Pic Way Shoe Mart

National Labor Relations Board - Board Decisions

Jul 31, 1992

308 N.L.R.B. 84 (N.L.R.B. 1992)

84
308 NLRB No. 13
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We agree with the judge that the Respondent did not present suf-
ficient evidence to justify a withdrawal of recognition. In doing so,
we do not rely on the judge’s conclusion that ‘‘the evidence pre-
sented must unequivocally indicate that a union’s support has de-
clined to a minority.’’ In Laidlaw Waste Systems, 307 NLRB 1211
(1992), we held that in a withdrawal of recognition case, an employ-
er’s burden to rebut the presumption of an incumbent union’s major-
ity status is satisfied by showing by a preponderance of the evi-
dence’’ that there has been an actual loss of majority status or that
sufficient objective factors support a reasonable and good-faith doubt
of union majority status. Applying this ‘‘preponderance of the evi-
dence’’ standard, we conclude that the Respondent did not meet its
burden.
The Kobacker Company d/b/a Pic Way Shoe Mart
and United Food and Commercial Workers
Union Local 1444 chartered by United Food
and Commercial Workers International Union,
AFL–CIO, CLC. Cases 30–CA–10946, 30–CA–
10958, and 30–CA–11091
July 31, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 18, 1991, Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent filed exceptions, a supporting brief, and an
answering brief. The General Counsel filed limited ex-
ceptions, a brief in support of the judge’s decision, and
an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 to the extent consistent with this decision and
to adopt the recommended Order as modified.
As described more fully in the judge’s decision,
these cases arise from events surrounding a 1990 effort
to decertify the Union as the representative of the Re-
spondent’s employees at its Beloit, Wisconsin store
and at its Janesville, Wisconsin store.
The judge concluded, and we agree, that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by: withdrawing recognition from the Union on April
24, 1990, and by refusing since then to execute a col-
lective-bargaining agreement whose terms were fully
agreed on on April 20, 1990; failing since April 24,
1990, to comply with the agreement’s wage provisions;
and by failing and refusing, since June 1, 1990, to
remit union dues deducted from the employees’ pay to
the Union, as required by the agreement.
The complaint also alleged that the Respondent, act-
ing through a labor consultant, Edwin D. Ricker, spon-
sored, supported, and encouraged a decertification peti-
tion, thereby violating Section 8(a)(1) of the Act. The
judge concluded that the Respondent merely provided
its employees with ministerial aid in conjunction with
the decertification effort, and that the Respondent
therefore did not violate Section 8(a)(1). The General
Counsel has excepted to this conclusion. We find merit
in the General Counsel’s exception.
We note that after employee Stephanie Adams had
expressed to the Respondent her interest in getting rid
of the Union and had sought advice about how to do
so, the Respondent told Adams that it could not be in-
volved as a company but that it might ascertain wheth-
er a third party could advise her. Later, the Respond-
ent, rather than merely give Adams Labor Consultant
Ricker’s name and telephone number, contacted Ricker
directly and requested him to call Adams regarding her
desire to get rid of the Union. We also note that the
Respondent, after receiving its employees’ petitions,
sent copies of them to Ricker. More specifically, the
Respondent’s store managers apparently mailed the
employee petitions to its vice president for human re-
sources, Michael Allen, who admitted that Ricker re-
quested that Allen send him copies (or the originals)
of the petitions. The judge concluded that it was likely
that Allen, who had not received the second of the two
employee petitions until April 12, sent the copies to
Ricker. Ricker filed a decertification petition on April
16. He testified that he simultaneously telephoned
Allen to tell him, inter alia, that he represented the Re-
spondent’s Beloit and Janesville employees. In our
view, by contacting Ricker to request aid for the em-
ployees’ decertification efforts, and by accepting the
employees’ petitions and forwarding them to Ricker,
the Respondent did more than merely provide ministe-
rial aid to its employees. Accordingly, we find that the
Respondent violated Section 8(a)(1) of the Act.
The judge found, and we agree, that Respondent did
not establish a reasonable and good-faith doubt of ma-
jority status or an actual loss of majority status. In ad-
dition, in view of our conclusion that Respondent un-
lawfully assisted the decertification effort, we conclude
that Respondent could not in any event raise these
matters in defense of its withdrawal of recognition.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
Kobacker Company d/b/a Pic Way Shoe Mart, Colum-
bus, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(e) and reletter
the subsequent paragraphs.
