F. W. Woolworth Co.

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law it is recommended that the complaint herein be dismissed. F. W. Woolworth Co. Store No. 2367 and Retail Clerks Inter- national Association, Local Union No. 991, AFL-CIO. Case No. 19-CA-2666. April 14, 1964 DECISION AND ORDER On January 21, 1964, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Exam-, iner's Decision and a supporting brief, and the Respondent filed,an answering brief in support of the Trial Examiner's Decision .1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at.the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations with the following modification. We agree with the Trial Examiner that the Respondent's refusal to bargain with the Union did-not violate Section 8(a) (5) and (1) of the Act under the circumstances of this case. The Union, which was certified on May 23, 1962, thereafter executed a contract with the Respondent effective until July 16, 1963. Pursuant to the reopening provision of the contract, the Union, on May 16, 1963, sent a notice to the Respondent that it desired to negotiate a new contract, and re- quested a meeting for this purpose to be held during the week of June 3: The Respondent, however, as the Trial Examiner found, had a good-faith doubt that the Union continued to represent a majority of its employees, and had filed a timely petition for an- 1 The Charging Party's request for oral' argument is hereby denied as, in our opinion, the record, including the exceptions and briefs, adequately presents the issues and the positions of the parties. 146 NLRB No. .102. - F. W. WOOLWORTH CO. STORE NO. 2367 849 election.2 Accordingly, on May 20, it sent the Union a reply in which. it asserted its good-faith doubt of the'Union's majority status, stated that it had filed a petition, and refused to bargain until after an election was held. Therefore, although the Respondent's refusal to bargain with the Union, based on its good-faith doubt of the Union's current majority status, occurred 3 days before the end of the certifi- cation year,'it was evoked by the Union's request for a meeting, to be held on a date after the end of the certification year, for the purpose of negotiating a new contract to take effect after the end of the certifi- cation year. We find that the Respondent's refusal to negotiate a new contract under these circumstances was not unlawful. Accord- ingly, we shall dismiss the complaint. [The Board dismissed the complaint.] 2 Prior to the hearing in the instant case, an election was conducted by the Regional Director in the proceeding Initiated by the Respondent 's petition (Case No. 19-RM-253); but the ballots cast therein were impounded by the Regional Director pending the decision herein. ' TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed on July 5, 1963, by Retail Clerks International Associa- tion, Local Union No. 991, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, the latter herein called the Board, issued his amended complaint and notice of hearing on October 24, 1963, alleging that F. W. Woolworth Co. Store No. 2367, herein called the Employer or the Respondent, engaged in conduct violative of Section 8(a) (1) and (5) of the National Labor Relations Act, as amended (61 Stat. 136; 73 Stat. 519), herein called the Act. In its duly filed answer the Respondent denied all unfair labor practice allegations. All parties participated in the hearing upon the complaint conducted by Trial Examiner William E. Spencer in Missoula, Montana, on November 21, 1963, and the Respondent and the Union thereafter filed briefs, respectively. Upon the entire record in the case , and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation, owns and operates more than 1,500 retail variety stores in States of the United States, and transacts in excess of $1,000,000 in value of business annually. During the year ending December 31, 1962, in the conduct of its business, it purchased, transferred, and delivered to its Store No.,2367 located in Missoula, Montana, its only operation directly involved in this proceeding, goods and materials valued in excess of $50,000 from States other than Montana. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES On May 23 , 1962, the Union was certified by the Board as bargaining representa- tive of Respondent's employees in an appropriate unit. On July 12, 1962, the Union and the Respondent executed a bargaining contract to be effective until July 16, 1963, and thereafter unless a written notice 60 days prior to the expiration date was given by one or both parties of an' intention to terminate or modify the said contract. Toward the close of the certification year several employees in the appropriate unit approached Respondent's manager, Dennis Dike, and expressed to him dis- satisfaction with the Union's representation of them and indicated thereby a desire to terminate the said representation. 850 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD On.May 10, 1963, the , Respondent , served on the Union a written notice of an intention to terminate the existing contract. - ' On May 16, the Union served on the Respondent a written notice of a desire to open the existing agreement for modification, and requested that the Respondent meet with the Union during the week of June 3 for the purpose of bargaining on the Union's proposals. : On May 16, the Respondent filed with the Board's Regional Office an RM petition, thereby raising a question of the Union's representation of its employees. .On May 20, the Respondent notified the Union that it had filed an RM petition, and stated, inter alia:, "Until this election is held the employer, doubts that, your local does represent a majority in this store , and therefore sees no point in having a'meet ing until the election has been completed.",, I It is the General Counsel's