Wagner Distribtition Services, Inc. d/b/a Distribution Services West,

National Labor Relations Board - Board Decisions

Jul 9, 1982

262 N.L.R.B. 764 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wagner Distribution Services, Inc. d/b/a Distribu-
tion Services West and General Warehousemen,
Local No. 598, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 21-CA-19491
July 9, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On December 10, 1981, Administrative Law
Judge Timothy D. Nelson issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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 2 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 3
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We adopt the Administrative Law Judge's conclusion that Respond-
ent violated Sec. 8(aX5) and (I) of the Act by withdrawing recognition
from the Union without establishing a good-faith doubt based on objec-
tive considerations of the Union's majority status. In so doing, however,
we do not pass on his comment, which is unnecessary to the resolution of
this case, that resignations from union membership may constitute an ob-
jective consideration supportive of a good-faith doubt. Chairman Van de
Water does not join his colleagues in their disposition of the issue of res-
ignations from union membership. Rather, in accordance with the Ad-
ministrative Law Judge's comment in fn. 31 of his Decision, the Chair-
man believes that the matter of resignations is a factor to be considered in
determining whether an employer has a good-faith doubt of a union's ma-
jority status.
In view of the Administrative Law Judge's discrediting of Respond-
ent's president, Thayer, that supervisors reported to him that a majority
of employees no longer wanted to be represented by the Union, Member
Hunter finds it unnecessary to decide whether such reports by supervi-
sors, if made, would be sufficient in themselves to constitute a valid ob-
jective consideration.
Further, in adopting the Administrative Law Judge's conclusion that
Respondent violated Sec. 8(aX5) and (1) by unilaterally changing the shift
schedules at its Brea facility, we agree with his finding that any request
for bargaining by the Union over such changes would have been futile.
We therefore find it unnecessary to rely on his additional discussion as to
whether the Union received sufficient notice of the intended change to
trigger an obligation to demand bargaining over the matter.
Member Hunter, in adopting the Administrative Law Judge's reliance
on Pennco. Inc., 250 NLRB 716 (1980), notes that the Administrative
Law Judge cited that case for the limited purpose of describing an em-
ployer's heavy burden of producing evidence of objective considerations
in support of an asserted good-faith doubt of a union's majority status.
Member Hunter therefore finds it unnecessary here to express a position
with regard to any other aspects of the Board's decision in that case.
3 In par. l(c) of his recommended Order, the Administrative Law
Judge uses the broad cease-and-desist language, "in any other manner."
262 NLRB No. 96
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, as modi-
fied below, and hereby orders that the Respondent,
Wagner Distribution Services, Inc. d/b/a Distribu-
tion Services West, Anaheim, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Upon request, recognize and bargain with
the Union as the exclusive collective-bargaining
representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
However, we have considered this case in light of the standards set forth
in Hickmott Foods. Inc., 242 NLRB 1357 (1979), and have concluded that
a broad remedial order is inappropriate. See, e.g., Western Truck Services,
Inc.. 252 NLRH 688 (1980); Douglas d Lomason Company, 253 NLRB
277 (1980). Accordingly, we shall modify the recommended Order so as
to use the narrow injunctive language, "in any like or related manner."
We also shall modify par. 2(a) of the Administrative Law Judge's rec-
ommended Order to provide that Respondent shall recognize and bargain
with the Union upon request.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives employees
the right to form, join, or assist labor unions, to
bargain collectively with their employers through
representatives selected by a majority of them, to
engage in other group activities for their mutual
aid and protection on the job, and to refrain from
any or all of those activities except where there is a
lawful contract requiring that employees become
or remain members of a union representing them
after a certain grace period.
WE WILL NOT refuse to recognize or bar-
gain collectively in good faith with General
Warehousemen, Local No. 598, International
764
DISTRIBUTION SERVICES WEST
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the ex-
clusive collective-bargaining representative of
our employees in this unit:
All production and maintenance employees,
warehouse employees, including shipping
and receiving clerks and janitors, employed
by us at our Anaheim and Brea facilities; ex-
cluding office employees, professional em-
ployees, and supervisors as defined in the
Act.
WE WILL NOT make changes, such as shift
schedule changes, in the established wages,
hours of work, or other terms and conditions
of employment of employees in the unit with-
out first notifying the Union about our inten-
tions and giving it a reasonable opportunity to
bargain about such changes.
WE WILL. NOT question employees about
whether or not they support the Union or
about the union sympathies of fellow employ-
ees.
WE WILL NOT ask employees to circulate
antiunion petitions among their fellow employ-
ees.
WE WILL NOT sponsor antiunion activities
such as asking employees to sign antiunion
form letters which we have prepared.
WE WILL. NOT create the impression that we
are keeping our employees' union activities
under surveillance.
WE WILL NOT directly or by implication
promise employees that they will be consid-
ered for promotion in order to influence their
choice whether or not to sign an antiunion
statement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
the Act.
WE WILL, upon request, recognize and bar-
gain with the Union as the exclusive collec-
tive-bargaining representative of all employees
in the unit described above, with respect to
rates of pay, wages, hours, and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a signed agreement.
WE WILL immediately cancel the schedules
for the day and swing shifts at our Brea facili-
ty which we established on September 8, 1980,
and WE WILL. restore and maintain the sched-
ules for those shifts which were in effect im-
mediately before that date unless and until we
have notified the Union and given it a reason-
able opportunity to bargain in good faith with
us about any further changes.
WAGNER DISTRIBUTION SERVICES,
INC. D/B/A DISTRIBUTION SERVICES
WEST
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELsoN, Administrative Law Judge: On
August 29, 1980,1 and October 1, General Warehouse-
men, Local No. 598, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (the Union), filed, respectively, original and amended
unfair labor practice charges against Wagner Distribution
Services, Inc. (Respondent), 2 with the Regional Director
for Region 21 of the National Labor Relations Board
(the Board). After an investigation, the Regional Direc-
tor issued a complaint and notice of hearing on October
30 against Respondent, and an amended complaint and
notice of hearing on January 7, 1981.3
Respondent duly answered, denying wrongdoing.
I heard the matter in a hearing in Orange, California,
on July 22 and 23, 1981. The complaint and Respond-
ent's answer thereto were both amended at the hearing
resulting in a further narrowing of the issues for litiga-
tion.
Issues
The issues presented are:
1. Did Respondent and the Union reach full agreement
on or about August 26 on the terms for a collective-bar-
gaining agreement to replace one which had expired ear-
lier?
2. Did Respondent, in late August, unlawfully sponsor
an effort to decertify the Union, incidentally using un-
lawful promises and interrogations?
3. Did Respondent, as of August 27, have a good-faith
doubt based on objective considerations that the Union
continued to represent a majority of its employees?
4. Did Respondent unilaterally change shift schedules
at one of its facilities without first notifying the Union
and affording it a reasonable opportunity to bargain
about the change?
All parties appeared through counsel at the hearing
and filed post-trial briefs, which I have carefully consid-
ered. Upon the entire record, 4 I make these:
I All dates are in 1980, unless otherwise specified
' Respondent's name appears as it was amended at the hearing by stip-
ulation of the parties.
a The complaint, as amended, alleges, in substance, that Respondent
violated Sec. 8(aX5) of the Act on or about August 27 by refusing to ex-
ecute a previously agreed-upon labor agreement, by then and thereafter
refusing to recognize and bargain with the Union, and by unilaterally
changing swing shif hours at one of its facilities. It further alleges, in
substance, that Respondent began an unlawful campaign in late August
involving sponsorship of an effort to have employees decertify the Union,
using unlawful promises and interrogations-all in violation of Sec.
8(aXI) of the Act.
