Stanwood Thriftmart

National Labor Relations Board - Board Decisions

Mar 4, 1975

216 N.L.R.B. 852 (N.L.R.B. 1975)

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter E. Heyman d/b/a Stanwood Thriftmart and
General Teamsters Local 38, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case 19-
CA-7080
March 4, 1975
DECISION AND ORDER
By MEMBERS JENKINS , KENNEDY, AND
PENELLO
Upon a charge and an amended charge filed on
May 13 and 17, 1974, respectively, by General
Teamsters Local 38, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on Walter E. Heyman d/b/a
Stanwood Thriftmart, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 19,
issued a complaint and notice of hearing on October
10, 1974, against Respondent, alleging that Respond-
ent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charges, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleged, inter alia, that: (1) at all times
material herein, the Union has been the representa-
tive for the purposes of collective bargaining of a
majority of the employees in an appropriate unit and
is the exclusive representative of all the employees in
the unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment; and
a collective-bargaining agreement between the Union
and the Respondent covering the terms and condi-
tions of employment of the unit employees remained
in full force and effect from July 1, 1971, to June 30,
1974; and (2) Respondent, by unilaterally refusing,
since on or about November 13, 1973, to make
payments to the welfare and pension trusts on behalf
of all the unit employees as required by the terms of
the agreement; by notifying the Union of its
intention to terminate the agreement and by with-
drawing recognition from the Union on or about
April 13, 1974, and continuing thereafter to withhold
recognition; and, by refusing to negotiate a new
collective-bargaining agreement with the Union, has
violated Section 8(a)(5) and (1) of the Act, as
amended. On October 18, 1974, Respondent filed its
answer to the complaint admitting the allegations of
216 NLRB No. 154
the complaint with respect to (2) set forth above,
denying the allegations with respect to (1) above, and
further answering that it signed the above-mentioned
collective-bargaining agreement with the Union at a
time when the Union had not been designated by a
majority of Respondent's employees in the bargain-
ing unit, and the agreement was illegal and void; and
at no time during the 6-month period prior to the
filing of the charge was the Union entitled to be
recognized as the exclusive representative of Re-
spondent's employees in the unit.
On October 25, 1974, counsel for the General
Counsel filed with the Board a Motion for Summary
Judgment. Subsequently, the Board issued an order
transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted. On November 27, 1974, Respondent filed a
Cross Motion for Summary Judgment, Memoran-
dum in Support of Cross Motion, and Response to
Notice to Show Cause. On December 5, 1974,
General Counsel's Memorandum in Opposition to
Respondent's Cross Motion for Summary Judgment
was filed with the Board. On January 7, 1975,
Respondent filed an Answering Memorandum to
General Counsel's Memorandum in Opposition with
exhibits attached.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary
Judgment
In his motion for summary judgment and opposi-
tion to Respondent's cross-motion, the General
Counsel contends that he is entitled to summary
judgment because, inter alia, Respondent admittedly
refused to comply with the terms of a collective-
bargaining agreement which it executed with the
Union by discontinuing its payments to the welfare
and pension trust funds; Respondent has withdrawn
recognition from the Union; and, the Respondent's
only defense, i.e., that the Union did not enjoy
majority status at the time the agreement was
executed, has no merit under present Board law.
Furthermore, the General Counsel contends that the
Board is not bound by a United States district court
order rescinding the agreement in a Section 301
proceeding which was contrary to well-established
Board principles; that the Board's determination
takes precedence here; and that Respondent has
STANWOOD THRIFTMART 853
offered no timely objective evidence to rebut the
presumptions of the Union's majority status.
The Respondent , in its cross-motion and answer to
the General Counsel's opposition, contends that: the
Union did not represent a majority of the employees
in the unit at the time the agreement was executed,
nor at any time during the 6-month period preceding
the filing of the charge herein. According to
Respondent, the order of the court, dated October
24, 1974, removed the contractual presumption relied
on by the General Counsel, and the Board has no
authority to "correct" the alleged erroneous decision
of the court.' Respondent further contends that its
petition for an election, filed on April 18, 1974, which
was dismissed by the Regional Director on the
grounds of a "contractual presumption ," was accom-
panied by an affidavit which clearly rebutted the
relied-on contractual presumption of majority status
of the Union. Finally, Respondent contends that the
Board should order the General Counsel to show
cause why the Board should not find that Respond-
ent, during the investigative stage of this proceeding,
has submitted evidence rebutting the majority status
of the Union.