‘‘(e) Sponsoring, supporting, and encouraging the
filing of a decertification petition.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
85PIC WAY SHOE MART
1 All dates herein are 1990 unless otherwise indicated.
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 or-
dered us to post and abide by this notice.
We will not refuse to recognize United Food and
Commercial Workers Union Local 1444 chartered by
United Food and Commercial Workers International
Union, AFL–CIO, CLC, as the exclusive collective-
bargaining agent of employees in the following appro-
priate unit:
All full-time and regular part-time employees em-
ployed in the Beloit and Janesville, Wisconsin
stores, excluding store managers, confidential em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT refuse to sign a written agreement
embodying the terms of a tentative agreement reached
with the Union on April 20, 1990.
WE WILL NOT fail to abide by the wage provisions
of the agreement reached on April 20, 1990.
WE WILL NOT fail to remit union dues deducted
from the pay of employees to the Union.
WE WILL NOT sponsor, support, and encourage the
filing of a decertification petition.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize the Union as the bargaining
agent of employees in the appropriate unit and execute
the agreement reached with the Union on April 20,
1990.
WE WILL give effect to the terms of the agreement
reached on April 20, 1990, including the wage provi-
sions, retroactive to April 20, 1990, and make whole
employees for any losses they may have suffered in
consequence of the failure to execute and abide by the
contract, with interest.
WE WILL remit to the Union, with interest, all union
dues withheld from the pay of employees, but retained
by the Company since June 1, 1990.
THE KOBACKER COMPANY PIC WAY
SHOE MART
Rocky Coe, Esq., for the General Counsel.
G. Roger King, Esq., and Matthew W. Lampe, Esq. (Jones,
Day, Reavis & Pogue), of Columbus, Ohio, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. Upon
original charges filed by the Union in Cases 30–CA–10946
and 30–CA–10958 on May 24 and June 4, 1990,1 respec-
tively, and upon a first amended charge filed in Case 30–
CA–10958 on June 7, the Regional Director for Region 30
of the National Labor Relations Board issued a complaint on
July 16 which consolidated the named cases for trial and al-
leged, in substance, that The Kobacker Company, d/b/a Pic
Way Shoe Mart (Respondent) violated Section 8(a)(1) and
(5) of the National Labor Relations Act by: sponsoring, sup-
porting, and encouraging the filing of a decertification peti-
tion; refusing since April 24 to execute an agreed-upon col-
lective-bargaining agreement; and refusing since April 24 to
comply with the wage provisions set forth in an agreed-upon
collective-bargaining agreement. Respondent filed a timely
answer denying it had engaged in the unfair labor practices
alleged in the complaint. The charge in Case 30–CA–11091
was filed by the Union on September 10. Thereafter, on No-
vember 14, the Region issued an amended consolidated com-
plaint which consolidated all three cases for trial; realleged
the matter set forth in the July 16 complaint; and additionally
alleged that Respondent has violated Section 8(a)(1), (5), and
8(d) of the Act since June 1 by deducting union dues from
the pay of employees, but failing to remit such moneys to
the Union. Respondent filed a timely answer denying that it
had engaged in the unfair labor practices alleged in the
amended complaint.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation headquartered in Columbus,
Ohio, with places of business in Janesville and Beloit, Wis-
consin, is engaged in the retail sale of footwear, handbags,
and related accessories. During the fiscal year ending January
31, 1990, it, in the course and conduct of its operations, de-
rived gross revenue in an amount exceeding $500,000, and,
during the same period, it purchased and received at its Wis-
consin operations goods and materials valued in excess of
$50,000 directly from points located outside the State of
Wisconsin. Upon these admitted facts, I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent Kobacker owns and operates Pic Way Shoe
stores. Its Beloit and Janesville, Wisconsin stores are in-
volved in the instant proceeding. The Union has represented
the employees employed in the described stores since 1972.
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The supervisory and agency status of the named individuals is
not in dispute.
3 Ricker testified he assisted employees in Respondent’s store
3100, located in Chicago, in decertification proceedings in 1984.
The complaint alleges, and it is admitted, that the appropriate
bargaining unit is as follows:
All full time and regular part-time employees employed
in Respondent’s Janesville and Beloit, Wisconsin stores,
excluding store managers, confidential employees,
guards and supervisors as defined in the Act.
