimbursing them for any
other expenses ensuing from its failure to make
such required contributions, with interest, in the
manner set forth in the remedy section of this De-
cision and Order.
(h) Post at its facilities in Richmond, Virginia,
and at all other locations where its employee hand-
book has been distributed to its employees, copies
of the attached notice marked "Appendix." 1 s
Copies of the notice, on forms provided by the Re-
gional Director for Region 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(i) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
' 5 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT promise our employees that they
will receive better benefits if they get rid of the
Union.
WE WILL NOT Solicit our employees to circulate
petitions to decertify the Union.
WE WILL NOT deny representatives of the Union
access to our stores or call the police to remove
representatives of the Union from our stores under
threat of arrest.
WE WILL NOT maintain a provision in our em-
ployee handbook that states that one of the require-
ments for membership in our pension plan is that
an employee not be a member of any union.
WE WILL NOT hold meetings directly with our
employees to offer them a better benefit package
without notifying or bargaining with the Union.
WE WILL NOT withdraw recognition from the
Union as the exclusive bargaining representative of
195
our employees in the following appropriate bar-
gaining unit:
All full-time and part-time employees em-
ployed by us at our Richmond, Virginia facili-
ties, but excluding Store Managers, Assistant
Store Managers, Management Trainees,
guards, watchmen and supervisors as defined
in the Act.
WE WILL NOT refuse to bargain over a new col-
lective-bargaining agreement with the Union as the
exclusive bargaining representative of our employ-
ees in the bargaining unit.
WE WILL NOT unilaterally institute a new pen-
sion plan and new insurance plans, unilaterally
change holidays and disability pay, unilaterally
grant wage increases, or unilaterally make any
other changes in the terms and conditions of em-
ployment for bargaining unit employees without
notifying or bargaining with the Union.
WE WILL NOT unilaterally deny representatives
of the Union access to our stores as required under
our collective-bargaining agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL amend our existing employee hand-
book to eliminate the provision that states that one
of the requirements for membership in our pension
plan is that an employee not be a member of any
union.
WE WILL recognize the Union as the exclusive
bargaining representative of our employees in the
bargaining unit.
WE WILL, on request, bargain with the Union
about the terms and conditions of employment for
our employees in the bargaining unit and, if an un-
derstanding is reached, embody the understanding
in a signed agreement.
WE WILL, on request, cancel the new pension
plan; the unilateral changes in insurance plans, holi-
days, and disability pay; the unilaterally granted
wage increases; and any other unilateral changes in
the terms and conditions of employment for bar-
gaining unit employees we have made without no-
tifying or bargaining with the Union.
WE WILL, on request, grant representatives of
the Union access to our stores as required under
our collective-bargaining agreement.
WE WILL, make our employees whole by reim-
bursing them for any wages or benefits they may
have lost as a result of our unlawful unilateral
changes, with interest.
WE WILL, if the Union requests us to cancel a
unilateral change in benefits and reinstate the con-
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tractual fringe benefit fund payments instead, pay any
contributions we have failed to make on behalf of unit
employees to fringe benefit funds as required under our
collective-bargaining agreement and make our employees
whole by reimbursing them for any other expenses ensu-
ing from our failure to make such required contributions,
with interest.
HANCOCK FABRICS D/B/A FABRIC
WAREHOUSE
of its 24 employees stated they did not want to be repre-
sented by the Union any more, nor when it unilaterally
implemented changes in wages and other terms and con-
ditions of employment of its employees following the
withdrawal of recognition and the expiration of its col-
lective-bargaining agreement with the Union.
Upon consideration of the entire record, including
briefs filed by General Counsel, Respondent, and Charg-
ing Party, and my observation of the witnesses and their
demeanor, I make the following
Eric M. Fine, Esq., for the General Counsel.
Lawrence S. Wescott, Esq., of Baltimore , Maryland, for
the Respondent.
