Weber's Bakery

WEBER'S BAKERY Erich R. Weber and Bernadine T. Weber, Co-Partners, d/b/a Weber's Bakery and Retail Food and Drug Clerks Union, Local 1550, Retail Clerks Interna- tional Ass'oeiation, AFL-CIO. Case 13-CA-12475 May 31, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 28, 1974, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the Respondents filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. 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 considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,I and conclusions of the Administrative Law Judge as modified herein, and has decided to adopt her recommended Order. The Administrative Law Judge found that in March 1973, and thereafter, the Union represented a majority of the employees in the appropriate bar- gaining unit. She further found that because of their course of conduct, Respondents may not rely on any apparent loss of majority thereafter as justification for refusing to bargain with the Union. She also concluded that the evidence will not support a finding that the Union did not represent an un- coerced majority during the 10(b) period. In this regard she found that all of the seven union members who testified revealed that they continued to pay their union dues at least through May 1973, and expressed no complaints until sometime in May; in May their major, if not sole, complaint concerned the Union's failure to obtain -a contract; and the first defectors from the Union came only after Respon- dents made clear their reluctance to sign a contract, and suggested an election by which time Respon- dents had taken various actions clearly designed to undermine the Union. Respondents' main defense to the 8(a)(5) allega- tions is a claim that the Union did not have an uncoerced majority status on June 15, 1973, when by i The Respondents in effect have 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 cle4r preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 211 NLRB No. 3 1 filing the RM petition Respondents refused to bargain with the Union. In effect Respondents are claiming that they did not violate Section 8(a)(5) since June 15, 1973, by refusing to bargain because Respondents, themselves, violated Section 8(a)(2) of the Act by recognizing and contracting with a minority union for over 11 years, and, because in 1972 after the expiration of the last contract, Respondents and/or the Union "coerced" employees to join the Union under a purported union-security provision. In No H. Denham and Geraldine A. Denham, d/b/a The Denham Company, 469 F.2d 239, 245 (C.A. 9, 1972), enfg. 187 NLRB 434, the court stated: . .. for we conclude that the statute of limita- tions in § 10(b) . . . precludes us from looking to any coercive effect antedating the six-month period preceding the filing of the charge in the instant case. [Citation omitted.] This is not a case in which evidence of events occurring before the six-month period is sought to be used to show that matters within the period constituted unfair labor practices. [Citations omitted.] Only if the record shows that the coercive effect of the Union security arrangement yielded a coerced majority during the six-month period and subsequent thereto would it be permissible to require the withdrawal of recognition; therefore, we reject the Company's argument that it should be permitted to withdraw recognition... . ... If the coercion of workers constituting a majority is attributable to unfair labor practices that are not within the reach of the Board's remedial powers, it is difficult to see why the Union should be regarded any differently than one whose majority is attributable to the coercion of permissible union security provisions. There- fore, since the record clearly shows that all or nearly all of those workers belonging to the Union were employed prior to the period begin- ning six months before the filing of the charge in the instant case, we cannot say that the Union's majority was tainted or coerced. Thus, it is clear that in the present case the alleged coercion by Respondents and the Union in June 1972, and on December 7, 1972, which, according to Respondents, shows a lack of uncoerced majority, cannot be considered because of Section 10(b) of the 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. We hereby correct the following inadvertent error in the Decision of the Administrative Law Judge which in no way affects her decision or our adoption thereof: In fn. 7 the date regarding the pension fund should be 1972. C 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, since here there is no evidence to indicate that within the 6 monthsbefore the filing of the charge or for that matter. within 6 months before the first refusal to bargain on June 15, 1973, any employee was coerced either by Respondents or by the Union into signing a membership card or that any of the 11 or 12 employees who formed the majority signed a membership card after December 15, 1972. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Erich R. Weber and Bernadine T. Weber, Co-Partners, d/b/a Weber's Bakery, Chicago, Illinois, their officers, agents, successors, and assigns, shall take action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed by Retail Food and Drug Clerks Union, Local 1550, Retail Clerks International Associa- tion, AFL-CIO (the Union), on July 3, 1973, a complaint was issued on November 2, 1973 , against Erich R. Weber and Bernadine T. Weber, co-partners, d/b/a Weber's Bakery, Respondent, alleging that in the period February through June 1973 Respondent violated Section 8(a)(1) of the Act ' in various ways and since January 3, 1973, has refused to bargain with the Union in violation of Section 8(a)(5) and (1). Pursuant to due notice, a trial was held before me in Chicago, Illinois, on December 4 and 5, 1973. All parties were represented by counsel and were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. Respondent and the Charging Party presented short oral arguments. Since the hearing, briefs have been filed on behalf of the General Counsel and the Charging Party. Upon the entire record, together with careful observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS The complaint alleges, the answer admits, and I find that: A. At all times material herein Respondent has been i National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151 et seq.). 2 Although the complaint and answer establish that Respondent is a partnership consisting of Erich Weber and his wife, Mr. Weber identified himself at the hearing as the "owner" and for all practical purposes the business appears to be run as a one-man enterprise. Accordingly, for the sake of linguistic convenience, Weber personally will be here referred to as engaged in the manufacture and retail sale of bakery products in Chicago, Illinois. During the past year, a representative period, Respondent had a gross volume of business from the sale of its products in excess of $500,000. During that period Respondent purchased materials valued in excess of $2,000 from points directly outside Illinois and arranged to have said materials shipped directly to its location within Illinois. Respondent is now and at all times material herein has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A.- The Issues Since 1961 Respondent has had collective-bargaining agreements with the Union covering his 2 sales employees,3 the most recent agreement having been in effect from October 13, 1969, through October 14, 1972. The com- plaint alleges that after the expiration of that contract, and during the 6 months preceding the filing of the present charge (on July 3, 1973), Weber engaged in a course of unlawful conduct "designed to undermine the Union and destroy its majority status" and unlawfully refused to bargain with the Union by engaging in dilatory tactics and bad-faith bargaining, granting unilateral wage increases, bargaining directly with employees and finally, around June 15, 1973, withdrawing recognition and filing a representation petition "without having objective consider- ations to support its contention that the Union had lost its majority status." As stated by Respondent's counsel in closing argument at the hearing, his "contention is that these employees were coerced into joining the Union, and that at no time did the Union have a majority of the employees at Weber's Bakery." This position was based on proffered evidence that the employees who belonged to the Union had been coerced into joining under threat of loss of their jobs in July and December 1972. It was the position of the General Counsel and the Union that the collective-bargaining agreement in effect until October 14, 1972, created a presumption of the Union's continuing majority thereafter and that Respon- dent could not attempt to rebut such presumption by evidence of events occurring before the Section 10(b) period. Since the "coercion" of the employees asserted by Respondent's counsel occurred before the Section 10(b) period, the General Counsel and the Charging Party objected to Respondent's being permitted to present evidence in support of its defensive position. I ruled that I would permit Respondent to present "background" evi- dence and a "reasonable" amount of evidence to make a record in support of his asserted defense even if I should the Respondent. 3 Although Respondent raised some questions concerning the unit definition, as set forth below, there is no substantive dispute among the parties that this case involved Respondent's retail sales employees, Respondent's only employees other than bakers, who are represented by another union and are not involved in the present proceeding. WEBER'S BAKERY eventually rule that the defense was legally improper or insufficient. In the main, I limited the "reasonable background" period to a year before the beginning of the, Section 10(b) period, or beginning on January 1, 1972.4 Although there were other issues, as the parties presented the case, the basic issue was whether Respondent was legally obligated to bargain with the Union as the majority representative of the employees in 1973. B. The Evidence 1. The General Counsel's case a. Weber's dealings with the Union In the Chicago metropolitan area, collective bargaining covering bakery salesclerks is conducted initially between the present Union and "The Retail Baking Industry in the Chicago Area." Normally, as a collective-bargaining agreement is about to expire, negotiations are arranged by the Union and the three largest commercial bakeries, represented principally by an "Industry" attorney. Other area bakeries, of which there are many,5 are invited to participate in the negotiations. It appears, however, that the participation of the independent bakeries in the negotiations is neither widespread nor continuous. After agreement has been reached between the Union and the "Industry" (i.e., essentially the big three), the contract is printed as a "master" and is presented to each of the other area bakers for signature. There is no dispute that the "Industry" group does not speak for any of the independ- ents and the master contract is not binding on any bakery employer until he has adopted it individually by signing a copy. It further appears that the Union has never executed any contract differing from the master agreement. Respondent has a bakery and retail store at 63rd Street in Chicago. Since February 1970 he has also maintained a somewhat smaller retail store on Archer Street, in another section of Chicago. It is the salesclerks with whom this case is concerned. The total number of salesclerks at both stores has been roughly 15 to 19, of whom 2 or 3 have been full- time employees, with the rest high school students working part-time. Since 1961 Respondent has individually adopted the successive 3-year master contracts, the latest being effective from October 13, 1969, to October 14, 1972. Gerald R. Gesiakowski, the union business representa- tive assigned to Respondent's 63rd Street store, visited the store around the end of June 1972.8 At that time, he mentioned to Weber that negotiations for a new "Indus- try" contract would probably be started soon. Apparently Weber then suggested that he would like to negotiate his own individual contract. Weber testified that he was told such negotiations were not permitted. Under date of 4 By subpoena, Respondent sought to obtain the Union's membership and dues records covering Respondent's sales employees from 1961 to date. At my suggestion, without formal ruling on the Union's application to revoke the subpoena, and without any decision as to relevancy or admissibility of the subpoenaed evidence, the parties agreed to restrict the subpoena to the period since January 1, 1972. The material specified in the limited subpoena was produced. Pursuant to Section 102.31 of the Board's Regulations, discussion of the subpoena matter as such does not appear in the record. 