United Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1974

214 N.L.R.B. 958 (N.L.R.B. 1974)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Supermarkets , Inc. and Amalgamated Meat-
cutters and Butcher Workmen of North America,
AFL-CIO, Local Union No. 540. Case 16-
CA-5157
November 14, 1974
DECISION AND ORDER
On October 5, 1973, Administrative Law Judge
Phil Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and the General Counsel filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(5) of the National
Labor Relations Act, as amended, by refusing to bar-
gain with the Union on May 4, 1973, and thereafter.
We also agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) by promis-
ing additional benefits if employees refrained from
union activity, and by coercing employees to with-
draw from the Union.
The record reveals that Respondent, in 1970, rec-
ognized the Union as the collective-bargaining repre-
sentative for its meat department employees. A con-
tract was reached on October 1, 1970, with a Decem-
ber 1, 1972, termination date. Negotiations for a new
contract began in October 1972, and continued until
January 30, 1973, at which time the Union decided
that its strategy called for a "cooling off" period be-
fore resuming negotiations. The next bargaining ses-
sion took place on May 4, 1973,1 but Respondent
refused to bargain with the Union at the meeting on
the ground that the Union no longer represented a
majority of employees in the unit.
On the basis of well-established law, the Union's
contractual relations give rise to a presumption of
majority status that continues after the expiration of
the contract. In the face of this presumption,
Respondent's withdrawal of recognition must be
found unlawful unless (1) competent evidence estab-
lished that the Union no longer commanded a major-
ity as of the date of Respondent's refusal to bargain,
or (2) Respondent had a reasonable doubt based on
objective facts as to the Union's continuing majority
status. A showing of such doubt requires more than
an employer's mere assertion of it, and more than
i The Administrative Law Judge inadvertently referred to this date as
May 4, 1974
proof of the employer's subjective frame of mind .2
The assertion must be supported by objective consid-
erations, that is, some substantial and reasonable
grounds for believing the union has lost its majority
status.'
There is not one scintilla of evidence that the em-
ployees did not desire continued representation by
the Union. In this regard, our dissenting colleagues
rely on a showing that the union dues deducted by
checkoff had declined substantially, and as of the
May 4 refusal to bargain, only 7 employees out of a
unit of 13 had their dues checked Off .4 The Board,
with court approval, has often rejected an employer's
reliance upon the number of checkoff authorizations
in effect as its justification for doubting the union's
majority representation status.' Indeed, the fact that
less than a majority of the unit employees may have
authorized dues checkoffs is immaterial to the issue
of majority status. Employees for various reasons un-
connected with their desire to have a union represent
them may fail to execute checkoff authorizations.' In
fact, here it appears that as of May 4, 1973, a majori-
ty of the unit employees had authorizations on file.
Nor does evidence showing that two employees
wanted to know how to stop their dues checkoff
amount to an expression of dissatisfaction with the
Union, nor a withdrawal of acceptance of it as bar-
gaining agent. Even assuming that these two employ-
ees rejected the Union as their collective-bargaining
representative, this number is insignificant when
compared with the total number of unit employees.
The crucial question is whether a majority of em-
ployees have expressed dissatisfaction with the
Union as their collective-bargaining representative,
and there is no evidence showing such majority dis-
satisfaction.
In January 1973, when contract negotiations were
going on, nine employees were on dues checkoff. The
record does not tell us how many employees were in
the unit. One more employee authorized dues check-
off for the months of February and March, but be-
2 Celanese Corporation of America, 95 NLRB 664, 672 (1951)
3 Laystrom Manufacturing Co, 151 NLRB 1482 (1965), enforcement de-
nied 359 F 2d 799 (C A 7, 1966) See also Emerson Manufacturing Company,
Inc, 200 NLRB 148 (1972), and Terrell Machine Company, 173 NLRB 1480
(1969)
One of the seven had no dues checked off because she was on sick leave
5 Gulfmont Hotel Company, 147 NLRB 997 (1964), enfd 362 F 2d 588
(C A 5, 1966), United Aircraft Corporation (Pratt & Whitney Division), 168
NLRB 480 (1967), Terrell Machine Co, supra
6 See Gulfmont Hotel Company, supra, 1001 In Gulfmont Hotel the Board
specifically limited the holding of Hayworth Roll and Panel Company, 130
NLRB 604 (1961), cited by Member Kennedy in his dissent herein, so as to
reaffirm that the number of employees on checkoff is immaterial to majority
status unless the union bases its claim to majority status on such number
Member Kennedy's reliance on Convair Division of General Dynamics Corpo-
ration, 169 NLRB 131 (1968), is also misplaced There the Board relied, as
one of several factors in finding basis for a reasonable doubt, on the drop of
total union membership, including those on checkoff, to less than 30 percent
of the unit employees
214 NLRB No. 142
UNITED SUPERMARKETS, INC 959
fore any dues were checked off for April he quit his
job, as did two other employees who had been on
checkoff. This left, in May, 7 employees out of the 13
then in the unit still authorizing dues checkoffs. Thus
the reduction to seven employees involved not even a
suggestion of dissatisfaction with the Union. The
suggestion of dissatisfaction by two additional em-
ployees was, as of May 4, no more than a suggestion.
They made their inquiries about how to stop their
checkoffs sometime between late March and mid-
April, but did not follow up on it until May 8.7
Our dissenting colleagues, in support of their find-
ing of objective circumstances reasonably justifying
doubt of a majority, also rely on the period from
January 30, 1973, to May 4, 1973, during which no
bargaining sessions were held. We note that during
this period the Union attempted to organize
Respondent's grocery employees, which hardly indi-
cates a loss of interest in representing those in the
unit . Moreover, in March 1973, the Union contacted
the Federal mediator to arrange a collective-bargain-
ing session which was eventually scheduled for May
4. Such evidence hardly shows loss of interest and in
view of the above, there was no obligation on the
part of the Union, in addition to the Federal media-
tor, to initiate a request for resumption of bargain-
ing.'
