J. C. Penney Co.

National Labor Relations Board - Board Decisions

Feb 9, 1967

162 N.L.R.B. 1553 (N.L.R.B. 1967)

J. C. PENNEY COMPANY (STORE #134) 1553
vided by the Regional Director for Region 28, after being duly signed by an
authorized representative of Respondent, shall be posted immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter,
in conspicuous places including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 28, in writing, within 20 days
from the receipt of this Decision, what steps Respondent has taken to comply
herewith 15
', In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT poll or interrogate our employees about their union activities
or try by such means to assume the functions of the National Labor Rela-
tions Board in its discharge of its duties, or seek to obtain from our employ-
ees revocation of union authorization cards, or interfere with or infringe upon
our employees' rights to privacy in conducting their union affairs, or threaten
employees with bad consequences if they should vote for a union in an
electron.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees because of their union activity.
All our employees have the right to join or assist Local 826, International
Union of Operating Engineers, AFL-CIO, or any other union.
GLOBE CONSTRUCTION COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
7011, Seventh Floor, 500 Gold Avenue SW., Albuquerque, New Mexico, Telephone
247-2583.
J. C. Penney Company ( Store #134) and Retail Clerks Interna-
tional Association , Local 253, AFL-CIO . Case 30-CA-376.
February 9, 1967
DECISION AND ORDER
On September 30, 1966, Trial Examiner Maurice S. Bush issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and Was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support of said exceptions,
162 NLRB No. 144.
264-047-67-vol. 162-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the General Counsel filed a brief in support of the Trial Exam-
iner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modifications or
additions noted herein.'
[The Board adopted the Trial Examiner's Recommended Order.]
'Respondent, in arguing that it had reasonable grounds based on objective considera-
tions for believing that the Union had lost its majority status, relies heavily upon X.L.R.B.
v. Laystrom Manufacturing Company, 359 F.2d 799 (C.A. 7) denying enforcement of 151
NLRB 1482. However, that case is clearly distinguishable from the instant situation.
There the respondent questioned the union's majority from the outset, and the union,
relying exclusively upon the presumption of the continuance of its majority status, made
no effort to demonstrate its majority status. In marked contrast, here the Respondent
participated in several bargaining meetings before questioning the Union's majority, and
the Union twice established its majority support by securing signatures to petitions from
20 employees in the bargaining unit of 34 employees. Further, the employee, who twice
circulated an antiunion petition, failed on both occasions to secure majority support and
reported to Respondent's manager that she was unable to do so. It is thus clear that the
Respondent not only lacked reasonable grounds for believing that the Union had lost its
majority status, but had acquired convincing evidence that the Union enjoyed continued
majority support in the bargaining unit. Accordingly, we find that the General Counsel has
affirmatively established facts showing that the Respondent could have had no real doubt
about the Union's majority status; facts which the Seventh Circuit noted were absent in
Laystrom (and which, that opinion seems to indicate, would have led the court to a
different conclusion had they been present).
TRIAL EXAMINER'S DECISION
The sole issue herein is whether the Respondent Company has established a
defense for its refusal to bargain with the Union in seeming violation of the unfair
labor practice provisions of Section 8(a)(5) and (1) of the Act by the required
showing, under decisions of the Board, "by objective evidence" of "a reasonable
basis" for believing the Union has lost its majority status.
The case was heard before Trial Examiner Maurice S. Bush at Ironwood, Michi-
gan, on August 2, 1966. Briefs filed by the parties after the close of the hearing
have been carefully reviewed and considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, J. C. Penney Company, a Delaware corporation, is engaged in
the operation of chain stores for the retail sale of general merchandise. The only
retail store involved under the complaint in this proceeding is Respondent's depart-
ment store #134 located in Ironwood, Michigan. During the past calendar year,
the dollar volume of Respondent's sales at its store #134 was in excess of $500,-
000 and in the same period Respondent purchased and received goods, in interstate
commerce, valued in excess of $50,000 from points directly outside the State of
Michigan.
J. C. PENNEY COMPANY (STORE #134) 1555
It is found that all times here material the Respondent has been an "employer"
as defined in Section 2(2) of the Act and has been engaged in "commerce" and
in operations "affecting commerce " as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Retail Clerks International Association , Local 253, AFL-CIO, is a labor
organization within the meaning of Section 2 ( 5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The J . C. Penney department store involved in this proceeding was opened at
Ironwood , Michigan , in the early twenties . It is the largest department store in
Ironwood , a city of some 11,000 persons , being some two or three times as large
as its next largest competitor . The store has been under the management of Phillip
Ruschmeyer since 1960 , hereafter called store manager.