Respondent and the Union have maintained contractual re-
lations since 1972, and the most recent 3-year agreement ex-
pired on April 1, 1990.
The record reveals that Respondent employs eight associ-
ates (employees) in the above-described stores. Those work-
ing in the Beloit store are supervised by Store Manager Ar-
lene Rounds, while employees working in the Janesville store
were supervised at all times material, by Barbara Schneider.
The store managers are, in turn, supervised by District Super-
visor William Rice. Two additional managerial employees
are involved in the proceeding. They are: Michael Allen, a
Respondent vice president in charge of human resources; and
George Arnold, another Respondent vice president, who also
serves as Respondent’s secretary and legal counsel.2
During the month of February 1990, Stephanie Adams,
one of the employees at the Beloit store, telephoned District
Supervisor Rice to inform him that she would like to get rid
of the Union. They both testified that Rice told her he could
not help her; that she could call Respondent’s human re-
sources department in Columbus, Ohio, if she desired.
Adams took no further action at the time, but spoke with
Rice personally about her desire to get rid of the Union in
mid-March. At about the same time, Lori Huber, an em-
ployee at the Janesville store, also approached Rice indicat-
ing she was seeking advice about how to get rid of the
Union. Rice supposedly told both employees he could not
help them; that they could contact human resources.
Michael Allen, Respondent’s human resources person, tes-
tified that Rice reported his conversations with Adams and
Huber to him in late March. Thereafter, at a time Allen
places as March 27 or March 28, Adams telephoned him, in-
formed him she worked in the Beloit store, and asked how
could she get the Union out. He claims he told her that they
could not be involved as a company; that she could call the
NLRB; and, if possible, he could look into seeing if there
was a third party that might be able to give her some advice.
Allen testified that he reported his conversations with Rice
and Adams to Respondent’s legal counsel, George Arnold,
asking Arnold if he knew a third party he might be able to
refer Adams to for advice. He testified Arnold said he would
look into it.
While the above-described activity was occurring, Allen
and Arnold were engaged in contract negotiations with the
Union. Thus, Arnold testified that he and Allen met with
Union Representatives Stone and Lifer in Milwaukee on
March 16 and all but two issues were resolved or withdrawn
at that time.The unresolved issues were: the replacement of
existing stores in the geographic area covered by the con-
tract; and the drug, substance, and alcohol abuse policy pro-
posed by the Company.
Arnold testified that after Allen reported to him that some
of the associates in the stores had inquired about union rep-
resentation, indicating they had questions they wanted an-
swered, he told Allen he would check for him to see if there
was somebody that he might find that these folks might be
able to talk to. He indicated that he had become acquainted
with Edwin Ricker, who had a consulting business represent-
ing employees and management, over the years at employ-
ment relations conferences, and he decided to call him. He
testified that, using a business card Ricker had given him, he
telephoned Ricker’s office and left a message with his sec-
retary when he was informed Ricker was in Canton, Ohio.
He described the message as follows:
So I told him that the purpose of my call was that we
had, I had been told that we had had several of our
store associates in the Wisconsin area that had ques-
tions concerning the continued representation of them
by Local 1444. That I gave him, because Mike Allen
had given me Stephanie Adams telephone number, I
left the telephone number with his secretary, with Mr.
Ricker’s secretary, and she said that she would get the
message to him.
Arnold testified that he did not speak personally with Ricker
or communicate with him in any manner after leaving the
above-described message. He denied that Respondent re-
tained Ricker to provide assistance to the Company’s associ-
ates, and claims Ricker did not contact him to report on
what, if anything, transpired.
When Ricker appeared as a witness, he acknowledged he
received a message from Arnold on his return from some ac-
tivity in Ohio. He said the message was: ‘‘that an employee
of a Kobacker store in Wisconsin was interested in receiving
information about voting the union out, would I contact
them.’’ Ricker indicated the message prompted him to place
a call to Stephanie Adams, the employee whose name had
been given to him. Adams was not in, so he left a message
on her machine and she called him back. When Adams re-
turned his call, Ricker claims she told him a majority of the
employees in their stores there no longer wanted union rep-
resentation, and they needed to know what to do about it. He
indicated he questioned Adams on the timing of the contract
and explained the procedures under the National Labor Rela-
tions Act to her. Ricker testified he explained to Adams that
he was not connected with the company; that he dealt in em-
ployee relations; and that he had previously assisted employ-
ees at the Chicago stores.3 He claims he told her he would
be glad to provide her any information she felt she wanted,
or answer any questions she had. Ricker testified the con-
versation was concluded after Adams thanked him for the in-
formation, and he informed her he would call back in a week
or so to see if he could be of further assistance. Adams indi-
cated during her testimony that Ricker called her again about
a week after she first talked to him and told her if they want-
ed to decertify the Union they would have to write up and
sign a petition.