4 I grant the General Counsel's unopposed motion to correct the tran-
script.
765
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. PRELIMINARY CONCI USIONS
A. Background
Respondent, a California corporation, provides public
warehousing and distribution services from facilities in
Anaheim (the Cerritos facility) and Brea, California. 5 It
had been bound to a 3-year labor agreement with the
Union covering a unit (described below in my conclu-
sions of law) at its two facilities. That agreement expired
on February 28.
B. Overview of the Bargaining Jbr a Successor
Agreement and the Eventual Collapse of the
Bargaining Relationship
There were five formal negotiating sessions for a suc-
cessor agreement during the period January 31-May 27.
During this period, no overall agreement was reached;
and there had been an impasse between the parties as to
certain key issues since February 28.
On August 26, following a lengthy hiatus in formal
bargaining, there was a brief telephone exchange be-
tween representatives of the Union and Respondent. The
Union and the General Counsel contend that an overall
"deal" was concluded in that conversation which was to
be confirmed in writing in a followup meeting at Re-
spondent's offices on August 27. While Respondent vig-
orously disputes this claim, everyone agrees that there
was a meeting on August 27 during which Respondent
admittedly refused to have any further dealings with the
Union, claiming that the Union no longer represented a
majority of its employees in the bargaining unit.
C. Summary of Bargaining Events Between January
31 and August 27
On January 31, the Union's business agent and negotia-
tor, Jerry Stephens, met at Respondent's Anaheim offices
with Respondent's president, Larry Thayer, its oper-
ations manager, Neal Klingaman, and its attorney, Ken-
neth Ristau. The Union, through Stephens, presented Re-
spondent with a written set of proposed changes to the
former labor agreement. Although the parties were to-
gether for about an hour, nothing of substance was dis-
cussed. Near the end of the meeting, Respondent,
through Ristau, told the Union that Respondent would
prepare a written set of counterproposals for submission
at the next meeting, which the parties mutually sched-
uled for February 19.
On February 19, the same persons met, excepting only
attorney Ristau, at the same place. Respondent presented
the Union with its written counterproposals.
A comparison of the respective proposals of the par-
ties reveals substantial areas of disagreement, both in
typical "economic" areas (e.g., hourly wage rates, benefit
contribution amounts, and number of paid holidays) and
a In the representative year before the complaint issued, Respondent
performed services valued in excess of $50,000 for other California firms
each of which, in turn, purchased and received goods valued in excess of
$50,000 directly from suppliers outside California
in non-"cost" areas (e.g., scope of employee transfer and
job bid rights, scope of "management's rights" clause,
scope of no-strike clause, scope of "picket line" clause,
scope of discharge and disciplinary warning clause, and
scope of "grievance-arbitration clause). In presenting
management's proposals, Thayer explained that Respond-
ent needed many language changes and a lower "cost"
package to compete effectively in Orange County. Ste-
phens asserted that the Union's proposed language ap-
peared in its "Los Angeles Warehouse" contract cover-
ing several employers in Los Angeles County who had
been able to "survive" with the same language.
Crediting Stephens' uncontradicted recollection, there
was specific discussion among the participants on both
sides over Respondent's more restrictive proposals in the
area of "picket line" language, disciplinary language, and
job bidding language. The meeting ended without specif-
ic agreement on any aspects of the two proposals which
were before the parties at that time.
On February 28, the parties met again at Respondent's
Anaheiml offices. The same persons were present as at
the February 19 meeting, with the addition of attorney
Ristau. Acting on instructions from the Union's secre-
tary-treasurer, Stephens reiterated the Union's position
that the Union could not vary from language in the old
agreement which was "beneficial to the employees,"
adding that he did not have "authority" to modify any of
the existing language. Ristau stated that Respondent's
proposed language changes in job bidding, discipline, and
picket line clauses were of particular importance to his
principals. 6 Stephens repeated that he could not deviate
from the existing picket line language. Stephens agreed
shortly after with Ristau's statement that the parties were
at "impasse."
There was then an interlude during which Respondent
prepared a notice to its employees indicating that it was
implementing certain of its "last offer" wage and benefit
proposals, including an upward modification from Re-
spondent's earlier written wage offer, and other changes
reflecting Respondent's acquiescence in the Union's pro-
posals for an additional paid holiday, for a pension con-
tribution increase, and for an improved health care plan.
A copy of this notice was then given to Stephens, to-
gether with Respondent's expressed intention to imple-
ment its "last offer." The meeting ended without further
substantive discussion.7
6 Stephens later testified that either during the February 28 meeting or
the subsequent March 19 meeting Ristau said to him that Respondent
"would drop the 90-day probationary period and any other proposals
that he made if we could get an agreement on the . . . bidding and the
disciplinary action and the picket line clause." Ristau did not testify. No
other witness presented by Respondent was invited to contradict Ste-
phens' testimony in this regard. Accordingly, although it is highly sum-
mary in character, I nevertheless credit Stephens that Ristau made the
quoted remark. Moreover, inasmuch as the subsequent March 19 bargain-
ing session was conducted through a mediator, without face-to-face ex-
changes between the parties, I conclude that Ristau made the quoted re-
marks in the February 28 session-most likely at or about the point that
Ristau was emphasizing the importance of the three "language" areas re-
ferred to above.
The complaint does not challenge Respondent's last-minute upward
revisions from its earlier written proposals, as reflected in its "last offer."
766
DISTRIBUTION SERVICES WEST
On March 19, the parties convened at Ristau's law of-
fices in Newport Beach. Burt Walters, a mediator from
the Federal Mediation and Conciliation Service (FMCS)
had been brought in. The parties never bargained face-
to-face during this meeting. Rather, Walters shuttled
back and forth between the parties' separate caucus
rooms, seeking each party's view as to what had caused
the impasse and focusing his discussions with each party
on what he evidently believed were clearly identified
areas of disagreement.
I received evidence about the mediator's communica-
tions for its nonhearsay aspects only, specifically "as a
possible operative fact which might inform my interpre-
tation of anything that the Union did after receiving that
communication." The General Counsel expressly dis-
claimed "any other purpose" in offering evidence about
what the mediator told (or implied to) the Union about
Respondent's bargaining position, or vice versa. 8 It may
be that out-of-court statements of FMCS mediators have
special reliability insofar as they purport to reflect what
bargaining parties told the mediator--it being the essence
of the mediator's function reliably and disinterestedly to
report to one party what the other party has said (at
least when he/she is authorized to do so). Moreover, the
refusal to compel testimony by FMCS mediators in
Board proceedings about what one party or the other
has said during a mediated bargaining session (see, e.g.,
N.L.R.B. v. Joseph Macaluso, Inc., 618 F.2d 51 (9th Cir.
1980)) presents unique problems to a bargaining party
seeking to show, as herein, that "movement" occurred
during a mediated session. This suggests an additional
basis for receiving testimony about what the mediator in-
dicated to dne party about the other's position as proof
that the other party actually took the position indicated
by the mediator. These considerations are purely hypo-
thetical in this proceeding, however, since the evidence
about what the mediator said was offered and received
solely for the limited purpose set forth above.
With the caveat noted above, I set forth below the par-
ties' respectively reports of what happened in the March
19 session.
According to Thayer, mediator Walters asked Re-
spondent's representatives what were the "primary
issues" which had caused the impasse. Thayer stated that
Ristau replied that "there were a number of issues that
the Company had placed in its proposal that were not re-
solved, but . . . the primary issues and those which
could not be resolved and that resulted in the impasse
were the picket line language, the disciplinary language,
and the lateral bidding." Mediator Walters then left Re-
spondent's caucus.
