Gem International, Inc.

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gem International, Inc. and Retail Clerks Union Local 1015. Case 17-CA-5015 March 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 2, 1972, Administrative Law Judge Eugene George Goslee issued the attached Decision in the above-entitled proceeding. Thereafter, the Charging Party i and the General Counsel filed exceptions and supporting briefs and the Respondent filed a brief in support of the Decision of the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Administrative Law Judge made at the hearing and finds that no prejudicial error was committed. The Board has considered the entire record and the attached Decision in light of the exceptions and the briefs of the parties, and finds merit in certain exceptions of the General Counsel and the Union.2 It therefore adopts only those findings and conclusions of the Administrative Law Judge as are consistent with the following: The complaint alleges that Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain in a single unit consisting of Respondent's two stores in Omaha, Nebraska. The relevant facts are not disputed. The two stores operated by the Respondent in the Omaha, Nebras- ka, area are known as the Southway store and the Northway store. These two stores are part of an administrative division of nine stores in a four-state area. In 1965, pursuant to a card check conducted by a neutral third party among the employees at the Southway store, the Respondent recognized the Union as the collective-bargaining representative of its employees "in its present and future retail establishments in the Greater Omaha, Nebraska Trade Area." At the expiration of the agreement in 1968, the Respondent and the Union entered into a new agreement to expire on August 31, 1971, which contained an identical recognition clause. During the I Hereafter referred to as the Union 2 The Union 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall term of the second agreement, the Respondent opened the Northway store. On March 16, 1969,3 the Respondent and the Union entered into a written agreement for a card check among certain of the employees at the Northway store. The independently conducted card check determined that a majority of the employees designated the Union as their collective-bargaining representative. Thereafter, on March 19, 1969, the Respondent and the Union entered into an adden- dum to the 1968-71 collective-bargaining agreement entitled "Memorandum of Agreement" by which, inter alia, they agreed that, effective April 14, 1969, the collective-bargaining agreement "shall apply" to the employees at the Northway store "in the same manner as it applies to the employees at" the Southway store. The Administrative Law Judge recognized, and we agree, that the alleged violation of Section 8(a)(5) of the Act, as herein litigated, turns primarily on a determination of the merits of General Counsel's position that, in light of the bargaining history between the parties, the existing unit at the time of the refusal to bargain was one embracing all the employees in the specified classifications who were employed at the two stores operated by the Respon- dent in the Omaha, Nebraska, metropolitan area. The Administrative Law Judge found, however, consistent with the contentions of the Respondent, that the bargaining history had not effected a merger of the two otherwise separable groups of employees at the two stores into a single unit and that, accordingly, each store's employees composed, at all times here relevant, a separate appropriate unit. We do not agree. The Administrative Law Judge reasoned that, (1) in their collective-bargaining agreement, the parties had agreed to conduct their bargaining relationship for retail stores in the Omaha, Nebraska, area on a single multistore unit basis, and that, pursuant to that agreement's recognition clause, an accretion of the Northway employees to the preexisting unit of employees at the Southway store was perfected when the Northway employees' card check demonstrated that a majority had expressed their desire to be represented by the Union; but, (2) on March 19, 1969, when the parties executed the "Memorandum of Agreement," they abrogated their prior agreement to establish a multistore unit and entered into a new one pursuant to which they now agreed that the employees in the Northway store and the Southway Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3) We have carefully examined the record and find no basis for reversing his findings 3 We correct an inadvertent typographical error in the Administrative Law Judge's Decision by substituting "March 16, 1969," for "March 16, 1967," in sec 111, par 6, of the Decision 202 NLRB No. 73 GEM INTERNATIONAL, INC. store would each constitute a separate bargaining unit . We agree with the first of the Administrative Law Judge's above findings, but not with the second. There is nothing in the record which supports the Administrative Law Judge 's interpretation of the "Memorandum of Agreement " as an abrogation of the prior contract's relevant accretion provisions. To the contrary, a reading of the memorandum and the precedent facts surrounding its execution indicate clearly that its only purpose was to establish an effective date on which the collective -bargaining agreement would apply to the employees who were newly accreted to the unit and to insure that individual store seniority would be maintained within the unit. Thus, contrary to our dissenting colleague, the memorandum actually reaffirmed the existing contract, including its accretion provision. Furthermore it is significant that the memorandum was executed as an "addendum" to the collective- bargaining agreement and therefore could hardly be construed as abrogating the provisions contained therein . In addition, our reading of the above instruments is reinforced by the fact that, in the three meetings held after the collective-bargaining agree- ment was reopened for negotiations in June 1971, the Respondent expressed no position inconsistent with the prior agreement of the parties to conduct bargaining on a multistore basis. We conclude, therefore, that, as the only bargaining unit estab- lished and agreed to by the parties was a single multistore unit comprised of the employees at both the Northway and the Southway stores, the Respon- dent was obligated to continue to recognize and to bargain with the Union in that multistore unit. The Respondent does not deny that it refused to bargain with the Union on a multistore basis after a decertification petition was filed on behalf of the employees in the Southway store. In addition, the Respondent does not dispute that it continued to refuse to bargain with the Union on a multistore basis even after the Regional Director properly dismissed the decertification petition as well as the Respondent's subsequently filed RM petition. Nei- ther petition furnished a defense to the refusal to bargain since neither raised a question concerning representation in an appropriate unit . Both sought an election in the Southway store unit only. Having found that the historic unit was multistore in scope, neither petition was valid under established Board authority, since neither sought a unit coextensive with the existing collective-bargaining unit . Accord- ingly, there is no defense to the Respondent 's refusal to bargain with the Union in the existing unit, and we conclude that the Respondent , by refusing to bargain with the Union in a multistore unit on and 519 after September 17, violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Retail Clerks Union Local 1015 is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time employees and all regular part-time employees