5 The number was vaguely put at "a couple of hundred." 3 August 1, 1972, in what appears to be a form letter, over the signature of Morrie D. Wishnick, Secretary-Treasurer, the Union notified Weber of the Union's desire "to reopen the Agreemnt for negotiations, pertaining to wages, hours and working conditions." The letter suggested that Weber communicate with a representative of the big three bakeries to learn the date of the negotiations . Weber did not do so, and did not participate in the ensuing "Industry" negotiations. On or about September 19, 1972, Weber again said that he would like to negotiate his own individual contract with the Union. Gesiakowski replied that he had no authority to negotiate, but would be happy to arrange for Weber to meet the Union's "executive officer." Weber said that he said he would take the offer under advisement. In January 1973 Gesiakowski advised Weber that the Union and the "Industry" were approaching agreement on a contract. When Gesiakowski, in response to Weber's inquiry, summarized the Union's demands in the pending "Industry" negotiations, Weber indicated that he could not meet such demands and again asked if he could negotiate individually with Gesiakowski. Gesiakowski expressed doubt that the Union would achieve its total demands and again stated that he had no authority to negotiate but would willingly arrange for Weber to talk to Wishnick. Gesiakowski recommended that Weber act promptly. Weber indicated that he was too busy for such a meeting at that time. The "Industry" master agreement was reached around the middle of January 1973, effective October 15, 1972, through October 18, 1975. Like the 1969-72 contract, it contained, inter alia, a union-security clause and provisions for payments into the Union's pension and health and welfare trust funds.7 On January 18, 1973, letters summa- rizing its terms were sent to the independent bakers. The contract was then printed and became available for distribution apparently in March 1973. Around the middle of March, Gesiakowski took printed copies of the master contract to Respondent's establish- ment and asked Weber to sign. Weber requested an opportunity to read and study the contract. Accordingly, Gesiakowski left the two copies and said he would return in about 2 weeks. Gesiakowski returned to Respondent's bakery around April 10. At this point Weber said he objected to several of the contract's provisions, which he believed were ill-suited to his small-scale operation. Gesiakowski said that Weber should have done something before then, but that Gesiakowski would consult his superiors in the Union and return. Gesiakowski then did speak to his superiors, and Business Agent Ronald Luesman was assigned to assist. On April 19, Gesiakowski and Luesman visited Respon- dent. Weber said that he had not had time to study the B Gesiakowski first testified that his first contract with Weber was around the beginning of July 1972. He later testified that around April 1972 he and Business Agent Ronald Luesman spoke to Weber, but the visit he referred to happened around the end of June. At another point, Gesiakowski said he had been to the store five or six times before that occasion. 7 All the prior contracts had umon-secunty clauses The health and welfare provision apparently began in 1966 and the pension fund provision in 1969. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement in detail, but again indicated that he objected to some of its provisions. The union representatives asked that he study the contract and specifically jot down the objectionable features before their return 2 weeks hence. When Gesiakowski and Luesman returned on May 2, Weber listed the following four objections to,the master agreement: (1) Time-and-a-half for Sunday work by part- time employees. He said that the "big three" presumably agreed to that provision readily because they are not open on Sundays. Weber suggested that he would be willing to pay some premium for Sunday work, but not time-and-a- half. (2) Union scale wages to employees during their first 30 days' employment, before they had learned their jobs. (3) Health and welfare fund payments for part-time employees .8 Weber felt that the part-timers did not need the protection since, as young school girls, they probably had sufficient coverage through their parents. (4) Pension fund payments for part-time employees. Weber believed it unnecessary to cover part-time employees in the pension fund since they probably would not stay in the business long enough ever to realize any pension benefits. The union representative expressed personal sympathy for and understanding of Weber's position. According to Weber, the union representatives said, in effect, that they would not strictly enforce the specific provisions which Weber specified as too onerous. Weber, however, protested that he wanted a contract he could obey. The union representa- tive said they would discuss the matter with Wishnick, who alone had authority to agree to variations from the master contract. Weber said he would appreciate their doing so. A meeting of Weber and Wishnick was later scheduled for May 15, 1973. However, in a supposedly confirmatory telephone call by Gesiakowski on May 14, Weber cancelled the meeting on the plea that he was too busy. On June 1 Gesiakowski telephonically advised Weber that an "addendum" to the contract had been prepared to meet Weber's objections to the master contract. It was agreed that the union representatives would deliver the addendum to Weber. On June 7, Gesiakowski and Luesman visited Weber and attempted to give him copies of the "addendum," but he refused to accept them. Weber testified that in no uncertain terms he informed them that he was not interested. Weber at this time mentioned additional portions of the master contract to which he objected. Principally he added an objection to the "nondiscrimination" provision, which, according to the credited testimony of Gesiakowski and Luesman, Weber said might cause difficulty if he rejected the employment applications of any Negro employees. The union represent- atives stated that the nondiscrimination clause was essentially a formality and did not add anything of substance to the law as it then stood and that any potential problems Weber envisaged were already present under the law and would be unaffected by the contract provision.9 Weber said that he was having the contract examined by "someone who understood these things" and then conclud- ed the meeting by walking out. The addendum, which had been approved by Wishnick, met Weber's original objections as follows: (1) It provided premium pay of 50 cents per hour, rather than time-and-a- half, for Sunday work by part-time employees. (2) It left to the employer's discretion wages to be paid employees during their first 30 days (subject only to the Federal minimum wage). (3) It eliminated from the health and welfare fund provision part-time employees working less than 26 hours a week, who, under the contract, were to be covered as of October 1, 1974. (4) It excluded part-time student employees from the pension payment requirement during the first 6 months of their employment. When Gesiakowski called Weber on June 13, 1972, Weber said he would not sign a contract, but stated no reason for his decision. Weber stopped making payments to the pension fund after the one for April 1973. On June 15 Respondent filed a representation petition with the Board. b. Respondent's dealings with the employees In February 1973 Weber granted his sales employees a general wage increase retroactive to October 15, 1972. Weber testified that the increases then granted were "very similar" to those called for in the recently executed master contract. Employee Carol Kite, a witness on behalf of Respondent, testified that when she received the retroac- tive raise she was told that it was "because of the new contract." Thereafter Weber granted individual length-of- service increases in accordance with the pattern of ascending wage scales contained in the current master contract and in the previous contracts. According to employee Susan Gramont, Respondent also started to pay time-and-a-half for Sunday work, as required by the contract, instead of the 10-cent-per-hour premium he had previously paid. Additionally, there was evidence that Respondent began to pay all employees for holidays, whereas he had formerly paid only those employees who were scheduled to work those days. All the testimony is confused, vague and inconsistent as to dates. The following recital of the temporal evolution of Weber's position in discussions with the employees is based on a composite of the testimony systematized to conform to the inherent probabilities. It was probably in the latter half of March 1973 that the Union sent copies of the "Industry" contract to the employees, apparently with the monthly bills for union dues, in accordance with its practice of enclosing bulletins and notices with its bills. Thereafter, apparently beginning toward the end of March, Weber questioned employees, individually and in groups, concerning their opinions of the contract and the Union. The employees betrayed their lack of sophistication about such matters, and apparently looked to Weber for enlightenment. He told them that he felt the "Industry" contract was designed for the large bakeries and was unsuited to and prohibitively expensive for his small operation. He stated that he wanted to and was trying to obtain an individual contract tailored to his 8 Under the contract, until October 1, 1974, only part-time employees contract to which he said he objected at some time during his talks with regularly working more than 26 hours per week are covered by the health Gesiakowski, These provisions, such as the successorship clause, apparently and welfare provisions . had been contained in the prior contracts that he had signed. 