Our dissenting colleagues also construe a state-
ment made by Union Negotiator Burman as an ad-
mission that the Union no longer represented a ma-
jority of employees in the unit. When the total con-
text is considered, it is obvious that Burman' s answer
that "I don't believe I had it" clearly refers to evi-
dence that Respondent asked him to produce at the
May 4 meeting to reinstate his claim of majority sta-
tus. The statement may mean that Burman did not
have such evidence with him, which we think likely,
or that he had no such evidence in his possession, but
the statement plainly was not an admission that the
Union did not have a majority. This conclusion is
fully buttressed by Burman's consistent testimony
wherein he stated that he had no obligation to prove
the Union's majority to Respondent.9 The legal prm-
7 Member Penello would regard a substantial withdrawal of checkoff au-
thorization or of union membership as some evidence of employee dissatis-
faction which might, in an appropriate case , be considered in addition to
other indicia of employee dissatisfaction for the purpose of determining
whether sufficient objective considerations exist justifying an employer's
asserted doubt of a union's majority status In the instant case , however, the
only arguable expression of employee dissatisfaction came from 2 out of 13
unit employees , and Respondent committed other unfair labor practices
both before and immediately after the withdrawal of recognition
8 The Little Rock Downtowner, Inc, 168 NLRB 107 (1967)
9 The testimony relied on by our dissenting colleagues indicates that the
statement they construe as an admission was made in response to
Respondent 's request , at the final negotiating session , for a card check
Respondent 's counsel , who was also its representative in the contract nego-
tiations who made that request, testified in detail about that conversation
ciple is clear that the Union indeed had no obligation
to prove its continued majority status. To hold other-
wise would be ignoring numerous cases decided by
the Board, with court approval, which clearly confer
upon an incumbent union a presumption of majority
status. Moreover, to require the incumbent union to
reestablish its majority support upon demand would
necessarily disrupt bargaining relationships, and we
have repeatedly emphasized that stablization in in-
dustrial relations is the ultimate objective of all pro-
visions in the Act.10
In addition, contrary to our dissenting colleagues,
we agree with the Administrative Law Judge that Re-
spondent violated Section 8(a)(1) by posting its ad-
dress and thereafter notifying the employees that
there is an address if you want to get rid of the Union
and by promising benefits to employees in exchange
for the withdrawal of union support. The evidence
firmly established that employees Ruddy and Swad-
ley asked Supervisor Critz how they could stop their
payroll deductions for union dues checkoffs. Critz
gave the two employees the address of Respondent's
main office and told them to send a letter to the
address requesting that their checkoff dues and pay-
roll deductions be stopped. Critz then posted the out-
of-town address on a clipboard stating "there is an
address if you want to get out of the union." Surely,
the posting of the address was not in response to the
request by Ruddy and Swadley, for Critz had already
supplied them with the address. The clear implica-
tion is that Respondent posted the address for the
purpose of urging employees to terminate their union
membership. Further, such termination, to be re-
His testimony was that Burman refused to give him evidence of the Union's
majority status and instead said he was going to file a charge with this
Board He also testified that Burman 's "refusal to furnish those things" was
a factor justifying his previously expressed doubt of majority Nothing in
counsel's testimony gives the slightest hint that he thought Burman had
admitted to him that the Union had lost its majority status The claim that
such an admission was made appears for the first time in Respondent's
exceptions to the Administrative Law Judge 's Decision Far from relying on
such an admission to confirm its doubt of the Union's majority , Respondent
apparently did not discover that anything Burman said could be construed
as such until after the Administrative Law Judge rendered his decision
Since Respondent's counsel was present when the supposed admission was
actually made , his assertion in the exceptions that he was having difficulty
in hearing at the trial , when Burman testified about his own previous state-
ment , does not excuse the belatedness of this discovery
'()Member Kennedy , in his dissent , cites Taft Broadcasting, WDAF-TV,
AM-FM, 201 NLRB 801 (1973 ), for the proposition that when an employer
shows objective grounds for doubting a union's continuing majority the
General Counsel may prove a violation of Sec 8 (a)(5) by submitting inde-
pendent proof of the union 's actual majority status Taft Broadcasting was
decided by a three-member panel consisting of Chairman Miller and Mem-
bers Kennedy and Penello Chairman Miller refused , in fn 8 of that Deci-
sion, to adopt this proposition, and he reiterates his reluctance to adopt it in
his dissenting opinion herein Member Penello disassociated himself from
that part of the Taft Broadcasting decision in Automated Business Systems, a
Division of Litton Business Systems, Inc, a Subsidiary of Litton Industries,
Inc, 205 NLRB 532 (1973), as did Members Fanning and Jenkins , who did
not participate in Taft Broadcasting Member Kennedy's position on the
legal basis for the Taft Broadcasting decision , therefore, is his alone
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quested by writing to Respondent, necessarily in-
volved Respondent in the process of withdrawal
from the Union and enabled it to monitor employee
response to its suggestion. This, occurring on the
heels of the withdrawal of recongition and absent
any special justifying circumstances, violates Section
8(a)(1). Hatteras Yachts, AMF Incorporated, 207
NLRB 1043 (1973). Cf. Tennesco Corp., 206 NLRB
48 (1973).
We also agree with the Administrative Law Judge
that Critz' statement during the spring of 1973 that
Respondent "could offer no benefits as long as the
union was there and had the controlling hand . . .
clearly implies the promise of future benefits if em-
ployees withdrew union support." We cannot agree
with our dissenting colleagues' conclusion that Critz'
remark was merely an observation that benefits were
the subject of negotiation so long as the Union was
the bargaining representative.
Finally, our dissenting colleagues' reliance on
Southern Wipers, Inc.," for their finding that
Respondent's expression of doubt as to the Union's
majority was motivated by objective considerations
is misplaced. In Southern Wipers, Inc., the Respon-
dent heard nothing from the union concerning for-
mal negotiations for a period of almost 7 months and
it appeared that during the period the union was
wholly inactive in the plant. Moreover, unlike the
instant case, the respondent had engaged in no inde-
pendent unfair labor practices.
Accordingly, we conclude that it has not been es-
tablished that the Union lost its majority status as of
May 4, 1973, or that Respondent had a reasonable
basis for so believing. It follows that Respondent's
refusal to bargain at that time and thereafter violated
Section 8(a)(5) as found by the Administrative Law
Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, United Supermarkets, Inc.,
Wichita Falls, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
CHAIRMAN MILLER, dissenting:
Like Member Kennedy, I find that the Respon-
dent had sufficient objective considerations to rea-
u The record indicates that this statement was made in March or April
and thus before the withdrawal of recognition
lz 192 NLRB 816 (1971)
sonably doubt that the Union continued to represent
a majority of the employees in the unit found appro-
priate herein. I would, therefore, like Member Ken-
nedy, dismiss the 8(a)(5) allegations of the com-
plaint. " I am less certain about whether the General
Counsel may nevertheless prevail in the face of such
evidence of objective considerations if he meets the
burden of proving majority status. See my separate
position in Taft Broadcasting, WDAF-TV, AM-FM,
201 NLRB 801, footnote 8 (1973). I must concede,
however, that a number of courts seem to be of that
view. I see no necessity for belaboring that issue,
however, since, as Member Kennedy's dissent accu-
rately sets forth, the General Counsel did not, in any
event, prove majority status here.
MEMBER KENNEDY, dissenting:
Respondent's refusal to resume negotiations after
the Union's delay of 3 months occurred under cir-
cumstances which clearly establish, in my opinion,
an objective basis for Respondent's belief that the
Union had lost its majority status. Indeed, the union
representative admitted to Respondent's attorney
that he did not believe that he had a majority on
May 4, 1973. Consequently, I find that Respondent
did not violate Section 8(a)(5) or (1) of the Act when
Respondent refused to recognize the Union as the
agent of its meat department employees. The deci-
sion of the majority here is contrary to the unani-
mous decision of this Board in Southern Wipers, Inc.,
192 NLRB 816, citing Viking Lithographers, Inc., 184
NLRB 139 (1970).
The facts in this case are largely undisputed. Re-
spondent voluntarily recognized the Union as the
bargaining agent for its meat department employees
in a four-store unit in the summer of 1970. In due
course, the parties executed a collective-bargaining
agreement which was effective to December 1972.