In 1963 the J. C. Penney Company employed 31 employees in its Ironwood
department store which constituted an appropriate unit consisting of all the regular
and extra employees in the Ironwood store, excluding store - manager, assistant
manager, department managers , management trainees , seasonal employees , guards,
professionals , and supervisors.
On December 27, 1963, the Union was designated as the collective -bargaining
representative of the aforementioned unit in the Ironwood store as the result of a
National Labor Relations Board election which the Union won by a vote of 16
to 15.
On August 7, 1964, the Company and the Union executed a collective -bargaining
agreement covering the employees in the certified unit. The contract , retroactive to
February 3 , 1964 , was made to run until January 30, 1966, when by its terms it
was to be deemed automatically renewed for a year unless the Union or Company
asked for negotiations for changes in the contract.
On November 27, 1965, the Union, under the terms of the contract , notified
Respondent's Ironwood store manager that it did not wish an automatic renewal
of the contract and desired to negotiate the terms and provisions of a successor
agreement.
Pursuant to this request for bargaining, the Company through its Ironwood store
manager, engaged in bargaining sessions with the Union for a new contract in four
separate sessions held on February 8 and 17, and March 10 and 28, 1966,1 in
which progress was made but full agreement not reached . The store manager did
not at any time during any of these negotiation sessions question the majority
status of the Union.
A fifth bargaining session was scheduled for April 11 , but on April 9 the store
manager sent the Union a wire canceling the scheduled meeting, "pending RM
petition filed." The indicated RM or representation petition was filed by the
Respondent April 11, 1966,2 and docketed as Case 30 -RM-59, but was subse-
quently dismissed 3 by the Regional Director upon the filing by the Union on
April 11, 1966, of an unfair labor charge , charging the Respondent with unlawful
refusal to bargain or negotiate with the Union , and the subsequent issuance of a
complaint thereunder heie involved.
The store manager's wire of April 9 to the Union canceling the scheduled meet-
ing of April 11 was preceded by the following events relating to the question of
whether the Respondent had any reasonable basis for questioning the Union's
1 The fact that these bargaining sessions did not commence until after the expiration
of the labor agreement was due to the preoccupation of the Union ' s business agent with
other union business
-'Although the Company ' s wire of April 9 indicated that its RM or election petition
was already filed , the actual filing date of the petition with the Regional Director ' s office
at Milwaukee was April 11 , this was because the Respondent had erroneously mailed the
petition to the Minneapolis Regional Director 's office which in turn mailed it on to the
Milwaukee Regional Office for filing
3 This was pursuant to the Board 's long established practice not to conduct a representa-
tion election when the employer is also charged with an unfair labor practice which might
affect the outcome of the election unless the union waives any claim to rely upon the
employer ' s conduct to invalidate the election . United States Coal d- Coke Co , 3 NLRB
398 ; Surprenant Mfg Co v. A lpert, 318 P 2d 396 ( C A 1) , Pacemaker Col p. v
N.L R B , 260 F 2d 880 (C A. 7) , N L R B. v . 1'rimfit of California , 211 F.2d 206 (C A 9).
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority status. The principals in these events are the aforementioned store man-
ager and Carol Begalle, a nonunion member of the unit employed at the store as
a merchandise records clerk. She has worked at the Ironwood store for more than
6 years.
About March 15, Begalle began to circulate among the employees in the unit
a petition calling for a new vote count on whether the Union was to continue to
represent the unit in negotiations with the Respondent. She was able to secure only
some three or four signatures from the 34 employees then in the unit. During the
course of her endeavors to get signatures to the petition, she consulted the store
manager to ask if he would receive the petition and received assurances that he
would. Later upon learning from the store manager and others that her petition,
with only 3 or 4 signatures on it, would be ineffective due to its minority support,
she tore up the petition.
About April 1, Begalle began circulating a second petition asking for a "new
vote count." She was able to get only 13 out of the 34 employees in the unit to
sign the new petition; the 13 who did sign were not members of the Union and
constituted the entire compliment of Respondent's nonunion employees. Begalle
did not seek the signatures of any of the union members in the unit to the petition
except one because she knew they would decline to sign . The one union member
she did contact declined to sign. During the course of circulation of this second
petition, Begalle again received the assurance of the store manager that he would
receive the petition she was circulating, despite the fact that she put him on
express notice that the petition would contain the signatures of only nonunion
members. On April 5 Begalle presented the new petition to the store manager
containing the signatures of only nonunion members. On April 5 Begalle presented
the new petition to the store manager containing the signatures of 13 nonunion
members of the 34-member unit. The petition is in evidence as Respondent's
Exhibit 1.