Although no agreement on the terms for a new contract
had been reached by Saturday, March 31, Union Representa-
tive Jeffrey Stone contacted Arlene Rounds, the manager of
the Beloit store, on March 31 to inform her there was to be
a contract ratification meeting in Janesville at 10 a.m. the
87PIC WAY SHOE MART
4 Although all but Kasbohm placed the date March 30, 1990 after
their signatures, it is clear that all employees signed the document
on March 31, 1990.
5 Adams did not corroborate Ricker’s claim. Allen admitted Ricker
requested that he send him copies and/or the original of the petitions.
Ricker and Allen were evasive when questioned about how Ricker
received the petitions, and I conclude it is likely that Allen, rather
than Adams, sent copies to Ricker.
6 Respondent admitted in its answer to the amended complaint that
agreement was reached on the terms and conditions of a contract on
April 20, 1990. See G.C. Exh. 1(LL) at 2.
7 See G.C. Exh. 21.
following morning. Rounds telephoned employee Adams,
who was working that day at K-Mart, and informed her of
the meeting. Adams testified she attempted to reach Rice and
Allen by phone but, when she was unsuccessful, she left
messages to the effect that the Union was attempting to push
a contract ratification vote through. Adams then went to the
Beloit store where she prepared a document which stated
(G.C. Exh. 1):
OUR CONTRACT HAS JUST EXPIRED & WE
WOULD LIKE TO HAVE A VOTE ON WHETHER
TO HAVE A UNION OR NOT. WE ARE THE EM-
PLOYEES OF KOBACKER 3122 & 3077.
Adams, Nicole Christiansen, Emilie Franz, and Karen
Kasbohm signed the above-described petition.4 Adams then
placed it in an envelope, sealed it, and gave it to Store Man-
ager Rounds when she returned to the store.
After causing the employees in the Beloit store to sign a
petition, Adams telephoned the Janesville store and dictated
the wording for a similar petition to employee Judy Ward.
Ward, Lori Huber, and Kimberly Magee then signed a docu-
ment which stated (G.C. Exh. 12):
OUR CONTRACT HAS JUST BEEN EXPIRED AND
WE WOULD LIKE TO VOTE ON WHETHER OR
NOT TO HAVE A UNION. WE ARE AT
KOBACKER # 3077 JANESVILLE.
Huber and Ward delivered the signed petition to Store Man-
ager Schneider.
The record reveals the petition signed by the Beloit store
employees was received by Allen in Columbus, Ohio, on
April 5. Schneider sent the Janesville store petition to Allen
on April 10, and he received it on April 12.
Ricker claimed during his testimony that, shortly after the
above-described petitions were prepared and signed, Adams
sent him copies and asked him to file a decertification peti-
tion with the Board.5 Ricker filed a decertification petition
on behalf of Respondent’s employees in Region 13—Chi-
cago on April 16. He claims he simultaneously telephoned
Allen to inform him he represented the employees in the Be-
loit and Janesville stores; that a majority of the employees
had indicated they no longer wanted union representation;
they wanted to have a vote; and that Allen should not sign
any agreement as per instructions from Stephanie Adams.
Allen replied he could not act on Ricker’s information unless
he had it in writing. Ricker, by memo dated April 16, in-
formed Allen as follows (G.C. Exh. 13, Exh. V):
This note is to confirm my telephone conversation
indicating that I have been retained by your employees
in Janesville and Beloit, Wisconsin, to represent them.
A majority of these employees have provided to me,
in writing, that they no longer want union representa-
tion. Therefore, you are instructed to close contract ne-
gotiations until the National Relations Board conducts
an election.
To sign a contract or continue to negotiate, would be
a violation of the National Labor Relations Act.
On April 20, Allen and Arnold for Respondent and Stone
and Lifer for the Union, participated in a teleconference.