employed by Gem Internation- al, Inc., and by concession and leased and subleased departments, in the retail establishments of the Employer located at 6534 "L" Street and at 3030 North 90th Street, Omaha, Nebraska, and which employees are engaged in handling or selling merchandise, or performing other services incidental to or related thereto, but excluding Overall Store Managers, Overall Assistant Store Managers, Overall Store Managers in Training, Store Controllers, Assistant Store Controllers, Secretaries to the Store Manager, Credit Managers, Front Office Supervi- sors, the Public Relations Man at the retail establish- ment located at 6534 "L" Street, Public Relations Personnel at the retail establishment located at 3030 North 90th Street , Head Shoppers , Department Managers, Pharmacists , employees in the Optical Department, employees in the Grocery and Meat Departments at the retail establishment located at 6534 "L" Street, employees in the Snack Bar and Popcorn Departments, Assistant Managers in leased or sub-leased departments at the retail establishment located at 6534 "L" Street, Assistant Managers in leased or sub-leased departments having four em- ployees in said leased or subleased departments in the retail establishment located at 3030 North 90th Street, all guards, watchmen , confidential employees, professional employees and supervisors as defined in the National Labor Relations Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The above-named labor organization has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 17, 1972, and at all times thereafter , to bargain with the Union in the previously described appropriate unit , Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, GEM International, Inc., Omaha, Nebraska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Retail Clerks Union Local 1015 as the exclusive bargaining representative of its employees in the previously described appro- priate unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guarantees them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its retail establishments located at 6534 "L" Street and 3030 North 90th Street, Omaha, Nebraska, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 5 The text is as follows WHEREAS, GEM International , Inc, (Omaha , Nebraska Division), hereinafter called the Employer, has opened a retail establishment at 3030 North 90th Street , Omaha, Nebraska, and WHEREAS, a card check conducted by Wayne H Hagen , I Pastor has certified that Local # 1015 of the Retail Clerks Union, chartered by the Retail Clerks International Association , AFL-CIO, represents a majority of the employees in an appropriate bargaining unit at such new retail establishment, and including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN MILLER, dissenting: The issues in this case turn essentially upon whether an RD petition filed by employees at the Employer's Southway store furnished a defense to the alleged refusal to bargain herein. There can be no question that had that petition been processed and considered valid, continued bargaining in a unit including the employees covered thereby would have been inappropriate until a determination by the Board as to the Union's majority status. That petition, however, was dismissed by the Regional Director and there is no showing that said petition was defective on grounds other than those relied on by the Regional Director; i.e., that, in the face of a bargaining history, the Board will not entertain a petition seeking a unit which is not coextensive with the established, recognized bargaining unit. I do not believe a dismissal on that ground was proper here. The "coextensive unit" rule is based on the Board's reluctance to disturb a unit established by collective bargaining, so long as the shape of that unit is not repugnant to Board policy. It rests upon an accom- modation of the competing statutory interests of preserving stability in established bargaining rela- tionships, on the one hand, and that affording employees the broadest possible opportunities to exercise their right to self-determination, on the other. In applying that rule we must do so in a fashion which does not unduly compromise the Section 7 rights of employees. In the instant case I believe the record shows, as the Administrative Law Judge found, that there was no clear meeting of the minds between the parties that the bargaining was to take place in a single two- store unit. I am unable to find that the Memorandum of Agreements dated March 19, 1969, demonstrated a clear and unambiguous intent by the parties to WHEREAS, the Employer and the Union are parties to a collective bargaining agreement covering employees at the Employer's retail establishment at 6534 "L" Street, Omaha, Nebraska, Now, THEREFORE, the parties agree as follows I Effective April 14, 1969, the said collective bargaining agree- ment shall apply to the new retail establishment at 3030 North Maple Street in the same manner as it applies to the employees at the Employer's retail establishment at 6534 " L" Street 2 Said collective bargaining agreement shall continue in full force and effect unchanged until its termination date of August 31, 1971 3 The application of said collective bargaining agreement shall be distinct and separate for each of the Employer's said retail establish- ments, that is, seniority shall be established and recognized by department on a store basis GEM INTERNATIONAL, INC. accrete the Northway store employees to the preex- isting Southway store unit. The Memorandum of Agreement is ambiguous and surely does not indicate on its face that the employees at both the Northway and the Southway stores are intended to be merged into a single unit for the purposes of collective bargaining. Absent a clear and unambiguous state- ment of such intent, we must look to bargaining history. There we find only a very brief period of time from the opening of the Northway store, and a paucity of evidence that the nature of the bargaining, grievance handling, or other indicia of intent was of such a nature as to demonstrate any unification by the parties of the employees at both of the Employ- er's stores into a single overall unit. In such a doubtful state of the record, I would not deliberately disenfranchise employees in the name of preserving a bargaining unit the very existence of which is in doubt. Under such dubious circum- stances, it is my view that the employees who desired an election ought to have been permitted to have had their petition processed. Instead, my colleagues would use our unfair labor practice procedures to help cement together units which the parties had left in an uncertain state, while we refuse to grant the employees access to our election processes. From that holding, I must dissent. For these reasons, I would dismiss the complaint. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Retail Clerks Union Local 1015 as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any' like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: 521 All regular full-time employees and all regular part-time employees employed by Gem International, Inc., and by concession and leased and subleased departments, in the retail establishments of the Employer located at 6534 "L" Street and at 3030 North 90th Street, Omaha, Nebraska, and which employees are engaged in handling or selling merchandise, or performing other services incidental to or related thereto, but exclud- ing Overall Store Managers, Overall Assist- ant Store Managers, Overall Store Managers in Training, Store Controllers, Assistant Store Controllers, Secretaries to the Store Managers, Credit Managers, Front Office Supervisors, the Public Relations Man at the retail establishment located at 6534 "L" Street, Public Relations Personnel at the retail establishment located at 3030 North 90th Street, Head Shoppers, Department Managers, Pharmacists, employees in the Optical Department, employees in the Gro- cery and Meat Departments at the retail establishment located at 6534 "L" Street, employees in the Snack Bar and Popcorn Departments, Assistant Managers in leased or subleased departments at the retail establishment located at 6534 "L" Street, Assistant Managers in leased or subleased departments having four employees in said leased or subleased departments in the retail establishment located at 3030 North 90th Street, all guards, watchmen, confidential employees, professional employees and su- pervisors as defined in the National Labor Relations Act, as amended. GEM INTERNATIONAL, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 610 Two Gateway Center, Fourth at State, Kansas City, Kansas 66101, Telephone 816-374-4518. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: This case came on to be heard before me at Kansas City, Missouri, on August 4, 1972,1 upon a complaint2 issued by the General Counsel of the National Labor Relations Board and an answer filed by Gem International, Inc., hereinafter called the Respondent. The issues raised by the pleadings in this proceeding relate to whether or not the Respondent has violated, and is violating, Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by acts and conduct hereinafter specified. At the conclu- sion of the hearing, the Charging Union and the Respon- dent engaged in oral argument and, in addition, all parties have filed briefs with the Administrative Law Judge, which have been duly considered. Upon the entire record in this proceeding, and from my observation of the testimony and demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, Gem International, Inc., is a Colorado corporation engaged in the operation of retail stores, including two retail stores located at Omaha, Nebraska, the only portions of its operations involved in this proceeding. On an annual basis, in the course and conduct of its business operations at its establishments at Omaha, Nebraska, the Respondent realizes gross revenues in excess of $500,000, and purchases and receives goods and service from sources situated outside the State of Nebraska valued in excess of $50,000. The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Union, Retail Clerks Union Local 1015, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED The General Counsel alleges that since on or about September 17, 1971, the Respondent has violated Section 8(a)(5) of the Act by refusing to bargain with the Union as the sole and exclusive bargaining representative of certain employees employed at the two retail establishments operated by the Respondent at Omaha. More particularly, the General Counsel and the Union contend that, notwithstanding the Respondent's agreement to continue to bargain with the Union for the employees at the Northway store, Section 8(a)(5) has been, and is being, violated by the Respondent's continued refusal to extend I The hearing in this proceeding was closed by an order issued by me on September 5, 1972, a copy of which has been marked and received in evidence as G C Exh I-J 2 The complaint in this case was issued on June 13, 1972, upon a charge the bargaining relationship to the Southway store. In defense of the allegations of the complaint, the Respondent asserts that its obligation to recognize and bargain with the Union for the Southway employees is the subject of a valid question concerning representation, and that it was precluded on and after September 17, 1971, from continu- ing the bargaining relationship until the question had been resolved. This proceeding involves two essential issues, and the second is contingent on the finding on the first issue. The first issue to be decided is whether the employees in the Southway store constitute an inappropriate unit by reason that this unit is not coextensive with the bargaining unit previously agreed to by the parties in a preexisting collective-bargaining agreement. If that issue is decided affirmatively, no valid question concerning representation could be raised in a unit linuted to the Southway employees, and the Respondent has refused to recognize and bargain with the Union in violation of the Act. If, on the contrary, it is found that the parties intended separate bargaining units at the two stores, it must be determined whether the Respondent's refusal to continue the bargain- ing relationship with respect to the Southway store was in good faith, and supported by objective considerations. By way of background, the record reflects that Gem International, Inc., which operates the Southway and Northway stores at Omaha, is a part of Parkview-Gem International, Inc. The two stores located in Omaha are part of a division of nine stores consisting, in addition to the Omaha operations, of four stores in Memphis, one in Witchita, one in Kansas City and one in Overland Park. The division is subject to the overall supervision and control of an area administrator, Norman Westhimer, whose office is located in Kansas City. Each of the Omaha stores is supervised by a manager, and they are separately responsible to Westhimer. The Respondent's Southway store was the first in existence in the Omaha area. On September 9, 1965, following a card check conducted by a neutral third party for the employees at the Southway store on August 19, 1965, the Respondent entered into a collective-bargaining agreement, pursuant to which it recognized the Union as the collective-bargaining representative in the following described unit: All regular full-time employees and all regular part- time employees employed by Gem International Inc. and by concession and leased and sub-leased depart- ments, in its present and future retail establishments in the Greater Omaha, Nebraska Trade Area, 3 and which employees are engaged in handling or selling merchan- dise, or performing other services incidental or related thereto, but excluding Overall Store Manager, Overall Assistant Store Manager, Overall Store Manager in Training, Store Controller, Assistant Store Controller, Secretary to the Store Manager, Credit Manager, Front Office Supervisor, Public Relations Man, Head Shop- per, Department Managers, Pharmacists, employees in filed on February 10, 1972, and served on the Respondent on February 11. 1972 3 Emphasis supplied GEM INTERNATIONAL, INC. 523 the Optical Department, employees in the Grocery Department, employees in the Meat Department, employees in the Snack Bar and Popcorn Departments, Assistant Manager in leased or sub-leased departments, all guards, watchmen, confidential employees, profes- sional employees, and supervisors as defined in the Act .4 The above-described collective-bargaining agreement continued in effect for its term, and on September 26, 1968, after negotiations, the parties entered into a new bargain- ing agreement for the term September 1, 1968, through August 31, 1971. The recognition clause in this second agreement is identical to that contained in the 1965-68 agreement, including the reference to "present and future retail establishments in the Greater Omaha, Nebraska Trade area." On an undisclosed date following execution of the 1968-71 bargaining agreement, the Respondent com- menced operation of a second retail store (Northway) in the Omaha area. On March 16, 1967, the Respondent and the Union entered into a written agreement for a card check among the employees at the Northway store. The agreement recites that the card check was to be conducted in the following described group of employees. All regular full-time and all regular part-time employees employed by the Employer and by all leased and