The Union served notice in September 1972 to nego-
tiate a new agreement.
A series of nine bargaining sessions was held prior
to January 30, 1973, in an atmosphere which Union
Negotiator Burman characterized as "cordial, coop-
erative and friendly." Burman testified that Respon-
dent never refused to meet 14 and that Respondent
never refused to negotiate on any subject. Conces-
sions were made by each side and real progress was
made at all bargaining sessions through December.
Burman testified that Company Counsel Morrison
13 1 would also join him in dismissing the other complaint allegations
herein , for the reasons stated by him in his dissent.
14 When the scheduled meeting of January 3, 1973 was cancelled because
of the death in the family of a union negotiator , the Employer's counsel sent
a letter, dated January 10, 1973, expressing a willingness "to meet with you
any day next week" and observed that a further meeting "deserves your
immediate attention "
UNITED SUPERMARKETS, INC
had been a "gentleman and we were too." But by
January 30, 1973, the parties reached what the union
representative described as an "impasse." Burman
advised the Respondent at the meeting on that date
that the union membership had rejected the
Employer's proposal of January 22. Burman then
made what he described as the Union's "final pro-
posal." The Employer rejected the Union' s "final
proposal" and stated that it felt that its proposal was
fair "and we are not coming off the position as of
January 22nd." Burman countered, "Well, we still
have to do what we have to do, then." 11 Morrison,
spokesman for the Employer, testified that he was
told that if the Union had to go out on strike "that
they were going to go for the area contract, that there
wouldn't be any variance" with the larger unionized
companies.
No meetings were held after January 30 until May
4, 1973. Responsibility for the hiatus in meetings
must be borne by the Union. Burman testified that
the Union had "decided there ought to be a cooling
off period because we weren't getting anywhere and
so we set back and just waited to see what was going
to happen." Burman explained that, as a matter of
bargaining strategy, "[w]hen an impasse is reached,
we pull away from it, let those parties cool down a
little bit and then go back and meet again." As noted
earlier, Burman testified that the company spokes-
man had never refused to meet prior to May 4.
From the Union's standpoint, it is unfortunate that
its support declined among the unit employees dur-
ing the hiatus in bargaining. Some of the employees
"resigned and went to Safeway or went somewhere
else to work." By "May 4th one of the committeemen
had resigned from the United Food Stores so there
was one left." There were 13 employees in the unit at
that time and the number of employees with checkoff
authorizations on file with the Company had shrunk
to 7.16 One of the seven had no dues checked off at
the beginning of May because she (Martha Whatley)
was then on sick leave. Two of the seven employees
subject to checkoff, namely, John Ruddy and How-
ard Swadley, had inquired of Supervisor Critz how to
discontinue the Company's checkoff of union dues.
Both these inquiries of Critz occurred before the
May 4 meeting even though the employees' letters to
the Company advising of their desire to withdraw
15 Apparently the Union intended to picket the stores but did not do so
In any event, Burman testified , "We tried to picket the stores and the mem-
bership had been evidently talked to or something " The record is not clear
as to whether the attempted picketing occurred before or after May 4
16 The decisive defeat of the Union in a vote among the grocery employ-
ees in the same four stores with which we are here concerned could not have
helped the image of the Union with the meat department employees There
were 28 votes cast against the Union and 7 votes cast for the Union The
results were certified February 23, 1973
961
from the Union were both dated May 8, 1973.17
When Respondent questioned the Union's majori-
ty on the morning of May 4, it should be noted that
the amount of dues checked off had declined from
$101 in February 1973 to $58.40 in May. It is signifi-
cant that the $58.40 figure included $20 for Ruddy
and Swadley who had advised Respondent of their
disenchantment with the Union.
Respondent's counsel attempted to discuss the
matter with the Regional Director in Fort Worth but
was referred to a staff member of the Regional Of-
fice. When company counsel expressed doubt of the
Union's majority, he invited Burman to show the
Federal mediator with whom they were then meeting
or some other third party some evidence that the
Union did in fact represent a majority of employees.
The following cross-examination of Burman by
Respondent's counsel must be construed as an ad-
mission that the Union no longer represented a ma-
jority of employees in the unit.
Q. Do you recall any conversation or state-
ments made to you on behalf of the company
with respect to the status of checkoffs, how
many employees were being checked off as op-
posed to the number of employees in the unit?
A. You did not say anything about that at
that meeting.
Q. Or any requests from employees to discon-
tinue checkoffs?
A. No, I don't recall it. I may have said,
"Check the checkoffs if you doubt the majori-
ty." I may have said this and I don't recall be-
cause I said that afterwards, I know.
Q. In any event, after the company asked you
to present to the mediator or some disinterested
third party authorization cards or some other ev-
idence tending to indicate that you represented
a majority of the employees, you refused to do
so and the meeting was promptly adjourned?
A. Yeah, I don't believe that I had it. That is
what I said.
Q. But in any event you didn't?
A. No, I didn't. [Emphasis supplied.] 18
17 Eugene Whatley 's long-distance telephone inquiry to the president of
Respondent as to whether he would be discharged if he resigned from the
Union was not a factor in Respondent's decision to withdraw recognition
Whatley did not place the call until Friday morning preceding May 18
19 1 reject the majority interpretation of Burman 's admission to mean that
he did not have with him at that time evidence tending to support the
Union's majority status Burman makes no claim that he could have pro-
duced evidence of majority if the parties had adjourned to his office or
elsewhere . The Board has long recognized that "Proof of majority is pecu-
liarly within the special competence of the union." Stoner Rubber Company,
Inc, 123 NLRB 1440 (1959), recently cited with approval by the Sixth Cir-
cuit in Automated Business Systems, a Division of Litton Business Systems,
Inc v N L R B, 497 F 2d 262, decided May 23, 1974, denying enforcement
of 205 NLRB 532 (1973)
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In my view, Burman's admission to Respondent's
counsel is dispositive of this case. See Universal Life
Insurance Company, 169 NLRB 1118 (1968); Lloyd
McKee Motors, Inc., 170 NLRB 1278 (1968).19 That
crucial admission before Respondent withdrew rec-
ognition establishes beyond question that (1)
Respondent's assertion of doubt was supported by
objective considerations, and (2) the competent evi-
dence established that the Union no longer com-
manded a majority. The majority opinion correctly
recognizes that an employer's withdrawal of recogni-
tion is lawful if either (1) or (2) are met.
The principles that govern withdrawal of recogni-
tion of an incumbent union were articulated by the
District of Columbia Circuit Court of Appeals in
Lodges 1746 and 743, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO [United
Aircraft Corporation] v. N.L.R.B., 416 F.2d 809, 811-
812 (C.A.D.C., 1969), cert. denied 396 U.S. 1058
(1970). The court stated:
The legal principles relating to withdrawal of
recognition of a bargaining representative are
well settled. Absent special circumstances, the
union enjoys an irrebuttable presumption of ma-
jority status for one year after certification.