Prior to that time, Allen had informed Stone that Respondent
had received petitions from the Beloit and Janesville store
employees, and that he had reason to believe a decertification
petition had been filed. During the conference, the parties
reached agreement on the inclusion of replacement stores
language in the contract, and discussed Respondent’s alcohol
and substance abuse proposal. While no agreement on that
proposal was reached during their original conference, a sec-
ond conference was conducted about 45 minutes later, and
the Union agreed to the policy as proposed at that time.6
Four days later, on April 24, the agreement reached by Re-
spondent and the Union was ratified by the bargaining unit
employees. After the agreement had been ratified, Union
Representative Stone informed Allen of the ratification and
demanded that Respondent sign the agreement. Allen in-
formed Stone Respondent would not sign the contract until
the issue of representation was resolved.
Some 10 days after he had erroneously filed a decertifica-
tion petition in Region 13, Ricker, on April 27, filed the peti-
tion in Case 30–RD–993 with the Milwaukee Regional Of-
fice. After initially setting a hearing date for May 16, the Re-
gional Director dismissed the petition when complaint was
issued in the instant cases.
Ricker testified that after he commenced to represent the
Beloit and Janesville employees, he contacted Adams and
employee Judy Ward at their respective stores and conversed
with them. During such discussions, he learned they had
questions about matters such as what would happen with re-
spect to their wages, vacations, insurance, and other terms
and conditions of employment if they elected to vote the
Union out. Ricker testified that he requested that Allen fur-
nish him with the names and addresses of employees in the
Beloit and Janesville stores so he could correspond with
them. Allen furnished such information to Ricker on May
17.7 The following day, Allen sent Ricker a letter, the body
of which states (G.C. Exh. 20):
The following is in response to your questions concern-
ing the Company’s position in regard to the present as-
sociates of Local 1444 of the United Food and Com-
mercial Workers Union should the Union be decertified
as representative of the associates:
1) All benefits that are enjoyed by our existing asso-
ciates (i.e. vacations, holiday pay, insurance coverage,
etc.) will be grand-fathered if said benefits are better
than non-union associates enjoy. If they are not better,
then the Company will offer the better benefit to our
associates.
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Ricker indicated during his testimony that he sells various busi-
ness forms and documents to clients.
2) The Company will implement the wage scale
agreed upon with Local 1444 for the Period 4/1/90-
3/31/93 for all present associates or merit increase
amounts during annual reviews, whichever is greater. In
addition, any increases due to our associates during this
period from contract expiration to election will be made
retroactive to the original effective date.
3) In addition, the associates of our Picway stores in
Beloit and Janesville will be eligible to participate in
the Company sponsored 401(k)/Profit Sharing Plan. All
associates will be given credit for the time they have
been with the Company for vesting purposes. For ex-
ample, if an associate has been with the Company for
10+ years, they would enter the program 100% vested
in any Company contribution. I am enclosing a bro-
chure which outlines our plan’s provisions.
If you have any further questions please do not hesitate
to call!
By letter dated June 1, Ricker posed additional questions
and suggestions to Allen. The body of the letter states (G.C.
Exh. 23):
This letter is to inform you of some of the employ-
ees’ concerns if they vote the union out on June 13,
1990.
Will the items negotiated during negotiations be im-
plemented if the union is voted out? You can not re-
spond to this as it would be considered a promise.
Would wages be retroactive to expiration of the con-
tract? Again, you can not respond to this (ULC). I will
address this in a letter to all employees.
Items such as the company has no intention of reduc-
ing any present employees’ wages or benefits could be
addressed by giving each employee a notarized affidavit
to this effect. It would be best for the affidavit to be
handed personally to each employee, by you; second
best, by the store manager. You can then reinforce on
a one on one when you visit the stores if you do prior
to the election. (see attached)
1. Will those employees who are enjoying medical
insurance remain covered? Judy Ward
2. Will vacation schedule remain the same?
3. Will eight (8) paid holidays remain?
Call me if you have any questions.
The affidavit which accompanied the above-described let-
ter was as follows:8
(COMPANY LETTERHEAD)
June 8, 1990
To: (Name typed In - Store number)
AFFIDAVIT
This document is a statement of our intentions
should a majority of employees in stores 3077 & 3122
make the decision to remove UFCW Union, Local
1444, as their bargaining agent.
We have no intention to reduce your wages or bene-
fits while working for the Kobacker Co., should the
UFCW Union be removed as your representative.
Signed:lllllllllll
(President of Company)
Notary Public language & seal
since out of the State.