position that , because the Respondent, prior to the expiration of the certification year,, filed an election (RM) petition and by its letter of May 20 refused to bargain with the Union, it violated Section 8 (a) (1) and (5) of the Act. The Union raised the further question of Respondent 's good faith in questioning the Union's representative status. As to this letter, the undisputed and credible testimony of witnesses for the Respondent is sufficient to establish Respond- ent's good faith in questioning the Union's continuing majority status, and there is no background of union animus on the part of management to offset or minimize this testimony. The General Counsel in support of his position relies principally on the Board's decision in Kit Manufacturing Company, 292 F. 2d 686 (C.A. 9), enfg. 127 NLRB 776. Absent unusual circumstances the majority status of a union may not lawfully be challenged until the end of the certification year. There are, however, facts peculiar to this case not applicable in Kit Manufacturing, supra. In the latter case it was found that the employer had no good -faith doubt of the union's majority at the time it refused to bargain ; here the Employer's good-faith doubt is firmly established. In the latter case there was no contract ; here there is. But more important is the fact that here the Union 's demand for a bargaining conference related solely to the modification of a contract which could occur only beyond the end of the certification year and the end of the contract year as well. There is no evidence that the Union sought to bargain on any matter that could be effectuated during the certification or contract year, and was refused. It is true that Respondent's letter of May 20, 3 days before the expiration of the certification year , on its face expressed a blanket refusal to meet with the Union until the RM petition had been acted upon, but when this letter is related to the Union 's letter of May 16, to which it was a reply, it may also reasonably be construed as no broader in scope than the Union's request. In any event, the Union did not put the Respondent to the test by requesting a bargaining conference on any matter whatever other than that referred to in its letter of May 16. Had the Respondent acceded to the Union's demand for a meeting during the week of June 3 , outside the certification year, for bargaining on the modification or renewal of a contract which would expire on July 16, with its RM petition pending and its existent good-faith doubt of the Union 's continuing majority status, what possible practical advantage to the Union could thereby ensue, and in what way would the purposes and policies of the Act be effectuated? Furthermore. if at the end of the contract year a real question of representation existed-and I am con- vinced that here such a question did exist-it seems that the Respondent would have acted at .its peril in renewing or extending a contract which expired outside the certification year, unless and until the question of representation had been resolved in the Union's favor. The Union's argument that the Union's majority status estab- lished by its certification is ,presumed to continue beyond the certification year and could be challenged by the Respondent , even though the Respondent in challenging it acted in good faith, only if Respondent presented evidence sufficient to overcome the presumption, would, in most cases, extend the period of the certification in- definitely inasmuch as an employer, acting within proper bounds, would seldom be able to present such proof.' The assumption that the contract year merged with the certification year, in measuring the Union's protected representative status, while persuasive, does not modify the situation here where the only bargaining sought by the Union related to something which could be effectuated only after the end of the contract year. In short, it seems to me that the most we have here is a technical violation, and that the Act may best be effectuated by releasing and tallying the 1 The Union's able and interesting brief raised several questions on Board policies which, in my opinion , may more profitably be addressed to the Board than to its Trial Examiner. CINCINNATI L kSKET, PACKING & MFG., INC. 851 ballots taken under an election conducted pursuant to the Respondent 's RM petition and impounded pending the disposition of this unfair labor practice proceeding. Accordingly, I shall recommend dismissal of the complaint. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is, and has been at all times material to the issues in this pro- ceeding, an Employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not, by refusing to bargain with the Union in violation of Section 8(a)(1) and (5) of the Act, engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. Cincinnati Gasket, Packing & Mfg., Inc. and International Asso- ciation of Machinists, District Lodge 34, AFL-CIO. Case No. 9-CA-2858. April 14, 1964 DECISION AND ORDER On January 9,1964, Trial Examiner Lee J. Best issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief and Respondent filed a brief in support of the Trial Examiner's Decision.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner 2 [The Board dismissed the complaint.] i No exceptions were filed to the Trial Examiner 's conclusion that Donald Pritchard's discharge was not violative of the Act. 22 These findings and conclusions were largely based upon credibility resolutions of the Trial Examiner. It is established Board policy that a Trial Examiner's credibility findings are entitled to great weight ; he is in a position to observe the demeanor of the witnesses. The Board therefore does not overrule a Trial Examiner's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). Such a conclusion is not warranted in this case. 146 NLRB No. 105.