Thereafter, the presumption continues but be-
comes rebuttable upon a showing of "sufficient
evidence to cast serious doubt on the union's
continued majority status." At that point, the bur-
19 In the Universal Life Insurance Company case, the union negotiator ad-
mitted that the union no longer represented a majority of the employees
The Board explained its dismissal of the complaint as follows at 1119
Here , on May 18, 1967, the Union 's chief negotiator, in conversation
with Respondent's attorney, conceded that the Union no longer repre-
sented a majority, and went on to state , "What do you expect with a
bunch of scabs in there '1" In light of this admission on the part of the
Union, we cannot say that the Respondent 's asserted doubt as to the
Union's representative status was unreasonable , unsupported , or urged
in bad faith Accordingly, we find that Respondent 's withdrawal of
recognition on June 5 did not violate Section 8(a)(5) of the Act
The suggestion of the majority that "the Union indeed had no obligation
to prove its continued majority status" is contrary to Lloyd McKee Motors,
supra The Board relied upon the following facts to support its dismissal of
the complaint (at 1278)
However, Respondent did not receive any communication from either
the Union or the mediator until May 25 , when the mediator called
Poole , Respondent's attorney , regarding another meeting to discuss the
apprentice program Poole declined another meeting , stating that Re-
spondent had doubts as to the Union's majority status This position
was conveyed by the mediator to Jones, the Union 's representative
When Jones called Poole, Poole questioned Jones regarding the
Union's majority status , asking Jones directly if the Union still repre-
sented a majority of the employees Jones answered that this was im-
material since the Union was certified Poole then advised Jones that if
he would not answer the question , he was going to have to deny recog-
nition Jones made no response
den shifts to the General Counsel to prove that, on
the critical date, the union in fact represented a
majority of the employees. [Emphasis supplied.]
The court there refused to enforce the Board's bar-
gaining order because (1) there had been a decline in
the checkoff of dues to the union, and (2) a memo-
randum from the union's attorney admitting that the
union did not represent a majority of the employees
had come into the employer's possession . 416 F.2d
812-813. In the instant case, the Respondent knew of
the decline in dues checkoffs and the business agent
instead of the attorney made the admission that the
Union had lost its majority.
A number of other circuits have recently held that
the General Counsel must prove majority if the em-
ployer offers evidence which casts serious doubt that
the union no longer commands majority. See The
National Cash Register Company v. N. L. R. B. 494
F.2d 189 (C.A. 8, 1974); N.L.R.B. v. The Little Rock
Downtowner, Inc., 414 F.2d 1084, 1090-91 (C.A. 8,
1969); N. L. R. B. v. Dayton Motels, Inc., d/b/a Holi-
day Inn of Dayton, 474 F.2d 328 (C.A. 6, 1973);20
Automated Business Systems, a Division of Litton Busi-
ness Systems, Inc. v. N. L. R. B., 497 F.2d 262 (C.A. 6,
1974). See also N.L.R.B. v. Laystrom Manufacturing
Co., 359 F.2d 799 (C.A. 7, 1966). The Board recently
predicated its dismissal of a complaint alleging a re-
fusal to bargain on this long-standing principle that
the General Counsel has the burden of proving that
the union, in fact, represents a majority of the em-
ployees. Taft Broadcasting, WDAF-TV AM-FM, su-
pra. The Board concluded at 803:
In sum, we conclude that, at the time it with-
drew recognition, the Respondent had sufficient
objective grounds for believing that a majority
of the employees no longer desired union repre-
sentation. Since the General Counsel failed to
20 In the Dayton Motels , Inc, case the court described , at 331, the applica-
ble rules as follows
In order to establish that an employer's withdrawal of recognition and
refusal to bargain with an incumbent union transgresses Section 8(a)(5) of
the Act, the burden of proof is upon the Board to show that the union
actually represented a majority of the employees in an appropriate unit
Machinists Lodges 1746 & 743 v N L R B, 416 F 2d 809
(CAD C, 1969)
Failure to prove a majority-status of the Union relieves an employer of
any duty to bargain Maphis Chapman Corp v N L R B, 368 F 2d 298,
303 (4th Cir 1966)
Furthermore even if the Union is proved to be actually representa-
tive of a majority, the employer is not guilty of a Section 8(a)(5) viola-
tion if the employer had a reasonably-grounded belief that the Union
did not represent an uncoerced majority of its employees Pulley v
NLRB , 395 F 2d 870 (6th Cir 1968), NLRB v John S Swift Co,
302 F 2d 342 (7th Cir 1962) A good-faith doubt exculpates the em-
ployer even if the Union in fact represented a majority of the employ-
ees N L R B v Ben Duthler, Inc, 395 F 2d 28 (6th Cir 1968) [Empha-
sis supplied
UNITED SUPERMARKETS, INC.
come forward with evidence that on the refusal-
to-bargain date the Union in fact did represent a
majority of employees in the unit in question,
the allegations in the complaint are found to be
without merit.21
I disagree with the observation of my colleagues
that the reduction in dues checkoff is "immaterial."
In Peoples Gas Systems, Inc., 214 NLRB No. 141,
issued this date, the Board concludes that a decrease
in dues checkoffs, inter aha, justified the employer's
asserted doubt concerning the union's majority sta-
tus. In my view, cancellation of a checkoff authoriza-
tion is totally inconsistent with the notion that the
employees want the Union to act as their bargaining
agent. At the very least, such cancellations of check-
off raise doubts of continued majority. This is partic-
ularly true since the Employer is unable to question
employees and ascertain their purpose in resigning or
cancelling their checkoff.
I do not understand my colleagues' observation
that cancellation of union checkoffs is "immaterial"
since such cancellations were the basis of the Board's
dismissal of the refusal-to-bargain complaint in Con-
vair Division of General Dynamics Corporation, 169
NLRB 131 (1968).22 The Board observed:
2i The Taft Broadcasting case , as do the recent court cases cited above,
follows the rule explicated by the Board in Stoner Rubber Co , inc, supra
The Board there stated at 1445
It is elementary that in a refusal-to-bargain case the General Counsel
has the burden of proving the union 's majority In the present case, the
General Counsel introduced no evidence of majority status except the
certification issued to the Union on May 24, 1956, approximately 14
months before the alleged refusal to bargain Generally a certification
is absolute proof of majority for 1 year following its date of issuance
After the lapse of the certification year , the certification creates only a
presumption of continued majority This presumption is rebuttable
Proof of majority is peculiarly within the special competence of the union
It may be proved by signed authorization cards, dues checkoff cards,
membership lists , or any other evidentiary means An employer can
hardly prove that a union no longer represents a majority since he does
not have access to the union ' s membership lists and direct interrogation
of employees would probably be unlawful as well as of dubious validi-
ty Accordingly, to overcome the presumption of majority the employer
need only produce sufficient evidence to cast serious doubt on the union's
continued majority status The presumption then loves its force and the
General Counsel must come forward with evidence that on the refusal-to-
bargain date the union in fact did represent a majority of employees in the
appropriate unit [Emphasis supplied ]
Member Penello 's attempt in the Automated Business Systems case to
modify the position to which he subscribed in the Taft case (as explained in
in 10 of the majority opinion herein ) was less than convincing to the Sixth
Circuit The circuit denied enforcement of the Board's Order in the Auto-
mated Business Systems case and agreed with the views stated in my dissent
497 F 2d 271-272
22 1 think reliance upon the cases cited in fn 5 of the majority opinion is
misplaced United Aircraft Corporation was denied enforcement 416 F 2d
809 (1969) The employer in Terrell Machine Co refused to consider mem-
bership records and authorizations proffered by the incumbent union In
the instant case , Respondent was willing to consider any evidence of majori-
ty In Gulfmont Hotel, the union did not admit that it no longer represented
963
[T]he sole evidence readily available to the Re-
spondent as a reliable measure of union support
was that provided by the employees' checkoff
authorizations.