Ricker testified that, while the decertification petitions
were pending in Region 13 and in Region 30, he remained
in contact with Adams and other employees in the unit. He
indicated he telephoned Adams at the Beloit store three or
four times to discuss the situation with her. Similarly, he in-
dicated he telephoned employee Judy Ward at the Janesville
store, when Adams indicated to him that Ward had questions
she wanted to ask. Ricker recalled the questions posed by
Ward related to the insurance coverage, profit sharing, and
vacation, employees could expect if they voted the Union
out. Ricker testified he was unable to answer Ward’s ques-
tions immediately, but after obtaining the necessary informa-
tion from Allen, he called her back and answered her ques-
tions. Finally, at one point, Ricker was scheduled to visit a
Chicago area client, and he telephoned Adams to ask if she
would like for him to visit with her and other employees
when he came to Chicago. Adams agreed it would be a good
idea. She discussed Ricker’s anticipated visit with other em-
ployees and prepared some questions for him. When he com-
pleted his business in Chicago, Ricker made the hour and 20-
minute drive to Beloit and met with Adams and three other
employees in the store for 10–15 minutes, answering the
questions they asked.
On May 30, and again on June 7, Ricker sent letters to
the employees employed in the Beloit and Janesville stores.
In the May 30 letter, after providing information concerning
an anticipated June 13 election, he advised employees (G.C.
Exh. 24):
The company has stated to me that they have no in-
tentions of reducing anyone’s wages or benefits if you
decide to vote against further union representation.
Should any of you have any questions, please feel
free to write to me.
In the letter dated June 7, after discussing election arrange-
ments, Ricker informed employees (G.C. Exh. 25):
If you vote the union out, you will not have to pay
any more dues and assessments. In addition, employees
who are not yet members of the union, as well as all
new employees, will not have to pay the union’s initi-
ation fee either.
The Company has, again, indicated that they have no
intention of reducing anyones wages or benefits if you
vote against the UFCW Union. I researched what oc-
curred when the employees voted the UFCW Union out
stores 74, 100 & 101 a few years back. All employees
retained the same wages and benefits they enjoyed prior
to voting the union out. In addition, the company in-
creased wages and benefits that had been planned for
the employees as well. It seems to me you have every-
thing to gain and nothing to lose by voting ‘‘No’’ on
Wednesday, but its your decision to make.
89PIC WAY SHOE MART
9 See also AMBAC International, 299 NLRB 505 (1990). Parkview
Furniture Mfg. Co., 284 NLRB 947, 969 (1987); and Gregory’s,
Inc., 242 NLRB 644, 648 (1979).
Recently, the UFCW Union has been in the news be-
cause a group of this union’s members are upset be-
cause of the huge salaries the officers are paying them-
selves. The National President has increased his base
salary 110 percent since 1980- In 1989 he only made
$250,000.00. His expense accounts also only totaled
$71,000! (See attached).
I checked this union’s financial report and found
some interesting facts. Last year, they spent $7,000,000
more than they took in. Could dues be going up soon
to make up the difference? They also owed almost
$5,000,000 in loans obtained from 1st American Bank.
They gave over $2,000,000 to politicians for their cam-
paigns and spent over $14,000,000 on strikes.
Has the union ever provided you with this informa-
tion? I have sent a complete copy of this report to S.
Adams at Beloit, and J. Ward at Janesville, to show
each of you for your own information.
If any of you have any questions about these facts
on the elections, please feel free to contact me. Best of
everything for your future.
By letter dated August 21, 1990, the Union complained to
Respondent that they had been advised by members that dues
were being deducted from the pay of Beloit and Janesville
employees, but such moneys were not being remitted to the
Union. By letter dated September 4, 1990, Allen responded,
stating inter alia (G.C. Exh. 10):
At present, based upon petitions filed by our associates
with the N.L.R.B., The Kobacker Company has suffi-
cient reason to believe that Local 1444 of the U.F.C.W.
does not have the support of the majority of the bar-
gaining unit. Until this issue has been resolved by an
election, the Company feels that it is in a fiduciary ca-
pacity to collect union dues and maintain them in trust.
Based upon the outcome of said election, collected dues
will be returned to our associates or paid to the union.