A contract , lawful on its face , raises a presumption
that the contracting union was the majority repre-
sentative at the time the contract was executed,
during the life of the contract, and thereafter.2 An
employer, however, may defend a refusal to bargain
on the terms of a new contract if it can "demonstrate
by objective considerations that it has some reason-
able grounds for believing that the union has lost its
majority Status...."3 Respondent contends that no
presumption of majority status attaches to its
contract with the Union because the Union lacked
the necessary majority status at the time the contract
was executed.
The Board has held that events time-barred by the
limitations provision of Section 10(b) of the Act may
not be used to overcome the presumption of majority
status raised by a contract valid on its face. The
contract contains a clause which recognized the
Union as majority representative and a lawful union-
security clause . The legality of the Union's initial
i The record contains a copy of the complaint and the court 's order in
Walter Heyman, d/b/a Thr f?mart, No. 506-73C2 (D.C. Wash .). The court's
order issued on October 24, 1974-long after Respondent had unilaterally
discontinued making payments to the welfare and pension trusts and after
Respondent had withdrawn recognition from the Union.
2 Shamrock Dairy, Inc., 119 NLRB 998 , 1002 (1957), and 124 NLRB 494,
495-496 ( 1959), enfd . 280 F .2d 665 (C.A.D.C.), cert, denied 364 U.S. 892
(1960).
s United States Gypsum Company, 157 NLRB 652,656 ( 1966).
+ Roman Stone Construction Company, 153 NLRB 659, at fn . 3. We also
find that the RM petition filed by the Employer himself in Case 19-RM-
1143 was not objective evidence rebutting the Umon's majority status.
Emerson Manufacturing Company, Inc., 200 NLRB 148,150 ( 1972). This was
not a decertification petition which would have required the support of at
least 30 percent of the employees in the unit . Cf. Telautograph Corporation,
recognition by Respondent was precluded by Section
10(b) of the Act from being attacked at the time of
Respondent's termination of the contract and with-
drawal of recognition from the Union. Therefore, we
find that Respondent may not defend its refusal to
continue to recognize and bargain with the Union by
an attack on its initial recognition of the Union.4
Respondent bases its affirmative defense on the
above-mentioned court order which purports to
rescind the agreement. We note that Section 301 of
the Labor Management Relations Act provides,
"Suits for violation of contracts between an employer
and a labor organization . . . may be brought in any
district court of the United States. . . ." It is not
entirely clear to us that the Employer's suit was
anything more than a prayer for rescision based on
its contention, also made here, that the Union lacked
majority status. But in any event the sole issue before
us is whether Respondent's conduct was unlawful
under Section 8(a)(5) of the Act, and only the Board,
initially, has the jurisdiction to make that determina-
tion.5 In this respect, the General Counsel has set
forth sufficient undenied facts to warrant the
application of the above-stated principles to the facts
of this case.
Accordingly, we find that by refusing to continue
to recognize and bargain with the Union on April 13,
1974, and thereafter, and by refusing to make
payments to the welfare and pension trust funds,
Respondent has violated Section 8(a)(5) and (1) of
the Act.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a sole proprietorship located in
Stanwood, Washington, engaged in the retail sale of
food and related grocery items. During the 12
months preceding the date of the complaint, Re-
spondent's gross volume of business exceeded
$500,000, and during the same period Respondent
purchased goods and materials valued in excess of
199 NLRB 892 (1972). Unlike a decertification petition, an RM petition
does not require a showing of interest of employee support Member Jenkins
does not rely on Telautograph Corporation.
We find the instant case distinguishable from Barrington Plaza and
Tragniew Inc., 185 NLRB 962 (1971), enforcement denied in part 470 F.2d
669 (C.A. 9, 1972). In Tragniew the court found that there was substantial
evidence not precluded by Sec. 10(b) which rebutted the presumption of
majority status after the prior contract had expired . Here, however, there is
no evidence of loss of majority status within the 10(b) period, and
furthermore Respondent here committed the 8 (ax5) conduct during the life
of a contract valid on its face
5 We also note that the courts have recognized that once the Board has
made a determination on the merits of an issue within its jurisdiction, that
determination will stand independently of Sec. 301. New Orleans Typograph-
ical Union No. 17 v. N.LR. B., 368 F .2d 755 (C.A. 5, 1966).
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 from firms who in turn purchased those
goods and materials from sources directly outside the
State of Washington.
We find on the basis of the foregoing that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters Local 38, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent constitute
an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All employees employed by Respondent at its
Stanwood, Washington , location excluding meat,
culinary, prescription or bakery department
employees, office clerical employees , professional
employees , guards and supervisors as defined in
the Act.