The Board held that a 10-percent drop in checkoff
authorizations was significant enough that the com-
pany could rely on the decrease as an objective fac-
tor showing that the union no longer held majority
support. Similarly, in Hayworth Roll and Panel Com-
pany, 130 NLRB 604 (1961), the Board dismissed the
8(a)(5) complaint because the union had checkoff
cards from less than a majority of the employees. In
Otto Klein, et al., d/b/a Artiste Permanent Wave Com-
pany, 172 NLRB 1922 (1968), the union's admission
of lack of majority with only seven dues-paying
members was a decisive factor in the Board's dis-
missal of the 8(a)(5) complaint. In N.L.R.B. v. H. P.
Wasson & Company, 422 F.2d 558, 561 (C.A. 7, 1970),
the court agreed with the employer that turnover
(which is present in the instant case) and decrease in
checkoff could reasonably give rise to genuine
doubts of majority.
Nor am I impressed with the majority's observa-
tion that so-called stable industrial relations justifies
the result they reach in this case. The general objec-
tive of stability in collective bargaining must yield to
the specific statutory prohibition against recognition
of a minority union by an employer. The employer's
mistaken good-faith belief that a union represents a
majority of his employees is no defense. International
Ladies' Garment Workers' Union, AFL-CIO [Bern-
hard-Altmann Texas Corp.] v. NL.R.B., 366 U.S. 731
(1961). An employer cannot deal with an incumbent
union if he has reasonable cause to believe that the
union does not command majority support. In An-
dersen Pharmacy, et al., 187 NLRB 301 (1970), the
Board found that the employers violated Section
8(a)(1) and (2) of the Act by executing a new con-
tract with an incumbent union when there was ample
evidence that the employers were aware that the sta-
tus of the guild as the bargaining agent of the em-
ployees was open to serious question. The same rea-
soning must apply to the instant case.
The statute obligates an employer to bargain with
a union only if it is the representative of a majority of
his employees and it does not permit bargaining with
a minority union. The right of employees to cancel or
change their bargaining agency carries no less dignity
than their right to select a bargaining representative
in the first instance. Stability in industrial relations is
a majority of the employees . The evidence established that the percentage of
employees on checkoff at the time of withdrawal of recognition was "as
large as at the beginning of the checkoff period "
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certainly an objective of the statute, but it cannot be
utilized by a majority of this Board to deny employ-
ees freedom of choice. Such a denial violates the
most fundamental principle underlying our system of
collective bargaining.
My colleagues err when they state that "there is
not one scintilla of evidence that the employees did
not desire continued representation by the Union."
They ignore the admission of the union representa-
tive that he did not believe he had a majority, the
Union's long period of silence," the Union's decisive
defeat in the grocery unit, the drastic reduction in
dues checkoff due to resignations and turnover, and
employee expressions of their desire to withdraw
checkoff authorizations. On this record there can be
no question that Respondent's expression of doubt as
to the Union's majority was justified by objective
considerations.
There is no evidence to establish that the Employ-
er carried on an aniunion campaign to undermine
the Union. Significantly, the original complaint con-
tained no independent allegations of 8(a)(1) viola-
tions. The belated amendments to the complaint on
the morning of the hearing are not supported by the
evidence, in my opinion, and must be dismissed .24
1. The Posting of the Company's Home Address
The testimony is uncontradicted that in late March
or April 1973 District Meat Supervisor Gerald Critz
was approached by employee John Ruddy who said
he would like to talk to him. Ruddy asked Critz two
questions, namely (1) how could he stop his checkoff,
and (2) would he be fired if he did stop his checkoff.
It is important to note that Critz did not initiate the
conversation with Ruddy and he did not attempt to
answer the questions at that time. He replied that he
would find out for him and, after talking with Attor-
ney Morrison, he advised Ruddy that he would have
to send a letter to the Company's home office in
Lubbock, Texas. In a similar vein, Howard Swadley
approached Critz, told him he also wanted to with-
draw from the Union, and inquired as to how he
could stop the "union deductions from his payroll."
Critz advised Swadley that he would have to send a
letter to the main office in Lubbock, Texas. It was
23 1 note that in Colonial Manor Convalescent & Nursing Center , a Division
of the La Grange Land Corporation , 188 NLRB 861 (1971 ), a Board panel
(which included Members Fanning and Jenkins ) dismissed an 8(a )(5) com-
plaint The panel relied upon the fact that "the Union still did nothing for 3
months that would indicate that it still considered itself the representative of
a majority of Respondent 's employees " See fn 2
241 note that reviewing courts have refused to affirm 8 (a)(5) findings
absent a showing that a company 's unfair labor practices contributed to the
loss of majority status See National Cash Register Company v N L R B,
supra, citing N L R B v Nu-Southern Dyeing & Finishing, Inc, 444 F 2d 11,
15-16 (CA 4, 1971)
only after Critz had received these inquiries that Eu-
lala Langford overheard Critz tell Meat Market
Manager Eugene Whatley that he would put the
company address in Lubbock on a "clipboard and
told him if any of us wanted to withdraw from the
union we could write to the Company." The remark
was addressed to Meat Market Manager Whatley 25
and there is no claim that the paper contained any
words other than the Company's address.
It is not an unfair labor practice, in my opinion,
for an employer to communicate to his employees
the company's address where its payroll is prepared.
This is particularly true where the advice follows un-
solicited requests of bargaining unit employees. An
employer does not violate the Act where it furnishes
minimal assistance to employees who have decided
to withdraw their union support and approach the
employer for help. E.g., N.L.R.B. v. Brookside Indus-
tries, 308 F.2d 224, 226 (C.A. 4, 1962); N. L. R. B. v.
The Sun Company of San Bernardino, California, 215
F.2d 379 (C.A. 9, 1954). In Tennesco Corp., 206
NLRB 48, a panel of this Board recently adopted the
Decision of the Administrative Law Judge dismissing
an allegation that the employer had violated the Act
by giving notice to employees as to how they could
drop their union membership.26 The Administrative
Law Judge properly concluded that oral or written
notice to employees as to how they could withdraw
from the union was not "proscribed by the Act when
not accompanied by either direct instructions or
threats of any kind." In my view, the posting of the
address of the Company's home office was not an
unfair labor practice.