Ricker testified that he has owned his labor consulting
business since 1971, and that since that time he and his staff
have assisted over 1500 employees in various labor related
matters. He claimed he expects no remuneration when em-
ployees seek to obtain information or advice from him, and
he indicated about 3 percent of his business time is devoted
to assisting employees. He, Allen, and Arnold uniformly
claimed during their testimony that Respondent owes nothing
for the advise and assistance Ricker provided to the Janes-
ville and Beloit employees; that the only financial arrange-
ment between them is that Respondent has agreed to com-
pensate Ricker for expenses incurred as a result of his agree-
ment to appear as a witness in the instant case. Ricker fur-
ther indicated that Respondent paid him no moneys for ren-
dering assistance to its Chicago area store employees in
1984. Regarding that representation, he claimed employees
of that store contacted him directly after they learned of him
through grocery store employees he had assisted in the same
area.
Discussion and Conclusions
The principal issue posed by the pleadings in this case is
whether Respondent had sufficient objective considerations
to support a good-faith doubt that the Union enjoyed major-
ity support on April 24, 1990, when it refused to execute an
agreed-upon contract. Board law is clear. Thus, in Royal
Midtown Chrysler Plymouth, 296 NLRB 1039 (1989), the
Board stated:9
In order to establish good faith doubt as to majority sta-
tus, the evidence must demonstrate a clear intention by
employees not to be represented by the Union.
As contended by Respondent, the issue of whether an em-
ployer has questioned a union’s majority in good faith must
be resolved by consideration of the totality of all the cir-
cumstances involved in a particular case. Sofco, Inc., 268
NLRB 159 (1983); Celanese Corp., 95 NLRB 664 (1951).
In the instant case, Respondent contends the following ob-
jective facts caused it to doubt that the Union enjoyed major-
ity status on April 24, 1990: February and March statements
made by Adams and Huber to Rice and/or Allen, which were
to the effect that such employees wanted to get rid of the
Union; Adams’ March 31 messages to Rice and Allen, which
indicated she felt the Union was trying to ‘‘ram’’ through a
ratification vote; the March 31 petitions signed by seven of
the eight unit employees, which noted the contract had ex-
pired and that those signing wanted to vote whether or not
to have a union; and Kobacker’s’ receipt of instructions from
the employees’ representative ‘‘to close negotiations with the
Union pending a Board election.’’ Respondent contends that
the petitions, standing alone, warranted the formation of a
reasonable doubt of majority support, and that the enumer-
ated factors, considered together, conveyed the message that
employees wanted Respondent to cease recognizing the
Union as their bargaining representative until a Board elec-
tion had been conducted.
I find the Respondent’s contention that it has proved it had
adequate reasons for the formation of a good-faith doubt that
the Union represented a majority of the employees in the unit
to be without merit. The petitions, standing alone, merely in-
dicated the contract had expired and the employees wanted
to vote whether or not they wanted union representation.
Thus, by their express terms, the petitions indicated a desire
to vote for or against union representation—they did not un-
equivocally repudiate the Union. See Phoenix Pipe & Tube,
302 NLRB 122 (1991); Destileria Serrales, Inc., 882 F.2d
19, 21 (1st Cir. 1989); Bryan Memorial Hospital, 279 NLRB
222, 225 (1986), enfd. 814 F.2d 1259 (8th Cir. 1987). Simi-
larly, I find Respondent’s claim that the employees inferen-
tially, and their representative directly, requested that nego-
tiations with the Union be halted until an election could be
held warranted a conclusion that a majority of the employees
no longer wanted the Union to represent them to be without
merit. Evidence presenting only an ambiguous inference of
a lack of majority support is not enough. N.T. Enoloe Memo-
rial Hospital v. NLRB, 682 F.2d 790, 795 (9th Cir. 1982).
Instead, the evidence presented must unequivocally indicate
that a union’s support has declined to a minority. Ming Tree
Restaurant, 736 F.2d 1295, 1297 (9th Cir. 1984). I find Re-
spondent has failed to sustain its evidentiary burden.
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Having found that Respondent has failed to prove that it
had objective reasons for the formation of a good-faith doubt
that the Union lacked majority support on April 14, 1990, it
follows, and I find, that it violated Section 8(a)(5) and (1)
of the Act by refusing to sign the agreement reached by the
parties on April 20, 1990, and by failing since April 24,
1990, to effectuate the terms and conditions of such agree-
ment, by, inter alia, failing to grant wage increases provided
for in the agreement, and by failing to remit union dues de-
ducted from the wages of employees to the Union as re-
quired by article 11 of the agreement.