sub-leased or licensed departments in the retail establishment of the Employer at 3030 North 90th Street, Omaha, Nebraska, including and limited to GEM employees and license employees engaged in retail sales and service functions necessarily accompa- nying same, however, excluding; overall store manager, overall assistant store manager, overall store manager in training, store controller, assistant store controller, secretary to the store manager, credit manager, front office supervisor, public relations personnel, head shopper department manager, pharmacists, employees in the optical department, employees in the snack bar and popcorn departments, assistant manager in leased or sub-leased departments having four (4) employees in said leased or sub-leased departments, all guards, watchmen, confidential employees, professional em- ployees and supervisors as defined in the National Labor Relations Act, as amended. On March 19, 1969, after written certification that a majority of the employees in the above-described voting group had designated the Union as their collective-bar- gaining representative, the parties entered into an adden- dum to the 1968-71 bargaining agreement. The addendum, entitled Memorandum of Agreement, provides in pertinent part: WHEREAS, the Employer and Union are parties to a collective-bargaining agreement covering employees at the Employer's retail establishment at 6534 "L" Street, Omaha, Nebraska, Now, THEREFORE, the parties agree as follows: 4 The Union represents a separate unit of grocery, produce , and meat department employees at the Southway store The same departments at Northway are operated by another employing entity, and the record is not clear as to whether, or not these employees are also represented by the Union 5 All dates recited hereinafter as in 1971 , unless specified 1. Effective April 14, 1969, the said collective- bargaining agreement shall apply to the new retail establishment at 3030 North Maple Street in the same manner as it applies to the employees at the Employer's retail establishment at 6534 "L" Street. 2. Said collective-bargaining agreement shall con- tinue in full force and effect unchanged until its termination date of August 31, 1971. 3. The application of said collective-bargaining agreement shall be distinct and separate for each of the Employer's said retail establishments, that is, seniority shall be established and recognized by departments on a store basis. Thereafter, on June 22, 1971, in accordance with the terms of the collective-bargaining agreement, the Union served written notice on the Respondent of its intent to open the contract for further negotiations. On August 3, 1971,5 Hollie H. Ham, Jr., the Union's then executive secretary-treasurer, met Daniel S. Lumian, the Respon- dent's director of labor relations, at Kansas City, and Ham gave Lumian a copy of the Union's proposals. The encounter arose by chance and there was no discussion of the proposals, although Lumian apparently agreed to read and consider them. Ham and Lumian met on the proposals on two subsequent occasions, September 2 and 13, and Jim Gourley, a district manager for the Respondent was also present. Ham testified that the parties reached tentative agreement on some issues, but Lumian testified that while the proposals were discussed, all issues were passed to future bargaining sessions. Whichever version is correct, the record is clear and I find that the parties did not arrive at a final and binding collective-bargaining agreement. It is equally clear that there were no discussions in any of the three meetings as to whether a combined store or single- store units would be appropriate for bargaining. On September 13, a decertification petition was filed on behalf of the Respondent's employees at Southway,6 and, on September 29, the Region issued a notice of representa- tion hearing. In the interim on September 17, the Respondent notified the Union in writing that it had received a copy of the decertification petition, and under the circumstances deemed it inappropriate to continue negotiations pending a determination by the Board as to the Union's majority status.? Insofar as the record reflects, there was no formal or informal contact between the Union and the Respondent for a period of about 60 days following the Company's notification of the discontinuance of negotiations. On November 16, the Union sent a letter to the Respondent in which it noted that the Southway store was the only store affected by the RD petition, and demanded that the Company agree to negotiate with respect to the employees represented by the Union in the grocery department at Southway and all the employees employed at Northway. On November 18, the Respondent replied to inform the Union of its continued willingness to meet and negotiate 6 17-RD-448, as amended on September 28, 1971 7 On October 27, the Union filed a charge alleging that the Respondent had violated Sec 8(a)(2) of the Act by instigating and encouraging the decertification petition, but on November 23 the charge was withdrawn with the approval of the Regional Director 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the employees specified in the Union's November 16 letter, and suggested a meeting for December 1. On December 1, Ham met with Lunuan and Gourley at Omaha and discussed how the negotiations were to proceed According to Ham, Lumian insisted that the Respondent was willing to proceed on negotiations only for the employees in the Northway store. Ham apparently agreed, but, according to his testimony, conditioned the agreement on the understanding that any bargaining agreement reached would be subject to ratification by the employees in both stores. Lumian testified that he and Ham agreed to bargain only for the employees in the Northway store and those in the separate grocery depart- ment unit at the Southway store. Lumian denied that Ham mentioned the subject of ratification at the December 1, or any other, meeting. For the reasons related below I discredit Ham's testimony that he conditioned the continuation of the bargaining on ratification of any negotiated agreement by employees in both the Northway and Southway stores. On cross-examination, Ham admitted, at least tacitly, that the condition of ratification by the employees of both stores was in all likelihood a mental reservation, left unexpressed to Lumian and the Respondent. It is clear, moreover, as Ham admitted, that no mention was made in the November 16 letter to the Respondent of ratification, and the Union's only demand was for continuation of bargain- ing for the Northway employees and those employees in the grocery department at the Southway store. On November 26, the Regional Director for Region 17 issued an order withdrawing the notice of hearing, and dismissing the decertification petition filed by the employ- ees at the Southway store on grounds that the unit requested was not coextensive with the unit previously recognized in the recently expired contract. The Respon- dent filed a request for review with the Board, which the Board denied on December 7, on grounds that the Regional Director's administrative dismissal of the decerti- fication petition was a subject for appeal only from the petitioner. On January 21, 1972, the Respondent filed a 9(c)(1)(B) petition, hereinafter called the RM petition,8 in which it described the unit involved in accordance with the unit description in the expired bargaining agreement. On February 9, 1972, the Regional Director issued a notice of representation hearing, which he thereafter postponed indefinitely by reason that, on February 10, the Union filed the charge in the instant case. Thereafter, on February 18, the Union sent a letter to the Respondent demanding that the Company