9 In testifying, Weber mentioned several additional provisions of the WEBER'S BAKERY 5 particular operation. The employees apparently accepted Weber's view and "stated their agreement that the "Indus- try" contract was too onerous for him. Some of the employees suggested that it was their own idea that the contract was too expensive for Respondent. For example, Gramont, called by the General Counsel, testified as follows concerning a conversation with Weber sometime in March or April: , He came in and he asked me if I had seen the contract, the pink contract, and I said I had. And he asked me what I thought about it, so I said, well, I had read it over and didn't understand how he could pay all that out because at our bakery we have mostly part- time girls, and it would be foolish. And I said-and I said he would end up going bankrupt. Around the middle of May, Weber held employee meetings, first at the Archer Street store and then at 63rd Street. Weber stated that he was not going to sign the "Industry" contract because it was too costly for his small operation. He apparently also indicated that he was still interested in obtaining an individual contract suited to his particular situation. However, some of the employees had begun complaining among themselves about the ineffec- tiveness of the Union, as evidenced by the fact that no contract had as yet been signed . Although so far as appears none of the employees made any attempt to communicate with the Union, at these employee meetings they passed their complaints on to Weber. The following testimony by employee Christine Nehmzow, called by the General Counsel, is perhaps a fairly accurate summary of part of the discussion at the Archer Street meeting: [Weber] asked us if we read the contract and what we thought about it. And our response to his question was that it wasn't, you know, we have never seen a contract before. I mean, we figured that he couldn't afford it because it was quite big for a bigger bakery. Q. Is that what you told him? A. That is what we more or less asked him, and he said that it was. He couldn't afford it because it was for a bigger bakery. • • s s Well, we complained about paying Union dues once a month and not getting anything out of it because he didn't sign the contract. We talked about it. It seemed too big for him to sign, too big like for a bigger store. JUDGE: What did he say, if anything, when you complained? THE WfmEss : He said it was a big contract for a bigger store, yet he would like to negotiate a contract for his store. As a specific item of expense under the contract, Weber referred to the pension fund payments. He said that he was required to pay into the union pension fund 5 cents per employee hour. He proceeded to say that, since the employees would probably not remain in the business long enough to realize any pension benefits , he would rather give the extra 5 cents per hour directly to them than pay it over to the Union. At the 63rd Street meeting, Weber raised the possibility of having an election and volunteered to petition for one. Although Respondent apparently maintains that the employees generally indicated a desire to drop the Union, the credited evidence establishes only that they indicated their willingness to participate in an election. For example, employee Margaret Smith,10 a witness on behalf of Respondent, testified as follows: A. [Weber] had asked [the employees] while I was there whether they would want to stay in the Union or not. They all said they didn't. Q. You heard the girls, each one of these girls: Carol, Diane, Mary, and Cathy, all say, "I don't want to stay in the Union"? A. Yes. Not in those exact words, probably. Q. But you heard them reply they didn't want to stay in the Union? A. Yes. But after being shown a pretrial affidavit she had given to a Board agent, she testified as follows: In this affidavit I said I didn't know whether the girls said yes or no, whether they wanted to stay or leave the Union. But that is what I, in my mind, that is the way I thought the meeting went. JUDGE: What is your present recollection? THE WrrNEss: That, well, Mr. Weber had said that he would-he would file a petition if the girls wanted it. So maybe I am just drawing the conclusion in my mind that he wouldn't have stated that if they hadn't wanted it. JUDGE: In your present recollection do you recall what, if anything, the girls said? THE WITNEss: As far as in my present recollection I recall them saying that they would like to have the election, which would mean they would like to try to get out of the Union. At the meeting they said that they wanted the election. They would like, you know-they were hoping that Mr. Weber could get the election. Q. [By Union counsel] And at a later time to you personally they said they wanted to get out of the Union? A. Yes. Employee Kite's testimony similarly reflects that some employees expressed dissatisfaction but stopped short of disavowal of the Union: Q. What did you say? A. Well, I didn't like the Union. Here the contract was negotiated in February and ready to sign and here it was May already and they were just coming around with it. And I wasn't informed-I wasn't under the contract yet, and I was paying dues here already. I don't think I saw my Union representative twice after I joined the Union.... I don't think it was fair to me that I wasn't informed about things when I was in the Union. 10 At the time of the hearing, Smith's name was Mrs. Bugho. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Do you recall if any of the other girls said anything? A. Well, most of them were just about of the same opinion. Q. What did they say to Mr. Weber? A. Well, they sort of all agreed with part of what I said, and I agreed with whatever they said almost. Q. What did Mr. Weber say? A. He said he was not planning on signing the contract and that if we wanted the contract-if we wanted to be in the Union it was up to us, that we could try to get out of the Union if we wanted to, but he wasn't pushing us to do it. By June 1 Weber had apparently finally decided to discontinue his relationship with the Union. Mary Ann Seliga, a full-time employee at the Archer Street store from February 1970 until October 1973, testified as follows concerning a telephone conversation she had with Weber around June 1: Well, he called me up and he asked me if I had read the contract, and I said I had read some of it but not everything in it. And he said that he wasn't going to sign the contract, that there was a lot of things in there that he didn't care, like the packing and boxing and stuff like that; and when it was about the pension plan, he said he was paying in for the pension plan, and he said it was costing him so much if he had to keep paying in he would go bankrupt, and he said that if he wasn't in the Union he could give us more money, but if he had to stay he might have to cut some of our wages because it was, you know, just too much for him. Well, he told me that none of the girls were paying the dues into the Union, that he wasn't in the Union any more, didn't want to be, and he said that when we get these statements from the Union that I could write a note and put it in there and mail it back and say I wasn't going to send no dues any more because we weren't Union. Weber rather clearly indicated his own preference by saying, in effect, that he felt he could rely on the 63rd Street employees but was not so confident about the Archer Street girls. However, it is undisputed that Weber assured the employees that the choice in an election was entirely up to them and that he would abide by the results of an election. Respondent made no payments to the pension fund after the one covering the month of April.it Shortly after the May meetings, the employees were granted a general wage increase of 5 cents per hour in lieu of the pension fund payments. It is most improbable that young inexperienced employ- ees would spontaneously react to the new contract by fearing that it might "bankrupt" their employer. This is particularly true, where, as here, they have received a substantial retroactive wage increase under the contract and an additional increase equaling the cost of the contractual pension fund. And it is also improbable that the employees would spontaneously place the blame solely on the Union for Respondent's failure to execute a new contract. The evidence as a whole warrants the inference, which is here drawn, that Weber instigated employee criticism of the Union in an attempt to undermine its status. Employee Seliga credibly testified as follows concerning a conversation with Weber on or about June 15: [Weber] called me in my home after I got off work, and it was a Saturday, and he asked me if a Union man was in my house. And I told him no. I said the Union man did drive me home because it was raining and I couldn't get ahold of my husband, and Union man said as long as he was there he would drive me over to the house. It was just around the block and through the alley. [Weber] said I had no right of having the Union man in my house. He said he had taken the Union sign and thrown it out. He said the Union man had no right in his store. If I was on duty and he came in I should call the police and have them taken out. There had been a union sign posted in the Archer Street store since December 1972 but it never reappeared after June 15. As previously stated, Respondent filed an RM petition on June 15. The charge in the present case was filed on July 3. In October 1973 Respondent granted a general wage increase, as provided for in the current "Industry" agreement. Weber testified that it was his customary practice to grant a wage increase in October . Such practice has been required under the collective-bargaining agree- ments which he has executed since 1961. 2. Respondent's defense Respondent's basic contention is that the Union never represented an uncoerced majority of the bargaining-unit employees. His method of supporting this contention was to establish the size of the unit, identify the union members, and then show that a sufficient number of the memberships had been secured by coercion to negative a majority. Maintaining that no evidence was admissible as to the circumstances under which employees joined the Union more than 6 months before the charge was filed, the General Counsel and the Union objected to virtually all of Respondent's evidence. The following statement is based primarily on evidence adduced by Respondent, either through his own witnesses or by cross-examination of the General Counsel's witnesses, over objections. Respondent's monthly lists of employees for the period January 1972 through September 1973,12 show a maximum of 19 salesclerks at any one time. While it is likely that, as the General Counsel suggests in his brief, the size of the unit has been somewhat overstated by Respondent,13 no such specific finding is here made since it would not affect the decision in this case. 11 In August 1973 the health and welfare trust instituted a judicial action omitted, apparently inadvertently, from those introduced into evidence. against Respondent for an accounting of fund payments . That action is still 13 Although Weber testified that he had had an employee prepare the pending. lists, each of them contains at least two names added at the bottom in 12 With the exception of June and July 1973, lists for which were handwriting totally different from the original list. None of the added WEBER'S BAKERY 7 Respondent also introduced into evidence 12 union membership application cards which had been provided by the Union as its record of membership by Respondent's employees, since January 1, 1972,= One of these cards had been executed by Grace Kampwirth, who had left Respondent's employ before the period here involved. Another had been executed by a new employee in July 1973, after the crucial period.14 On the other hand, in addition to the membership application cards, there was considerable undisputed evidence that employee Lottie Super, who was employed by Respondent during the period involved, was a member of the Union. Thus, the evidence shows that as of January 1973, the beginning of the alleged refusal to bargain, 11 of the unit employees were members of the Union. So far as appears, all these employees remained members of the Union until early in June 1973, when, as set forth below, three employees withdrew from Union membership and stopped paying dues. It is Respondent's contention that at least 9 of 11 union members were coerced into joining, and that therefore the Union never represented an uncoerced majority. The following is essentially a summary of the evidence adduced relevant to the alleged coercion. Weber testified, without contradiction, that from 1961, when he signed his first collective-bargaining agreement with the Union, it was understood and agreed between him and Mr. Shippits, Gesiakowski's predecessor, that only one of the sales employees had to join the Union and be covered by the contract. After the Archer Street store was opened in February 1970, the union representative de- manded that a second employee be brought under the contract. At some later time, apparently