Jeffrey D. Lewis, Esq., of Landover , Maryland , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On 8
January, 19 March, and 16 June 1987, charges were filed
against Hancock Fabrics d/b/a Fabric Warehouse (Re-
spondent), by United Food & Commercial Workers
Union, Local 400 (Union or Charging Party). Following
an investigation the National Labor Relations Board, by
the Regional Director for Region 5, issued a second con-
solidated complaint, dated 28 August 1987, which was
amended at and after the hearing, which complaint al-
leges, inter alia, that Respondent violated Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act)
when it unlawfully withdrew recognition of the Union
after unlawfully making promises of benefits to the em-
ployees to undercut union support, when it refused to
bargain with the Union, and when it unilaterally and
without bargaining with the Union implemented changes
in the wages and other terms and conditions of employ-
ment of its employees.
Respondent denied that it violated the Act in any way.
A hearing was held before me in Richmond, Virginia,
on 7, 8, 9, and 13 October 1987.
It is my conclusion that Respondent violated the Act
when (1) it encouraged employees Susan Dodson and El-
eanor Jackson in November 1986 to attend a meeting
where company versus union benefits would be discussed
and to ask management to hold such a meeting, respec-
tively, as set out more fully below, and when (2) it
threatened to have Union Business Representative Lynn
Colbert arrested in May 1987 if she did not leave its
store when she had gone to the store to post an NLRB
complaint' and to solicit grievances from the employees
in the store.
Further, it is my conclusion that Respondent did not
violate the Act when it held two meetings with employ-
ees in November 1986, when it withdrew recognition
from the Union after its meetings with employees and
after receipt of two petitions from employees wherein 21
' This was after the first complaint issued which was captioned 5-CA-
18590 and 5-CA-18734 Following this incident with Lynn Colbert the
Union filed the charge in 5-CA-18943 and, thereafter, the second con-
solidated complaint, the subject matter of this hearing , was issued
FINDINGS OF FACT
I. JURISDICTION
The Respondent , a Mississippi corporation with offices
and places of business at 5503 Midlothian Turnpike and
8051 West Broad Street, Richmond , Virginia , has been
engaged in the business of retail sale of fabric goods.
During the 12 months preceding issuance of the
second consolidated complaint , a representative period,
Respondent in the course and conduct of its business op-
erations described above derived gross revenues in
excess of $500,000 and purchased and received at its two
Richmond facilities products , goods, and materials
valued in excess of $ 10,000 directly from points located
outside the State of Virginia.
Respondent admits, and I find, that it is now, and has
been at all times material herein , an employer engaged in
commerce within the meaning of Section 2 (2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that United Food and
Commercial Workers, Local 400, is now , and has been at
all times material , a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background
Respondent is a Mississippi corporation. Its central of-
fices are located in Tupelo, Mississippi. It is engaged in
the retail sale of fabric goods and operates over 300
stores and has over 5000 full-time and part-time employ-
ees. The vast majority of these employees are not union-
ized.z
Respondent, while always individually incorporated,
was part of a larger corporate entity, i.e., Lucky Stores,
Inc., until May 1987 when it was "spun oft' from Lucky
Stores. Plans regarding the "spin off' were in the works
at and about the time the employees of the two Rich-
mond stores met with Respondent's management and at
the time the employees circulated and presented a peti-
tion to decertity the Union to management. Lucky
Stores has approximately 40,000 employees. Lucky stores
had and continues to have a largely organized work
force as distinguished from Respondent, which as noted
above is largely unorganized. As a result of the "spin off'
2 Respondent has approximately 10 stores with a total of 100 employ-
ees in the State of Washington, who are untomzied
FABRIC WAREHOUSE
Respondent went from being part of a large mostly orga-
nized operation to being a smaller largely unorganized
operation.
Respondent's two Richmond stores-store 138 on
Midlothian Turnpike and store 241 on West Broad
Street-were organized and its employees had been rep-
resented by the Union since approximately 1976 3 Re-
spondent and the Union had entered into a number of
collective-bargaining agreements over the years each of
which was for a 3-year period until 1986 when the par-
ties-at the insistence of Respondent-entered into a 1-
year collective-bargaining agreement, effective from 2
March 1986 to 7 March 1987. I note that during negotia-
tions leading up to this 1-year agreement Respondent did
not offer a pension plan to its Richmond employees nor
did the Union make a demand for a pension plan. Fur-
ther, Respondent during negotiations proposed some
limits on the Union's access to the stores which propo-
sals did not wind up in the final agreement. The General
Counsel and the Union suggest that Respondent 's insist-
ence on a 1-year contract, its proposal to limit union
access to the stores, and its failure to offer a pension plan
show antiunion animus and are evidence of a master plan
to get nd of the Union. I disagree. The mere substance
of bargaining proposals is not evidence of a violation of
the Act. Reichhold Chemicals, 277 NLRB 639 (1985).
