Wometco-Lathrop Co.

National Labor Relations Board - Board Decisions

Jul 19, 1976

225 N.L.R.B. 686 (N.L.R.B. 1976)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wometco-Lathrop Company and Local 1689 , Retail
Clerks International Association, AFL-CIO. Cases
19-CA-7710 and 19-CA-7711
July 19, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On February 3, 1976, Administrative Law Judge
James T. Barker issued the attached Decision 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 of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that, on
April 29, 1975, Respondent, through Donald Hill, its
president, refused to recognize the Union as the ma-
jority representative of its employees in an appropri-
ate bargaining unit and refused to meet and bargain
with the Union as the exclusive bargaining represen-
tative of those employees. He also found that Re-
spondent, through Donald Hill, violated Section
8(a)(1) by threatening, in the presence of unit em-
ployees, to adversely affect the fob tenure of Manag-
er Jenkins and Assistant Manager Isaacson if the
Union and employees continued to press their recog-
nition and bargaining demands. For the reasons set
forth below, we shall dismiss the complaint in its en-
tirety.
1. With regard to the 8(a)(5) allegation, Respon-
dent contends that Manager Jenkins did not have
apparent authority when he signed the recognition
agreement on April 10, 1975, recognizing the Union
as the exclusive representative of Respondent's em-
ployees at the Lacey Street and Goldstream Street
theaters in Fairbanks, Alaska, and that the Union
was well aware that the only person with authority
concerning labor matters was President Hill, who
was located in Anchorage. We find merit in
Respondent's contention.
As more fully set forth in the Administrative Law
Judge's Decision, the facts show that Respondent op-
erates motion picture theaters in Anchorage, Juneau,
and Fairbanks, Alaska, in addition to office build-
ings in Fairbanks and Anchorage. Donald K. Hill is
president of Respondent and maintains his business
office in Anchorage. Donald R. Jenkins is manager
of Respondent's Goldstream and Lacey Street the-
aters involved herein, which are located 1.2 miles
apart in Fairbanks. Michael A. Isaacson is assistant
manager of both theaters.
The Union initiated its campaign among Re-
spondent's unrepresented cashiers, doormen, ush-
ers, usherettes, and concessionaries in the spring of
1975. Respondent's projectionists are covered under
a statewide collective-bargaining agreement with an-
other union. Whittaker, an international representa-
tive of the Union, and Davis, an employee of Re-
spondent, met with Assistant Manager Isaacson at
the Goldstream theater on April 9 and demanded
recognition as representative of Respondent's em-
ployees at the Goldstream and Lacey Street theaters.
Attached to the recognition agreement was a petition
signed by 12 of the 18 employees working at the
Goldstream and Lacey Street theaters. Isaacson read
the recognition agreement but suggested that Whit-
taker speak to Manager Jenkins. Although Whittaker
told Isaacson he could sign the agreement, Isaacson
called Jenkins on the telephone. When Isaacson
completed his call, he told Whittaker that Jenkins
had informed him he could sign the document with
the understanding that in affixing his signature he
was not binding Respondent to a collective-bargain-
ing agreement. Whittaker indicated to Isaacson that
the agreement was only an agreement to recognize
the Union as bargaining representative in a unit of
all employees of the Goldstream and Lacey Street
theaters in Fairbanks, but excluding the motion pic-
ture projectionists. Isaacson signed and dated the
recognition agreement, as well as the petition for
union representation which had been signed by a
majority of the employees in the bargaining unit.
As previously arranged by Isaacson, Whittaker
and Hough, president of the Local, met with Manag-
er Jenkins on April 10. Whittaker indicated he and
Hough were representing the employees for the pur-
pose of collective bargaining, that the Union repre-
sented a majority of the employees, and that he de-
sired that Jenkins sign a recognition agreement and a
petition for union representation which had been
signed by 12 employees. Whittaker explained that the
petition could be the basis for either voluntary recog-
nition or a Board election. Jenkins indicated that he
desired to stabilize the work force and asked if the
Union would be of any benefit in this regard. Whit-
taker stated that fair wage rates and benefits could
have such effect. When Whittaker supplied possible
wage rates pursuant to a request by Jenkins, the lat-
ter stated that such rates would be more than Re-
spondent could afford. After Whittaker indicated
that a bargaining committee of employees would for-
225 NLRB No. 92
WOMETCO-LATHROP COMPANY 687
mulate and present contract demands following rec-
ognition of the Union by Respondent, Jenkins stated
that he had no authority to bind Respondent with
respect to contract provisions and noted that only
Donald Hill, president of Respondent, had that au-
thority.
Following a discussion during which Whittaker
asked Jenkins to sign the recognition agreement, re-
sponded to Jenkins' questions, and explained that the
recognition agreement did not have the effect of
binding Respondent to specific contract terms, but
that its legal effect would require Respondent to bar-
gain for a reasonable time to achieve a collective-
bargaining agreement, Jenkins signed the recognition
agreement as well as the petition for union represen-
tation signed by the employees and indicated that
negotiations would begin at a mutually agreeable
date.
Subsequent to the April 10 meeting, Whittaker
contacted Jenkins and indicated that he would be
available for a bargaining meeting on April 29. At an
undisclosed time thereafter, Whittaker received a call
from Jenkins, who stated that he was in trouble with
Hill as a result of his execution of the recognition
agreement. Jenkins asked Whittaker to tear up the
recognition agreement, but Whittaker refused to tear
up the documents claiming they were valid and sug-
gested that the bargaining meeting scheduled for
April 29 be held. On April 29, Whittaker, Hough,
and a three-member employee bargaining committee
met with Hill and Jenkins.
Before the bargaining proposals were presented at
the April 29 meeting, Whittaker introduced the rep-
resentatives of the Union and indicated that the
three-member bargaining committee was comprised
of Respondent's employees. Hough, the president of
the Local, presented the bargaining proposals which
had been prepared by the committee. At that point,
Hill stated that such bargaining proposals were pre-
mature because Jenkins had signed documents which
he had no authority to sign, and that was the reason
he was not going to attempt to negotiate a contract.
Hough responded that the Union had signatures of a
majority of Respondent's employees giving the
Union representation rights and that Respondent's
local manager had extended recognition to the
Union. Hill replied that Jenkins had no authority to
extend recognition, that by doing so he acted in an
invalid manner, that the matter should be resolved
by an election, and that there might be a problem
with the union representing the projectionists. Al-
though Hough summarized the events which had
supported the Union's recognition and bargaining
rights, Hill stated that he would not discuss contract
terms and the issue should be resolved by a Board
election. Hill also stated again that Jenkins had no
right to do what he had done, and that if the matter
were pursued Respondent might have a new manager
and assistant manager by the end of the month. Hill
indicated that the Union should consult with his at-
torney on the matter. At the end of the meeting, one
of the employees expressed concern over the fact that
Jenkins might lose his job as a consequence of the
controversy.