At the times herein material the original appropriate unit consisting of 31
employees had increased to 34 employees. Under the terms of the labor agreement
all employees hired during the life of the contract had to become and did become
members of the unit, but the contract also provided that employees who were not
members of the Union at the time of the execution of the labor agreement and
did not desire to join the Union were not required to do so as a condition to their
continued employment with the Company.
The record shows that two employees who were members of the Union's bar-
gaining committee during the first negotiations are no longer with the Company.
The record also shows that two other employees who had voted in the representa-
tion election of 1963 are no longer with the Company, one by reason of death
and the other by reason of a voluntary separation.
In 1964, after the Union had won the representation election, someone caused
to be posted at the entrance of the iron mines in and around Ironwood the names
of employees in Respondent's Ironwood store who had declined to become mem-
bers of the Union, presumably in an attempt to get the union employees in the
mines to persuade or bring pressure on such nonunion employee relatives they
might have in the Penney store to join the Union. From the record as a whole
and more particularly from the fact that Begalle was able to secure only 13 signa-
tures on her petition for a new count as against the 15 employees who had voted
against the Union in 1963, I find that the posting of the names of the nonunion
members of the Ironwood store at the mines had no intimidating effect on the
nonunion members in Respondent's store.
The Union called a meeting on April 11 to take action on the store manager's
notification of the Company's filing of an election petition with the Board. As a
result of this meeting, 20 of the 34 employees in the unit signed a petition stating
that they were members of the Union and that they were requesting the Union to
represent them for purposes of collective bargaining. Two days later on April 13,
the Union sent a letter to the Company's store manager notifying the Respondent
that it had ". . . a list of 20 employees of your store in Ironwood, Michigan, who
have signed an affidavit requesting Retail Clerks Union Local 253 [the Charging
Party] to represent them for the purposes of collective bargaining with respect
to rates of pay, hours of employment and conditions of employment." The letter
further notified the Respondent that the Union had furnished the Board with the
same information.
Failing to get a response to its letter of April 13 from the Company, the Union
called a second meeting of Respondent's employees on May 24 for the purpose of
J. C. PENNEY COMPANY (STORE #134) 1557
again confirming and substantiating the fact that the Union represented a majority
of the employees in the Ironwood store. As a result of this meeting , the same 20
employees out of the 34-employee unit who had signed the previous petition signed
a new petition , dated May 24, 1966, requesting the Union "to continue to represent
us in collective bargaining ..." with the Company:
The Union immediately followed up the action taken at the May 24 meeting by
sending a telegram to the, store manager ' the next day requesting recognition to
represent the involved unit and asking for a meeting with the store manager that
same day "to discuss a contract relative to wages, hours and working conditions
covering your employees . .
The Union's telegram of May 25 to the store manager further notified Respond-
ent that the Union " is prepared to prove that it represents a majority of your
employees in the appropriate unit by submitting a signed affidavit by the employees
to substantiate representation to a mutually satisfactory, impartial party for a
comparison of their names and signatures with your company records."
This telegram demanding recognition and offering to show proof of majority
representation also , drew no response from the , Respondent.
Discussion and Conclusions
Respondent in its brief presents two lines ' of defense . Its first and primary
defense is strictly a legal or technical defense. Its second defense is on the merits
of whether Respondent's refusal. to bargain with the Union was based on a good-
faith • doubt as to the Union 's majority status.
Respondent's first defense is related to the filing of its RM petition with the
Board on April 11, 1966 The RM petition was filed under the provisions of Sec-
tion 9(c)(1)(B ) of the Act, as amended ; which reads in pertinent part as follows:
Wherever a petition shall have been filed, in accordance with such regulations
as may be prescribed by the Board-by an employer , alleging , that one or
more individuals , or labor, organizations have presented to him a claim to be
recognized as the representative defined in Section 9(a) . . . the Boaid shall
investigate such , petition and if it has, reasonable cause to believe that a,
question of representation . . . 'exists sfiall provide for an appropriate hearing
upon due notice . . . . If the Board finds upon the record of such hearing that
such a question of representation exists, it shall direct an 'election by secret
ballot and shall certify the results thereof.