Between October and 15 December 1986 when two
petitions-one from each store-were presented to Re-
spondent reflecting that 21 of 24 unit employees did not
want to be represented by the Union any longer and Re-
spondent withdrew recognition, a number of events tran-
spired. In deciding what happened I have examined the
documentary evidence and heard and studied the testi-
mony of the witnesses. I found all witnesses, with the ex-
ception of Paul Cossitt, Respondent's district manager, to
be credible. Some of the witnesses, however, had a more
complete recollection of events than did some others and
I have relied more heavily on their testimony as a result.
Paul Cossitt is a district manager for Respondent. As
such he oversees the two Richmond stores. In October
1986-more than half way into the 1-year contract be-
tween Respondent and the Union-employees ap-
proached Cossitt and told him they were dissatisfied
with the Union because they had not seen a copy of the
contract yet and no one from the Union had been around
to see them. Later in October employees approached
Cossitt and told him they were interested in having a
meeting with him to find out what their benefits would
be if there was no union.
Cossitt called David Jensen, Respondent's vice presi-
dent for personnel, in Tupelo, Mississippi, and told him
about the expressions of dissatisfaction with the Union.
Jensen took no action. Later, when Cossitt called Jensen
and told him that some employees had asked about
having a meeting, Jensen told Cossitt that Cossitt could
attend a meeting called by employees and answer their
questions but he was to make no promises to the employ-
3 It was stipulated that Local 400, United Food and Commercial
Workers was a lawful successor to Local 157, United Food and Commer-
cial Workers, which local had originally represented Respondent's Rich-
mond employees
197
ees. Jensen, thereafter, sent a memo to his superiors in
Respondent's management. He sent a copy of the memo,
dated 5 November 1986, to Cossitt. The memo listed the
benefits-wages, vacation, etc.-for the unionized Rich-
mond employees under their contract with Respondent
and what the employees would get if they were not
under the union contract, i.e., were nonunion employees
of Respondent. For the most part the list of benefits the
employees would receive if they became nonunion and
received so-called company benefits were the same that
other employees of Respondent who were nonunion re-
ceived.
B. 8 November 1986 Meeting at Store 138
(Midlothian Turnpike)
In October 1986 two employees of store 138-Elva
Cumber and Betty Bass-asked Cossitt to have a meeting
with the employees to discuss benefits the employees
would get if there was no union . The meeting was held
after the store closed about 6 p.m. on Saturday, 8 No-
vember 1986.
In attendance were Cossitt, Robert Ratz, a manage-
ment trainee, who was not a statutory employee, and six
employees, i.e., Elva Cumber, Betty Bass, Susan Dodson,
Eleanor Jackson, Margaret Creekmore, and Mary
Nester.
Prior to the meeting Cossitt had approached two em-
ployees-Susan Dodson and Eleanor Jackson. Cossitt
told Dodson there was going to be a meeting and asked
her to attend. Cossitt told Jackson not about the specific
meeting but mentioned to her that it would be a good
idea if the employees had a meeting with him to discuss
company benefits. Jackson later heard, as did all other
employees at the meeting, about when the meeting
would be from employees Cumber and Bass. As dis-
cussed below, almost a month after the meeting a peti-
tion was circulated by employees Cumber and Bass
among the employees to decertify the Union. Ten out of
the twelve employees in that store signed the petition,
which stated that they did not want to be represented
any longer by the Union. Neither Dodson nor Jackson
signed the petition. Accordingly, while Cossitt violated
the Act in suggesting to Jackson that a meeting to dis-
cuss company benefits be held and in telling Dodson to
come to the meeting , in the context of this case such mis-
conduct was not so serious as to cause me to ignore the
petition since neither Dodson nor Jackson (who was a
union steward at the time of the meeting) signed the peti-
tion.