sit down and bargain with the Union for the employees in both of Gem's Omaha stores. In reply, on February 22, the Respondent advised that for the reasons related in the prior correspondence with Ham, it would not be appropriate for the Company to negotiate for the two units at that time. On June 13, 1972, the complaint in this case issued, and on the same date the Regional Director issued an order dismissing the petition in Case 17-RM-465. The Employer filed a request for review, which was denied by the Board on July 6, on grounds that the Regional Director's dismissal was warranted under the Board's "blocking charge" rule. On or about June 22, 1972, the Union struck both the Southway and Northway stores. The strike lasted for approximately 10 days, and 18 employees from the Southway store, out of a unit complement of 101, participated in the strike. In contrast, 40 employees, out of a unit complement of about 85, struck at the Northway store . On June 28, in settlement of the strike, the Respondent and the Union entered into a written under- standing in which they agreed to return to bargaining without prejudice to either party on the question of the appropriateness of the bargaining unit at issue in this case. The negotiations have continued, but, insofar as the record reflects, no agreement has been reached. As factual support for the 8(a)(5) violation alleged, the General Counsel argues (1) that at the time of initial recognition the Northway store was not in existence; (2) that since 1969 the Respondent has operated two stores in the Omaha area, separated geographically by only 8 to 10 miles; (3) that the Respondent's nearest other stores are located at distances well over 100 miles from Omaha; (4) that since March 15, 1969, the Union has represented the employees at both the Southway and Northway stores; (5) that the bargaining agreement entered into on September 1, 1968, included employees in "future retail establish- ments in the greater Omaha, Nebraska Trade Area"; and (6) that the employees at the Northway store were "accreted" into the unit only after they had expressed their desire to be represented by the Union in a card check procedure. As legal precedent in support of the alleged violation, the General Counsel relies on the Board's decisions in White Front Stores9 and Smith's Management Corporation.10 A considerable portion of the General Counsel's factual argument is devoted to the issue of whether a unit comprised of employees at both the Southway and Northway stores is appropriate for the purposes of collective bargaining. If this was the unit agreed to by the parties, I find that it is neither repugnant to the Act nor the Board's policies, and is an appropriate unit. I also find, however, and for reasons related below, that the two-store unit is not the only, or even the most appropriate, unit for bargaining. As related above, the Respondent's Northway store is located at a distance of approximately 10 miles from its Southway store. Each store is separately managed and supervised by a manager, and each manager reports separately to the area manager who has overall responsibil- ity for the nine stores comprising the division. The Southway store is somewhat larger in area than the Northway store, and has some additional departments, including leased or licensed departments, and handles some additional lines of merchandise. Merchandise and supplies are ordered separately for each store through Gem's New York and Kansas City buying offices, and 8 17-RM-465 10 Smith's Management Corporation d/b/a Frazier's Market, 197 NLRB 9 Retail Clerks Union, Local 870 (White Front Stores, Inc), 192.NLRB No 177 No 33 GEM INTERNATIONAL, INC. 525 credit applications are processed separately by the control office at each store. With respect to personnel policies and procedures, the manager for each store is responsible for hiring, assigning, promoting, laying off, and discharging employees assigned to his operation. The employees are paid and union dues are withheld through the control office at each store, and the manager for each store has the responsibility for processing the grievances of employees within his opera- tion. Under the terms of the expired bargaining agreement, seniority for the employees at the Southway store is separate from that accorded the employees at the North- way store. As to employees in the bargaining unit, the record reveals only two incidents of transfers between stores, one permanent and one temporary, since the date the Northway store became operational. On the basis of the foregoing factors, particularly as they reveal the autonomy of the store managers and the absence of interchange between the employees assigned to the two stores and, notwithstanding the geographic proximity of the two locations, I find that single-store units of Northway and Southway employees are appropriate for the purposes of collective bargaining." The initial issue to be decided here is not the appropri- ateness of alternative units, but the intent of the parties in entering into and extending the collective-bargaining relationship. To this extent the record before me contains no extrinsic oral evidence of what the parties intended when they agreed to the unit description in the original 1965 agreement, what they intended when they extended the bargaining agreement in 1968, or what they intended when they applied the terms of the 1968-71 contract to the employees at the newly opened Northway store. I am bound, as perhaps I should fairly be, under the parol evidence rule to the bargaining agreements and the subsidiary written documents which gave rise to the bargaining relationship. The General Counsel asserts that the contractual agreement encompassing a unit of present employees and employees at future retail establishments opened by the Respondent in the Omaha area, when coupled with the evidence that the Northway employees were accorded a form of self-determination by recourse to a card check, establishes not only the appropriateness of the unit, but also establishes the intent of the parties to bargain in the two-store unit. To this end, as related above, the General Counsel relies on the Board's decisions in White Front Stores and Smith's Management Corporation, supra. In White Front Stores the Board held that it was not a violation of Section 8(b)(2) of the Act for a union to picket an employer to force compliance with the terms of a collective-bargaining agreement, which included a union- security provision, so long as the union enjoyed majority status among the employees who were the object of its demand. In that case, as here, the union represented employees at other retail establishments of the employer in the immediate area, and the collective-bargaining agree- ment in effect contained an accretion provision substan- tially similar in import to that contained in the expired bargaining agreement in this case. Accordingly, a majority of the Board panel deciding White Front Stores also held that the contractual commitment of the parties to future operations of the employer, when coupled with the evidence that the union enjoyed majority status among the employees it sought to accrete to the unit, had effected a valid accretion, and was grounds for dismissing the 8(b)(2) allegation. In Smith's Management Corporation, which is also relied on by the General Counsel, the Board held that an accretion clause in a contract purporting to include in the unit employees in future operations opened by the employer did notjustify the employer's refusal to execute a bargaining agreement negotiated by his representative. In arriving at this finding, the Board related its established rule that accretion of new employees into an existing unit is a matter to be determined