Next, according to Stephens, Walters entered the
Union's caucus and asked Stephens "how important the
. . . bidding language was and the disciplinary language.
And also . . . about the monetary benefits that had been
implemented." Stephens stated that he told Walters "that
we would agree to the . . . bidding and their disciplinary
language, and their monetary implement, if we could
work out something on the picket line clause we would
' See also colloquy in which the General Counsel and the Charging
Party are given the opportunity to expand the proffer of the mediator's
statements to include their hearsay contents and they decline to do so.
agree to what they wanted." Walters then left the
Union's caucus.
According to Thayer, Walters stated during one of his
return visits to the management caucus9 that "he be-
lieved that those [i.e., 'the primary issues' earlier identi-
fied by Ristau to Walters] were at this stage the primary
issues." Walters also told Thayer that "insofar as the
picket line language was concerned, he saw .. . that
there was no way they [i.e., the Union] could move on
that language." Thayer expressly denied that Walters
ever communicated specifically to Respondent that the
Union was prepared to give in on other outstanding
"cost" and "language" issues if only Respondent would
agree to the Union's desired "picket line" language.
It is undisputed that Walters then suggested that the
parties break off negotiations for a "cooling off' period.
The meeting then closed.
On May 27 the parties met again at Ristau's law of-
fices, with mediator Walters again present, again going
between separate caucus locations in an effort to achieve
movement on the subject of the disputed "picket line"
language. When neither party expressed a willingness to
move from its previously stated position regarding the
"picket line" issue, Walters convened the parties briefly
to express his view that the parties were still at impasse
(without identifying any areas in which he perceived
agreement had been reached).
The meeting then closed.
D. Events on August 26 and 27
Matters remained in this posture, without further com-
munications between the parties, until August 26. As of
that point, according to Stephens, the Union believed
that the only outstanding point of disagreement between
the bargaining parties was on what "picket line" lan-
guage should be in the contract-all other areas of dis-
pute having been resolved, either explicitly or implicitly.
Specifically, Stephens assumed that FMCS mediator
Walters had earlier communicated to Respondent the
Union's willingness to accept Respondent's wage and
benefit package and its "bidding" and "disciplinary" lan-
guage changes. and Stephens further assumed from Ris-
tau's remarks at the February 28 meeting (discussed
above in fn. 5) that the other language changes which
Respondent had initially proposed had been abandoned
(or would be if the Union would acquiesce fully in the
areas of "bidding," "discipline," and "picket line" lan-
guage).
Stephens stated that he obtained the approval of the
Union's secretary-treasurer at some point after May 27 to
give in on the "picket line" language issue in order to
conclude an agreement. Having obtaiied that authoriza-
tion from his superior, Stephens telephoned Thayer at
Respondent's offices on August 26, between 9 and 9:30
a.m. This, in substance, is Stephens' version of what was
said in that conversation:
I asked Mr. Thayer what outstanding issues we had
left in order to get this contract resolved. He said as
Thayer's version was somewhat -onclusionary in tone and was im-
precise about the sequence of events. Stephens' version suffered similarly.
767
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
far as he knew the only thing left was the picket
line clause.
I told Mr. Thayer that I would like to meet with
him on it the following day. And he said, "Well,
what is the reason of the meeting?" I said, "the
union will agree to your picket line language." And
he said, "We have a deal." I asked to meet him at
10:00 o'clock. He said he could not meet at 10:00
o'clock, but he could meet me at 9:00 o'clock.
* * * *
I told him I would see him the following day ....
He said, "We have a deal." I said "Fine, I will be
there tomorrow and we will get this wrapped up
and signed off."
This, in substance, is Thayer's version of the same tele-
phone conversation:
Mr. Stephens asked if he could come down and see
me the next day.
* * * * II
And I said, "Well, I don't know what about, but
you sure can come down and see me." He says,
"Well, I want to talk about the contract." I said,
"Okay . . . we have been at impasse for months. I
don't know what there is to discuss. But if you
want to come down, come down." He indicated
that he wanted to come down at 10:00 o'clock, and
I told him that no, I could not meet him at 10:00,
but I would be glad to do so at 9:00 o'clock.
He said okay, he would be there.
There are less dramatic differences between the re-
spective accounts of Thayer and Stephens about what
happened when they met on August 27 in Thayer's
office at 9 a.m. Stephens recalled, in substance, that he
entered the meeting, saying, "Well, let's get this thing
out of the way, Larry," and that Thayer promptly re-
plied, "There is nothing I can do about it," explaining
that "Some of your good union members have signed a
petition for decertification." According to Stephens,
Thayer added, "I can't sign anything. It is out of my
hands."
Thayer's version is that Stephens entered the meeting
saying that "he would like to discuss the contract and
see if we couldn't get it all wrapped up" to which
Thayer responded that he was "sorry, but at that point
in time the matter was out of my hands, and that I was
in no position to discuss nor sign a contract." Thayer
stated that he then told Stephens that "a petition had
been filed with the National Labor Relations Board, that
I believe that the majority of the employees no longer
wanted 598 to represent them, and that they were asking
for an election to determine that fact."
E. Conclusions as to Respondent's Alleged Agreement
on August 26 To Enter Into a Successor Contract
It is evident from the foregoing that a major issue in
the case-whether the parties concluded agreement on a
successor labor contract in the conversation between
Stephens and Thayer on August 26-depends for resolu-
tion on whose version of the August 26 exchange is
credited. If Stephens is believed, then I may conclude
that Thayer's statement, "We have a deal," is reflective
of a meeting of the minds required for the formation of
an effective collective-bargaining agreement. '" If Thayer
is believed, however, the General Counsel's case must
certainly fall in this regard since the only inference to be
drawn from Thayer's version is that the parties had not
yet resolved differences on critical "language" items
(most notably, the "picket line" clause) and the Union
had not yet even communicated its willingness to accede
to Respondent's already implemented wage and benefit
package. Thus, if Thayer is credited, there was still more
bargaining to do as of the close of the telephone conver-
sation on August 26; and all parties agree that no such
bargaining took place thereafter-Respondent having re-
fused on August 27 to bargain further based on a claimed
doubt as to the Union's continuing status as the repre-
sentative of the employees in the bargaining unit.
After careful observation of Thayer and Stephens as
they testified, and after a full review of the entire record,
I do not credit Stephens. Demeanoral considerations are,
at best, only marginally influential in this conclusion. Ste-
phens displayed frailities of memory at certain points,
and his testimony was conclusionary in tone, particulary
regarding the bargaining history leading to the August
26 telephone exchange. He nonetheless testified with ap-
parent conviction and in considerable detail about the
critical August 26 conversation. Similar comments may
be made about Thayer's testimony, however. Moreover,
the testimony of both witnesses regarding the August 26
exchange indicated to me that each was fully aware of
the legal significance of this conversation and each dis-
played a predictable tendency to shape his recollection
to suit the desired legal result."I Because the testimonial
failings just described were shared in substantially equal
measure by both witnesses, I would not rely on those
factors in resolving the central credibility question
against Stephens. Rather, I simply do not find it prob-
able, considering the record as a whole, that the issue or
issues which had divided the parties fbr months would
be resolved through the kind of glib telephonic exchange
reported by Stephens.
10 Just exactly what the "deal" was is a separate and more difficult
question--although not necessarily an insuperable one, given my findings
regarding the essentially undisputed history of the bargaining which pre-
ceded August 26.
"t Particularly noteworthy in this regard is Stephens' supplemental
recollection-after he had already purported to describe the entire con-
versation with Thayer-that Thayer said a second time: "We have a
deal." I regard this much, at least, as self-serving embellishment. unreflec-
tive of any genuine recollection on Stephens' part.