Cossitt began the meeting by discussing the "spin off'
of Respondent from Lucky Stores. He then answered
questions about company benefits asked by the employ-
ees. The company medical insurance was described as
about the same as the employees had with the Union
except no vision case (i.e., the Company would not pay
for glasses), vacation was the same , life insurance under
the Union was better than nonunion, and holiday and
personal days worked out such that there was one less
day off with the company plan than under the unioncon-
tract. Cossitt told them that they would be eligible for a
10-cent-an-hour merit increase every 6 months under the
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
company plan and would be eligible for a pension plan.
In order to be eligible for the pension an employee must
work 1000 hours a year, which averages out to 20 hours
per week. Clearly, employee Dodson understood Cossitt
to say that longtime employees would be guaranteed 32
hours per week but I do not believe any such statement
was made. The examples Cossitt used-Cumber and
Jackson-were based on 30 hours per week employees,
but I credit Cossitt on this point that he made no such
guarantee He told the employees what pension in terms
of monthly retirement benefits employees Elva Cumber
and Eleanor Jackson would get if they were covered by
the pension. Under the contract between Respondent and
the Union the employees were not eligible to receive a
merit raise every 6 months nor did the employees have a
pension. Were these promises made to induce the em-
ployees to decertify the Union or were these simply
honest answers to questions posed by inquiring employ-
ees who had a right to know? I believe it was the latter.
The meeting on 8 November at the Midlothian Turn-
pike store and the later meeting on 15 November dis-
cussed below at the West Broad Street store were not
captive audience meetings but were attended only by
those employees who wished to do so and Cossitt, for
the most part, responded with accurate information to
questions asked by inquiring employees However, ac-
cording to Susan Dodson , who is still employed at the
Midlothian Turnpike store and who I credit, Cossitt vol-
unteered at the 8 November 1986 meeting that it was ir-
relevant to him which way the employees went but he
thought they would be better off nonunion than union.
Also, when asked by an employee at the meeting if they
would really get the benefits Cossitt said they would get
if they went nonunion, Cossitt said that "it's in writing,
it's their offer and promise," or words to that effect.
C. 15 November 1986 Meeting at Store 241 (West
Broad Street)
In October 1986, 7 months into the March 1986 to
March 1987 contract, employee Lois Weaver ap-
proached District Manager Paul Cossitt and told him she
was dissatisfied with the Union because she had not seen
the contract yet and no one from the Union ever came
around. She asked to have a meeting between Cossitt
and the employees in which the company benefits could
be discussed.
The time and place of the meeting was set by Weaver
who notified the other employees of the meeting. There
is no evidence that Cossitt or any other management offi-
cial of Respondent told employees at this store about the
meeting.
The meeting took place at approximately 6 p.m after
the store closed on Saturday, 15 November 1986. In at-
tendance were Paul Cossitt, his wife, who sometimes
managed one of the stores in her husband 's absence,
management trainees Walter Jacobs and Becky Roach,
and four employees, i.e., Lois Weaver, Judith Kerley,
Willavene Maxey, and Sally Farren
Cossitt started the meeting by talking about the "spin
off" of Respondent from Lucky Stores. He then an-
swered questions posed by employees. He said on the
holidays, personal days, 10-cent-an-hour merit increase
every 6 months, and pension plan what he said at the
meeting at the Midlothian Turnpike store 1 week earlier.
Judith Kerley, who later signed a petition saying she did
not want to be represented by the Union, was used an
example on the pension, i e., Cossitt said what Kerley's
monthly pension would be under the company pension
plan Cossitt's wife and Supervisor Becky Roach said
nothing at the meeting but Supervisor Walter Jacobs, a
retired career Navy enlisted man, commented that Re-
spondent's pension plan was better than his Navy pen-
sion.