The Administrative Law Judge found that on
April 10, by reason of Jenkins' actions, Respondent
recognized the Union as the majority representative
of its unrepresented employees; that such recognition
was voluntary, in that it sprang from the informed
free choice of Jenkins who, at that time , was a statu-
tory supervisor and the managing agent of Respon-
dent clearly vested with apparent authority, and act-
ing within the scope of that authority; and the fact
that Jenkins failed first to obtain the specific consent
of his superior, President Hill, before extending rec-
ognition did not detract from the legal effect of his
action. We disagree.
It is well established that an agent may act for his
principal only to the extent that such principal has
conferred authority on his agent, real or apparent.'
The record amply shows here that neither Isaacson
nor Jenkins had specific authority from President
Hill to negotiate with the Union; that Jenkins made
it emphatically clear to Whittaker and Hough that he
had no authority to represent his employer in discus-
sions with the Union; that Isaacson and Jenkins
signed the recognition agreements only at the insis-
tence of Whittaker; and that Jenkins' conduct in
signing such recognition agreement was not based on
any authority granted him by President Hill.
While the Administrative Law Judge correctly
finds that Manager Jenkins was aware of the implica-
tions of his conduct in signing both the recognition
agreement and the petition for representation in view
of the clarity of the language on such documents and
Whittaker's explanation of the Union' s claims, it
does not necessarily follow that Respondent could
rely on Jenkins' conduct as authority to bind Re-
spondent in the absence of evidence that such au-
thority had been granted to Jenkins. Also unfounded
in law or fact is the Administrative Law Judge's find-
ing that, by designating Jenkins as manager of its
Fairbanks operation, Respondent clothed Jenkins
1 John Over Service Company, 173 NLRB 673 (1968) Although a branch
manager was empowered to hire , discharge, and discipline employees , settle
grievances , represent the employer at state unemployment compensation
hearings , and order repair parts , such activities fell short of proving that the
branch manager had the authority to grant formal recognition to a union or
negotiate a contract with it
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with ostensible and apparent authority and extended
implied consent to him to act as its agent in the realm
of labor relations. Additionally, we note that the
Union was not innocent of Jenkins' lack of authority
to bind Respondent, since Hough, the president of
the Local, and President Hill have been acquaintanc-
es for many years.
As the record fails to support the Administrative
Law Judge's finding that Manager Jenkins had either
real or apparent authority to bind Respondent in the
field of labor relations, such authority resting solely
with President Hill, it matters not what other deter-
minations the Administrative Law Judge has made
as to, inter alia, the Union's majority; Jenkins' naive-
te in labor relations and the legal effect of his action;
Respondent's alleged waiver of its right to an elec-
tion when Jenkins voluntarily recognized the Union
and confirmed its majority status; or bad faith evi-
denced by President Hill's belated claim at the April
29 meeting that Jenkins usurped his labor relations
authority. Accordingly, we conclude that the General
Counsel has not met his burden of establishing by
the necessary preponderance of the evidence that
Isaacson or Jenkins had real or apparent authority to
speak for Respondent concerning labor relations
matters. Thus, Respondent's refusal to recognize or
bargain with the Union and its insistence upon an
election did not violate Section 8(a)(5) and (1).
In view of the basis for Member Fanning's dissent,
a recapitulation of certain principles of agency is
necessary. As a general rule, "authority to do an act
can be created by written or spoken words or other
conduct of the principal which, reasonably interpret-
ed, causes the agent to believe that the principal de-
sires him so to act on the principal's account." Re-
statement, Second, Agency §26 (1958). "[A]pparent
authority to do an act is created as to a third person
by written or spoken words or any other conduct of
the principal which, reasonably interpreted, causes
the third person to believe that the principal consents
to have the act done on his behalf by the person
purporting to act for him." Restatement, Second,
Agency §27 (1958). "Apparent authority is created
by the same method as that which creates authority,
except that the manifestation of the principal is to
the third person rather than to the agent. For appar-
ent authority there is the basic requirement that the
principal be responsible for the information which
comes to the mind of the third person, similar to the
requirement for the creation of authority that the
principal be responsible for the information which
comes to the agent. Thus, either the principal must
intend to cause the third person to believe that the
agent is authorized to act for him, or he should real-
ize that his conduct is likely to create such belief."
Restatement, Second, Agency §27, comment a
(1958).
Applying these principles to the present case, there
is no evidence that President Hill ever conferred au-
thority on either Jenkins or Isaacson to sign a recog-
nition agreement. As to apparent authority, the evi-
dence is equally lacking that President Hill ever led
the union representatives to believe that the two men
had such authority. Member Fanning's finding of ap-
parent authority rests not on representations or man-
ifestations by President Hill, but on the conduct of
the agents. It is elementary that an agent cannot
create his own authority, real or apparent.
In addition to finding that Jenkins had apparent
authority to sign a recognition agreement, Member
Fanning also asserts that he had real authority to do
so because of the distance between Fairbanks and
Anchorage. According to the dissent, Jenkins "neces-
sarily was clothed by Respondent with the authority
to perform whatever corporate acts were necessary,
including labor relations, to insure the continued and
uninterrupted business operations of Respondent in
Fairbanks." There is no evidence to support this
statement. It is a mere apse dixit of the dissenting
Member. Moreover, in the Board's experience, a
company which has small widely scattered opera-
tions will rarely permit local officials, who usually
have no labor relations expertise, to assume initiative
in labor relations matters. This is a subject matter
usually handled at the highest corporate level since
whatever occurs at a single operation is likely to have
corporatewide ramifications.'
The dissent also asserts that Respondent ratified
Jenkins' conduct by failing timely to notify the
Union of his limited authority. Silence by a principal
can be an affirmance of an agent's unauthorized con-
duct if fairly construed that it is indicative of an in-
tent by the principal to treat the unauthorized con-
duct as authorized. Restatement, Second, Agency
§82, et seq. (1958). No such inference is possible in
the present case. Here only 19 days elapsed between
the date when Jenkins signed the recognition agree-
ment and the date when President Hill informed
union representatives that Jenkins had acted without
authority. This was hardly an unreasonable period of
time,' especially since there is no evidence that the
2 As evidence of centralization of personnel practices and policies by em-
ployers having numerous small operations , see, e .g., the description of such
practices and policies in Levitz Furniture Company of the Eastern Region,
Inc, 223 NLRB 47 (1976), Western Auto Supply Company, 182 NLRB 612
(1970), The Horn & Hardart Company, 170 NLRB 988 (1968 ), Adams Drug
Co, Inc, 164 NLRB 594 (1967), Metropolitan Life Insurance Company
(Woonsocket, R 1), 156 NLRB 1408 (1966)
3 See American Bank & Trust Co v Farmers El & Mil Co, 63 Mont 612,
208 P 594 (1922) (principal held not to have ratified agent's unauthorized
conduct by month's delay in disavowing agent's authority to act)
WOMETCO-LATHROP COMPANY
Union was prejudiced by the delay. Moreover, the
Union could not reasonably have construed Presi-
dent Hill's 19-day delay in apprising the Union that
Jenkins had acted without authority as affirmance of
Jenkins' conduct since, sometime after April 10 but
before April 29, Jenkins had telephoned Union Rep-
resentative Whittaker to tell the latter that Jenkins
"was in trouble" with Hill because he had executed
the recognition agreement and asking Whittaker to
tear up the agreement. The Union was therefore put
on notice even before the April 29 meeting that Jen-
kins had acted with questionable authority. At the
very first meeting of President Hill with the union
representatives, Hill informed them that Jenkins had
exceeded his authority by signing the recognition
agreement. Broad Street Hospital and Medical Center,
182 NLRB 302 (1970), cited by Member Fanning in
support of his ratification theory, is a far cry from
this case. In that case, the Board found that the
agent, one of two top officials of the employer, had
acted within the scope of his authority in recognizing
and bargaining with the union. As a moreover argu-
ment, the Board added that at the least the employer
had acquiesced in and ratified the agent's conduct
which consisted of not only extending recognition
but open bargaining which extended over a period of
time and which actually resulted in agreement on
terms and conditions of employment. However, be-
fore the agreement could be incorporated in a writ-
ten document and signed by the parties, the agent
died. The employer thereafter attempted to repudiate
the agent's conduct.