by the Board in the light of the circumstances of each individual case.12 The Board also related its established policy of refusing to compel a group of employees in the employer's future stores, who may constitute a separate appropriate unit, from inclusion in an overall unit under the guise of accretion, without affording the employees an opportunity to express their preference for union representation.13 With these principles estab- lished, the Board then held: While the phrase "and future" by itself cannot effect an accretion of a new group of employees to the unit, it is a factor to be considered by the Board in resolving an issue of accretion. Thus, the Board will give controlling effect to such a contractual provision and accrete a new group of employees to the existing unit where they have indicated their clear desire to be represented by the union representing the other employees. Retail Clerks Union, Local 870 (White Front Stores, Inc.), 192 NLRB No. 33 (1971). Since the Respondent's striking the phrase "and future" results in a refusal to sign the contract as negotiated in violation of Section 8(a)(l) and (5) of the Act, and since we find no merit in its arguments attempting to justify its actions, we shall, accordingly, grant the General Counsel's Motion for Summary Judgment. In the instant case, it is uncontroverted that in 1965 the Respondent and the Union entered into a contract in which the Union was recognized as the collective-bargain- ing representative in a unit encompassing the Respondent's "present and future retail establishments in the Greater Omaha, Nebraska Trade Area." The identical recognition clause was incorporated in the successor bargaining agreement executed by the parties in 1968. It is also uncontroverted that in 1969, after the Respondent opened the Northway store, the employees at this new location were afforded the opportunity through recourse to a card check procedure to express their preference for representa- tion by the Union. I have found above that, if agreed to by the parties, a single overall unit of employees at the Respondent's Southway and Northway stores would constitute an 11 Walgreen Co, Miami, Florida, 198 NLRB No 158 12 Citing Haag Drug Co, 169 NLRB 877, and Sav-On Drugs, Inc, 138 Kauai Corp, 177 NLRB 25,28 NLRB 1032, 1033 13 Citing Melbet Jewelry Co, 180 NLRB 107,109-110, and Sheraton- 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate unit for the purposes of collective bargaining. This finding, coupled with evidence of the contractual provision extending recognition to the Union for Respon- dent's "future retail establishments ," and the evidence that the employees at the Northway store were accorded a form of self-determination, are "circumstances" which support the General Counsel's contention that a valid accretion was perfected within the standards promulgated by the Board in the White Front and Smith 's Management cases. But these are not the only relevant "circumstances" revealed by the record in this case. The validity of the accretion is exemplified by the recognition clause of the 1965 and 1968 bargaining agreements, as perfected by the card check conducted among the Northway employees in 1969. In the light of other evidence in the record, the issue to be decided is whether the perfected agreement for bargaining in a single overall unit remained in effect or, alternatively, whether that agreement was superseded by a subsequent understanding pursuant to which the parties agreed to bargain for a separate unit of Northway employees. Among the arguments advanced by the Respondent is the contention that no card check would have been conducted for the Northway employees if the parties had intended to adhere to their agreement to bargain for employees in all present and future retail establishments in a single overall unit. I agree that the scope of the language contained in the recognition clause of the 1965 and 1968 bargaining agreements is sufficiently broad enough to warrant the construction that employees at future locations would be accreted without recourse to any further procedures. On the other hand, the card check for the Northway employees may have been only a precautionary device, utilized because of the awareness of the parties that the Board would be unlikely to approve the accretion in the absence of proof that the employees had been afforded an opportunity to express their preference for or against union representation . I find, accordingly, that the evidence that a card check was conducted before the Respondent extended recognition to the Union for the Northway employees, is not, standing alone, dispositive of the issue of whether or not the parties agreed to modify the preexisting agreement to bargain in a single composite unit covering all of the Respondent's Omaha establishments. There is, however, other evidence in the record, in addition to the card check, which lends support to the Respondent's contention that its recognition of the Union as the representative of the employees at the Northway store was accomplished only on the condition that the bargaining unit would be separate and distinct from the unit of employees at Southway. In order to determine the Union's claim of majority status among the Northway employees, the parties entered into an agreement for a card check. On its face the agreement simply specifies the classifications of employees eligible to participate , and it is silent on the issue of whether certification of the Union's majority status would result in accretion of the Northway employees into the existing unit as required by the terms of the bargaining agreement. Similarly, upon completion of the card check and certification of the results, the parties executed a memoran- dum of agreement , pursuant to which they extended most of the terms and conditions of the existing contract to the employees at the new location. If it was the intent of the parties to adhere to the multistore unit specified in the recognition clause of the current contract , the record offers no explanation of why the parties entered into a separate written agreement to accomplish what the precise terms of the existing collective-bargaining agreement automatically accomplished. The mere fact of the execution of the memorandum of agreement is not, moreover, the only evidence tending to support the contention that the Union agreed to abandon the multistore unit established by the 1965 and 1968 bargaining agreements . On the face of the memorandum are two specific provisions which warrant the conclusion that the recognition of the Union and the extension of the contract to the Northway employees were conditioned on the agreement between the parties that the employees at the new location constituted a unit separate and distinct from the unit covering the preexisting operation at Southway. The second paragraph of the memorandum recites the conduct of the card check and the certification that the Union "represents a majority of the employees in an appropriate bargaining unit at such new retail establish- ment." Pursuant to the terms of the memorandum of agreement, the parties then contracted to extend the terms of the contract, for its full term, to the employees at the new retail establishment, subject to the limitation ex- pressed in paragraph 3 that "The application of said collective bargaining agreement shall be distinct and separate for each of the Employer's said retail establish- ments, that is, seniority shall be established and recognized by department on a store basis." On the basis of the documentary evidence reviewed above, I find that until March 19 , 1969, the date of the execution of the memorandum of agreement pertaining to the Northway employees, it was the agreement of the Union