768
DISTRIBUTION SERVICES WEST
In the first place, even assuming that Stephens had
been told by his superiors that he could capitulate on the
"picket line" language if that would produce a new
agreement, I find it improbable that he would do so
during a brief telephone conversation-his first contact
in several months with Respondent's principals. Rather, I
deem it more likely that he would use the telephone ex-
change, at most, to verify with Thayer his belief that the
"picket line" clause was the only obstacle to agreement
and, having established that, would then suggest a meet-
ing to see if that matter could be resolved. Put another
way, I would expect an experienced negotiator to with-
hold his playing of that final card until he had exhausted
the possibility of obtaining some more favorable "com-
promise" on "picket line" language.' 2
Thus, while I credit Stephens' claim that he was pre-
pared to capitulate on the outstanding "picket line" issue,
I doubt that he would have done so without first meet-
ing face-to-face with Respondent to determine whether
some compromises in that area were possible.
Entirely apart from the foregoing consideration, how-
ever, I am even more persuaded that Thayer would
never have made any statement to the effect, "We have a
deal," over the telephone or that he would have other-
wise so readily indicated a willingness to conclude a pact
without first reviewing the matter with his attorney. The
record reflects that attorney Ristau had played a leading
role in speaking for Respondent throughout the negotia-
tions. To accept Stephens' testimony is to assume that
Thayer found no need for legal counsel in the conclud-
ing of a labor agreement even though he had relied
heavily on such counsel in the prior negotiations.
Finally, based on findings and conclusions below it is
apparent that, as of August 26, Respondent was actively
seeking a means to terminate its bargaining relationship
with the Union.13 Indeed, my findings below demon-
strate that Stephens' telephone call to Thayer on the
morning of August 26 triggered a flurry of activity ot,
Respondent's part to obtain sufficient employee signa-
tures on a management-prepared antiunion statement to
justify the filing of a petition for an election to oust the
Union. It would require ignoring that evidence of Re-
spondent's desire to terminate the bargaining relationship
to conclude that Thayer was nevertheless prepared to
strike a "deal" with the Union which would preclude
any possibility of bringing that desire to fruition.
I therefore reach these ultimate findings bearing on
Respondent's alleged acceptance of a successor labor
agreement on August 26. Stephens was doubtless correct
in assuming that the only issue of substance dividing the
parties as of the final mediation session on May 27 was
the "picket line" clause. Whether or not mediator Wal-
ters ever expressly communicated to Respondent the
Union's willingness to concede on all disputed points
save for the picket line language, it was implicit in Wal-
ters' presentation on May 27 that this was the key to
reaching an agreement; and Respondent must have
a2 To that point, the Union had not offered any midground language
proposals, but had adamantly refused to budge from the preexisting lan-
guage in the contract pertaining to picket line observances by employees.
3a Especially the findings regarding exchanges between employee
Madding and Supervisor Gramstadt in the week before August 26
drawn the same conclusion from that presentation. It is
therefore very likely that, but for certain later changes in
Respondent's willingess to continue recognition of the
Union, the parties would have concluded an agreement
on May 27 if the Union had capitulated on the picket
line language. By August 26, however, Respondent had
persuaded itself that it could escape any bargaining rela-
tionship whatsoever with the Union. Accordingly, when
Stephens called Thayer on August 26 to suggest a fur-
ther meeting, I infer that Thayer correctly sensed that
the Union was about to capitulate, and that this would
leave Respondent in a position where it would be hard
pressed to justify a refusal to enter into a successor
agreement. Thus, I find, Stephens did no more on
August 26 than to suggest a meeting and Thayer did no
more than to indicate a willingess to meet with the
Union. And, as may be seen from findings below, Thayer
immediately took steps which he hoped would perfect a
claim that the Union had lost majority support in the
bargaining unit, and which would justify a complete sus-
pension of the bargaining process unless and until the
Union were able to demonstrate anew that it was the ma-
jority representative. '4
I therefore recommend dismissal of that portion of the
complaint which alleges that Respondent violated
Section 8(a)(5) of the Act by reneging on an alleged
agreement on August 26 to enter into a successor labor
contract.
II. RESPONDENT'S CONDUCT IN LATE AUGUST;
AL.LEGED COERCIVE POLLING OF EMPLOYEES AND
RELATED SECTION 8(A)(1) ALLEGATIONS; THE
FILING OF THE "RM" PETITION
At 10:34 on the morning of August 27, Respondent
filed a representation election petition with the Regional
Office, docketed as Case 21-RM-2057. l5 It was signed
by Respondent's trial counsel herein, who is associated in
practice with attorney Ristau.
Such a petition is the normal procedural device by
which an employer who possesses a good-faith doubt
based on objective considerations that an incumbent
union no longer represents a majority of its employees in
an established bargaining unit may obtain a Board-spon-
sored election to resolve the representation question.
Considering the preparation, clerical, and travel time
inherent in filing such an instrument in downtown Los
Angeles by 10:34 a.m., it is apparent that Respondent
had set the process in motion at least several hours earli-
er-and, more likely, on the preceding day, August 26.
This is consistent with the undisputed fact that Thayer
made reference to a "decertification" petition which had
already been "filed" during his 9 a.m. meeting with Ste-
phens on August 27 .16 It is further consistent with the
findings below.
14 I have fully considered all of the arguments advanced by the Gener-
al Counsel and the Union which suggest that the "probabilities" favor a
conclusion contrary to the one I have reached I find them unpersuasive.
i' The finding as to the precise timing of the filing is based on the
official time stamp appearing on the reverse side of that RM petition
(G.C. Exh. 11).
1" Although the terminology used by Thayer to Stephens implied that
employees themselves had begun a "decertification" process, it is clear
Continued
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several employee witnesses called by the General
Counsel testified, in substance, that they were ap-
proached by various supervisors on or shortly before
August 26 and were asked to become associated with an
effort to oust the Union. None of this testimony was con-
tradicted and I credit it. Specifically, I find as follows:
A. Gramstadt-Madding Incidents
On a date which employee Carol Madding was unable
to identify except as occurring in the "third week in
August," Madding was approached by Supervisor Jim
Gramstadt. 17 Gramstadt told Madding that Thayer
wanted "to get this contract dispute settled" and asked
Madding what she "thought about changing the Union
or getting in another local or getting our own Union,
our own company union." Madding commented that this
might "expedite things, because nothing was happening
the way it was." Gramstadt then asked Madding to "talk
to the other guys about it and see what they thought."
Madding agreed to do so. Gramstadt asked Madding if
she would "circulate a petition" if one were "made up"
which could be "sent to the NLRB . .. to take a vote
... ." She said that she "didn't know," but would "talk
to the guys and see if they would sign it."
Later in the same week, Gramstadt again approached
Madding and asked if she had "talked to the other guys
about the petition." She replied that she had but "they
didn't seem too interested." Gramstadt commented that
he "wasn't supposed to be out there talking . about it,
because he was management, and it was against the law
for management to be talking to Union people about
changing the Union."
Still later, but before August 26, there was a similar
exchange, described by Madding only as a "rehash" of
the same things referred to in the earlier conversations.
Still later, in the "late afternoon" of August 26, Gram-
stadt summoned Madding to his office, closed the door,
and presented her with a form letter, admittedly pre-
pared on Respondent's stationery by Thayer, which was
preaddressed to Thayer, and contained this text:
As an employee of Wagner Distribution Services, I
do not believe that Teamsters Local 598 has pro-
vided good representation for all the employees.
I have discussed this with most of the other em-
ployees and believe that a majority no longer want
Local 598 to represent them.