in 1971, a third employee was added. As of June 1972 Respondent's three full-time employees were members of the Union: Grace Kampwirth, Martha Wolter, and Lottie Super. Kampwirth left Respondent's employ in June 1972, but Wolter and Super apparently stayed on through the period involved in this case. None of the other employees, all part-time, were union members. Gesiakowski testified that on several occasions in the first half of 1972 he asked Weber about the number and identity of employees working at the store and accused Weber of "hiding" employees, i.e., of not reporting all employees, as required under the contract. According to Gesiakowski, Weber indicated that, in addition to the full- time employees who were in the Union and covered by the contract, Respondent had only part-time, irregular em- ployees who would not be covered by the contract. Gesiakowski made no attempt to speak to any of the employees and did not press Weber until around the beginning of July. Gesiakowski testified that at around 6 a.m., one Sunday around the end of June, he happened to pass the 63rd Street store and saw four or five employees about to go to work. Shortly thereafter, Gesiakowski and Luesman visited the store to require that additional employees be required to join the Union. According to Gesiakowski, the union representatives asked Weber when it would be convenient to visit the store to have the employees sign up. Weber said that he would prefer taking care of it himself because he "didn't want to cause any problems with back pay, and Union problems." It was agreed that four15 additional employees would be required to join the Union and be covered by the contract. Weber thereupon picked the employees required to join and instructed employee Mary Piszczer to have them execute membership application cards and give her 2 months' dues.16 She did as instructed and then gave the membership application cards and dues to Weber, who transmitted them to the Union.17 Weber testified that he did not want to force the employees into the Union but did so out of fear engendered by the union representatives' threats of "trouble" if he refused. Weber informed Piszczer, and, through her, the other employees, that they had to join the Union on penalty of discharge under the union-security clause. Weber told the employees that they would be better paid if they joined the Union.18 Two of the four employees who joined the Union in June 1972 testified. Diane Konieczny testified that she was not present at the time the others signed but that Piszczer telephoned her at home and "told me we were joining the Union and how much I had to pay for dues." Konieczny continued: "I just remember Mary saying that we were joining and it wasn't like there was any question about it." The next day at work she signed a card and paid her dues. At the time she was not told what, if anything, would happen if she refused to join. Employee Kite testified that Weber called her into his office and "said his girls had to join the Union and that I would have to join." She could not recall Weber's having said anything else. She then executed a card and gave it, together with Union dues, to Piszczer. Around the beginning of December 1972, Robert Flossy, the union business representative assigned to the Archer Street store, informed Weber that the sales personnel at that store would have to join the Union. With Weber's knowledge and approval, Flossy, accompanied by Lues- man, went to Archer Street and on December 6 and 7, names were mentioned in the testimony. Since Weber testified that the lists named "everybody that ever worked there" it is a reasonable inference that the added names are those of irregular part-time employees, who would not be included in the bargaining unit. In addition, the lists include the names of Smith and Elsie Holzrichter, either or both of whom were considered by Respondent and the Union as "managers" and thus outside the bargaining unit. 14 An additional card, executed by employee Smith, was introduced by the Charging Party. As set forth below, that card is not effective to establish union membership. is Weber said the number was five ; Luesman testified that the Union "picked up" four members at that time. The membership application cards introduced into evidence by Respondent contain only four signed at that time: Mary P. Kerrigan, Catherine M. Jesionowski, Carol A. Kite, Diane Komeczny. Weber listed "Donna Parker" in addition, but there is no card by her name in the record. 16 Although it is not entirely clear on the record , initiation fees were apparently waived, at Weber's request. 17 The record contains no card executed by Piszczer, a rank-and-file employee. The absence of such a card is unexplained. 18 Weber testified as follows concerning this event I gave the membership application cards to Mary, and I told the girls, "You have to join the Union or you will get fired." ... I said, "Mary, you collect the money from the girls and get it all together. Put it in an envelope. Give it to me I will give it to the Union" Q What did you do then? A. Well, I had to give an explanation to these girls ... I said, "Well, you will get paid more money, but I will have to put five girls in or I will have a lot of trouble." They said, "All right." And they did. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1972, obtained membership applications and dues pay- ments from five employees: Pauline Galenziewski, Chris- tine Nehmzow, Mary Ann Seliga, Mary Ann Vatch, and Susan Gramont. Concerning this event Luseman testified, in part: We told those employees we had a contract with Weber's Bakery and that the contract required that help be paid rates of pay according to the contract, and that each and every one of them would receive an increase in pay to what the current rate of pay was in the bakery industry at that time. • s s s w In one case, one of the girls asked me if they had to join the Union. . . . We told them there was a Union shop clause in the contract that required all people to become members of the Union... . On further questioning, Luesman said that they told the employees "that a new contract was currently being negotiated . . . and they would receive an additional increase when the contract had been finished being negotiated." Of the five Archer Street employees who joined the Union in December 1972, four testified at the hearing. Seliga testified that the union representatives (Flossy and Luesman) came to the store, identified themselves, and said they had talked to Weber, who knew of their visit to Archer Street. The union representatives then told her that the 63rd Street store "was Union," which she had not known, and "they were coming to sign up for a Union." She replied that it was "fine with" her and she signed a card. Nehmzow testified that Flossy said the employees "had to join the Union now." When she asked him what would happen if they did not, Flossy "very bluntly put it to [her] that [she] would lose [her] job if [she] didn't." Gramont corroborated Nehmzow's testimony. Nehmzow added that about a week later Weber asked her "how did it feel to be in the Union" and she "said it was all right." Vatch testified that on December 7, 1972, she was working temporarily at the 63rd Street store. Weber told her -that Flossy had spoken to the other Archer Street employees and would be coming to talk to Vatch. Weber told her that if she did not join, the Union would send him a notice requiring that she be fired within 5 days. Later that day Flossy came to see her. He "just explained ... what the Union was about," but Vatch could not recall any of his explanation. She could not "even remember if he said anything to [her] at all about benefits." He said nothing about whether she had any choice or not. She executed a card and paid dues to Flossy. Employee Smith's situation is revealing of the nature of the relationship of the Union to Respondent and to the employees. Gesiakowski testified that he first spoke to Weber about having Smith join the Union around May 1972. Apparently Gesiakowski's attempt was unsuccessful. Smith testified that shortly after Christmas of 1972, Gesiakowski gave her a membership application card and said she had to join the Union. She filled the card out but did not submit it to the Union and thereafter threw it away. Some months later, Gesiakowski asked her if she had executed the card. When she replied that she did not want to join the Union, Gesiakowski replied that she would have to in order to keep her job. She then asked, in effect, if she could continue in Respondent's employ as a "store manager" without joining the Union. Gesiakowski replied that Elsie Holzrichter was listed as the "store manager," obviously pursuant to the recognition clause of the collective-bargaining agreement, which excluded from the bargaining unit "one (1) store manager per store." Smith then went to Weber for assistance. According to her, Weber said he would see what could be done, but he was afraid she would have to join the Union. Weber testified that he spoke with Gesiakowski about Smith early in 1973. According to Weber, Gesiakowski suggested that, since Smith did not want to join the Union, she might be designated as "store manager" and Holzrichter "put into the Union." Weber thereupon spoke to Holzrichter, but she refused to join the Union. Weber testified that he then told Gesiakowski that neither of the two employees would be put into the Union. However, Weber further testified that, at some unspecified time, he "encouraged [Smith] to join the Union" in order to secure its "insurance," which he felt that she needed because, apparently recently, she had been divorced. Weber apparently then reported her to the Union as an employee covered by the trust funds. The Union (or the trustees) rejected her application, explaining to Weber "that she couldn't be in the Union and she couldn't have insurance because she was a store manager." Although Smith testified that she had never submitted an executed union membership application, she acknowl- edged her signature on a card introduced into evidence by the Charging Party for the purpose of discrediting her. The reasonable inference is that after Smith refused to join the Union, Weber persuaded her to execute a membership card for the purpose of obtaining "insurance" but her application was rejected.19 Weber complained that it was "discriminatory" to deprive Smith of the insurance. Each of the seven employee witnesses testified concern- ing her payment of union dues. As previously noted, Smith testified that she never paid any union dues. Carol Kite and Diane Konieczny sought to withdraw from the Union early in June 1973 and at that time discontinued dues payments. In addition, on June 8, 1973, employee Catherine M. Jesionowski sent the Union a letter of resignation in which she stated that she would no longer pay dues. Vatch testified that she continued to pay union dues "all the way up until October" 1973. Seliga paid until September, when she left Respondent's employ to enter college. Gramont testified that she paid until August when she "just got behind" and "[i]t slipped [her] mind about paying it." Nehmzow testified that she continued to pay her dues until "three months ago," i.e., September 1973. She volunteered that she "figured [she ] would keep paying dues and see if they were going to negotiate and who was going to do what." Respondent offered no additional evidence of resignations or withdrawals from the Union or cessation of dues payments. The membership application cards he introduced into 19 Although the stated reason for the rejection was Smith's purported evidence in the present record does not establish that she had managerial or status as "store manager," the true motivation may be quite different. The supervisory functions. WEBER'S BAKERY 9 evidence show that in July 1973 Gale M. Schobert, a new employee, joined the Union. Absent any additional evidence, it must be assumed,20 and I accordingly find, that