Finally, there is no basis in Respondent's conduct
to justify the dissent's application of an estoppel
theory. Restatement, Second, Agency §27, comment
d (1958).
2. As previously noted, the Administrative Law
Judge found that Respondent violated Section
8(a)(1) when President Hill stated, at the April 29
meeting with the union representatives and the em-
ployee bargaining committee, that if the Union con-
tinued to pursue the matter of recognition and con-
tract terms Respondent might have a new manager
and assistant manager by the end of the month. In
the view of the Administrative Law Judge, such
statement threatened the employees before whom the
statement was made and interfered with their Section
7 rights. Respondent contends that Hill did not
threaten anyone since he only stated a fact concern-
ing the job security of his two supervisors by indicat-
ing that Jenkins did not have authority to do what he
did, and if the Union held Respondent to the recog-
nition agreement, he might have a new manager or
assistant manager by the end of the month. We find
merit in Respondent's contention.
689
It is clear from the record that Hill's remarks were
directed at Jenkins for the information of Whittaker
and Hough, since the employees were in no way re-
sponsible for Jenkins' conduct. There is no evidence
that the employees felt threatened by Hill's state-
ment, nor do the facts indicate any basis for a rea-
sonable inference of a threat. It is well settled that an
employer may discipline, or threaten to discipline, a
supervisor whether in the presence of employees or
not, and that such action or threats of such action
violate Section 8(a)(1) only if the employer's threat-
ened action against the supervisor is based on that
supervisor's refusal to participate in the commission
of unfair labor practices 4
We find that the record supports a finding that
Respondent, through its agent, President Hill, threat-
ened to terminate Manager Jenkins and Assistant
Manager Isaacson for the sole reason that they ex-
ceeded their authority when they attempted to nego-
tiate an agreement which recognized the Union as
the representative of Respondent's employees and
that such unauthorized conduct was not in the best
interests of Respondent. Thus, Respondent's conduct
did not constitute a threat to interfere with the rights
of the employees which are protected by Section 7 of
the Act. In these circumstances, we do not deem the
evidence sufficient to establish the basis for an
8(a)(1) finding.
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
Contrary to my colleagues of the majority, I would
affirm the Administrative Law Judge's Decision. The
record does not warrant reversal of the Administra-
tive Law Judge's findings (1) that on April 29, 1975,
Respondent, through Donald Hill, its president, vio-
lated Section 8(a)(1) and (5) when it refused to recog-
nize the Union as the majority representative of its
employees in the appropriate unit and failed and re-
fused to meet and bargain with the Union as the
exclusive bargaining representative of those employ-
ees, and (2) that on April 29, Respondent, through
Donald Hill, in the presence of unit employees,
threatened to adversely affect the job tenure of man-
4 Bowling Corporation of America, Inc d/b/a Algonquin Bowling Center,
Inc, 170 NLRB 1768 (1968), Southwest Shoe Exchange Company, 136
NLRB 247 (1962), Leonard Niederruer Company, Inc, 130 NLRB 113
(1961), and Vanderbilt Products, Inc, 129 NLRB 1323 (1961)
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agement personnel if the Union and employees con-
tinued to press their recognition claims and Respon-
dent thereby interfered with the Section 7 rights of
its employees and violated Section 8(a)(1) of the Act.
The record shows, and the Administrative Law
Judge found, that the Union represented a majority
of Respondent's employees in an appropriate unit on
April 10, the date that the Union made a valid de-
mand for recognition to Manager Jenkins. Unlike
my colleagues of the majority, I find, in agreement
with the Administrative Law Judge, that Manager
Jenkins was clothed with the apparent, if not real,
authority to bind his principal, Respondent President
Hill.5 As set forth by the Administrative Law Judge,
the record indicates that on April 9 International
Representative Whittaker requested that Assistant
Manager Isaacson sign the recognition agreement
and the petition for union representation, which had
been signed by a majority of the employees at
Respondent's two theaters in Fairbanks, and that
Isaacson stated that Whittaker should speak to Jen-
kins. When Whittaker indicated that Isaacson could
sign the recognition agreement, Isaacson insisted on
speaking to Jenkins and did so by placing a tele-
phone call. At the conclusion of the telephone call,
Isaacson informed Whittaker that Jenkins indicated
that Isaacson could sign the recognition agreement
with the understanding that Isaacson was not bind-
ing Respondent to a collective-bargaining agreement.
Significantly, at this stage of the negotiations, neither
Isaacson nor Jenkins made known to Whittaker that
Jenkins had no labor relations authority or that such
authority resided only in Respondent's president,
Hill, who was located in Anchorage, Alaska. Clearly,
at this juncture, Whittaker and the Union could draw
the reasonable inference that Jenkins had, at the
least, apparent authority to negotiate a recognition
agreement for Respondent.
Further evidence of Jenkins' apparent authority is
illustrated by Isaacson's and Jenkins' conduct in ar-
ranging for a second meeting on April 10, this time
between Whittaker and Jenkins. Again, in arranging
such meeting, neither Isaacson nor Jenkins had indi-
cated that such meeting was futile in the absence of
Jenkins' authority to negotiate a recognition agree-
ment. The record does not indicate whether Jenkins
felt obliged to telephone President Hill or that Jen-
kins was required to do so.