and the Respondent to bargain collectively in a single overall unit encompassing employees in like classifi- cations at all retail establishments operated by the Respondent in the "Greater Omaha, Nebraska Trade Area." I further find, in accordance with Board precedent, that the validity of the accretion agreed to by the parties under the terms of the collective -bargaining agreement was assured when a majority of the employees at the Northway store designated the Union as their collective-bargaining representative . The foregoing findings notwithstanding, I further find that by the events of March 19, 1969, and particularly upon the contents of the memorandum of agreement executed on that date , the parties abrogated their prior agreement to bargain in a multistore unit, and agreed to bargain for the Northway employees in a separate unit. I am aware, as the General Counsel and the Union argue, that by the memorandum of agreement the parties agreed to extend the terms of the existing contract to the Northway employees, and that, subsequent to the execu- tion of the memorandum , the parties met on two occasions for negotiations without any discussion of whether the unit appropriate for bargaining was a single-store or a multi- store unit. The application of a single collective-bargaining GEM INTERNATIONAL, INC. 527 agreement to employees in separate bargaining units is not, without more, proof of accretion or an agreement to bargain on a multistore basis.14 As to the negotiation meetings which were held after the Union served notice of intent to renegotiate the 1968-71 agreement, the silence on the issue of what unit would prevail for the negotiations process is no more persuasive of the General Counsel's contention than the extension of the contract. Joint negotiations for employees in two separate units, like execution of a single contract, is not sufficient to warrant a finding of accretion, or to vitiate the appropriateness of prior existing separate bargain units.15 I am also aware, again as the General Counsel and the Union argue, that it is possible to construe the third numbered paragraph of the memorandum of agreement of March 19, 1969, as providing for separate and distinct application of the contract to each retail establishment, only insofar as the seniority provision of the contract is concerned. This is a fair construction of the language of the provision, but, assuming that this was the intent of the parties, I find it insufficient to contradict the finding that the parties agreed to abandon the prior commitment to multistore bargaining. As the Union admitted on the record in this case, seniority is a fundamental provision of any collective-bargaining agreement. As the Board has held, moreover, separate seniority provisions, albeit con- tained in a single bargaining agreement eventuating from joint negotiations, are a primary factor in support of a finding that the negotiating parties intended to maintain the separateness of the preexisting bargaining units.16 The denial of the contentions raised by the General Counsel and the Union, referred to immediately above, does not mean that all events and circumstances occurring after execution of the memorandum of agreement of March 19, 1969, are irrelevant to the issue of which of two alternative units was agreed upon by the parties for the purposes of collective bargaining. The finding above that the parties agreed by the memorandum of March 19, 1969, to abrogate the prior agreement to bargain in a multistore unit is supported in substantial part by the evidence of the Union's conduct after the filing of the decertification petition by employees at the Southway store. On Septem- ber 17, 1971, a few days after the decertification petition was filed in the region, the Respondent notified the Union that it desired the discontinuance of negotiations pending a Board determination of the Union's majority status. Insofar as the record before me reflects, the Union made no protest, and it was not until approximately 60 days later that the Union demanded the resumption of negotiations. When this demand was made, however, the Union did not suggest any obligation on the part of the Respondent to resume negotiations for all of the employees it now contends were included in the multistore unit. On the contrary, the Union demanded that, insofar as the decertification petition applied on to the Southway store, negotiations should be resumed for the separate unit in the grocery department at Southway and the employees at the Northway store. The Respondent agreed, and negotiations were resumed on December 1, 1971. On the basis of the evidence credited above, I find that the Union was content to bargain for those employees specified in its letter of November 16, 1971, and raised no assertion that the appropriate unit for bargaining included the employees in the Southway store. It was not until February 18, 1972, nearly 3 months after the Regional Director had adminis- tratively dismissed the decertification petition, that the Union demanded that the Respondent bargain in a multistore unit encompassing both the Northway and Southway employees. Silence does not always connote acquiescence in the position advanced by the other party, but upon the whole of the record before me I find that the Union's conduct, on and after the date of the filing of the decertification petition on behalf of the Southway employ- ees, clearly indicates that it had previously committed itself to bargaining for_ a separate unit of employees at the Northway store. Upon the foregoing, and all of the relevant evidence in the record, I find and conclude that at the time the Respondent's violation of Section 8(a)(5) of the Act is alleged to have occurred, it was the agreement of the Union and the Respondent that a recognized and appro- priate unit for the purposes of collective bargaining was a unit of employees in specified classifications at the Respondent's Northway retail store. Ergo, as the Respon- dent's Southway store was the only other segment of its Omaha operations in which the Union enjoyed the right to represent the employees, the employees in the Southway store also constituted a separate unit appropriate for the purposes of collective bargaining. It was the decertification petition filed on behalf of the Southway employees which gave rise to the Respondent's refusal to continue the bargaining relationship until the question concerning representation had been resolved. As related above, the decertification petition was dismissed on grounds of the inappropriateness of the unit, and it is axiomatic that the unit appropriate for the purposes of a decertification petition must be coextensive with the bargaining unit previously certified or recognized. The Board has held, nevertheless, that where a multioperational unit has been previously certified or recognized, a union and an employer may, by a course of conduct, fracture the composite unit into separate single operational units, each appropriate for a decertification election.i7 By the execu- tion of the memorandum of agreement of March 19, 1969, the Union agreed to fracture the previously established multistore unit, and to bargain instead in separate units for the Northway and Southway employees. There remains for consideration the additional issue as to whether the Respondent's discontinuance of the negotiations with the Union for the employees in the Southway bargaining unit was in good faith, and attended by objective considerations that the Union had lost its majority status. This rule was promulgated by the Board in the U.S. Gypsum case,18 and is applicable to 9(c)(1)(B) representation petitions filed by an employer who seeks to 14 Wyandotte Chemicals Corporation, 116 NLRB 972, 974-975 15 