Sincerely
(space for signature left blank]
that the formal process itself was initiated solely by Respondent's man-
agement. No concurrent evidence of "objective considerations" which
would support a "good faith doubt" on Respondent's part of the Union's
majority status was submitted when it filed the RM petition. Neither was
any such evidence submitted subsequently. Rather, the processing of that
petition was "blocked" by the filing on August 29 of the original charge
herein. Respondent withdrew the RM petition in November, after being
advised by the Regional Office that the Union's charges were deemed
meritorious.
1I The parties stipulated that Oramnstadt was a supervisor within the
meaning of Sec. 2(11) of the Act "at least, as of August II" and thereaf-
ter.
Gramstadt asked Madding if she would sign the form.
She asked him how many others had signed it. He re-
plied that "eight from Brea had signed it and four from
Cerritos had signed it." Madding then signed the form
and Gramstadt put it in an envelope, assuring her that no
one would see who signed it, including Thayer, and that
it would be "sent to the NLRB."'1
B. Klingaman-Cunningham Form-Signing Incident
Operations Manager Neal Klingaman summoned em-
ployee Allan Cunningham to his office on, I find, August
26.19 There, Klingaman presented Cunningham with an-
other form identical to the one previously quoted (here-
after "the form") and handed Cunningham a pen, invit-
ing him to sign the form. Klingaman told Cunningham
that he was not obliged to sign it and that "nothing
would happen" if he did not sign. Klingaman also said
that the form would be used in connection with "decerti-
fication" of the Union and that "it would be up to the
National Labor Relations Board." Cunningham signed
the form.
C. Skinner-Roland Form-Signing Incident
On August 2620 between 4:30 and 5 p.m., Supervisor
Skinner approached employee John Roland and handed
him the form in an envelope, saying that it was "to take
a vote for the Union." He also said that he "would like"
for Roland to sign it, but that he would walk away while
Roland read it and that Roland could do what he
wanted with it. Roland signed the form and handed it
back to Skinner.
D. Ives-Hixon Form-Signing Incident
Also on the afternoon of August 26, Supervisor John
Ives spoke with employee Philip Hixon. Ives spoke brief-
ly with Hixon about a desire on the part of an unspeci-
fied "they" to "get together with Union officials and Mr.
Thayer and all of the employees of Wagner's and discuss
some way of possibly trying to settle the contract, or
work out something." Ives then left the area and re-
turned shortly afterward with a copy of the form. Ives
told Hixon that "a dozen or so people had signed this
. . . and ... if we would sign this ... that we could all
get together and discuss everything, you know, openly,
and, you know, see if we could come to some type of an
agreement." Pressed by a leading question from the Gen-
eral Counsel, Hixon also recalled (and I find, absent any
denial) that Ives also said during this discussion that
"they were looking for a supervisor, and [Hixon] would
be a good man for it, and you know, that he was going
to have a talk with his superiors about it."
Hixon signed the form.
18 In fact, Thayer did receive and review all such signed forms and
thus knew who had signed. In fact, the forms were not sent to the Board.
19 Cunningham was unsure of the date. The form which he signed
during his meeting with Klingaman bears the date August 26. Absent
other evidence, I rely on the date appearing on the form.
20 For the same reason discussed above in connection with Cunning-
ham, the finding as to the date is based on the date appearing on the form
Roland signed in connection with the incident next described.
770
DISTRIBUTION SERVICES WEST
E. Skinner-Czerniewski Form-Signing Incident
In midafternoon on August 26, Supervisor Tom Skin-
ner approached employee Peter Czerniewski and handed
him a copy of the form, saying that Czerniewski could
either sign it or not-that it was up to him. As Czer-
niewski read the form, Skinner said that, if Czerniewski
chose to sign it, "it would help the negotiations between
the Company and the Union [and] if this didn't help, that
we could bring in another local to negotiate. And, if that
didn't work out, the people working there could negoti-
ate directly with management." Czerniewski signed the
form and gave it to Skinner. Skinner said that he "would
like to keep this conversation private between him and
[Czerniewski] alone."
F. Other Forms Received by Respondent
Thayer received a total of 15 signed antiunion
forms.21 I infer that all of the signatures resulted from
supervisory solicitations, not only because of the pattern
suggested by the foregoing evidence, but also because
Thayer admitted that he devised the procedure, drafted
the text used on the forms, and gave them to "supervi-
sors" with instructions to "pass them out."
G. Conclusions Regarding the Lawfulness of the
Preparation and Circulation of Antiunion Forms and
Related Behavior of Supervisors
As a general proposition, it is deemed inherently coer-
cive of employees' Section 7 rights and thus violative of
Section 8(a)(1) of the Act for an employer to question
employees about their union sympathies, particularly
when the employer initiates antiunion petitions or state-
ments and asks employees to subscribe to them. See, e.g.,
Bancroft Manufacturing Co., Inc., et al, 189 NLRB 619,
629 (1971). A narrow exception to this general proscrip-
tion has been carved out to permit employers, using ap-
propriate safeguards, to poll employees to determine the
truth of a union's claim of majority. Thus, in Struksnes
Construction Co., Inc., 165 NLRB 1062 (1967), the Board
stated the rule as follows (id. at 1063):
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(aX)() of the Act unless the following safeguards
are observed: (I) the purpose of the poll is to deter-
mine the truth of a union's claim of majority, (2)
this purpose is communicated to the employees, (3)
assurances against reprisal are given, (4) the em-
ployees are polled by secret ballot, and (5) the em-
ployer has not engaged in unfair labor practices or
otherwise created a coercive atmosphere.
Respondent's circulation through supervisors of
Thayer's forms does not satisfy the narrow Struksnes ex-
ception in a number of fundamental respects. The pur-
pose of the forms was not to test the truth of a claim of
majority support by the Union. Rather, the foregoing
findings show that they were designed to provide evi-
" The parties stipulated that all but two of the forms bore dates of
August 26. The other two forms bore dates of August 27 and September
4.
dence which Respondent could use to support a refusal
to recognize the Union pending the conducting by the
Board of a representation election-itself not available to
Respondent unless it could provide objective evidence
on which to support a claim that it entertained a good-
faith doubt of the Union's majority status. As such, they
were designed in such a way as to admit of no "pro-
union" response. Moreover, the purpose of the forms
was not clearly spelled out by the supervisors who solic-
ited employee signatures. Thus, for example, in the cases
of Hixon and Czerniewski, the credited evidence reveals
that supervisors sought to leave the impression that sign-
ing the form could break the stalemate in negotiations
with the Union or would "help the negotiations." In ad-
dition, in the case of Hixon, the solicitation of his signa-
ture was accompanied by an unmistakable suggestion
that Hixon was under active consideration for a promo-
tion-a blandishment which could be expected to influ-
ence Hixon's choice whether or not to sign. Finally, and
perhaps most fundamentally, the entire process could not
by any reasonable definition be characterized as involv-
ing a "poll" by "secret ballot." The forms themselves re-
quired a signature, and the response of each solicited em-
ployee was instantly known to the soliciting supervisor.
Indeed, the lack of secrecy in the process was under-
scored in some instances by supervisors who expressly
informed potential signers that specific numbers of em-
ployees at specific locations had "already signed."
For all of these reasons, the circulation of the forms
was not privileged under Struksnes, but, rather, the proc-
ess itself violated Section 8(a)(1) of the Act.2 2
I agree with the contentions of the General Counsel
that, apart from the overall unlawful character of the
process used to obtain signatures on the forms, certain
solicitation instances involved independent violations of
Section 8(a)(1). In this regard, I conclude that Gram-
stadt's pre-August 26 conversations with employee Mad-
ding involved unlawful interrogation about Madding's
union sympathies and the sympathies of her fellow em-
ployees, and that his statement to her on August 26 that
"eight from Brea . . . and four from Cerritos" had
signed the forms unlawfully created the impression that
employees' union activities were under surveillance (ike-
wise, the similar statements of Ives to Hixon). Finally, I
conclude that Ives' pointed comments to Hixon about
Hixon's suitability for a supervisory opening amounted to
an unlawful promise of benefits tending in the circum-
stances to coerce Hixon in the exercise of his Section 7
rights.