At the outset of the April 10 meeting, Jenkins did
not indicate that he did not have authority to sign a
5 While the majority cites John Oster Service Company, supra, as authority
that Jenkins had no specific authority to bind Respondent, f find such case
distinguishable , since, unlike herein , the branch manager informed the
union that he had no authority to sign the recognition agreement and he
was so instructed by his principal
recognition agreement. Rather, his conduct was that
of an agent of Respondent with apparent authority
to bind his principal. Jenkins read the recognition
agreement presented by Whittaker, he studied the
signatures of the employees on the petition, and he
agreed that the petition contained the signatures of a
present majority. Jenkins asked Whittaker questions
concerning the effect the Union would have on his
employees and noted his desire to stabilize his work
force. When Whittaker supplied a wage figure in re-
sponse to Jenkins' inquiry, Jenkins stated such wage
rates would be "out of line" and more than Respon-
dent could afford. Certainly such conduct constitut-
ed more than evidence of an insatiable and unbridled
curiosity on the part of Jenkins, and Whittaker cor-
rectly inferred from Jenkins' conduct that he had ap-
parent authority to represent Respondent.
After further discussion in which Whittaker ex-
plained that after Respondent recognized the Union
a bargaining committee of employees would be
formed and contract proposals would be formulated
and presented to Respondent, Jenkins stated he had
no authority to bind Respondent with respect to con-
tract provisions and noted that only President Hill
had such authority. Again Whittaker and the Union
could reasonably infer that Jenkins' authority was
limited, and in fact did not exist, in the area of nego-
tiating contract demands. However, no such limita-
tion was claimed to exist with respect to Jenkins' ap-
parent authority to bind Respondent in the area of
recognition agreements. Not only did Jenkins grant
permission to Assistant Manager Isaacson to sign a
recognition agreement on April 9, but Jenkins signed
an identical recognition agreement on April 10.
Clearly, Jenkins was aware that his authority was
limited to signing recognition agreements, having
made that known to Whittaker on both April 9 and
10. In view of Whittaker's full explanations to both
Isaacson and Jenkins concerning the full import of
the signing of the recognition agreement and Jenkins'
approval and signing of such agreements subject only
to the understanding that Jenkins had no authority
to bind Respondent in the area of contract demands,
I find that Whittaker and the Union could reason-
ably infer that Jenkins had the authority, though lim-
ited, to bind Respondent to the recognition agree-
ment on April 10 and that Jenkins knew that he was
binding Respondent to such recognition agreement.
In agreement with the Administrative Law Judge,
I also find that at the April 10 meeting with Jenkins,
Whittaker, in making his majority status claims and
demand for recognition on behalf of the Union, was
making such demand to Jenkins, who was unequivo-
cally the ranking managing agent on a local basis. In
view of the distance of Fairbanks, where Jenkins was
WOMETCO-LATHROP COMPANY 691
located, from Anchorage, where President Hill was
located, a distance of approximately 386 air miles, it
becomes apparent, and business realities dictate, that
Jenkins, as the ranking local agent, necessarily was
clothed by Respondent with the authority to perform
whatever corporate acts were necessary, including la-
bor relations, to insure the continued and uninter-
rupted business operations of Respondent in Fair-
banks.
While the record shows that at an undetermined
date following the April 10 meeting Jenkins made a
telephone call to Whittaker and indicated that he
"was in trouble" with Hill because he should not
have executed the recognition agreement and asked
Whittaker to tear up the documents Jenkins had
signed, I fail to understand how such evidence de-
tracts from the fact that Jenkins held himself out to
Whittaker and to the Union as having apparent au-
thority to bind Respondent when he signed the rec-
ognition agreement. Nor do I subscribe to the theory
advanced by my colleagues that, in view of Hough's
longstanding acquaintance with Hill, Whittaker and
the Union had an ulterior motive in pursuing signa-
tures to a recognition agreement from Isaacson and
Jenkins. There is no support for such theory in this
record. Not until the April 29 meeting, a period of 19
days, did the Union hear directly from President Hill
that Jenkins had no authority to sign the recognition
agreement. The record indicates that Hill was aware
of the Union's demand for recognition as early as
April 10 but made no effort to disclaim the conduct
of either Isaacson or Jenkins until the meeting of
April 29. While the Union attended the meeting to
commence the discussion of contract proposals, Hill
waited until this time to raise the issue that Jenkins
had exceeded his authority. A reasonable inference
can be made that Respondent was hopeful that the
passage of time would erode the Union's support. I
find that Hill's conduct in raising the issue of Jen-
kins' authority and insisting on an election was belat-
ed and a delaying tactic which constitutes evidence
of bad faith. Thus, Respondent has failed to meet its
burden of disclaiming the act of an agent who has
exceeded his authority, upon its acquiring knowledge
of such act, by timely notice to any known persons
who may have dealt, in good faith as herein, with
such agent on an inference that such agent had ap-
parent authority to act for his principal. Respondent
acquiesced in, and thereby ratified, Jenkins' conduct
by failing to notify the Union of Jenkins' limited au-
thority.' As the Union relied on the apparent author-
ity of Jenkins to bind his principal, and as Respon-
dent failed to timely disclaim the conduct of its
agent, Jenkins, Respondent was estopped from belat-
edly denying the authority of Jenkins to grant recog-
nition to the Union. By such conduct, Respondent
thereby violated Section 8(a)(5) of the Act.
Although my colleagues have copied rather
lengthy sections of the Restatement of Agency to
buttress their contrary conclusion, a careful reading
of the sections cited by the majority illustrates full
support for the position I have taken herein. My col-
leagues misread the record when they find that the
evidence is lacking that President Hill ever led the
union representatives to believe that Jenkins had the
authority to sign the recognition agreement.
What the record shows, and what my colleagues
ignore, is that Jenkins signed the recognition agree-
ment on April 10, and President Hill made no effort
to revoke Jenkins' apparent authority to act for his
principal until the first bargaining meeting on April
29. Such conduct on the part of Hill, in my view, falls
squarely within the language of Restatement, Sec-
ond, Agency §27 (1958). "[A]pparent authority to do
an act is created as to a third person by written or
spoken words or any other conduct of the principal
which, reasonably interpreted, causes the third person
to believe that the principal consents . . . ." (Em-
phasis supplied.) President Hill's motive for keeping
silent for such an unreasonable time during a crucial
period of negotiations can only be attributed to a
desire to purchase more of that precious commodity
called time.
Nor can my colleagues argue that President Hill
had no knowledge of Jenkins' recognition act, since
the record shows that Jenkins had been in touch with
President Hill between April 10 and April 29, in view
of Jenkins' telephone call to Whittaker in which he
stated that he was in trouble with Hill because he
had signed the recognition agreement. Clearly, Hill's
conduct in remaining silent, when he was obligated
to revoke the agency of Jenkins, falls within Restate-
ment, Second, Agency §27 (1958). "Thus, either the
principal must intend to cause the third person to
believe that the agent is authorized to act for him, or
he should realize that his conduct is likely to create
such belief." (Emphasis supplied.) In my view, Hill,
as president of Respondent, had the burden of dis-
pelling the Union's belief in the apparent authority
of Jenkins to sign a recognition agreement upon his
acquiring knowledge of such act. Clearly, Hill's fail-
ure to do so may be fairly construed as indicative of
an intent by Hill to treat the purportedly unauthor-
ized conduct by Jenkins as authorized.