B. The Respondent's Refusal To Comply With
the Contract and To Recognize the Union
Commencing on or about November 13, 1973, and
thereafter, Respondent refused to make payments to
the welfare and pension trusts on behalf of unit
employees as required by the terms of the agreement,
and, commencing on or about April 13, 1974, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 13, 1974, and continuing
at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has
refused to abide by the terms of its bargaining
agreement and has refused to bargain collectively
with the Union as the exclusive representative of the
employees in the appropriate unit, and that, by such
refusal, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Aot.
IV. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
As the Respondent, on or about April 13, 1974,
and at all times thereafter, has refused and continues
to refuse to bargain collectively with the Union as the
exclusive representative of all employees in the
appropriate unit, and since on or about November
13, 1973, the Respondent has made a unilateral
modification of the collective-bargaining agreement
between the Union and Respondent by refusing to
make payments to the Union's welfare and pension
trust funds, we shall order that the Respondent
recognize and bargain with the Union as the
exclusive bargaining representative of the employees
in the appropriate unit, and make contributions to
the Union's welfare and pension trust funds as
required by the collective-bargaining agreement.
The appropriate remedy for Respondent's unilater-
al action in discontinuing contributions to the
welfare and pension plan, just like the appropriate
remedy for any other unlawful unilateral action, is,
where feasible, to reinstate the status quo ante and
retain it until Respondent fulfills its bargaining
obligation by either bargaining out a new agreement
covering the subject or bargaining to an impasse. For
these reasons we shall order Respondent to make
whole the employees in the unit by paying all
pension and welfare contributions, as provided in the
collective-bargaining agreement, which have not
been paid and which would have been paid absent
Respondent's unlawful unilateral discontinuance of
such payments found herein .6
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent, Walter E. Heyman d/b/a Stan-
wood Thriftmart, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. General Teamsters Local 38, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
6 Harold W Hinson, d/bla Hen House Market No 3, 175 NLRB 5% (1969).
STANWOOD THRIFTMART 855
organization within the meaning of Section 2(5) of
the Act.
3. The following employees of Respondent con-
stitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees employed by Respondent at its
Stanwood, Washington, location excluding meat,
culinary, prescription or bakery department
employees, office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
4. By refusing on or about April 13, 1974, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
representative of all the employees in the appropriate
unit; by making a unilateral modification of the
collective-bargaining agreement between the Union
and by refusing to make payments to the Union's
welfare and pension trust funds; and by withdrawing
recognition from the Union and by terminating the
contract, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
5. By the aforesaid conduct, Respondent has
interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to any modification of the prior or future
collective-bargaining agreement between the Union
and the Respondent.
(b) Make whole the employees in the appropriate
unit by paying all pension and welfare contributions,
as provided in the collective-bargaining agreement,
which have not been paid absent Respondent's
unlawful conduct found herein, and continue such
payments until such time as Respondent negotiates
in good faith with the Union to a new agreement or
an impasse. Further, make whole the employees for
whatever benefits were lost to them by Respondent's
unlawful termination of the contract.
(c) Post at its principal place of business in
Stanwood, Washington, copies of the attached notice
marked "Appendix." 7 Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Walter E. Heyman d/b/a Stanwood Thriftmart,
Stanwood, Washington, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with General
Teamsters Local 38, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
representative of all the employees in the appropriate
unit, withdrawing recognition and terminating the
agreement , making unilateral modifications of the
collective-bargaining agreement between the Union
and the Respondent, and refusing to make payments
to the Union's welfare and pension funds.
r In the event that 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
General Teamsters Local 38, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as
the exclusive representative of all the employees
in the bargaining unit described below, by
DECISIONS OF NATIONAL856
withdrawing recognition or by terminating the
agreement or by making unilateral modifications
of the collective-bargaining agreement executed
with said Union.
WE WILL NOT refuse to make payments to the
Union's welfare and pension funds, nor disregard
or refuse to carry out any of the terms of the
collective-bargaining agreement relating thereto
with said Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL bargain with the above-named Union
as the exclusive representative of all employees in
the bargaining unit described below, with respect
to any modification of the prior or future
LABOR RELATIONS BOARD
collective-bargaining agreement between us and
the Union. The bargaining unit is:
All employees employed by Respondent at
its Stanwood, Washington, location exclud-
ing meat , culinary, prescription or bakery
department employees, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
WE WILL make payments into the Union's
welfare and pension funds as required by said
agreement.
WALTER E. HEYMAN
D/B/A STANWOOD
THRIFTMART