2. Whatley's Inquiries Concerning Benefits
Critz' remarks to Meat Market Manager Eugene
Whatley did not violate Section 8(a)(1) of the Act
even if Whatley is not a supervisor. It is abundantly
clear from his own testimony that Whatley was the
one who initiated his conversation with company of-
ficials about benefits. In October or November,
Whatley asked Critz "what kind of benefits the Com-
pany had to offer." Critz replied that he would bring
him a copy of the retirement plan, but Whatley
claims that he never did. It is equally clear from the
testimony that it was Whatley who called the compa-
ny president in May 1973 and asked him about the
benefits if there were no Union. The company
25 Meat Market Manager Whatley supervised the meat department em-
ployees. He estimated that Critz had spent 5 hours in the market during the
6 months preceding the hearing Whatley's supervisory status was not liti-
gated, but if he has the authority to "write up" employees , as he testified, he
is a supervisor, in my opinion
26 The panel consisted of Chairman Miller and Members Fanning and
Penello
UNITED SUPERMARKETS, INC.
president's letter of May 18 in response to the call
was lawful and proper in all respects. Similarly, I am
convinced that Whatley's inquiry in April or March
provoked no more than the observation that benefits
were the subject of negotiation so long as the Union
was the bargaining representative. I do not think
Whatley's testimony, standing alone, supports a
holding that the Employer promised benefits if em-
ployees refrained from union activity.27
There is no basis to infer that the unfair labor
practices found by the majority induced any employ-
ee to withdraw his support for the Union. Critz' post-
ing of the Company's address occurred after the last
meeting on May 4, according to Langford's testimo-
ny, and could have had no effect on the earlier loss
of the Union's majority. An earlier conversation be-
tween Critz and Whatley, which the majority find
violative of the Act, did not cause Whatley or any
employee to withdraw his union support. Since Critz'
remarks could have had no "'actual impact upon the
majority status of the Union"' (N.L.R.B. v. Anvil
Products, 496 F.2d 94, 98 (C.A. 5, 1974) ), they can-
not serve to detract from the objective considerations
causing Respondent to doubt the Union's majority.
See also National Cash Register Company v. N. L. R. B.,
supra.
For the reasons stated herein, I find that Respon-
dent had valid reasons for doubting the Union's ma-
jority status at the time it withdrew recognition. I
would therefore dismiss the complaint in its entirety.
27 The first testimony bearing on this contention was offered by the Gen-
eral Counsel when he called Whatley in rebuttal for the first time Consider-
able discretion is vested in a trial judge with respect to rebuttal tesimony,
but it cannot be said that Whatley's rebuttal testimony on this issue in any
way refuted evidence offered by Respondent Furthermore , it did not ex-
plain in any way earlier evidence of the General Counsel or Respondent In
any event , Whatley was not a convincing witness He was thoroughly con-
fused as to the events in which he had participated on the eve of the hearing
It is difficult to believe that he could recall events in the spring when he
could not recall the events of the evening preceding his testimony
DECISION
965
Upon the entire record in this case, and from my obser-
vation of the witnesses and their demeanor , I make the
following: I
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent is a corporation duly organized under
and existing by virtue of the laws of the State of Texas, and
operating a group of retail grocery stores at locations in
Wichita Falls, Burkburnett, Lubbock, and Slation, Texas.
During the past 12 months the Respondent sold and dis-
tributed products, the gross value of which exceeded
$500,000. During the same period the Respondent received
goods valued in excess of $50 ,000 transported to its stores
in interstate commerce from States of the United States
other than the State of Texas.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.2
III. THE UNFAIR LABOR PRACTICES
The issues presented by the case are whether or not the
Respondent's refusal to bargain with the Union on May 4,
1973, was based on a good-faith doubt; whether the
Respondent's agent and supervisor, Gerald Critz, promised
additional benefits if employees refrained from union
membership; and whether or not on or about May 1, 1973,
Cntz coerced employees into withdrawing from the Union.
In the summer of 1970, the Union was recognized as the
exclusive representative for purposes of collective bargain-
ing of the employees of Respondent in an appropriate
unit.' The initial recognition was apparently based on au-
thorization cards formalized by a Recognition Agreement
executed between the parties. Negotiations were then en-
tered into, and a contract agreement between the parties
was reached on October 1, 1970, with a December 1, 1972,
termination date. In September 1972, the Union delivered
a notice to the Company advising them of the Union's
intent to open the contract for renegotiation prior to its
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Judge: Based on a charge
filed on May 9, 1973, by Amalgamated Meatcutters and
Butcher Workmen of North America, AFL-CIO, Local
Union No. 540, herein called the Union , a complaint
against United Supermarkets , Inc., herein the Company or
Respondent, was issued on June 22, 1973 , alleging viola-
tions of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, as amended. Respondent filed an answer to the
complaint denying it had engaged in the alleged unfair la-
bor practices . A hearing in this proceeding was held before
me, and both the General Counsel and Respondent filed
briefs.
1 All credibility resolutions made herein based on a composite evaluation
of the demeanor of the witnesses and the probabilities of the evidence as a
whole.
2 The motion by the General Counsel dated September 13, 1973, to cor-
rect the record is, hereby granted
3 The unit is as follows
All employees of the Employer, engaged in full-time and regular
part-time work in the meat department of the Employer 's Wichita Falls
and Burkburnett , Texas store , but excluding grocery department man-
agers, produce department managers, all other employees in the gro-
cery and produce department , assistant manager of the produce and
grocery departments , office clerical, watchmen , guards and supervisors
as defined in the Act
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expiration date, and as a result negotiations began in Octo-
ber 1972, and were continued by frequent and extended
bargaining sessions until January 30, 1973. The atmosphere
of these sessions has been characterized by William Bur-
man, the Union's chief negotiator, as being cordial, cooper-
ative, and friendly.
On January 22, 1973, a negotiating session was conduct-
ed between the parties and at this meeting the Union
agreed to submit to its membership a contract proposal for
a vote. On January 25, 1973, the Union submitted this pro-
posal to a membership meeting , and the members rejected
the proposal. On January 30, 1973, another bargaining ses-
sion was held, and the Respondent was formally advised
that their proposal had been rejected.
Following the meeting on January 30, 1973, the Union
decided that their strategy called for a "cooling off" period
before resuming negotiations. However, in late February or
early March 1973, the Union contacted the Company and
advised them of the Union's intent to handbill the Respon-
dent, and subsequently did so. In late March 1973, Union
Representative Burman contacted the Federal mediator to
arrange a collective-bargaining session . The use of the Fed-
eral mediator in arranging meetings had become the prac-
tice of the parties after December 18, 1972. After some
difficulty in arriving at a mutually suitable date, a session
was scheduled for May 4, 1974 4
The Company contends that prior to May 4, 1973,
checkoffs of union dues had been reduced, and that two
employees had advised the Company of their withdrawal
from the Union and of their desire to discontinue the
checkoff of union dues. The Company maintains that on
May 4, 1973, only 5 of the Company's 13 unit employees
appeared to be represented by the Union. The Respondent
points out that on this basis, and on other considerations
discussed herein, they refused to bargain on May 4 unless
the Union would show the Federal mediator, or some other
third party, evidence to reflect that the Union did represent
a majority.