President Hill was apparently willing to let stand,
for a convenient period, Whittaker's impression that
the only limitation placed on Jenkins' authority with
6 Broad Street Hospital and Medical Center, 182 NLRB 302 (1970) respect to labor relations was that Jenkins had no
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authority to bind Respondent to a contract, notwith-
standing his many opportunities to do so, but that
Jenkins did have authority to sign a recognition
agreement.
Although the majority rejects as Ipse dixit my refer-
ence to the economic reality that Jenkins was neces-
sarily clothed with apparent authority to perform
corporate acts, including labor relations, to insure
uninterrupted business operations in Fairbanks, the
majority substitutes therefor the broad generalization
that it is the Board's experience that a company with
widely scattered operations will rarely permit local
officials to assume the initiative in labor relations
matters. However, it has been my experience that the
more remote an operation is the more autonomous it
must be in handling daily business matters, including
labor relations.
The majority feebly attempts to distinguish Broad
Street Hospital, supra. However, the distinctions
which it makes are without substantial difference.
There, as here, the union was never alerted to the
purported limited authority of the individual dealing
with the union; the record demonstrated that the re-
spondent cloaked the individual with apparent au-
thority to deal with the union and the union believed
and had good reason to believe that such individual
possessed the authority he exercised; and there, as
here, the Restatement of Agency supported the find-
ing that the individual acted within the scope of his
authority in recognizing the union, and that it could
be reasonably inferred that the individual's acts were
acquiesced in and ratified by the respondent.
Finally, and as found by the Administrative Law
Judge, Respondent, through its agent, Hill, engaged
in further acts of bad faith at the April 29 meeting.
As the meeting neared an end, Hill reiterated that
Jenkins had no authority to do what he had done
and stated further that if the Union continued to pur-
sue the matter of recognition and bargaining that Re-
spondent "might have a new manager and assistant
by the end of the month." That such statement con-
stituted a threat to the employees on the bargaining
committee in violation of Section 8(a)(1) is clearly
documented on the record which shows that, at the
end of the meeting, one of the employees expressed
concern over the fact that Jenkins might lose his job
as a consequence of his recognizing the Union. Thus,
the employees could reasonably ask, if Respondent
was prepared to discharge his manager and assistant
manager for recognizing the Union, what form of
punishment did Respondent have in store for em-
ployees who joined or were active in the Union. Cer-
tainly the employees could infer that they might not
fare much better and that they could expect similar
recriminations by Respondent.
Accordingly, I dissent from the majority's dismiss-
al of the complaint in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard before me, at Fairbanks, Alaska, on December
2, 1975,! pursuant to an order consolidating cases, consoli-
dated complaint, and notice of hearing issued on June 20,
by the Regional Director of the National Labor Relations
Board for Region 19. The consolidated complaint alleges
violations of Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, hereinafter called the Act. The
charges giving rise to the consolidated complaint were filed
by Local 1689, Retail Clerks International Association,
AFL-CIO, hereinafter called the Union, on May 2. Re-
spondent denies the commission of any unfair labor prac-
tices. The parties timely filed briefs with me.
Upon the entire record in this case, and based upon my
observation of the witnesses, and the briefs of the parties, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Wometco-Lathrop Company, hereinafter called Respon-
dent, is an Alaska corporation engaged in the operation of
motion picture theaters and office rentals in the State of
Alaska. Respondent maintains an office and place of busi-
ness located in Fairbanks, Alaska.
During the 12-month period preceding the issuance of
the complaint herein, Respondent had a gross volume of
business in excess of $500,000, and during the same period
of time, in the course and conduct of its business opera-
tions, Respondent purchased and caused to be transferred
and delivered to its Alaska facilities goods and materials
valued in excess of $50,000, which were transported to said
facility directly from States other than the State of Alaska.
Upon these facts, which are not in dispute, I find that
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 1689 , Retail Clerks International Association,
AFL-CIO, is conceded by Respondent to be a labor orga-
nization within the meaning of Section 2(5) of the Act, and
I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this case are whether or not on
1 Unless otherwise specified, all dates refer to the calendar year 1975
WOMETCO-LATHROP COMPANY
April 10 Respondent recognized the Union as the collec-
tive-bargaining representative of its employees; and wheth-
er thereafter, at a meeting on April 29, Respondent refused
to meet and bargain collectively with the Umon and inter-
fered with employee Section 7 rights by threatening to ter-
minate the manager and assistant manager of its Fair-
banks, Alaska, motion picture theaters, unless the Union
and the employees present at the meeting in question aban-
doned their claim that Respondent had recognized the
Union.
Subsumed within the recognition issue are the additional
prefatory issues relating to the appropriateness of the unit
and the majority status of the Union in the unit at the time
of its recognition demand.
In support of the 8(a)(5) allegations of the complaint, the
General Counsel contends, in substance, that the manager
and assistant manager of Respondent's Fairbanks motion
picture theaters were agents of Respondent, fully vested
with authority to grant recognition to the Union as the
majority representative of the employees which the Union
sought to represent. On the other hand, in challenging the
legal validity of the 8(a)(5) allegations, Respondent, in ef-
fect, contends that neither the manager nor assistant man-
ager knowingly and with informed intention extended rec-
ognition to the Union on the occasions alleged by the
General Counsel; and further asserts that, in any event,
neither individual was vested with apparent or ostensible
authority to extend recognition to the Union. Moreover, in
this latter regard, contends Respondent, notwithstanding
the theoretical legal effects of the statements and conduct
of the manager in arguendo extending recognition to the
Union, a timely disclaimer of recognition was made by
Respondent's president and principal officer which, Re-
spondent asserts, had the legal effect of relieving Respon-
dent of any obligation to bargain with the Union.
B. Pertinent Facts
Respondent operates two motion picture theaters in
Fairbanks, Alaska. It also operates motion picture theaters
in Anchorage and Juneau, Alaska, and office buildings in
Fairbanks and Anchorage.
Donald K. Hill is president of Respondent and main-
tains his business office in Anchorage Donald R. Jenkins
is manager of Respondent's two Fairbanks theaters, the
Goldstream and the Lacey Street. Michael A. Isaacson is
the assistant manager of the two theaters, which are situat-
ed approximately 1.2 miles apart. Jenkins and Isaacson ex-
ercise responsibility over both theaters and the authority of
each extends alike to the two theaters. The Goldstream and
Lacey Street theaters are the only commercial motion pic-
ture theaters situated in the business area of Fairbanks.
However, there is a motion picture theater at a university
near Fairbanks, and one at each of the two military bases
situated in the environs of Fairbanks. There is also an
adult theater operated in Fairbanks.