Remaining for discussion is the allegation that Respondent
‘‘acting through Edwin D. Ricker . . . sponsored, supported,
and encouraged a petition seeking decertification of the
Union’’ and thereby violated Section 8(a)(1) of the Act.
Careful review of the record causes me to conclude General
Counsel has failed to prove the allegation.
In sum, the record reveals: that employees Adams and
Huber instigated the decertification process by discussing
their desire to get rid of the Union with Respondent manage-
ment and requesting assistance; that Allen informed Adams
Respondent could not get involved, but he might be able to
provide a third party who could give her advice; that Arnold
contracted Ricker and requested that he telephone Adams to
give her advice on voting the Union out; that Ricker spoke
with Adams two or three times during March, and during
those conversations he advised her of the Board’s decertifica-
tion procedures, described generally what the wording in a
petition should be, informed her that signed petitions should
be delivered to the store managers; and, during his last
March conversation with the employee, asked if the employ-
ees had changed their minds about seeking an election. Sig-
nificantly, the record reveals that Ricker spoke only with
Adams prior to the time the petitions were prepared by
Adams and employee Ward, and it is clear that Ricker
played no role in the actual preparation or distribution of the
petitions. In the circumstances described, I find that Re-
spondent, through Ricker, merely provided its employees
with ministerial aid. I therefore find that Respondent did not
violate Section 8(a)(1) of the Act through Ricker’s conduct
as alleged. See Times-Herald, 253 NLRB 524 (1980).
CONCLUSIONS OF LAW
1. Respondent, The Kobacker Company d/b/a Pic Way
Shoe Mart, is an employer engaged in commerce within the
meaning of Section 2(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. The following employees of Respondent constitute an
appropriate bargaining unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees employed
in the Beloit and Janesville, Wisconsin stores, exclud-
ing store managers, confidential employees, guards and
supervisors as defined in the Act.
4. At all times material, the above-named labor organiza-
tion has been the exclusive representative of all the employ-
ees in the appropriate unit within the meaning of Section 9(a)
of the Act.
5. By withdrawing recognition from the Union on April
24, 1990, and by refusing since that date to execute a collec-
tive-bargaining agreement, the terms of which were fully
agreed upon on April 20, 1990; by failing since April 24,
1990, to comply with the wage provisions set forth in the
agreement; and by failing and refusing, since June 1, 1990,
to remit union dues deducted from the pay of employees to
the Union, as required by the agreement, Respondent has
violated Section 8(a)(5) and (1) of the Act.
6. Respondent has not violated the Act except as specifi-
cally found herein.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Such affirmative action shall include immediate recogni-
tion of the Union as the bargaining agent of unit employees;
execution by Respondent of the agreement reached on April
20, 1990; making whole of employees for wages lost as a
result of Respondent’s failure to abide by the wage provi-
sions of the agreement, with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987); and re-
mittance to the Union of the dues deducted from the wages
of employees, but withheld by Respondent, since June 1,
1990, with interest as prescribed in New Horizons for the Re-
tarded, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, The Kobacker Company d/b/a Pic Way
Shoe Mart, Columbus Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to recognize United Food and Commercial
Workers Union Local 1444 chartered by United Food and
Commercial Workers International Union, AFL–CIO, CLC,
as the exclusive collective-bargaining agent of employees in
the following appropriate unit:
All full-time and regular part-time employees employed
in the Beloit and Janesville, Wisconsin stores, exclud-
ing store managers, confidential employees, guards and
supervisors as defined in the Act.
(b) Refusing to sign a written agreement embodying the
terms of a tentative agreement reached with the Union on
April 20, 1990.
(c) Failing to abide by the wage provisions of the agree-
ment reached on April 20, 1990.
(d) Failing to remit union dues deducted from the pay of
employees to the Union.
91PIC WAY SHOE MART
11 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize the Union as the bargaining agent of em-
ployees in the appropriate unit and execute the agreement
reached with the Union on April 20, 1990.
(b) Give effect to the terms of the agreement reached on
April 20, 1990, including the wage provisions, retroactive to
April 20, 1990, and make whole employees for any losses
they may have suffered in consequence of the failure to exe-
cute and abide by said contract, with interest, as set forth in
the remedy section of this decision.
(c) Remit to the Union, with interest, all union dues with-
held from the pay of employees, but retained by the Com-
pany since June 1, 1990.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(e) Post at its stores located in Beloit and Janesville, Wis-
consin, copies of attached notice Appendix.’’11 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 30, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.