Ill. THE LAWFULNESS OF RESPONDENT'S ADMITTED
REFUSAL TO RECOGNIZE AND BARGAIN WITH THE
UNION AFTER AUGUST 26: THE QUESTION OF
RESPONDENT'S "GOOD FAITH DOUBT"
Under established principles, the Union enjoyed a re-
buttable presumption when the 1977-80 labor agreement
expired that it continued to be the majority representa-
tive of the bargaining unit employees.2 3 It is equally es-
:" See also H. P Wasson A Company, 170 NLRB 293 (1968).
'S See, e.g., N.LR.B. v. Cornell of California Inc, 577 F.2d 513 (9th
Cir. 1978), and cases cited at 515-516.
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tablished that where, as herein, an employer refuses to
bargain further with an incumbent union for a new con-
tract based on a claim of doubt that the union continues
to enjoy majority support the employer's actions are
privileged only if it satisfies a burden of coming forward
with evidence of "objective considerations" which justi-
fy its claim of doubt. (Ibid.) In Pennco, Inc., 250 NLRB
716, 717 (1980), the Board stated, regarding the employ-
er's rebuttal burden:
. . . the employer's burden is a heavy one. Thus,
"it is insufficient . . . that the employer merely in-
tuits nonsupport," and good faith doubt "may not
depend solely on unfounded speculation or a subjec-
tive state of mind."
My findings and conclusions above regarding the un-
lawful character of the solicitation of employee signa-
tures on form letters prepared by Thayer preclude Re-
spondent from relying on those letters as support for its
claim of doubt. H. P. Wasson & Co., supra. Perhaps be-
cause it anticipated this legal result, Respondent has im-
plicitly disclaimed reliance on those letters as providing a
basis for a good-faith doubt and has, instead, insisted that
it had a good-faith doubt based on objective consider-
ations in "early August," following the alleged receipt
by Thayer of numerous reports by supervisors and em-
ployees of substantial employee dissatisfaction with the
Union.24
For reasons set forth next, I reject Respondent's fall-
back defense and conclude that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing, on and
after August 27, to recognize the Union as the exclusive
bargaining representative of its employees and to bargain
in good faith with it for a successor labor agreement.
Even before addressing the factual merits of Respond-
ent's claim that there were "objective considerations" by
"early August" on which to base doubt of the Union's
majority status, I conclude that Respondent did not, in
fact, believe before August 26 that those "objective"
facts existed. First, if they had been known to Respond-
ent in "early August," Thayer would not have agreed on
August 26 to meet further with Stephens on August 27
to continue collective-bargaining discussions. Second,
Thayer would not have initiated the flurry of unlawful
supervisory activity on the afternoon of August 26 to
"create" an objective basis on which it could justify a re-
fusal to bargain. Both factors strongly suggest that Re-
spondent had, at best, a suspicion as of August 26 that
there was disaffection for the Union among the employ-
ees-a suspicion that it felt able to confirm only through
a coercive process of soliciting employees to subscribe to
a management-prepared antiunion statement containing
critical "magic words."2 5
2 4 Resp. br., pp. 18 and 21.
a2 E.g., "I have discussed this with most of the other employees and be-
lieve that a majority no longer want Local 598 to represent them." (Empha-
sis supplied.) As some employee signers acknowledged during testimony,
this latter statement was simply untrue. (E.g., Czerniewski.) And even
employees such as Madding, who affirmed the truthfulness of the latter
statement, cannot be credited on this point in the light of the fact that the
bargaining unit employees worked at two separate locations and no
showing was made which would explain how an employee at one loca-
tion could have had discussions with enough employees at the other loca-
All of the foregoing considerations lead me to view
with disbelief any testimony by Thayer that he had any-
thing more than a suspicion in "early August" that most
of his employees no longer wanted to be represented by
the Union.
Setting aside that threshold objection to Respondent's
defense, I summarize below what Thayer stated, noting
the areas which I deem to be particularly incredible.
Summarizing the evolution of his belief that the Union
had lost majority support, Thayer stated that in "July,
maybe the latter part of June . . . I . . . started getting
the vibrations that that was the case. I don't believe that
they [i.e., the vibrations] were totally confirmed until the
latter part of July or early August ... . [I]t is some-
thing that continued with the frustration of the employ-
ees over that period of time . ... I was hearing more
and more things from my managers and supervisors as
time wore on."
More specifically, Thayer claimed that he received re-
ports "once or twice a week" from his operations man-
ager, Klingaman, that Klingaman had, in turn, heard
from "supervisors and warehouse managers and the em-
ployees of the Company, that there was a great amount
of frustration with the current status of the situation, that
the employees were extremely dissatisfied with the repre-
sentation that 598 had given them during the period of
the contract that they were--they no longer wanted
Local 598 to represent them."' 2
Similarly, Thayer reported that he learned from Brea
Warehouse Manager Tom Skinner during Thayer's
weekly visits to the Brea facility during this late July-
early August period that in Skinner's "discussions with
the employees, that the majority of the employees did
not want Local 598 to represent them."2 7
Thayer also reported in a similar vein that the Cerritos
warehouse manager, Seldon Stafford, regularly told
Thayer:
. . . that . . . the employees at Cerritos were con-
stantly asking him questions with regard to the
status of the Union . . . and that they had regis-
tered to him in those discussions a great amount of
dissatisfaction with the Union and how they had
been represented, and that they, too, and again a
majority of them, did not want Local 598 to repre-
sent them.2 8
Thayer also testified similarly regarding conversations
he had directly with four employees, three of whom-
Gramstadt, Wright, and Imoto-assertedly made anti-
union statements in the context of their being inter-
tion to justify the statement. It is impossible, moreover, to reconcile Mad-
ding's testimony here with her other testimony that she tried to enlist
"the other guys" in an antiunion petition effort. but "they didn't seem too
interested."
a2 Thayer was least impressive in tacking on the latter "magic words"
to his account of Klingaman's second- and third-hand reports about em-
ployee attitudes. I utterly disbelieve this much of his testimony-especial-
ly where Respondent did not call Klingaman to corroborate Thayer on
these points.
s' Again, especially absent corroborative testimony from Skinner, I do
not believe that the "magic words" were uttered by Skinner either.
"I Stafford was not called as a witness. I do not believe Thayer's attn-
bution to him of "magic words."
772
DISTRIBUTION SERVICES WEST
viewed by Thayer in connection with their imminent
promotion to supervisory positions. The fourth alleged
conversation was with one of the Union's stewards, Don
Ferguson. In each case, Thayer attributed to those em-
ployees statements, inter alia, that "a majority" of the
employees were "dissatisfied" and "no longer wanted
Local 598 to represent them."
Although the first three employees named above were
supervisors by the time of the hearing herein, none of
them was called to corroborate Thayer. I therefore do
not believe Thayer that those persons uttered any
"magic words." Ferguson, the steward, was called as a
witness, but only by the General Counsel-to rebut
Thayer's account. Ferguson expressly denied saying any-
thing approaching the words attributed to him by
Thayer and acknowledged only that the most that he
had said to Thayer was that employees were "dissatis-
fied," based on the lengthy stalemate in negotiations. He
denied ever hearing from any of the employees that
there was any interest in replacing the Union and affir-
matively stated, "[T]hey never said that they wanted to
disavow themselves from Local 598. This is one thing
they did not do." I credit Ferguson.