Under its' first defense, Respondent appears to contend that under the provisions
of the above -quoted ' statute an employer has an absolute statutory right, upon the
filing of a representation petition with the Board, to a Board-conducted election
to determine whether an incumbent ' union' still represents a majority of its employ-
ees; regardless of whether or not the employer has 'a good-faith doubt as to the'
union 's majority status. Stated in its own words; the Respondent , iii its brief states:
"It is clear beyond the; need for ` further. argument , then; that an employer has the
statutory right to petitions - for 'anr . election 'and',that the 'NLRB, has a corollary
obligation to direct a secret ballot election." Accordingly , Respondent ' appears, to
contend- that the instant unfair labor -,practice' case should be dismissed and -an
order be entered directing ' that '' Respondents : RM ,''petition 'in Docket No
30- RM-59 -be processed and that - an. election ' be-conducted thereunder? ' '
This alleged statutory defense - is obviously without inerit ' because -the statute
by its very' language does not confer an absolute right 'on an employer to a repre-
sentation election upon ' the mere '- filing of -a RM petition,'•but 'makes the right"to
such an election discretionaiuwith the'-Board '"if it i[the Board] '' has reasonable'
cause 'to believe that a question, of `repfeseritation : i . • :.exists .' . . .'-' [Emphasis ,in,
quotationrsupplied li :.. • •il(^rn' -'') ,, ,:, . m :,W-t
Moving on .to the, merits of the case ,r'Respondent 3 contends that- it , has 'established
a, good-faiths doubt as to the , 'Union 's majority. status and that accordingly' the'`
complaint, should' 'be dismissed . Both. General„ Counsel - and Respondent agree that'
the Board :s recent ;decisioniin r U:Sn:'Gypsum 'Co'mpany,' 15Z`NIi RB' 652' recites the
:4 Respondent''-s brief 'at its •"Summary"-lstat6s : "Respond'ent' contend's tha"f having filed
a bona: fide RM Petition',Ihis obligation' to bargain 'with 'the Union ii,'as silspended'iiendin4
determination -of the ''Union's 'majority' status 'by' means 'of a' secret ballot- election' All
Respondent seeks is tithe direction and''conddct'of such 'an' election The General'
Counsel should'noi1liei permitted by administration'fidi to afnend' Section 9('c),(1) (B) 'of
the Laboi'Ma`nagement Relations'Act I' , ' ' ' , 1: '-:' • ' ' '
. I ., ' J i , -r' r I r i , . ; - , , ' , j , , - , ' a .;t ,t •'. '.'. ..
1558 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
ground rules, for determining whether an employer has a good-faith doubt as to
union majority status where the employer has filed an RM petition under the
above-quoted provisions of Section 9(c)(1)(B). U.S. Gypsum states two applica-
ble rules or standards. The first prevails where there is no charge of unfair labor
practices against the employer. In such cases, the Board in U.S. Gypsum invokes
a new rule which holds that an employer "in petitioning the Board for an elec-
tion to question the continued majority of a previously certified incumbent union,
in addition to showing the union's claim for continued recognition, must
demonstrate by objective considerations that it has some reasonable grounds for
believing that the union has lost its majority status since its certification." The
new rule, for reasons stated by the Board in its opinion which do not have to be
repeated here, replaced a former standard in a line of cases in which the Board
"has long held that a question concerning representation is raised with respect
to the status of an incumbent union if an employer files a petition under Section
9(c) (1) (B) and shows only that the union has claimed representative status in
the unit and the Employer has rejected or otherwise questioned that status. In so
holding the Board has not, in such representation proceedings, questioned the
good faith of the employer's refusal to grant the union recognition."
The second standard for determining an employer's alleged good-faith doubt
of union majority is applicable in unfair labor practice cases. In unfair labor
practice cases, the Gypsum case points out, that "the Board has consistently held
that there is an irrebuttable presumption that the majority status of a certified
union continues for 1 year from the date of certification; that thereafter the pre-
sumption is rebuttable, and an employer may lawfully refuse to bargain only if
it can show by objective facts that it has a reasonable basis for believing that the
union has lost its majority status since its certification ." [Emphasis supplied.]