One of the employees in attendance at this meeting
was Sally Farren. Farren had never joined the Union
and4 signed the petition stating that she no longer
wanted to be represented by the Union. She subsequently
left Respondent's employ prior to this meeting but before
the hearing for a better paying job. She lacked any
motive to fabricate. Her demeanor was such that I am
convinced she was telling the truth when she testified as
a witness for the General Counsel. Accordingly, I credit
her testimony that Cossitt recommended to the employ-
ees at the meeting that they should get rid of the Union
and that he did so prior to anyone mentioning the Union
at the 15 November meeting. According to Farren, Cos-
sitt also said-not in response to a direct question-that
employees would be better off without the Union. Ac-
cording to Farren, the benefits under the Company as
discussed by Cossitt were pretty much the same, in her
opinion, as the benefits the employees enjoyed under the
union contract.
At the end of the meeting Lois Weaver asked how do
we get rid of the Union. Cossitt suggested getting up a
petition. He went on to say, however, that he could not
circulate any such petition.
At both meetings Cossitt gave a deadline for the em-
ployees letting Respondent know if they wanted to stay
union or go nonunion. According to employees Eleanor
Jackson and Susan Dodson, who were present at the 8
November meeting, Cossitt said Respondent wanted to
know by the end of November and according to employ-
ees Willavene Maxey and Sally Farren, who attended the
15 November meeting, Respondent wanted to know by 6
or 9 December. As noted below, petitions were not cir-
culated until 6 December and not given to Respondent
until 15 December.
D. Petitions
Subsequent to both meetings employees Betty Bass
and Elva Cumber from store 138 (Midlothian Turnpike)
prepared a petition headed "We the undersigned employ-
ees of Hancock Fabric store 138, Richmond, Virginia no
longer want to be Represented by Local 400 of the
United Food and Commercial Workers." Cumber and
Bass circulated the petition and between 9 and 13 De-
cember 1986 got 10 out of 12 of their fellow employees
to sign the petition.
Employee Lois Weaver from store 241 (West Broad
Street) spoke with Cumber and Bass about circulating a
subjects of medical insurance , vacations, life insurance , 4 Virginia is a so-called right-to-work state
FABRIC WAREHOUSE
petition at the store where she worked. Cumber and Bass
helped Weaver prepare the language on Weaver's peti-
tion which was the same as the language on the petition
they circulated except that "Store No. 241" was substi-
tuted for "Store No. 138." Weaver circulated the petition
and between 9 and 13 December 1986 got 11 out of 12
of her fellow employees to sign the petition. In all 21 out
of 24 employees signed the petition.
There is no evidence that Respondent participated in
preparing the petitions or in circulating the petitions. In
addition, those who circulated the petitions-Cumber,
Bass, and Weaver-testified they did not tell employees
what Cossitt had said at the two meetings. I note that 14
employees between the two stores did not attend either
meeting and 13 of these employees signed one or the
other of the two petitions 5 Those 13 employees consti-
tute a majority of the employees and since they did not
attend either meeting and since those who circulated the
petitions did not discuss with them what was said at the
meetings it is clear they could not have been unlawfully
or improperly influenced by what Cossitt said at the
meetings.
E. Petitions Presented to Management
On Monday, 15 December 1986, employees Elva
Cumber and Betty Bass presented the petition from the
employees at store 138 (Midlothian Turnpike) to Paul
Cossitt. Later that day, Lois Weaver presented the peti-
tion from the employees at store 241 (West Broad Street)
to Cossitt.
Following receipt of the petitions Cossitt telephoned
David Jensen, Respondent's vice president for personnel
in Tupelo, Mississppi, and informed him of what had
happened. He thereafter forwarded the two petitions to
Jensen.
On 16 December 1986, Jensen sent two letters to the
Union (one for each store) advising that Respondent
would no longer recognize the Union in light of the peti-
tions it had received
Respondent honored all terms and conditions of the
contract until it expired on 7 March 1987. From 16 De-
cember 1986 Respondent refused to engage in reopened
negotiations on wages or to engage in negotiations for a
new collective-bargaining agreement when requested to
do so by the Union. Respondent, after the expiration of
the contract, unilaterally implemented changes in the
terms and conditions of employment of its employees
(e g., implemented the pension plan, etc.) without first
notifying the Union and giving it an opportunity to bar-
gain over the changes. These unilateral changes gave to
the Richmond employees the benefits that Cossitt said
they would get if they were not covered by the union
contract but were nonunion employees. In addition, these
5 Employees Covington, Downie, Evans, Gonzalez, Phan, Poore, and
Shelton from store 241 (West Broad Street) signed the petition but did
not attend the meeting as did employees Boyd, Lowe, McGhee, Phillips,
Pufahl, and Wiggins from store 138 (Midlothian Trunpike) who likewise
did not attend the meeting at their store but did sign the petition Only
Taylor, a union steward at store 241, neither attended a meeting nor
signed a petition although she was told about the meeting and evidental-
ly, for her own personal reasons, chose not to attend
199
were benefits that Respondent's nonunion employees re-
ceived.