In summary of the Company's position in support of its
good-faith doubt, they point to the following objective con-
siderations:
1. A substantial decline in authorization for union
dues checkoffs after the meeting on January 30, 1973.
2. A delay of several months after the Union ad-
vised the Company there would be no more meetings.
3. Only 7 of 13 employees were on the checkoff list
as of May 4, 1973, and 2 of those 7 had recently ad-
vised the Company of their resignation from the
Union and their desire for the Company to discon-
tinue their dues checkoff.
4. The Union had been recently defeated in a repre-
sentation election involving grocery employees.
5. The Union's adamant refusal to tender any evi-
dence to the Company or some impartial third party
which reflected or indicated that the Union did, in
Early in 1973, the Union was also attempting to organize the Company's
other employees in the grocery departments , and in February 1973 a Board
election was held for such employees , but the Union 's attempt to organize
these people was soundly defeated
fact, represent a majority of the employees.
The Board had long followed the principle that a union's
majority status is irrebuttable during the contract term,
and that a presumption of majority status continues after
the expiration of the contract. It is also well established
that an employer may not lawfully withdraw recognition
from an incumbent union because of an asserted doubt of
the union's continued majority unless his assertion of
doubt is raised in a context free of unfair labor practices
and is supported by a showing of objective considerations
providing reasonable grounds for a belief that a majority of
the employees no longer desire union representation.
In this case it is clear that the question of "good-faith
doubt" had not arisen in a context free of independent
unfair labor practices or an atmosphere free of the under-
mining of the Union's majority. Eulala Langford credibly
testified that in early May 1973, Respondent's supervisor,
Gerald Critz, posted the out-of-town company address
where employees could write in order to withdraw their
union membership, and this testimony was corroborated
by Eugene Whatley .5 It is, of course, well established that
the suggesting or urging of employees to terminate their
union membership is violative of the Act, and the message
that Supervisor Critz adequately conveyed by the posting
of the office address and then stating "there is an address if
you want to get out of the union" was that the Respondent
desired to rid itself of the Union by the withdrawing of
employee memberships
During the spring of 1973, Cntz also let it be known,
particularly to Eugene Whatley, that the Company "could
offer no benefits as long as the union was there and had the
controlling hand ...." As pointed out, the implication of
this statement was the promise of future benefits if employ-
ees refrained from remaining members of the Union or
giving any assistance and support to it, and, of course, the
Board has consistently held that the offer of benefits to
withdraw union support is a violation of Section 8(a)(1) of
the Act.
The Company contends that one objective factor for
doubting the Union's majority was because of the decline
in checkoff dues, and the expression of disaffection by two
of the unit employees.
Supervisor Critz stated that in March or April 1973 he
had a conversation with unit employees John Ruddy and
Howard Swadley, and testified these two employees want-
ed to know how to stop their respective union dues check-
offs and corresponding payroll deductions. Critz stated
that after calling the attorney for the Company he gave
Ruddy and Swadley the Respondent's address of their
main office in Lubbock, Texas, and told them to send a
letter to the address requesting that their checkoff dues and
payroll deductions be stopped. Critz stated that at this time
both employees also indicated to him their wish to with-
draw from the Union 6
Respondent's attorney, Morrison, testified that in early
April Critz had informed him of his conversation about
5 Critz could not remember whether or not he posted this notice
6 By letters dated May 8, 1973, both Ruddy and Swadley contacted the
Company in efforts to withdraw from the Union and to stop their payroll
dues checkoffs
UNITED SUPERMARKETS, INC.
dues and checkoffs with Swadley and Ruddy, and as a
result of the above and other conversations with company
officials, he felt that the Union only represented 5 mem-
bers of 13 employees in the unit, and stated that due to
these circumstances he left the negotiating meeting on the
morning of May 4, 1973, and contacted Company Official
Earl Neighbors to reconfirm the situation as to Ruddy and
Swadley, and also contacted the Board's Regional Office in
Fort Worth to ascertain their immediate reactions. It ap-
pears that Morrison then returned to the negotiating meet-
ing and told Union Agent Burman that the Company had
a good-faith doubt as to their majority, and requested that
the Union give some evidence to show their majority. Bur-
man flatly refused to do so and informed Morrison he was
going to file a charge against the Company and that he was
on his way to Fort Worth in his efforts to do so.
Respondent cites only the above episode which indi-
cated some union dissatisfaction among two employees in
the unit. However, as detailed above, Respondent was sub-
stantially involved in suggesting and urging employees to
withdraw from the Union by posting the address of their
main office. Respondent, therefore, cannot properly rely
on the antiunion sentiments of Ruddy and Swadley to sus-
tain its assertion that it had valid grounds for doubting the
Union's majority status. Daisy's Originals, Inc, of Miami,
187 NLRB 251 (1970). Moreover, the letters written by
Ruddy and Swadley were dated 4 days after the refusal by
the Respondent to bargain, and it is therefore somewhat
questionable whether or not these two employees had ex-
pressed any real serious antiunion concerns prior to May 4,
1973. It should also be noted that neither of these two em-
ployees at any time, either by letter or word of mouth,
expressed to the Union any desire to have their dues check-
off stopped, or their desire to withdraw from the Union.
The Company specifically points out that union dues
deducted by checkoff declined from $101 in February to
$96 in March, to $67.60 in April, and to $58.40 in May.
Some aspects of this same argument were before the
Board in Gulfmont Hotel Company, 147 NLRB 997 (1964),
enfd. 362 F.2d 588 (C.A. 5, 1966). Although in that case the
number of employees in the unit on a month-to-month ba-
sis did not appear, the election had resulted in a 111-106
victory for the union at a time when there were 224 em-
ployees in the unit. During the 10 months prior to the
Company's determination that the Union no longer repre-
sented a majority of the employees, there were between 64
and 74 checkoff authorizations in effect. Rejecting the
employer's reliance upon the number of checkoff authon-
zations in effect as its justification for entertaining a good-
faith doubt of the union's majority representation status,
Trial Examiner Boyls wrote at 1001-2:
... the fact that less than a majority have authorized
such checkoffs is immaterial to the issue of majority
status. Employees for various reasons unconnected
with their desire to have a union represent them may
fail to execute checkoff authorizations. There may be
some who prefer, as a matter of principle, to pay their
financial obligations in person; there may be others
who prefer to decide when and if they can afford to
spare the money for dues and fees, and there may
967
even be some who are willing to vote for and accept
union representation, but who decide to be free riders
and enjoy the expected benefits of representation
without paying for them at all. Accordingly, although
the voluntary signing of checkoff authorizations by a
majority in the unit may be considered as evidence of
a union's majority status, the converse is not true. The
fact that a majority in the unit do not sign such au-
thorizations has no bearing in the majority issue.
This statement was adopted by the Board and the court
of appeals enforcing the Board's order.