all the employees who had joined the Union continued to pay their dues through May and all but three continued to pay their dues thereafter. C. Discussion 1. Section 8(a)(5) a. Respondent's obligation to bargain (1) Bargaining unit definition The answer to the complaint denied the allegation as to the appropriate bargaining unit. In argument at the hearing, Respondent's counsel contended: "There is not one scintilla of evidence regarding appropriateness of unit." The complaint defines the appropriate unit as: "All employees engaged in sales, display, wrapping and stock- ing, and cashiers, and cookie and donut machine operators , but excluding store managers, guards and supervisors ... and all other employees...." This is substantially the same as the unit definition contained in the recognition clauses of the master contract which Respondent signed for the period October 1966 to October 1972.21 That same definition is carried in the "Industry" contract for the period 1972 through 1975. Although in many discussions with union representatives Weber raised objections to several specific provisions in the 1972-75 agreement, there is no evidence that he ever questioned the unit definition in the recognition clause. Nor has Respondent in this proceeding indicated the nature or source of any ambiguity in, or disagreement concerning, the appropriate bargaining unit. The evidence as a whole leaves no doubt that Respon- dent employs only two classes of employees: bakers, represented by another union, and retail salesclerks. Weber testified that he does not employ any "donut machine operators," listed in the contractual definition and thus adopted in the complaint. And salesperson Kite testified that she sometimes works in the bakery "making sweet rolls and streuseling." Despite this incidental or minor production work by Kite and the suggestion that the bakers may make doughnuts, there is no suggestion anywhere in the record that the line of demarcation 20 Respondent had subpoenaed union membership and dues records Pursuant to agreement reached by the parties on the Union's a"olication to revoke the subpoena, the requested material was provided for the period from January 1, 1972, to the date of the hearing Respondent offered no further evidence of nonpayment of dues during the period here involved 2i The unit definition in the 1969-72 contract reads "all employees who in a service or self-service store sell, display, wrap or stock on shelves retail merchandise and cashiers and cookie and donut machine operators, but excluding one (1) store manager per store .11 22 The General Counsel's failure to introduce the petition at the present hearing is understandable Although Respondent had denied the unit allegation in the complaint, it was not until Respondent's oral argument, at the conclusion of the evidence, that, despite the long history of collective- bargaining agreements and the course of negotiations in 1972 and 1973, Respondent was seriously raising a unit issue 23 The definition contained in the two contracts covering September 10, between the "bakers" and the "girls" has ever been remotely blurred or questioned. Undisputed evidence establishes that on June 15, 1973, Respondent filed a representation petition. In his brief the General Counsel requests that I take official notice of the contents of that petition and attach a copy. I hereby grant the General Counsel's request.22 In Respondent's representation petition (Case 13-RM-1101, which was identified in the present com- plaint), the unit is defined as "all employees engaged in sales or wrapping and packing," excluding "all other employees." In his brief, the General Counsel "concedes" that Respondent's unit definition "is probably a more apt description of the existing unit than the description contained in the complaint." But it is clear, as the General Counsel contends, "that the composition of the unit is exactly the same, regardless of which description is found to be appropriate." Accordingly, on the entire record, I find that the bargaining unit is defined with sufficient clarity to permit determination of the Union's majority status as a basis for the obligation to bargain. I find that the appropriate unit consists of "all employees engaged in sales or wrapping and packing" at Respondent's retail stores, excluding supervisors 23 and guards and all other employees.24 (2) The Union's representative status Respondent's Doubt While Respondent's position was not precisely articulat- ed, the General Counsel and the Charging Party apparent- ly understand Respondent as maintaining that he was under no obligation to bargain because of a genuine, well- grounded doubt as to the Union's majonty.25 No such contention is available to Respondent. It will be recalled that perhaps as early as July 1972 Weber discussed a renewal contract with a union repre- sentative and spoke of his desire to negotiate such a contract. He continued to make such statements to the union representatives at least through May 1973. At no time did he express any doubt of its representative status. The first notice the Union had of any such position by Respondent was mid-June 1973, when he filed his representation petition. Similarly, in January or February 1973 Respondent granted wage increases ostensibly in conformance with the new contract which was then in negotiation. And from 1961, through October 15, 1966, defined the unit as "all retail salesclerks working in the retail stores of the Company and excluding one (t) store manager per store " 24 All the "Industry" contracts through October 15, 1972, provided for the exclusion of one store managei per store In the current master contract that provision has been changed The unit definition now excludes "store managers as hereinafter set forth" and then provides "Effective June 1, 1973, a Company may employ a manager in any free-standing store In view of Respondent's representation petition, and the General Counsel's present agreement with the unit definition therein, I have made no specific reference to managers as such in the unit finding contained herein 25 The General Counsel's and Union's understanding is reflected not only in their briefs but in the allegation in the complaint that Respondent in effect withdrew recognition unlawfully because it did not have "objective considerations to support its contention that the Union had lost its majority status" 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March through May 1973 Weber repeatedly told the employees that he wanted to negotiate an individual contract. Significantly, even in May, when Weber offered to seek an election, he expressed no doubt as to the Union's current status ; he merely suggested that the employees might vote as to whether they wanted to "get out of the Union. It was not until June that he announced that the business was no longer "in the Union." Meanwhile he had engaged in conduct clearly designed to undermine employee support for the Union. It is sufficient to refer to only the 5-cent-per-hour wage increase he granted in lieu of pension fund payments called for in the contracts. It is well established that an employer may not defend against a refusal to bargain accusation by asserting a doubt of the union's majority where he has engaged in conduct designed to undermine the union or after he has embarked on contract negotiations without asserting his professed doubt. See, e.g., Daisy's Originals, Inc., of Miami, 187 NLRB 251, 255; San Luis Obispo County etc., Restaurant and Tavern Association, 196 NLRB 1082, 1087-88. To warrant refusing to bargain with an incumbent union an employer's doubt of its majority status must not only be based on objective facts but must also be asserted in good faith. Bally Case & Cooler Inc. v. N.LR.B., 416 F.2d 902, 905 (C.A. 6, 1969); Terrell Machine Company v. N.L.R.B., 427 F.2d 1088, 1090 (C.A. 4, 1970); Cantor Bros., Inc., 203 NLRB No. 116 (pending on petition for enforcement, C.A. 9, No. 73-2380). "An employer may not avoid the duty to bargain by demonstrating a loss of majority status arising from its own unfair labor practices." N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1091, fn. 4. (C.A. 8, 1969); Massey-Ferguson, Inc. v. N.LR.B., 78 LRRM 2289 (C.A. 7, 1971); The National Cash Register Company, 201 NLRB 1034, enfd. 85 LRRM 2657 (C.A. 8, 1974). See King Radio Corp., 208 NLRB 82. b. Actual majority Even though Respondent may not defend by showing a doubt as to the Union's majority, he cannot be found guilty of unlawful refusal to bargain unless the General Counsel establishes the Union's majority. An employer's doubt as to the Union's majority is entirely separate from the actual absence of a majority. Celanese Corp. of America, 95 NLRB 664, 672-673; Automated Business Systems, 205 NLRB No. 35. Regardless of his good or bad faith, an employer is not required, or even permitted , to bargain with a union that does not represent a majority of the employees in an appropriate unit . I.L. G. W. U. [Bernhard- Altmann Texas Corp.] v. N.LR. B., 366 U.S. 731 (1961).26 (1) Presumption of majority At the hearing the General Counsel and the Union relied on a presumption of majority status arising from the prior collective-bargaining agreements. It is clear that the se This does not necessarily mean that the Board may not order an employer to bargain with a union not shown to enjoy majority support where such action is required to remedy unfair labor practices and to effectuate the policies of the Act. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1%9). Apparently to date the Board had not taken that course. Automated Business Systems, supra, 205 NLRB No. 35 , dissenting opinions of Chairman Miller and Member Kennedy, in. 30. In any event, this General Counsel can meet his initial burden of proving a union's majority status by showing a past agreement, which gives rise to a rebuttable presumption of continuing majority upon expiration. Automated Business Systems, supra, 205 NLRB No. 35. It is further established that an employer may not rebut the presumption of continuing majority by proving that the collective-bargaining agree- ment, valid on its face, was entered into in contravention of the Act more than 6 months before the refusal-to- bargain charge was filed. Barrington Plaza and Tragniew, Inc., 185 NLRB 962, enforcement granted in part and denied in part sub nom. Tragniew, Inc., 470 F.2d 669 (C.A. 9, 1972); Holiday Inn of Dayton, 192 NLRB 674, enforce- ment granted in part and denied in part 474 F.2d 328 (C.A. 6, 1973); The Denham Company, 187 NLRB 434, enfd. 469 F.2d 239 (C.A. 9, 1972); Howard Johnson Company, 198 NLRB No. 98, enfd. in part and setting aside in part J-7368 (C.A. 9, 1974). Placing major reliance on the Board's decision in Tragniew, the General Counsel and the Union contend not only that Section 10(b) precludes Respondent from defending on the ground that the past collective-bargaining agreement had, in effect, been executed in violation of Sections (aX2) and/or 8(bx1XA) of the Act, but that no evidence is admissible which would show that the employ- ees were unlawfully "coerced" into joining the Union. Initially, without consideration of the effect of the court's partial reversal of the Board's decision in Tragniew27 and Holiday Inn, it is perhaps in order to point out the difficulties in the General Counsel's and Union's position as to the evidentiary question . The rationale of the substantive rule in Tragniew and numerous additional cases reaching the same result is the necessity to prevent "resurrection of legally defunct unfair labor practices in the guise of evidence." N.L.R.B. v. District 30, U.M.W. [Blue Diamond Coal Co.], 422 F.2d 115 (C.A. 6, 1969). The exclusionary rule thus appears to apply only to evidence of unfair labor practices time-barred under Section 10(b), with "background" evidence of other types of fact freely admissible. In the present case, as set forth above , Respondent sought to show that four employees had been made to