F. Discussion
Respondent had a good-faith, reasonably grounded
doubt as to the Union's continued majority status when it
withdrew recognition. The misconduct of Cossitt in tell-
ing Eleanor Jackson to call a meeting, in telling Susan
Dodson about the meeting and volunteering at the 15
November 1986 meeting that employees would be better
off without a union , and suggesting to the four employ-
ees at that meeting that they get rid of the Union were
not so egregious in the context of this case that the clear
will of the overwhelming majority of Respondent's Rich-
mond employees should be frustrated and those employ-
ees forced to have union representation when they have
clearly indicated they do not want it
However, times change and those employees may feel
differently today about union representation from how
'they felt back in December 1986 when they signed the
petitions. Accordingly, the Union may meet with success
if it undertakes an organizing campaign at Respondent's
Richmond stores.
On 19 May 1987, after the contract expired and recog-
nition was withdrawn, Union Representative Lynn Col-
bert returned to store 241 (West Broad Street) to go to
the employee break area with the intention of doing two
things: (1) posting on the employee bulletin board a copy
of a complaint issued by the Regional Director for
Region 5 alleging,: inter alia, that Respondent had unlaw-
fully withdrawn recognition,6 and (2) to see if the em-
ployees had any grievances to bring to her attention.
Cossitt, after checking with Jensen in Tupelo, ordered
Colbert to leave the store unless she wanted to buy
something or he would call the police and have her ar-
rested. She insisted she had a right to be there Cossitt
called the police, who, upon arrival, threatened her with
arrest if She did not leave. Colbert left under protest.
Respondent's incredibly heavy handed manner of dealing
with Colbert with employees present in the store could
only have a chilling effect on the Section 7 rights of Re-
spondent's employees. Colbert is a young woman who
had given birth just months prior to this incident. The
employees had a right to see the complaint and Colbert
had a right to see if the employees had any grievances. It
is possible that even though recognition was withdrawn
and the contract had expired employees could have
grievances to present under that expired contract. Some
grievances survive the expiration of the contract contain-
ing the grievance-arbitration clause. See Indiana &
Michigan Electric Co., 284 NLRB 53 (1987).
In the unique circumstances present here Respondent
violated the Act by threatening to have Colbert arrested.
Those unique circumstances include the fact that an
agency of the United States Government (Region 5,
NLRB) had issued a formal complaint which gave Col-
bert a good-faith belief that the Union still represented
the employees, her presence at the store was not unique,
6 This complaint was superseded by the second consolidated complaint
following the filing of a new charge
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and the employees should know as soon as possible what
violations of the law the Board was charging Respond-
ent with violating.
The Union in this case was well beyond its first year
of certification and, therefore, enjoyed only a rebuttable
presumption that its majority representative status con-
tinued. Terrell Machine Co., 173 NLRB 1480, 1481
(1969). It is my considered judgment that Respondent
had a good-faith, reasonably grounded doubt as to the
continued majority status of the Union, i.e., the presump-
tion was rebutted, when Respondent received two peti-
tions showing that 21 out of 24 employees did not want
to be represented by the Union any longer. If an employ-
er has a reasonably grounded good-faith doubt as to the
continued majority status of a union , it has a right to
withdraw recognition. BASF Wyandotte Corp., 276
NLRB 1576 (1985); Bennington Iron Works, 267 NLRB
1285 (1983). While a reasonably grounded good-faith
doubt as to continued majority status should take place
in an atmosphere free of unfair labor practices before
recognition can be withdrawn, the unfair labor practices
must be "sufficiently serious to warrant a determination
that they possessed an inherent tendency to produce dis-
affection and, thereby, contributed to the union 's loss of
majority status." Chicago Magnesium Castings, 256
NLRB 668, 674 (1981); BASF Wyandotte Corp., supra.