Remington Office Machines, Minneapolis Branch, 158 NLRB 994, 996. and Wyandotte Chemicals, supra 16 Wyandotte Chemicals, supra, at 974-975 17 Clohecy Collision, Inc, 176 NLRB 616, 617 18 United States Gypsum Company, 157 NLRB 652, 656 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question the majority status of an incumbent bargaining representative. The Board held in U. S. Gypsum: ... in petitioning the Board for an election to question the continued majority of a previously certified incumbent union, an employer, in addition to showing the union's claim for continued recognition, must demonstrate by objective considerations that it has some reasonable grounds for believing that the union has lost its majority status... . The alleged question concerning representation which gave rise to the Respondent's refusal to continue the bargaining relationships for the Southway employees arose on a decertification petition filed on behalf of the employees, and not, initially, on a petition filed by the Respondent under Section 9(c)(1)(B) of the Act. In this circumstance, the rule promulgated in the U.S. Gypsum case is not strictly applicable. The General Counsel and the Union contend, nevertheless, that the Respondent had no good-faith doubt of the Union's continuing majority as the representative of the Southway employees, and they argue that under Board precedent the pendency of a decertifica- tion petition does not, necessarily, justify an employer's refusal to bargain. I agree that in some limited situations, such as where the parties are within the certification year, this is Board law. In other situations, as where the employer instigated or sponsored the decertification petition, or where the employer's bad-faith bargaining tactics have fomented the employees' dissatisfaction with union representation, the Board will not treat the pendency of a petition to oust the union as a defense to a refusal to bargain. These are not, however, the facts of this case. The parties are not within the certification year, or even in the first year of the bargaining relationship. There is no evidence that the Respondent instigated, sponsored, or contributed to the filing of the decertification petition, and a prior charge filed by the Union to this effect was withdrawn. Similarly, there is no allegation and no proof that the Respondent bargained with the Union in bad faith, or that it utilized tactics designed to undermine the Union and destroy its majority status. In the presence of these circumstance, a valid decertification petition, neces- sarily supported by a 30 percent showing of interest as required by the Board's rule, warrants the conclusion that the Respondent's doubt of the Union's majority status was asserted in good faith. The Respondent, nevertheless, filed the RM petition after the Regional Director had administratively dismissed the RD petition on grounds of the inappropriateness of the unit. The record reveals that at the request of the Region the Respondent supplied a list of objective considerations which caused it to question the Union's continuing majority status, and the Regional Director thereafter noticed the RM case for hearing. At the hearing in this proceeding, the Respondent again proferred evidence of those events and circumstances which caused it to question the Union's majority status and file the RM petition. Of primary importance among such events and circumstances was the decertification petition which had been filed on behalf of the Southway employees on September 13, 1971, and which I have found above was a valid RD petition, untainted by any overt or covert conduct on the part of the Respondent. In addition, however, Charles W. Jinuson, manager of the Southway store, testified that at the time the decertification petition was filed only 29 out of a complement of approximately 101 unit employees had executed authorizations for the checkoff of their union dues. Jimison also testified that, during the period before and after the decertification petition was filed, 18 to 20 employees personally expressed dissatisfaction to him about the Union. Jimison identified three letters, dated both before and after the,filing of the decertification petition, which employees had sent to the Union, with copies to the Respondent, by which the employees withdrew from membership in the Union. Jimison also identified a copy of a letter, dated March 20, 1972, given to him by an employee, in which 13 signatory employees requested the Regional Director to add their names to the decertification petition. In addition, Jimison testified to additional reports from managerial and supervisory personnel at the Southway store of conversa- tions in which employees expressed dissatisfaction with the Union's representation, and Jimison also related that only 18 Southway employees participated in the strike which began on June 22, 1972. It is clear from the record, as the General Counsel and the Union assert, that some of the events and circum- stances relied on by the Respondent as grounds for its doubt of the Union's majority transpired after the decertification petition, and some transpired even after the Respondent had filed the RM petition. It is equally clear, again as the General Counsel and the Union assert, that, under Board precedent, such circumstances as the number of employees on checkoff and the degree of participation in the strike are not, at least standing alone, sufficient evidence of the Union's majority status to support an assertion of good-faith doubt.19 I find, nevertheless, that in the face of a pending decertification petition, the objective considerations advanced by the Respondent are sufficient to support its asserted good-faith doubt under the rule of U.S Gypsum, supra. The Respondent initially discontinued the bargaining relationship for the Southway employees when the RD petition was filed, and it refused to resume the bargaining relationship in this unit after the Regional Director noticed the decertification petition for hearing. Although the General Counsel argues that the mere filing of the decertification petition was insufficient to support the Respondent's assertion of good-faith doubt because of the absence of proof that more than 50 percent of the employees in the unit had signed the petition,20 I find no merit in this argument. Both before and after the filing of the decertification petition the Respondent was the recipient of information indicating employee dissatisfac- tion with the Union's representation of the employees. In filing the RM petition after dismissal of the decertification petition, the Respondent acted in good faith, and the validity of its objective considerations is supported by the evidence that the Regional Director accepted them and noticed the RM case for hearing. is Terrell Machine Company, 173 NLRB 1480, 1481 language of the Trial Examiner in Wabana, Inc, 146 NLRB 1162, 1172, 20 In support of this argument the General Counsel relies on certain which I find inapposite to the facts of this case GEM INTERNATIONAL, INC. In summary, I find and conclude that the General Counsel has not sustained the burden of proving that the Respondent has violated , or is violating, Section 8(a)(5) of the Act by refusing to bargain with the Union , and I shall recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 21 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. 529 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has not proved by a prepon- derance of the evidence that the Respondent has engaged in, or is engaging in, any unfair labor practices alleged in the complaint. RECOMMENDED ORDER I hereby recommend that the complaint herein be dismissed in its entirety.21 102.48 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. r