The Gypsum case cites Laystrom Manufacturing Co., 151 NLRB 1482, in con-
nection with this standard. The Laystrom case holds (at pages 1483 and 1484)
that "where the [Union's] certificate is a year or more old an employer may
withhold further bargaining without violating the Act and insist that the union
reestablish its statutory representative status if, but only if, he in good faith has
a reasonable doubt of the union's continuing majority. A showing of such doubt,
however, requires more than an employer's mere assertion of it, and more than
proof of the employer's subjective frame of mind. The assertion must be supported
by objective considerations." [Emphasis added.] The Gypsum case made no
change in this second standard which has always prevailed in unfair labor prac-
tice cases.
Inasmuch as the instant case is an "unfair labor practice case," the above-
described second standard must be applied to the facts established in this case.
Respondent in its brief contends that it refused to bargain with the Union
because it had "substantial and undeniably reasonable grounds for believing the
Union had lost its majority status among the employees in the Ironwood store" by
reason of the following circumstances that: (1) the Union won the December
1963 representation election by a vote of only 16 to 15 in favor of the Union,
(2) after the election the Company engaged in good-faith bargaining with the
Union resulting in the labor agreement which is now expired, (3) two of the
employees on the Union 's original bargaining committee leading to the labor
agreement are no longer in the employment of the Company, (4) 2 additional
employees in the original 31-member unit are no longer with the Company, (5)
3 employees have been added to the original 31-employee unit since the date of
the labor agreement who under the terms of the contract had to join the Union
as a condition of employment and it is possible that they "might vote against
further representation by the Union if given the opportunity to express their
feelings in a secret ballot election ," ( 6) the store manager on April 5, 1966,
received a communication signed by 13 of the 34-employee unit requesting a new
vote, ( 7) there has been some turnover of personnel since the original representa-
tion election , and (8 ) some of the present union members of the store may have
been intimidated into becoming union members by reason of the posting of the
names of nonunion Penney employees in union -operated iron mines around
Ironwood.
The facts of record , however, show that the Respondent and its store manager
could not and did not have any real doubt about the fact that the Union has at
all times here material continued to represent the employees in the involved unit.
This is most eloquent in the fact that the store manager actually engaged in four
bona fide bargaining sessions with the Union in the spring of 1966 extending over
a period of nearly 2 months without ever raising any issue as to the Union's con-
tinued majority status; this is evidence that the store manager never entertained
J. C. PENNEY COMPANY (STORE #1W 4) 1559
any real doubt as to the union majority. Additional proof that the-store manager
could not have entertained any real doubt about the union majority status is
furnished by the fact that about a month or more after he began his bargaining
sessions with the Union on February 8, 1966, he was told by Miss Begalle , a loyal
nonunion employee, that she could muster only three or four signatures of employ-
ees in the unit for a new vote count.
Finally , it must have , become very evident to the store manager when he received
the second petition for a vote count from Begalle containing the signatures of
only 13 out of the 34 employees then in the unit that the Union 's majority was
virtually certain , particularly in view of Begalle's oral advice to the store manager
that these 13 signatures was all she could possibly get to her new petition for a
vote count . In the light of this information , the closeness of the election vote in
1963 and the turnover of personnel in the unit could furnish no reasonable basis
for a belief that the Union had lost its majority status. The Respondent never-
theless filed its RM election petition with the Board ; it may be inferred under the
circumstances related that the instructions for the filing of the RM petition came
from Respondent 's executive offices and was not made on the initiative of its store
manager who because of the smallness of Ironwood and the involved unit could
not have had any real doubt about the Union 's continued majority.
But even if for the moment it is assumed that the Respondent entertained some
doubt as to the Union 's continuing majority status , it is evident that that doubt
should have been completely dissipated by the action the Union took to prove its
majority representation as soon as the Company informed it that it had filed an
RM petition . The Company by wire dated April 9, 1966, notified the Union that
it was canceling a scheduled bargaining session and had filed a RM petition. As
noted , the Company 's RM petition was filed on April 11, 1966 . On April 13, 1966,
the Union advised the Respondent that it had "a list of 20 employees of your store
in Ironwood , Michigan , who have signed an affidavit requesting . . . [the Union]
to represent them for purposes of collecting [ sic] bargaining . . . ... The Company
did not ask for proof of the list at that time or on May 25 when it received a
similar communication from the Union . This clearly shows not only lack of any
reasonable basis for doubting the Union 's majority status but also even bad faith
because by simple calculation it was evident that the Union was offering to show
that it represented more than half of the employees in the unit after the exclusion
of the 13 employees who signed the Begalle petition for a new count and the
single employee who failed to sign the Begalle petition and was also not repre-
sented in the Union 's asserted list of 20 union employees out of the 34 employees
in the unit.