While Cossitt should not have told employee Jackson to
call a meeting to discuss company benefits (which she
did not do) and Cossitt should not have invited employee
Dodson to the November 1986 meeting, the fact is that
that particular meeting was called by employees Cumber
and Bass and not by any management official of Re-
spondent. In addition, the meeting of 15 November 1986
was called by employee Weaver and not Respondent.
Cossitt's responses to questions from employees at the
two meetings were essentially factual. BASF Wyandotte
Corp., supra; and KCRA-TV, 271 NLRB 1288 (1984).
Cossitt was wrong to express his opinion as he did at the
15 November 1986 meeting that the employees would be
better off without the Union, but it is noted that a major-
ity of the employees who signed the petitions stating
they no longer wanted to be represented by the Union
attended neither meeting and there is no evidence they
were told what Cossitt said at the meetings.
Although Cossitt at the 8 November 1986 meeting did
wave some pages in the air and say in response to a
question whether employees could rely on these being
the company benefits "It's in writing. It's their offer and
promise," or words to that effect, I suggest that if he had
said "no, you can't rely on what I say" his response
would have been erroneous and if he had said "no com-
ment" he would not have been terribly responsive to a
reasonable question the employees had a right to ask. His
response did not contain the kind of express promise de-
signed to undercut union support such as a promise to
treat these Richmond employees substantially better than
Respondent's other 5,000 nonunion employees to get
them to decertify the Union would have been.?
7 Respondent's pension plan stated that it applied only to employees
who were not working under a collective-bargaining agreement This
If a respondent lawfully withdraws recognition of the
Union effective at the end of an existing collective-bar-
gaining agreement it can, when the contract expires, op-
erate unilaterally regarding the terms and conditions of
employment of its employees. Accordingly, Respondent,
in May 1987 and, thereafter, when it made unilateral
changes in the terms and conditions of employment of its
employees, did not act unlawfully. Once recognition is
lawfully withdrawn, as it was here, an employer need
not honor a request to bargain by the former representa-
tive of its employees.
When this decision issues Respondent's Richmond em-
ployees will have been without union representation for
approximately 1 year. They may want the Union back.
The Union is obviously at liberty to undertake an organi-
zational drive among these employees.
CONCLUSIONS OF LAW
1. Hancock Fabrics d/b/a Fabric Warehouse is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2 United Food and Commercial Workers, Local 400,
is a labor organization within the meaning of Section
2(5) of the Act.
3. When Respondent, by District Manager Paul Cos-
sitt, told employee Eleanor Jackson to have the employ-
ees who were represented by the Union ask to have a
meeting with him to discuss benefits employees would
receive if there was no union , Respondent violated Sec-
tion 8(a)(1) of the Act.
4. When Respondent, by District Manager Paul Cos-
sitt, told employee Susan Dodson to attend a meeting
with other employees who were represented by the
Union where Cossitt would be discussing benefits those
employees would receive if there was no union, Re-
spondent violated Section 8(a)(1) of the Act.
5. When Respondent, by District Manager Paul Cos-
sitt, threatened Union Representative Lynn Colbert with
arrest when she entered store 241 on West Broad Street,
Richmond, to go to the breakroom to see if any employ-
ees had any grievances and to post a copy of a NLRB
complaint charging Respondent with unfair labor prac-
tices on the employee bulletin board, it violated Section
8(a)(1) of the Act
6 Respondent did not violate the Act in any other
way. More specifically, it did not violate the Act when it
withdrew recognition of the Union, refused to bargain
for a new collective-bargaining agreement, and when,
after its contract with the Union expired, it unilaterally
changed some of the terms and conditions of employ-
ment of its employees.
7. The unfair labor practices of the Respondent, de-
scribed above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
provision is not illegal in the context of this case since the meaning of
that language, as explained by Vice President Jensen, was that the pen-
sion plan applied to all employees not represented by a union and any
pension plans for represented employees would be a matter of negotiation
between Respondent and the Union