At its Goldstream and Lacey Street theaters, Respon-
dent employs projectionists, cashiers, doormen, ushers,
usherettes, and concessionaires performing the job tasks
normally associated with their job classifications. Conces-
693
sionaires serve the public with candy bars, popcorn, ice
cream, and other miscellaneous concession items, ring up
sales, and make change. The employees employed in the
two theaters wear no distinctive uniforms but dress in per-
sonal clothing conforming to a minimum standard of neat-
ness established by management. There is some inter-
change of employees between the Goldstream and Lacey
Street theaters on an emergency or temporary basis, and
permanent transfers from one theater to another have been
effected. An identical wage scale or rate for identical work
tasks prevails between the two theaters. Media ads feature
both theaters and engagements at one theater are not ad-
vertised to the exclusion of engagements at the other.
The projectionists employed by Respondent at its the-
aters situated in the State of Alaska are represented under
the terms of an existing collective-bargaining agreement.
The Union initiated its campaign among Respondent's
nonprojectionist employees in the spring of 1975 under the
direction of James C. Whittaker, international representa-
tive of the Union. These employees have never been repre-
sented by a labor organization.
On April 9, Whittaker went to the Goldstream theater
for the purpose of meeting with Michael Isaacson,
Respondent's assistant manager. Whittaker was accompa-
nied by Aaron Davis, an employee of Respondent. In
speaking with Isaacson, Whittaker introduced himself and
told Isaacson that he was there for the purpose of demand-
ing recognition for the employees of both the Goldstream
and Lacey Street theaters. Whittaker added that he had a
recognition agreement he wanted Isaacson to sign , and as-
serted that the Union represented the majority of the em-
ployees in the bargaining unit. Whittaker stated that, in
addition to signing the recognition agreement, he desired
to have Isaacson initial the petition for union representa-
tion, which, Whittaker averred, had been signed by a ma-
jority of the employees at the two theaters. Isaacson read
the recognition agreement which was a standard form
agreement of the Union. Blanks or spaces were provided
on the form-agreement for incorporating a description of
the unit in which recognition was being sought and for
delineating the date or time at which collective-bargaining
negotiations would commence. The form also contained
signature lines. Prior to meeting with Isaacson, Whittaker
had made a typewritten entry on the petition for union
representation describing the collective-bargaining unit in
which he was seeking recognition as:
All employees of the Goldstream and Lacey Street
theatres in Fairbanks, Alaska, excluding the motion
picture projectionists in the aforestated theatres.
Isaacson read the document and observed that he had be-
come aware that there was an "organizing program in pro-
gress." He suggested that Whittaker should speak to Jen-
kins. Whittaker asserted that as assistant manager Isaacson
could sign the agreement. Isaacson was insistent and stated
his desire to speak with Jenkins. He inquired if Whittaker
would like to speak with Jenkins. Whittaker stated that he
would meet with Jenkins and suggested a meeting for 2
p in. the following day Thereupon, Isaacson went to a
nearby telephone and spoke for a period of time. Whittak-
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er could hear Isaacson speaking. After completing the tele-
phone conversation, Isaacson stated that Jenkins had in-
formed him that he could sign the document which Whit-
taker had presented to him with the understanding that, in
affixing his signature, he, Isaacson, was not binding the
Company to a collective-bargaining agreement. Whittaker
assured Isaacson that the document was "purely an agree-
ment to recognize" the Union as bargaining representative
of the employees. Isaacson filled in the blank which had
the effect of specifying that collective-bargaining negotia-
tions would commence on "a mutually agreeable date."
Thereupon, Isaacson signed and dated the recognition
agreement and Whittaker affixed his signature. Whittaker
then submitted the petition for union representation to
Isaacson for initialling. In doing so, Whittaker inquired,
"Is that a majority question?" Isaacson studied the petition
and answered, "Yes, it appears to be." Isaacson signed the
petition.
Pursuant to the previous arrangement, Whittaker met on
April 10 with Jenkins, manager of Respondent's Fairbanks
theaters. Whittaker was accompanied to the meetings by
Fred Hough, president of the Local. At the outset of the
meeting, following introductions, Whittaker informed Jen-
kins that he and Hough were present on behalf of the em-
ployees of the Company, "for the purpose of collective bar-
gaining." Whittaker further told Jenkins that the Union
represented the majority of the Company's employees and
that he desired to have Jenkins sign a recognition agree-
ment and to affix his signature to a petition signed by a
majority of the employees. Whittaker presented an un-
signed copy of the recognition agreement to Jenkins, and
he also submitted a petition for union representation bear-
ing the purported signatures of 15 employees. Whittaker
asserted that the petition could be used by the Union,
either as a basis for obtaining voluntary recognition, or to
support a representation petition leading to a Board elec-
tion. Jenkins studied the signatures and the petition and
commented that "a few employees listed" were no longer
with the Company. However, Jenkins agreed that the peti-
tion contained signatures of a present majority. Jenkins
added that he desired to stabilize his work force and, in
substance, sought to learn if the Union would be of any
benefit in this regard. Whittaker answered, in effect, that
fair wage rates and benefits could have this effect. In re-
sponse, Jenkins noted that the theaters had to operate on a
profitable basis, and he observed that the present "boom"
would not continue. Jenkins inquired as to the level of
wages which the Union demanded and Whittaker supplied
figures. Jenkins stated that these wage rates would be "out
of line" and more than the Company could afford. Whit-
taker responded by stating that, under normal process, af-
ter the Company recognized the Union, a bargaining com-
mittee of employees would be formed and proposals would
be formulated for presentation to the Company in the form
of contract demands. Jenkins stated that he had no author-
ity to bind the Company with respect to contract provision
and noted that only Donald Hill, president of Respondent,
had that authority.
At this point in the meeting, however, Whittaker again
informed Jenkins that he desired Jenkins to sign the recog-
nition agreement and the related petition. As a result of
questions posed by Jenkins, Whittaker assured Jenkins that
the recognition agreement did not have the effect of bind-
ing the Company to specific contract terms. Whittaker stat-
ed that by signing the recognition agreement , he was mere-
ly recognizing the Union for the purposes of collective bar-
gaining and that this would have the legal effect of
requiring both the Company and the Union to bargain for
a reasonable time in an effort to achieve a collective-bar-
gaining agreement. Thereupon, Jenkins affixed his signa-
ture to the recognition agreement and inserted the phrase,
"mutually agreeable date," signifying the time at which ne-
gotiations would commence. Jenkins also signed a copy of
the petition for union representation.
Following the April 10 meeting, Whittaker contacted
Jenkins and informed him that the Union would be avail-
able for a bargaining meeting on April 29. Thereafter,
Whittaker received a telephone call from Jenkins who stat-
ed that he "was in trouble" with Hill because, in substance,
he should not have executed the recognition agreement. He
requested Whittaker to tear up the documents which he
had executed. Whittaker stated, in substance, that he could
not do so because he had responsibilities to a group of
employees who desired representation. Whittaker stated
that the documents which Jenkins had signed were "still
valid." Despite Jenkins' urgings, Whittaker refused to de-
stroy the documents. Rather, Whittaker suggested that the
meeting which had been scheduled for April 29 be held.