Furthermore, the fact that in the instant case the Com-
pany continued to check off employees' dues in May 1973
also negates the contention that the Company placed reli-
ance on the curtailment of checkoff data to support its
May 4 refusal to bargain. Moreover, out of a unit of 13
employees at the time here in question, the Company
checked off dues of 6 employees for May 1973,7 and Swad-
ley and Ruddy were among the 6 employees with May
checkoff dues by payroll deductions. Therefore, in the peri-
od material hereto, the Company had their own written
data and records specifically showing that Swadley and
Ruddy had not actually recalled their memberships and, as
of May 1973, were still being represented by the Union.
The letters written by these two employees on May 8, 1973,
as forestated, appear to be afterthoughts in attempts to
bolster the Respondent' s case , but, of course, May 4, 1973,
is the crucial date for considerations here.8
In support of its good-faith doubt the Company also
mentions the prolonged delay in the negotiations, and in
particular the period from January 30, 1973, to May 4,
1973, wherein no meetings were held. The Company fur-
ther maintains that on January 30 the Union told them this
was their " last meeting." Burman flatly denied using these
words, but testified he did tell Morrison that the Union
had gone as far as they could. In the final analysis, the
Union clearly established that the delay, if any, was part of
a commonly used bargaining strategy of allowing the par-
ties a period to "cool off," as detailed previously herein. In
the early months of 1973 the Union was also busy in at-
tempts to organize the Respondent's grocery employees
During this period the Union handbilled the Company,
and in March 1973, the Union, with the aid of the Federal
mediator, instigated and arranged the next bargaining ses-
sion which was set on the mutually agreed upon date of
May 4, 1973. Moreover, while the Board has occasionally
given some weight to a protracted suspension of bargaining
as warranting the belief that a union lost its majority status,
it appears that the Board has done so mainly on the basis
that the employer has not been guilty of any independent
unfair labor practices, and, of course, from prior findings
herein, this is not the situation in the instant case.
The Company further argues that the Union was defeat-
ed in an election involving their grocery employees, and
7 One employee member was sick and had no pay coming
s With respect to the dues situation in June 1973 Morrison stated he
advised the Company not to check off dues for this month, but that the
Company inadvertently did so Morrison then had the dues returned to the
employees and notified the Union of these circumstances
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this factor also added to their doubt as to the Union's ma-
jority. Clearly, the results of a Board-conducted election in
an entirely different unit provides no objective basis for
asserting a good-faith doubt that the Union did not repre-
sent a majority of the Respondent's meat market employ-
ees-the unit here involved.
The last objective on which the Company based its
doubt is the grounds and argument that the Union refused
to tender any evidence on May 4 to show that they did
represent a majority. From the total aspects and circum-
stances in this case, as aforestated, there was certainly no
duty on the part of the Union to prove its majority status
as of May 4, 1973, and unlike the factual situation in Di-
marck Broadcasting Corp., 204 NLRB 378 (1973), at no
time did the Union in the instant case accept or agree to
re-prove its majority status. Conversely, Union Agent Bur-
man quickly terminated the negotiating meeting on May 4,
1973, when it was suggested to him that the Company
doubted his majority, and further made his viewpoint and
position very emphatic by stating that he considered the
Respondent's action in this respect to be an unfair labor
practice, and that he was already on his way to Fort Worth
to file a charge.
The determination of whether the Respondent had a
good-faith doubt must be viewed in the totality of circum-
stances. In this case it is clear that none of the assertions
made by the Respondent, either separately or collectively,
supports the showing that Respondent is required to make.
I find on the basis of the considerations mentioned here-
in, and since Respondent is attempting to question the
Union's majority in a context of serious unremedied unfair
labor practices, its raising of the issue is not in good faith.
I conclude that by withdrawing recognition from the
Union on May 4, 1973, and by refusing at all times thereaf-
ter to recognize and bargain with the Union as the exclu-
sive representative of employees in the appropriate unit,
Respondent violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and (5)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Since it has been found that Respondent refused to bar-
gain with the Union as the exclusive representative of em-
ployees in the appropriate unit described herein, it will,
therefore, be recommended that Respondent be ordered to
bargain collectively, upon request, with the Union as the
exclusive representative of the employees in the appropri-
ate unit, and, if an understanding is reached, embody such
understanding 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. The 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. All employees of the Employer engaged in full-time
and regular part-time work in the meat department of the
Employer's Wichita Falls and Burkburnett, Texas, stores,
but excluding grocery department managers, all other em-
ployees in the grocery and produce department, assistant
managers of the produce and grocery departments, office
clerical, watchmen, guards and supervisors as defined in
the Act constitute a unit appropriate for the purpose of
collective bargaining within the meaning of the Act.
4. At all times since June 19, 1970, and continuing to
date, the Union has been the exclusive representative for
the purpose of collective bargaining of all the employees in
the aforesaid unit within the meaning of Section 9(a) of the
Act.
5. By refusing to bargain with the Union on May 4,
1973, and thereafter, Respondent engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By promising additional benefits if employees re-
frained from union activity, and by coercing employees to
withdraw from the Union, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDERS
The Respondent, United Supermarkets, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union as the exclusive
representative of its employees in the appropriate unit
found herein.
(b) Promising better benefits if employees refrain from
union membership or activity.
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order and all objections thereto shall be deemed
waived for all purposes
UNITED SUPERMARKETS, INC
(c) Coercing employees into withdrawing their member-
ship from the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization; to form, join, or assist any labor
organization; to bargain collectively through representa-
tives of their own choosing; to engage in concerted activ-
ates for the purposes of collective bargaining or other mutu-
al aid or protection; or to refrain from any and all such
activities.
2. Take the following affirmative action:
(a) Bargain with the Union, upon request, as the exclu-
sive representative of the employees in the appropriate unit
found herein with respect to wages, hours, and other condi-
tions of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its stores in Wichita Falls and Burkburnett,
Texas, copies of the attached notice marked "Appen-
dix." 10 Copies of said notice on forms to be provided by
the Regional Director of the National Labor Relations
Board for Region 16, shall, after being signed by an au-
thorized representative of Respondent, be posted immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter. Reasonable steps shall be tak-
en to insure that all aforesaid notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
"'In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
969
WE WILL NOT refuse to recognize and bargain collec-
tively with Amalgamated Meatcutters and Butcher
Workmen of North America, AFL-CIO, Local Union
No. 540, as the exclusive bargaining representative of
the employees in the appropriate unit described and
set forth herein.
WE WILL NOT promise better benefits if employees
refrain from union membership or activity.
WE WILL NOT coerce our employees into withdrawing
their membership from the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce the employees in the appropri-
ate unit in the exercise of their right to self-organiza-
tion, to form, loin, or assist unions, to bargain collec-
tively through representatives of their own choosing,
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from such activities, except to the
extent that such rights may be affected by an agree-
ment requiring union membership as a condition of
employment, as authorized in Section 8(a)(3) of the
National Labor Relations Act, as amended by the La-
bor-Managment Reporting and Disclosure Act of
1959.
WE WILL, upon request, bargain collectively with the
above-named Union as the exclusive bargaining repre-
sentative of all employees in the appropriate unit as
found above and, if an understanding is reached, em-
body such understanding in a signed agreement.
UNITED SUPERMARKETS, INC.