From the foregoing, it is evident, and I find, that,
while Thayer may have received generalized reports
from his managers and supervisors that employees were
"dissatisfied" with the lack of progress in the bargaining
for a new contract (and with the Union's failure to break
the deadlock), Thayer did not receive from those sources
any reliable information amounting to an objective indi-
cation that more than half of the unit employees had
reached the point of wishing to be rid of the Union as
their exclusive bargaining agent. Moreover, the general
character of the reports which Thayer claimed to have
received from those sources did not permit him to know
the context in which alleged antiunion sentiments may
have been voiced by employees. And, as I discuss next,
even if I were to credit fully Thayer's claim that his su-
pervisors and managers used the "magic words" in
making their reports to him, such reports, absent more,
are not adequate to rebut the presumption of an incum-
bent union's continuing majority status.
Struksnes, supra, makes clear that even the most sys-
tematic polling of employees, one-by-one, about their
desire for union representation is unlawful and, ipsofacto,
the results are insufficient to ground a "good faith
doubt," unless certain affirmative safeguards are built
into the polling procedure. It would be incongruous,
therefore, for reports such as those described by Thayer
to be given legitimacy as a basis for an employer's refus-
al to recognize an incumbent union where the context in
which employee sentiments were allegedly expressed to
supervisors is never made a matter of record by the em-
ployer-the party in possession of those facts and having
the burden of establishing its defense. Thus, where Re-
spondent chose to call neither the supervisors having
first-hand knowledge regarding the specifics of the as-
serted antiunion views of the unit employees, nor to call
the employees themselves, Thayer's testimony may not
only be viewed with disbelief, as I have done, but it is
inadequate as a matter of law to meet Respondent's
"heavy" rebuttal burden. Pennco. Inc., supra; Cornell of
California, 577 F.2d at 516-517.29
These latter considerations arguably do not apply to
the three conversations which Thayer held with the
soon-to-be supervisors, Gramstadt, Wright, and Imoto.
Thus, if Thayer were credited fully about his reports of
those conversations, it might be concluded that those
employees volunteered their personal antiunion feelings
and their opinions as to the antiunion sentiments of the
other employees in a noncoercive context. But the per-
sonal sentiments expressed by those then-employees did
not reflect any more than that 3 employees in a unit of at
least 2130 no longer wished union representation. And
their alleged statements that a "majority" of their fellow
employees shared their views are plainly insufficient to
amount to "objective" factors which would justify a
good-faith doubt. Cornell of California, 577 F.2d at 516-
517.31 Accordingly, even if Thayer told the truth about
his conversations with those employees, the information
which he thus gleaned was inadequate in law to privilege
his later refusal to recognize the Union.
For all of those reasons, I conclude that Respondent
failed to meet its burden of showing that there were ob-
jective considerations based on which it did entertain, or
could have entertained, a good-faith doubt of the Union's
majority status when it admittedly refused to deal further
with the Union on and after August 27. Respondent
therefore violated Section 8(a)(5) and (1) of the Act.
IV. ALLEGED UNILATERAL CHANGE IN SHIFT
SCHEDULES AT BREA
The previously expired labor agreement contemplated
the establishment of a swing shift. Thus, article X of that
expired agreement states:
SWING AND GRAVEYARD SHIFTS
An employer may establish a regular swing shift
consisting of eight (8) consecutive hours (exclusive
of a meal period of one-half (1/2) hour) starting be-
tween 3:00 p.m. and 6:00 p.m., Monday through
Friday. Straight time rates of pay for work on such
swing shift shall be seventeen cents (17¢) per hour
higher than the rates provided in the Wage Sched-
ule attached hereto.
Consistent with this provision, there had been a swing
shift at the Brea facility for an unstated period of time
before September 8 which ran between 4:30 p.m. and I
a9 Moreover, any other approach would only invite resort to mischie-
vous shortcuts by employers and would discourage their use of the pre-
ferred poll techniques sanctioned by Struksnes. supra. See Pioneer Inn As-
sociales v. N.LR.B., 578 F.2d 835, 840 (9th Cir 19797
to Respondent never adequately established the pricise number of em-
ployees in the unit at critical stages. Thayer conceded. and the RM peti-
tion likewise concedes, that the unit complement may have been as large
as 27 or 28 during relevant periods. It is unnecessary to determine wheth-
er even the latter figures are accurate in the light of my disposition of the
"good faith doubt" issue.
" I note moreover the utter absence in this record of any evidence of
independent employee actions, such as resignations from union member-
*hip, which might have lent some substance to the conclusionary reports
which Thayer claimed to have received that a majority of employees
wished to be rid of the Union. Ibid
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a.m. In the bargaining for a new labor agreement, neither
party had proposed any changes in article X.
The parties stipulated that Respondent changed the
scheduled hours of its swing shift at the Brea facility on
September 8. The post-September 8 swing shift schedule
was from 10:30 a.m. to 7 p.m. on the same day. Concur-
rent with this change, the day-shift schedule was
changed from 8 a.m. to 4:30 p.m. to 7 a.m. to 3:30 p.m.
As a consequence, what had been previously consecutive
shifts became substantially overlapping shifts.3 2
The General Counsel, relying on the Supreme Court's
decision in Jewel Tea,3 3 argues that the scheduling of
work shift hours is a mandatory subject of bargaining
within the intendment of Section 8(d) of the Act, that
Respondent's drastically altered shift arrangements nec-
essarily and predictably had an adverse impact on the
unit, and that Respondent therefore violated its duty to
bargain in good faith by failing to notify the Union in ad-
vance of its intentions and to offer to bargain about the
change.
Respondent defends on the related grounds that the
Union had de facto notice of Respondent's intention to
change the shift schedules (through a communication by
the Union's shop steward, Benegas, to Union Official
Stephens on or about September 1 reflecting Benegas'
awareness of the intended swing shift schedule change)
and that the Union failed to request bargaining about the
intended change, thus waiving its rights to bargain.
I deal with this issue summarily: It is plain that starting
and stopping times of a work shift are mandatory bar-
gaining subjects within the meaning of Section 8(d) of
the Act. Jewel Tea, 381 U.S. at 691, and cases cited. The
only questions are whether the Union had advance
notice of the shift schedule change; and, if so, whether
the Union's failure to request bargaining with Respond-
ent over the change amounted to a waiver of the right to
bargain over it.
As to whether the Union had notice of the change, I
find as follows: In a pretrial affidavit given to the Board,
Union Agent Stephens stated:
About the first of September, 1980, Pete Benegas,
an employee and steward at Brea, told me they were
talking about starting a swing shift from 10:30 a.m. to
7:00 p.m. at Brea only. A week and one-half later,
employees at Brea told me this had been done. [Em-
phasis supplied.]
On the witness stand, Stephens disavowed this state-
ment and claimed that he had only received a report
from Benegas about the shift change after it had already
taken place. Respondent argues that Benegas may be
treated as the Union's agent for purposes of receiving
32 Assuming that Respondent continued its practice established under
the expired labor agreement of paying a 17-cent-per-hour premium to
swing shift employees (a matter about which the record is silent), the
change would have the necessary effect that employees working overlap-
ping hours would receive different pay rates for the same job tasks per-
formed at the same time, depending on whether they were on the "day"
or "swing" schedule.
s" Local Union No. 189. Amalgamated Meat Cutters & Butcher Work-
men of North America. AFL-CIO v. Jewel Tea Coa. Inc., 381 U.S. 676
(1965).
communications from Respondent about changes in con-
ditions which are mandatory bargaining subjects; and
further argues that Stephens' admission in his affidavit
that Benegas transmitted the message to him shows in
any case that the Union was on notice of the shift sched-
ule change before it occured and that it therefore waived
the right to bargain by failing to initiate a request to Re-
spondent to negotiate over the subject.