On April 29, Whittaker and Hough met with Hill and
Jenkins. Additionally, a three-member employee bargain-
ing committee attended the meeting.
At the beginning of the meeting, Whittaker took the ini-
tiative in making the introductions and turned the meeting
over to Hough. Hough presented to Hill the bargaining
proposals which had been formulated by the committee.
Hill stated that this was premature in that Jenkins had
signed documents which he had no authority to sign. Hill
added that for this reason he was not going to sit down at
this time in an attempt to reach a contract. Hough re-
sponded that the Union had signatures of a majority of the
Company's employees which accorded the Union represen-
tation rights. Hough further stated, in substance, that the
local manager had extended recognition to the Union. Hill
again asserted that Jenkins had no authority to extend rec-
ognition and that , as a consequence , Jenkins acted in an
invalid manner. Hill added that the matter should be re-
solved by an election . At this point in time , Hill also raised
a question concerning certain interunion implications of
extending recognition to the Union. After this matter was
discussed briefly, Hough again summarized the events
which had supported the Union's recognition and bargain-
ing rights . Hill stated , in effect, that he would not discuss
contract terms and asserted that the issue should be re-
solved by a Board election . He reiterated that Jenkins had
no right to do what he had done, and he stated that if the
matter were "pursued," the Company "might have a new
Manager and Assistant by the end of the month." As he
made this statement, Hill looked directly at the three em-
ployees who were present and who comprised the bargain-
ing committee. Hill added that the Union should consult
with his attorney on the matter. The meeting ended on this
note. As the meeting terminated, one of the employees ex-
WOMETCO-LATHROP COMPANY 695
pressed concern over the fact that Jenkins might lose his
job as a consequence of the developments.2
Donald Hill has been acquainted with Fred Hough for a
substantial period of time. He had not previously known
James Whittaker.
Conclusions
I find upon the basis of the foregoing that Respondent
violated Section 8(a)(1) and (5) of the Act.
In concluding that Respondent breached its bargaining
obligation under the Act, as alleged in the complaint, I
make the predicate finding that on April 10 the Union
made a valid demand for recognition and bargaining in an
appropriate unit. This basic finding is further supported by
the conclusion, which I reach, that the General Counsel
sustained his burden of showing that, at the time of the
recognition and bargaining demand, the Union repre-
sented a majority of the employees comprising the bargain-
ing unit.
Initially, the unit comprised of all unrepresented em-
ployees employed by Respondent at its Goldstream and
Lacey Street theaters is clearly an appropriate bargaining
unit, in light of the similarity of employee skills utilized;
the incidents of interchange and transfer of employees
from one theater to the other; the geographic proximity of
the two theaters and environs of Fairbanks; and the com-
mon management, centralized administration, and control
of the two Fairbanks theaters. Petrie Stores Corporation,
212 NLRB 130 (1974).
The findings herein made with respect to the recognition
and bargaining demand lodged with Respondent's manag-
er on April 19 are based upon evidence not materially in
dispute. The occurrences of April 10 which form the grava-
men of the complaint's allegations relating to Respondent's
extension of recognition to the Union may not, in realistic
terms, be separated from the precursor events of the previ-
ous day. Thus, on April 9, after being pressed by Whittak-
er, on behalf of the Union, to extend recognition, Assistant
Manager Isaacson conversed by telephone at some length
with Manager Jenkins. Following that conversation, Isaac-
2 All of the foregoing is based upon a careful consideration of the testimo-
ny of James Whittaker, Donald Jenkins, and Donald Hill I have evaluated
the testimony of Hill and Jenkins and credit it to the extent that it is consis-
tent with the foregoing findings
Specifically, with respect to the separate meetings of April 9 and April 10
conducted between Whittaker and Hough , on the one hand , and Isaacson
and Jenkins, on the other, I have evaluated the effects, if any, upon credibil-
ity of the superior experience, expertise , and sophistication of Whittaker in
matters of labor relations , as compared with that of Isaacson and /or Jen-
kins Isaacson was not called as a witness and I find nothing in the testimo-
ny of Whittaker which would warrant a rejection of his description of the
event which transpired at the April 9 meeting with Isaacson On the other
hand , although Jenkins was called as a witness and testified concerning the
events of the April 10 meeting , he did not, in material respects , refute the
testimony of Whittaker as to the events and dialogue which comprised the
substantive elements of the April 10 conference between them Thus , insofar
as Whittaker's testimony relates to the factual chronology, I find no basis
emanating from his experience as a labor representative for discrediting his
version of the events which comprised the meeting Rather , the issue of the
comparative sophistication of Respondent 's witnesses vis-a-vis Whittaker is
significant only in determining whether, in the factual context of this pro-
ceeding , a meeting of the minds was achieved with respect to recognition
which would serve to legally bind the Company to bargain collectively with
the Union
son signed the recognition form which had been proffered
to him by Whittaker, and he affixed his signature to the
petition bearing a sufficient number of employee signa-
tures to constitute a numerical majority of unrepresented
employees. Isaacson did this after receiving an explanation
as to the meaning of recognition and after requesting and
receiving assurances from Whittaker that his act bound
Respondent to no specific contract •.-rms. The inference
thus to be drawn is that in signing the documents, Isaacson
comprehended the distinction between a grant of recogni-
tion and concomitant bargaining rights and obligations
which redounded both to the Company and Union as a
consequence of recognition.
In essential terms, the meeting the following day be-
tween Jenkins and Whittaker was a duplicate of the April 9
meeting. A paramount distinction between the two meet-
ings, however, is that on the occasion of the April 10 meet-
ing Whittaker was advancing his recognition and majority
status claims on behalf of the Union to the top managing
agent on a local basis of the business entity employing the
very employees for whom the Union was claiming repre-
sentation rights. On the record before me, it may not be
convincingly claimed that Manager Jenkins was unaware
of the nature and implications of the act he was performing
in affixing his signature to the documents in question. Nei-
ther document was ambiguous in its terms and it is to be
remembered that Jenkins had carried on a discussion with
his assistant, Isaacson, the previous day relating not only to
the very documents in question, but to the issue of recogni-
tion to which the documents pertained.3 Moreover, follow-
ing Whittaker's explanation of the Union's claims to recog-
nition and resultant bargaining rights, Jenkins specifically
affirmed the Union's numerical majority in the unit. It
strains matters to contend, as Respondent does, that Whit-
taker practiced sophistry upon Jenkins. Rather, I find that
despite the relative inexperience of Jenkins in labor rela-
tions matters, when he signed the documents he was aware
of the distinction between granting recognition to the
Union and the ancillary bargaining right devolving to the
Union from that grant of recognition.