join the Union in June 1972 and five in December 1972. Under the General Counsel's view of the case, in June there was in effect an unassailable contract containing a union-security clause. Thus, presumably the Tragniew exclusionary rule should not have been invoked as to evidence that the employees joined under threat of discharge , even though such threats were made before the Section 10(b) limitations period. Whether such evidence would in itself be decisive, it can hardly be doubted that it would be relevant in determining whether the affected employees constituted part of an "uncoerced" majority. On the other hand, although there may be some question as to this point, the question goes to remedy rather than to the existence and identification of the unfair labor practices as such. 27 While the Board has apparently never expressly adopted the Ninth Circuit's evidentiary ruling which resulted in reversal of the Board's finding of a Section 8(aX5) violation in Tragniew, the Board has that decision without expressing any disagreement. Roosevelt Walker d/b/a B & W Maintenance Service, 203 NLRB No. 101. WEBER'S BAKERY parties now apparently agree that the 1969-72 collective- bargaining agreement expired on October 14, 1972.28 This being so, in December 1972 there was in effect no apparently valid union-security clause under which em- ployees could be made to join the Union. Thus, requiring the Archer Street employees to join the Union would be violative of Sections 8(axl) and (2) and 8(b)(1)(A) of the Act. Accordingly, evidence of the December events would be inadmissible. While such a result may technically be required under Bryan Manufacturing29 and its progeny, it seems unrealistic to conclude that evidence of "coercion" in June 1972 would be admissible while evidence of virtually identical "coercion" occurring 6 months later would be inadmissi- ble. It appears particularly anomalous when viewed in conjunction with the General Counsel's reliance on the expired agreement to establish the presumption of majori- ty. In any event, whatever the viability and scope of the Board's Tragniew evidentiary rule in certain situations, the present case is substantively distinguishable from Trag- niew. In Tragniew the Board specially recited (185 NLRB at 964) that "the record affirmatively establishes that within the duration of the three contracts the Union actively represented the unit employees and effectively policed the various provisions in the agreements." The Board has since made it clear that the foregoing finding was crucial. See Bender Ship Repair Company, 188 NLRB 615, 616 n. 10. Where the parties' practice under ostensible collective- bargaining agreements has been such as to negate the existence of a genuine collective-bargaining relationship, the agreements create no presumption of majority status. Bender Ship Repair Company, supra; Ace-Doran Hauling & Rigging Co., 171 NLRB 645,646: The evidence relating to the practice under the agreements further makes it clear that the parties did not intend them to be effective collective-bargaining contracts, but instead merely regarded them as arrange- ments under which Respondent agreed to check off dues, health and welfare, and pension payments for union members only. The acquiescence of the Union in Respondent's failure both to enforce the union-security provisions of the agreements and to pay health and welfare contributions for all employees (as ostensibly provided by the "contracts"), makes it clear that the parties did not believe that they were in true collective- bargaining relationships. The facts in the present case are markedly similar to those in Glenlynn, Inc., d/b/a McDonald's Drive-In Restau- 28 The termination provision of the contract read: "This agreement shall be in effect October 14, 1972, at which time it shall automatically renew itself from year to year, provided, however, that either party may give to the other party not less than sixty (60) days' notice in writing prior to the expiration date hereof or of any renewal, of its intention to change or terminate said Agreement." The Union's notice of August 1, 1972, referred to its "desire to reopen this Agreement for negotiations, pertaining to wages, hours and working conditions." At one point Weber asked Gesiakowski whether the contract would remain in effect until a new one was signed and Gesiakowski said he did not know. The matter apparently was never mentioned again. As I read the contract, in accordance with the parties' apparent agreement, the Union's notice of a desire to "reopen," i.e, to change, it 11 rant, 204 NLRB No. 45, in which the Board adopted, in pertinent part, a decision by Administrative Law Judge Bisgyer dismissing a Section 8(a)(5) allegation on the authority of Ace-Doran and Bender Ship Repair. The similarity between McDonald's and the instant case clearly appears from the following excerpt from McDonald's: Apart from the ambiguity thus surrounding the scope of the bargaining unit, the evidence leaves one highly skeptical that a real collective-bargaining rela- tionship emanated from the execution of the .. . contract . . . it is undisputed that the Union neither administered the contract nor serviced the employees. As a result, not only were the employees deprived of contractual benefits pertaining to such matters as wage rates, health and welfare fund contributions, meals, uniforms, job duties, and holidays, but that were subjected to working conditions unilaterally imposed by the Respondent without any protest from the Union. Moreover, whatever grievances or complaints the employees had they personally presented to, and discussed with, management and it was not until the closing days of the contract that the Union undertook to submit several employee grievances to the Company. In addition to the Union's indifference to employee interests, it did not serve its own much better. Although the contract contained union-security provisions, it did not bother to enforce them. Apparently, the Union was content with the few employees the Respondent periodically signed up for the Union and with the initiation fees and dues the Respondent deducted from the wages of these employees. It was only near the end of the contract term that the Union took more affirmative steps to enlist the Respondent's assistance to force the employees to join. In sum, I find that the parties never entered into a true collective-bargaining relationship out of which a presumption of the Union's majority status may apse. At best, the relationship was a token one where "the Union was willing to exact little in the way of contract enforcement and . . ., [the Respondent was] satisfied to reap the financial benefit of lower costs." In these circumstances, and in view of the equivocal nature of the bargaining unit, I find the evidence insufficient to support a presumption that the Union was the majority representative of the employees in the alleged Alton store unit... . It is true that in Ace-Doran, Bender Ship Repair, and McDonald's there were also insufficiencies in the bargain- ing-unit definitions. However, the opinion in each of the three cases clearly indicates that the same result would prevented automatic renewal of any part thereof Weber's granting the retroactive increase and making payments into the pension fund were insufficient to prevent termination of the contract. Proctor & Gamble Ind Union v. Proctor & Gamble Mfg. Co, 312 F.2d 181 (C.A. 2), cert. denied, 374 U.S. 830. In argument at the hearing union counsel suggested that Respondent should be equitably estopped to deny the existence of an agreement by his having made pension and health and welfare fund payments, which, under Section 302(c)(5)(B) of the Act, would have been illegal without an existing collective-bargaining agreement. However, in his brief union counsel withdraws this contention. 2s Local Lodge No 1424, IA M., AFL-CIO [Bryan Mfg Co.] v. N L.R.B., 362 U.S.'411 (1960). 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been reached solely on the basis of the parties' practice under the purported agreements , without any question as to the appropriate bargaining unit. It is also true that in McDonald's it was found that the employer properly declined to bargain on the basis of an objectively grounded doubt as to the union 's majority, a finding which is not possible in the present case . But in McDonald's the good-faith doubt finding was purely an alternative second- ary ground for decision . As an alternative ground, the lack of a genuine bargaining relationship cannot be disregard- ed. Woods v. Interstate Realty Co., 337 U.S. 535, 537. The evidence in the present case leaves no doubt that until around the beginning of July 1972, a month before the Union sent its notice to desire to reopen, there was, at most, token compliance with the contract . Trust fund payments were made only for the two or three full-time employees. The part-time employees apparently did not receive the contract wage rates. Nor were union cards displayed in the store as required by the contract. The Union did not "service" the employees in any manner. Indeed, the part-time employees, who constituted around 75 percent to 85 percent of the unit , apparently did not even know they were "represented" by a union or covered by a collective-bargaining agreement. According, on all the evidence, I find that the past purported collective-bargaining agreements between Res- pondent and the Union were sham and did not give rise to any presumption of majority status on the part of the Union. (2) Evidentiary basis The absence of a presumption of majority does not necessarily end the matter. The 8(a)(5) allegation in McDonald's was dismissed only because the record was "devoid of independent evidence of the Union's majority status." (204 NLRB No. 45.) Since the General Counsel and Charging Party made no attempt to establish the Union's majority by evidence, and, indeed, objected to the receipt of proffered evidence directed to that issue, it may be argued that rejection of the presumption of majority ends the matter so far as the refusal-to-bargain allegations are concerned. However, in his brief the General Counsel relied on the evidence of actual majority contained in the record. Although the relevant evidence was introduced by Respondent, it is available to the General Counsel so as to meet his burden of proof of majority. This conclusion is supported by numerous decisions holding that, under the Federal Rules of Civil Procedure, by presenting evidence a defendant waives his motions for dismissal or for directed verdict based on the plaintiff's failure to prove his case. The final verdict or decision is thereafter made on the basis of all the evidence, including the defendant's. Cf. United States v. Doyle, 468 F.2d 633, 635-636 (C.A. 10); A & N Club v. Great American Insurance Co., 404 F.2d 100, 103 (C.A. 6); Baymon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971 (C.A. 1); United States v. Mountain State Fabricating Co., 282 F.2d 263, 265 (C.A. 4). In Dindo v. Grand Union Company, 331 F.2d 138 (C.A. 2), the plaintiff in a negligence action relied on the doctrine of res ipsa loquitur and therefore produced no evidence as to how the accident happened. However, a witness for the defendant testified as to precisely what had occurred. Judgment for the plaintiff was sustained on the basis of the defendant's evidence, even though the court held that res ipsa loquitur, which is essentially a presumption, was inapplicable. Thus, the question in the present case becomes whether the evidence in the record as a whole establishes the Union's majority status. Normally, that question would have to be determined on the basis of only such evidence as was properly admitted. Improperly admitted evidence cannot be used as the basis of findings against a party who duly objected to the evidence. Warner v. Kewanee Machin- ery & Conveyor Co., 411 F.2d 1063, 1065 (C.A. 6). But here Respondent did not object to the evidence. On the