I reject Respondent's position. Assuming, without de-
ciding, that Respondent could discharge its duty of noti-
fication by informing a shop-level steward of its inten-
tions, and assuming further that Stephens' version as re-
flected in his affidavit is more reliable than his contrary
testimony at the hearing, I conclude that the evidence
relied on by Respondent is inadequate to show that
either Benegas or the Union's higher echelon representa-
tives received any reliable notice from Respondent about
a specific shift schedule change. Thus, from Stephens'
version in his affidavit it is simply unclear to whom Ben-
egas was referring in saying that "they were talking
about" the change. Since I deem it to have been Re-
spondent's burden, as the party with the best information
as to how, if at all, a communication was made to the
Union about the change. to show that notice was actual-
ly transmitted, and since Respondent came forward with
no additional evidence on the subject, I find that the
Union did not, in fact, receive any reliable communica-
tion sufficient to trigger an obligation on its part to
demand bargaining over the intended change.
The Board has held, with court approval, that a
union's waiver of the right to bargain over a mandatory
subject will not be lightly inferred, but, rather, the evi-
dence of waiver must be "clear and unmistakable." See,
e.g., Timken Roller Bearing Co., 138 NLRB 15 (1962),
enfd. 325 F.2d 746 (6th Cir. 1963), cert. denied 376 U.S.
971. The vague report communicated to Stephens by
Benegas as reflected in Stephens' affidavit, coupled with
the Union's subsequent inaction, is not "clear and unmis-
takable" evidence of an intention to waive statutory bar-
gaining rights.
Independent of the foregoing-and certainly taken to-
gether with it--by the time the Union received whatever
information it did on the subject of the shift schedule
change, Respondent had already taken the position that
it would no longer bargain with the Union due to a pro-
fessed doubt about the Union's representative status.
Under these circumstances, it would have been a futility
for the Union to request bargaining over the intended
shift schedule change even if the Benegas communication
were deemed in more ordinary circumstances sufficient
to trigger an obligation on the Union's part to make the
next move. Transmarine Navigation Corporation, 152
NLRB 998, 1004 (1965).
Accordingly, for either or both of the reasons dis-
cussed above, the Union did not waive its right to bar-
gain over the shift schedule change at the Brea facility;
and Respondent's unilateral imposition of that change
constituted an independent violation of Section 8(a)(5) of
the Act.
774
DISTRIBUTION SERVICES WEST
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all times material herein, including on and after
August 27, 1980, the Union has been the exclusive col-
lective-bargaining representative of Respondent's em-
ployees in the following-described unit, an appropriate
one for collective-bargaining purposes:3 4
All production and maintenance employees, ware-
house employees, including shipping and receiving
clerks, [and] janitors, employed by Respondent at
its Anaheim and Brea facilities;3 5 excluding office
employees, professional employees, and supervisors
as defined in the Act.
4. By refusing on and after August 27, 1980, to recog-
nize and to bargain further with the Union over the
terms for a collective-bargaining agreement to replace
one which had expired earlier, and by thereafter unilater-
ally changing the established day and swing shift sched-
ules at its Brea facility,3 6 and by each of those actions,
Respondent has tailed and refused to bargain collectively
in good faith with the Union and thereby has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) and Section 8(d) of
the Act.
5. By the actions of Supervisor Gramstadt in question-
ing employee Madding in the third week of August 1980
about her own feelings about the Union and those of her
fellow employees and by soliciting Madding to circulate
a decertification petition, and by the actions of other su-
pervisors identified above in soliciting employees to sign
a management-prepared antiunion form letter on August
26, 1980, and thereafter, and by the independent actions
of Supervisors Gramstadt and Ives in coercing employ-
ees in connection with that management solicitation
effort, and by each of said acts, Respondent has inter-
fered with, restrained, and coerced employees in the ex-
ercise of the rights guaranteed 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. Prior to August 27, 1980, the Union and Respondent
had not reached full agreement on the terms of a collec-
tive-bargaining agreement to replace an earlier one
which had expired. and, accordingly, Respondent has
'4 Hereafter the uni!. The unit description is in accordance with the
allegation in the complaint, as amended at the hearing, which Respondent
amended its answer 'o admit.
3' The record reflects that after the events which were the subject of
the complaint Respondent opened an additional facility. Whether or not
employees at thai facility are appropriately included in the existing unit
was not litigated. Accordingly, no, findings or conclusions are entered as
to that question.
"a Although the complaint attackxed only the unilateral change in the
swing shift at the Brea facility, the record undisputedly reveals that the
day shift schedule was likewise changed in connection with the wholly
revised swing shift schedule Because both matters were fully litigated
and because they wcre essentiaily interwined actions, I address both such
actions in my conclusions, as well as in my recommended remedy and in
my recommended Order, below
not reneged on any commitment to enter into any partic-
ular replacement agreement.
THE REMEDY
Having found that Respondent violated the Act as set
forth above, I shall recommend that Respondent cease
and desist therefrom, and from violations of the Act in
any other manner or by any other means,3 7 and that it
take affirmative remedial action as follows: Restore the
status quo ante its unilateral day and swing shift schedule
changes on September 8, 1980, and maintain the sched-
ules prevailing immediately before they were thus
changed unless and until Respondent has discharged its
obligation to notify the Union about, and, upon the
Union's request, to bargain collectively in good faith
over, any changes in those schedules;3 8 and post a reme-
dial notice to its employees.
Upon the foregoing and upon the entire record, I issue
this recommended:
ORDER3 9
The Respondent, Wagner Distribution Services, Inc.
d/b/a Distribution Services West, Anaheim, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to recognize the Union as the
exclusive collective-bargaining agent of employees in the
unit, and failing and refusing to bargain in good faith
with the Union over any and all mandatory subjects of
bargaining affecting the unit, including the terms and
conditions for a collective-bargaining agreement to re-
place an earlier one which expired, and any intended
changes in established wages, hours of work, or other
terms and conditions of employment.
(b) Interfering with, restraining, or coercing its em-
ployees in the exercise of their rights under the Act by
questioning them about their own union sympathies or
those of their fellow employees, soliciting them to circu-
late antiunion petitions, or otherwise sponsoring antiun-
ion conduct by employees by soliciting them to sign
management-prepared antiunion forms, or by promising
them benefits or by creating the impression that employ-
ees' union or antiunion activities are under management
surveillance.
(c) In any other manner or by any other means inter-
fering with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of the
Act.
a7 Respondent's unfair labor practices were widespread and pervasive,
especially to the extent that they were calculatedly directed at the elimi-
nation of an established collective-bargaining relationship, and, accord-
ingly, a "broad" remedial Order is warranted. Cf Hickmott Foods, Inc.,
242 NLRB 1357 (1979).
sa In the absence of any evidence that employees suffered actual finan-
cial losses as a consequence of Respondent's unlawful unilateral changes.
I have omitted from my recommended remedy any "make whole" provi-
sion.
a9 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.
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Immediately recognize the Union and bargain col-
lectively in good faith with it over any and all manda-
tory subjects of bargaining affecting employees in the
unit.
(b) Rescind the September 8, 1980, changes in day and
swing shift schedules at its Brea facility and restore and
maintain the schedules prevailing there immediately
before said date unless and until Respondent discharges
its statutory duty to notify and, upon request, to bargain
in good faith with the Union over any proposed changes
in those schedules.
(c) Post at its facilities in Orange County, California,
copies of the attached notice marked "Appendix." 40
40 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
Copies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained
by Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply with it.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
776