Finally, I find no merit in Respondent's challenge to
Jenkins' authority. It is not inconsistent with the realities of
commerce and enterprise for a designated representative
possessing authority to manage the day-to-day business af-
fairs of a commercial entity on a local basis to be vested
with authority to extend recognition to a labor organiza-
tion seeking to represent the employees over whom that
managing agent exercises managerial and supervisory au-
thority on a continuing day-to-day basis. By designating
Jenkins as manager of its Fairbanks operation, Respon-
dent clothed him with ostensible and apparent authority
and extended implied consent to him to act in the realm of
labor relations. That Whittaker's colleague, Hough, presi-
dent of the Local, was acquainted with Donald Hill and
knew that Respondent's projectionists were being repre-
sented in a statewide unit, does not alter the matter, for the
latter representation is by a labor organization other than
the Union, and the Union was not privy to those dealings.
2 Isaacson had come back from that conversation with the understanding
that he could sign recognition documents but could not commit the Compa-
ny to contract terms
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the record suggests that Donald Hill had ap-
prised Jenkins of no limitations upon Jenkins' authority to
deal in the realm of labor relations and Jenkins articulated
no limitations upon his right to extend recognition when
they met together on April 10.
Thus, in the foregoing circumstances, I conclude and
find that on April 10, by reason of Jenkins' actions, Re-
spondent recognized the Union as the majority representa-
tive of its theretofore unrepresented employees; and that
this extension of recognition was voluntary, in that it
sprang from the informed, free choice of Jenkins, who, at
the time in question, was a statutory supervisor and the
managing agent of Respondent clearly vested with appar-
ent authority, acting within the scope of that authority.
That he failed first to obtain the specific consent of his
superior, Donald Hill, president of Respondent, before ex-
tending recognition does not detract from the legal effect
of his action.
Because the recognition was voluntarily extended by
Jenkins after evaluating and concurring in the validity of
the Union's claim of majority status, the General Counsel
correctly contends that no failure of proof with respect to
the Union's majority evolved either from an absence of
record evidence tending affirmatively and independently
to establish the authenticity of employee signatures on the
petitions supporting the recognition agreement , or from the
General Counsel's decision not to evince evidence pertain-
ing to the precise circumstance of signature acquisition
Moisi & Son Trucking, Inc., 197 NLRB 198, fn. 2 (1972).
Moreover, upon the rationale of the Board's authoritative
decision in Snow & Sons, it is found that the Respondent
waived its claim to seek a Board election as a condition to
recognizing and bargaining with the Union in that on April
10 its agent Jenkins had voluntarily recognized the Union
and had confirmed its majority status. See Fred Snow, Ha-
rold Snow and Tom Snow, d/b/a Snow & Sons, 134 NLRB
709 (1961), enfd. 308 F.2d 687 (C.A. 9, 1962); Kellogg's,
Inc., d/b/a Kellogg Mills, 147 NLRB 342 (1964), enfd. 347
F.2d 219 (C.A. 9, 1965); Jem Mfg Inc., 156 NLRB 643
(1966); Tony's Sanitation Service, Inc., 203 NLRB 832, 834-
835 (1973). Nor is the Respondent relieved of its recogni-
tion and bargaining obligation by virtue of the claim of
Hill, belatedly advanced during the course of the April 29
meeting with Whittaker, that he alone, as president of Re-
spondent, had the authority to extend recognition to the
Union . Indeed, Hill's claim , in and of itself , is an indica-
tion of bad faith, for the clear inference of record is that
Hill took no personal initiative in communicating to the
Union in a timely fashion Jenkins' asserted usurpation of
labor relations authority residing, arguendo, exclusively
with Hill. Rather, the first inkling of claimed limitations
upon Jenkins' authority was communicated to Whittaker
by Jenkins orally and in a tangential manner. The thrust of
the evidence is such as to infer that Hill was willing to
resort to the erosive effects of the passage of time before
directly addressing the issue of recognition, and did so only
3 weeks after the fact, as it were, on the occasion of the
April 29 meeting, when he countermanded Jenkins' actions
and demanded a Board election as a prerequisite to recog-
nition. The practical effect of this action on the part of Hill
was to repudiate not only Jenkins' grant of recognition to
the Union but his authoritative concession of union major-
ity status . Applicable here is the Board 's observation in
Snow & Sons
Where , as here , the Employer entertains no reasonable
doubt either with respect to the appropriateness of the
proposed unit or the Union 's representative status,
and seeks a Board -directed election without a valid
ground therefor, he has failed to fulfill the bargaining
requirements under the Act.
It is noteworthy that, during the course of the April 29
meeting , Hill demonstrated no disposition toward a full
and probing discussion of the basis of the Union's recogni-
tion claims. Rather, Hill rested his claim to absolution
upon a disclaimer of Jenkins' authority to act on
Respondent's behalf and to the advancement of a barren
claim of a professed right to have the matter of the Union's
representation status determined through the election pro-
cesses of the Board . Instead of challenging the Union's
majority status directly, he threatened adverse conse-
quences with respect to the fob tenure of his manager and
assistant manager if the Union and the employees persisted
in advancing their bargaining claims. I find Hill's conduct
on this occasion evidenced bad faith and violated Section
8(a)(5) and (1) of the Act in that Hill's adamant refusal to
carry on a dialogue with the Union was tantamount to
withdrawing recognition of the Union, and constituted a
clear-cut present and prospective refusal to meet and to
bargain collectively with the Union. Further, Hill's state-
ments relating to the job tenure of Jenkins and Isaacson
unlawfully threatened the employees before whom the
statement was made and thereby interfered with rights
guaranteed employees under Section 7 of the Act, in viola-
tion of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operation of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Union represents a majority of
employees in an appropriate bargaining unit, and that Re-
spondent has refused to recognize and bargain collectively
with the Union as the majority representative of its em-
ployees in an appropriate unit, I shall recommend that Re-
spondent, upon request, bargain collectively with the
Union as the representative of said employees.
WOMETCO -LATHROP COMPANY 697
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Wometco-Lathrop Company is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 1689, Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. On April 10, 1975, Respondent, through a representa-
tive and agent vested with full authority to do so, extended
recognition to the Union as the majority representative of
employees in an appropriate bargaining unit.
4. On April 10, 1975, the Union was the majority repre-
sentative of employees in the following described appropn-
ate unit:
All employees of Respondent at its Goldstream and
Lacey Street theatres in Fairbanks, Alaska, excluding
motion picture projectionists, guards, and supervisors
as defined in the Act.
5. On April 29, Respondent, through Donald Hill, its
president, refused to recognize the Union as the majority
representative of its employees in the above-described ap-
propriate bargaining unit and failed and refused to meet
and bargain with the Union as the exclusive bargaining
representative of those employees.
6. On April 29, Respondent, through Donald Hill, in the
presence of unit employees, threatened to adversely affect
the job tenure of management personnel if the Union and
employees continued to press their recognition claims, and
did thereby interfere with rights guaranteed employees by
Section 7 of the Act, and did violate Section 8(a)(1) of the
Act.
[Recommended Order omitted from publication.]