I conclude and find that the Respondent has failed to establish by objective
facts that it had or has a reasonable basis for believing that the Union has lost
its majority status since its certification.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully refused to bargain with the Union
as the exclusive representative of its employees in an appropriate unit . It will
therefore be recommended that Respondent , upon request , bargain collectively with
the Union , and in the event an understanding is reached , embody such understand-
ing in a signed agreement.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the -Act.
3. Since December 27, 1963, the Union has been the exclusive representative of
all employees in the following appropriate unit for the purposes of, collective bar-
gaining within the meaning of Section 9(b) of the Act:
All regular and extra employees of the Employer in Store #134, Ironwood,
Michigan ; excluding store manager, assistant manager , department managers,
management trainees , seasonal (temporary ) employees , guards, professionals,
and supervisors as defined in the Act.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of its employees in the appropriate unit, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that Respondent J. C. Penney
Company ( Store # 134), Ironwood , Michigan , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from refusing to bargain collectively with Retail Clerks
International Association , Local 253, AFL-CIO, as the exclusive representative
of all Respondent 's employees in the appropriate bargaining unit described
hereinabove.
2. Take the following affirmative action designed to effectuate the policies of
the Act.
(a) Upon request , bargain collectively with the above-named Union as the
exclusive representative of all the employees in the appropriate unit, and embody
in a signed -agreement any understanding reached.
(b) Post at its Ironwood , Michigan , store, copies of the attached notice marked
"Appendix ." 5 Copies of said notice , to be furnished by the Regional Director for
Region 30, after being duly signed by Respondent , shall he posted immediately
upon receipt thereof , in conspicuous places, and be maintained for a period of
60 consecutive days. Reasonable steps shall be taken to insure that said notices
are not altered , defaced, or covered by any other material.
(c) Notify the said Regional Director , in writing , within 20 days from the
receipt of this Decision , what steps Respondent has taken to comply herewith.6
5In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order" for the words
"a Decision and Order."
6 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director for Region 30, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to recognize Retail Clerks International Association,
Local 253, AFL-CIO, as the exclusive representative of the employees in the
appropriate bargaining unit described below.
WE WILL upon request, bargain collectively with the above-named Union
as the exclusive bargaining representative of all employees in the bargaining
unit with respect to rates of pay, wages, hours of employment, and other con-
ditions of employment, and if any understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All regular and extra employees of the Employer in store #134, Iron-
wood, Michigan ; excluding store manager , assistant manager, department
managers , management trainees , seasonal ( temporary) employees , guards,
professionals, and supervisors as defined in the Act.
J. C. PENNEY COMPANY (STORE # 134) IRONWOOD, MICHIGAN,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
TRUCK DRIVERS LOCAL 649, TEAMSTERS 1561
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Suite
230, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203,
Telephone 272-8600.
Truck Drivers Local 649, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America and Cold
Spring Construction Company, Inc. Case 3-OP-99. Febru-
ary 9, 1967
DECISION AND ORDER
On November 10, 1966, Trial Examiner Herman Tocker issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices as alleged in the com-
plaint, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent and General Counsel filed
exceptions to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions,2 and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
i The Trial Examiner made certain findings , which he based , in part , upon credibility
determinations . The Respondent excepts to these findings , also alleging that the Trial
Examiner was biased and prejudiced. After a careful review of the record, we conclude
that the Trial Examiner ' s credibility findings are not contrary to a clear preponderance
of all the relevant evidence . Accordingly , we find no basis for disturbing these findings.
Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We also
find no merit in the charge of bias and prejudice on the part of the Trial Examiner.
The Trial Examiner incorrectly describes Richard Forrestel as "Respondent ' s Vice-
President," when Forrestel, in fact, held that position with the Charging Party. The
Trial Examiner ' s inadvertent finding is hereby corrected.
2 As we agree with the Trial Examiner ' s findings that Respondent 's picketing was for
an object of recognition and had a substantial disruptive effective , we hold that Respond-
ent cannot claim the protection of the informational picketing proviso and that its picket-
ing violated Section 8(b) (7) (C) of the Act. Accordingly, although we agree with the
General Counsel that the Trial Examiner misstated the General Counsel's position con-
cerning the inapplicability of the second proviso to Section 8(b) (7) (C ), we need not
pass upon whether the picketing failed to satisfy that proviso in other respects as well.
See, e.g., Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Jack
Picoult), 144 NLRB 5.
162 NLRB No. 152.