contrary, the bulk of the evidence relevant to the Union's actual status was introduced by Respondent himself, over objection by the General Counsel and the Union. It may be added that, while a showing of actual majority is not the theory on which the General Counsel presented his case, it is intimately related to Respondent's tendered defense, which was, in effect, a claim of actual lack of majority. Accordingly, without reconsideration of the admissibility of the evidence involved, we now turn to the question whether the record establishes the Union's majority status at the relevant time. The evidence establishes that as of December 8, 1972, 11 or 12 employees had joined the Union. Since, according to Respondent's employee lists, the bargaining unit never exceeded 19 on or after December 1972, it is clear, at least prima facie, that the Union had a majority. Even if it be assumed that Respondent was properly permitted to show that the employees did not originally join the Union "voluntarily," but rather were "coerced" by the Union and/or Respondent under a purported union-security provision,30 it does not necessarily follow that the Union did not represent an uncoerced majority during period of alleged unfair labor practices. All of the seven union members who testified at the hearing revealed that they continued to pay their union dues at least through May 1973. So far as the evidence discloses, they expressed no complaints until sometime in May. And then their major, if not sole, complaint concerned the Union's failure to obtain a contract. The undisputed evidence thus requires the inference that a majority of the employees wanted a union contract. The first defections from the Union came only after Respon- dent made clear his reluctance to sign a contract and suggested an election. By this time he had taken various actions clearly designed to undermine the Union. Perhaps the most revealing was the wage increase of 5 cents per hour in lieu of pension fund payments. In view of Respondent's conduct, it is perhaps remarka- 30 Although employees, such as Smith and Holzrichter, who refused to testified that they affirmatively objected to joining when they did. join the Union were not discharged, it is here assumed, though not decided, Employees Seliga and Gramont testified, in effect, that they affirmatively that union memberships solicited under threat of discharge pursuant to a expressed satisfaction with joining. Employee preference for union union-secunty clause would not tend to establish the union's "uncoerced" representation is not inherently inconsistent with the existence of a union- majority. However, it may be noted that none of the present employees security clause. WEBER'S BAKERY 13 ble that only three employees withdrew from the Union and stopped paying their dues. The employees had no uliioh"cdht>^8ct'gnd'Ites 'ondent had granted even more in the way of wage increases than the new contract called for. Since Weber professed that he was attempting to obtain a contract, at least impliedly placing on the Union all blame for his lack of success, it is understandable that the employees might feel, as they came to, that they were not getting their money's worth from the union dues they were paying. To be sure, the Union apparently made no special effort to keep these employees adequately informed or reassured and the employees made no inquiries of the Union. But Weber was manifestly something of a father figure to the employees. It was apparently customary for the employees to seek his advice and counsel and to trust him implicity. It is most significant that, except for the three employees who withdrew from the Union early in June, the employee members continued their memberships, even after Respon- dent told at least one employee that "he wasn't in the union any more" and filed his representation petition. Indeed, Respondent's evidence shows that one new employee joined the Union after the petition was filed. Even the three withdrawals and discontinuance of union dues payments would not necessarily establish the Union's loss of majority support. The employees involved apparent- ly were simply unwilling to continue paying union dues when they did not have the protection of a union contract. There is nothing to show that the three resigning members wanted the Union to stop attempting to negotiate an agreement with Weber.31 Cf. Harpeth Steel, Inc., 208 NLRB No. 86. In short, on the evidence as a whole, including that introduced by Respondent, I find that in March 1973 and thereafter the Union represented a majority of the employees 32 Further because of his course of conduct, Respondent may not rely on any apparent loss of majority thereafter as justification for refusing to bargain with the Union. c. Refusal to bargain Having found that the Union represented a majority of the employees in the appropriate bargaining unit, we now turn to a consideration of the specific conduct by Respondent which is alleged to have derogated from his bargaining obligation. (1) Bad-faith and dilatory bargaining The complaint alleges that since January 3, 1973, which was 6 months before the present charge was filed, Respondent "engaged in dilatory tactics" and acted in bad faith "by agreeing to certain terms and conditions of employment . . . and then withdrawing from such agree- ment, by arranging appointments for meeting with union representatives . . . and then cancelling these meetings, 31 Respondent introduced into evidence employee Jesionowski 's letter of resignation dated June 8, 1974. It reads: "... after thinking about how senseless my membership is, and of how poorly I am represented in your union, 'I wish to resign. I am not going to pay my dues for July or any months thereafter." Jesionowski did not testify. 32 On the figures viewed most favorably to Respondent, a clear majority and by bargaining . . . with no intention of reaching an agreement." At the outset note is taken of Respondent's apparent contention that he could not have been guilty of bad-faith or dilatory bargaining because neither Gesiakowski nor Luesman had any authority to "negotiate" contracts. While it is true that neither union representative had any power to commit the Union to contract terms differing from those of the master agreement, there is no doubt that they were duly authorized to represent the Union in preliminary explorations and to make recommendations to the union official with final authority. They offered to and then did arrange for Weber to meet with that official. And they later were authorized, on behalf of the Union, to offer contract terms differing from the master agreement. Clearly Weber's contract discussions with Gesiakowski and Luesman were part of the negotiating process and constituted "bargaining." The Union's August 1, 1972, notice of its desire to modify the current contract amounted to a bargaining demand. Such demand was a continuing one. However, although Gesiakowski and Weber occasionally spoke about a renewal of Respondent's contract, it cannot be said that the Union pressed its bargaining demand on Weber until March 19, when Gesiakowski presented printed copies of the master agreement which he asked Weber to sign. At that point Gesiakowski agreed to Weber's reasonable request for an opportunity to study the contract. It was by Gesiakowski's choice, or at least with his acquiescence, that there was no further contact until April 10, 1973. Weber said there were provisions in the master contract that he could not live with. While Weber's statement undoubtedly alerted Gesiakowski that there might be some previously unexpected problems in obtain- ing an agreement, it cannot be said that Weber's position at that time was indicative of a determination to "stall" or of bad faith. Gesiakowski apparently did not think Weber was being dilatory or unreasonable since Gesiakowski volunteered to discuss the problems with his superiors. The fact that in the meantime Weber had probably discussed the contract with some of the employees does not in itself establish bad faith. So far as appears, Weber's conversa- tions with employees before April 10 were totally noncoer- cive. It is not violative of the Act for an employer noncoercively to seek the views of his employees as assistance and guidance to him in negotiating a contract with their union. F.W. Woolworth Co., 109 NLRB 196, 198; Hoffman Beverage Co., 163 NLRB 981, 982. On April 19, 1973, when Gesiakowski returned to the store, accompanied by Luseman, a change in Weber's attitude was evident. At this point-around 3 months after he was advised of the provisions in the master agreement, a month after he had actually received copies, and over a week after he had specified his objections-he pleaded that he had not had time to study the agreement. Meanwhile the tone of his discussions with employees appears to have of the unit employees were members of the Union in each month January through May 1973. The record does not contain employee lists for June and July. In August and September, after the 3 withdrawals from the Union, there were 9 union members in units of 18 and 19 , respectively. However, in both instances the unit figures include Smith (who was designated a "manager") and apparently two part-time irregular employees 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken a new direction. Instead of merely asking their views as to the contract, he had begun to persuade them, even if by a "soft sell," that the master contract was not in their interests, was not suited to his type of business, and was so onerous that he could not and would not sign it. On May 2 Weber specified four substantive objections to the contract and apparently readily accepted the business representatives' offer to arrange a meeting with Wishnick, the union official with authority to negotiate final agreements. Weber's acceptance of this invitation, howev- er, proved evanescent. He cancelled the scheduled meeting and on May 22 declined to schedule a later one, all on the plea that he was too busy. Whether or not Weber really was unusually busy, it was his legal obligation to bargain either in person or through an authorized agent. The pressure of other demands on his time could not excuse his failure to bargain. A. W. Cullum & Co., 182 NLRB 16, 24, and cases there cited. It does not appear when Weber first consulted counsel. However, on June 7, 1973, when he refused to accept or look at the contract "addendum" which the union representatives tendered, Weber indicated that he was consulting "someone who understood these things." Neither the 1969-72 nor the current master contract specifies the time for making pension fund payments. However, since such payments are based on actual hours worked and are to be paid monthly, it is reasonable to assume that the payment for April was made early in May.33 By the middle of May, when he held the employee meetings and granted the 5-cent-per-hour wage increase in lieu of pension, he had obviously decided not to bargain further. Yet he did not reveal that to the Union until sometime in June. Accordingly, on all the evidence I find that from on or about May 15, 1973, Respondent engaged in dilatory tactics and bad-faith bargaining. The evidence does not, however, sustain the specific allegation that Respondent withdrew from any substantive agreements reached. So far as appears, no agreement was reached on any specific items, although the area of active disagreement, as originally defined by Weber, was limited. I do not deem Weber's granting of retroactive wage increases in February 1973 or his making payments into the trust fund (or funds) as constituting agreement to the relevant provisions of the master contract, particularly since the coverage of the wage rates and the pension fund were under active consideration and the Union later offered concessions on these points. Although the foregoing finding of bad faith and dilatory bargaining renders unnecessary disposition of the remain- ing specific 8(a)(5) allegations (A. W. Cullum & Co., supra, 182 NLRB at 24), they will be briefly discussed. (2) Unilateral wage increases The complaint alleges that Respondent unlawfully granted a unilateral wage increase on February 8, 1973. The reference is to the retroactive wage increase given in apparent conformity with the newly executed master contract. Weber did not discuss this increase with the Union. But there is no reason why he should have bargained. Weber and the Union were then acting in accordance with what they mutually believed was an on- going bargaining relationship. The Union had notified the independent bakers of the increase provided in the "Industry" contract and Weber adopted it. The Union did not object to the grant of that increase, after Gesiakowski went out of his way to ascertain from the employees that it had been granted. On all the evidence, therefore, it is found that the General Counsel had not established an unlawful unilateral wage increase in February 1973. The undisputed evidence, however, clearly establishes an unlawful unilateral increase of 5 cents per hour in May. Reference here is made to the wage increase given in lieu of payments to the pension fund. This conduct blatantly derogated from the Union's status and violated Respon- dent's obligation to bargain. Although this increase was not specifically alleged in the complaint, it was fully litigated and fell within the general scope of the refusal-to- bargain allegations of the complaint. Omark-CCI, Inc., 208 NLRB No. 52. (3) Bypassing the Union The complaint further alleges that in April and May Respondent "bypassed the Union and bargained directly and individually with its employees." I find that this allegation is supported by the evidence of Weber's discussions with the employees in May 1973, particularly those concerning the pension fund payments and the wage increase in lieu thereof and his volunteered offer to seek an election. (4) Withdrawal of recognition The complaint alleges that on June 15, 1973, Respondent filed a representation petition "and thereafter refused to meet or bargain with the Union without having objective considerations to support [his] contention that the Union had lost its majority." It has been found that Respondent was precluded from defensively alleging any doubt of the Union's majority status and that the "objective-considera- tions" principle is inapplicable to the question of the Union's actual status. However, I have also found that the Union did represent a majority at the time in question. Accordingly, I find that, by filing its representation petition and thereafter refusing to bargain with the Union, Respondent committed unfair labor practices within the purview of Section 8(a)(5).34 2. Section 8(a)(1) In a separate section, the complaint alleges several acts by Respondent as independently violative of Section 8(a)(1) of the Act. Although much of the alleged miscon- duct has already been fully considered in the light of 33 The contracts call for health and welfare fund payments, which are a to the remedy to be adopted for violations of Section 8(a)(l) rather than to flat monthly amount per regular employee , on the 10th of each month. the question whether Section 8(aX5) had been violated . In any event, any 34 The complaint adds the conclusory allegation that the alleged further specific findings in this respect would be superfluous at this point in violations of Section 8(a)(1), discussed below, "were designed to undermine view of the finding of majority. the Union and destroy its majority status." This allegation appears pertinent WEBER'S BAKERY Section 8(a)(5), the specific allegations will here be briefly considered under Section 8(a)(1). (a) The complaint alleges that the February 1973 wage increases were "designed to undermine [the employees'] support for the Union." The retroactive increases granted in February were, in effect, compliance with the anticipated collective-bargain- ing agreement. Although the record indicates that Respon- dent had not previously adhered completely to the contractual wage rates,35 the February increases in general conformed to those provided in the new master agreement. Employees were informed that the increases were the result of the new contract. Gesiakowski checked to see that they were granted. Thus it cannot be found that the raises were designed to undermine the Union. Accordingly, it is found that the February 1973 wage increases were not violative of Section 8(a)(1). The May increase of 5 cents per hour in lieu of pension payments, however, is a different matter. That increase was clearly in direct derogation of the Union's status and could have no anticipated effect other than to lure employees away from the Union. As such it would have been independently violative of Section 8(a)(1) even if Respon- dent had not been legally obligated to bargain with the Union. Although, as noted above, this increase was not specifically alleged in the complaint, it fell within the general scope of the complaint and was fully litigated. Accordingly, on all the evidence I find that Respondent violated Section 8(a)(1) by granting an increase in May in order to undermine the Union. (b) The complaint alleges that in February 1973 Weber "told an employee that he was not going to sign any collective-bargaining agreement with the Union." There is no credible evidence to support this allegation. The evidence establishes that from February or March 1973 through at least part of May, Weber told the employees that he would like to execute a contract tailored to his small-scale operation. Until around the beginning of June he said only that he would not sign the "Industry" contract as it stood. Such statements did not violate Section 8(a)(1). (c) and (d) The complaint next alleges that in May and June 1973 Weber "interrogated employees concerning their union membership and activities." The reference obviously is primarily to the two employee meetings, the first at the Archer Street store and the second at 63rd Street. Again the allegations are not supported by the record. There is no evidence that Weber questioned any employees about "their union membership and activities." Indeed, Weber had no need to engage in such questioning. He knew which employees were union members, not only through having been instrumental in their joining, but also through his current payments to the pension fund. So far as appears, none of the employees ever engaged in any union activities and the work situation and the relationship between Weber and the salesclerks was such that he undoubtedly knew that fact. Weber did, however, question the employees concerning their opinion of the new "Industry" contract. There also 35 Although not entirely clear, the evidence strongly suggests that the wage and other provisions of the contracts were applied only to union members. 15 was some passing evidence that he asked them their views as to the Union, but the nature of his questions was not further specified. As stated above, if Weber was merely seeking guidance in negotiating a contract mutually advantageous to himself and the employees, his conduct was permissible. There is no basis for concluding that the questioning was done in a coercive manner. It was conceded that when Weber suggested that an election be held, he assured the employees that they were free to vote as they wanted and that he would abide by the results of the election. While it may be that Weber improperly initiated or aggravated antiunion feeling, the evidence does not establish that he employed coercive interrogation as one of his tools in the campaign. I reach the same conclusion with respect to the alleged interrogation of an individual employee (manifestly referring to employee Seliga) in the first half of June 1973. (e) The complaint next alleges that Weber "told an employee not to send in her union dues, that he would never sign a union contract because he was trying to get the Union out." Employee Seliga's testimony, quoted above, in substance supports this allegation. Although there is no direct evidence that Weber instigated the three employee withdrawals from the Union early in June, there is no doubt that his statements to Seliga, as credibly quoted by her, were designed to encourage defection from the Union. Continued union membership would obviously be futile if, as Weber said, "he wasn't any longer in the Union." Accordingly, I find that around the beginning of June 1973 Respondent interfered with his employees' Section 7 rights by discouraging continued union member- ship. (f) Similarly, it is found that, as alleged in the complaint, Weber interfered with his employees' Section 7 rights when, around the middle of June; he told Seliga that he had removed the union sign from the Archer Street store. There is no requirement that the sign be kept posted in the store, since, as previously found, the contract requiring such posting had expired.36 However, the manner and timing of Weber's informing Seliga of its removal were clearly coercive and designed to induce Seliga to withdraw from the Union. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. By granting a wage increase to discourage employee adherence to and support of the Union, by bypassing the Union to deal directly with employees, and by inducing employees to stop paying dues to the Union, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. 3. All full-time and regular part-time employees en- 36 The removal of the union sign from Respondent's premises is not alleged as violative of the Act. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in selling or wrapping and packing goods at Respondent's retail stores, excluding supervisors and guards, as defined in the Act, and all other employees, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 8(b) of the Act. 4. The Union was on January 3, 1973, and has been at all times thereafter, the exclusive bargaining agent of employees in the aforesaid unit , within the meaning of Section 9(a) of the Act. 5. By failing to bargain in good faith with the Union on and after May 15 , 1973; by granting his employees unilateral wage increases and bypassing the Union to deal directly with the employees sometime in May 1973; and by withdrawing recognition from the Union and filing a representation petition in June 1973 Respondent has failed and refused to bargain, in contravention of Section 8(ax5) and (1) of the Act. 6. The evidence does not establish that Respondent has engaged in any unfair labor practices other than those found in paragraphs 2 and 5 above. THE REMEDY It is uniform policy to issue a bargaining order against any employer who has been guilty of a refusal to bargain in good faith with the authorized collective-bargaining agent of his employees. In such situations, a bargaining order is normally the means by which the parties can be placed most nearly in the position they would have been had there been no unfair labor practices. In the present case, however, it is virtually impossible to restore statutory rights to the employees , for whose protection Section 7 of the Act was designed. On the present record, there can be little doubt that Respondent's course of conduct since at least May 1973 had rendered a fair, impartial, and informed election unattainable at this time. On the other hand , although it has been found that the Union had a majority when Respondent refused to bargain, it cannot be gainsaid that the Union never earned employee support. Membership was initially foisted on the employees and the Union thereafter did little or nothing to keep the employees advised of efforts being made on their behalf. In the course of Respondent's argument at the hearing, I raised with counsel the question whether Respondent should be equitably estopped from attempting to defend against the present complaint by demonstrating , in effect, that he had been guilty of longstanding violation of Section 8(a)(2). Only the Union has addressed itself to this question, maintaining that "It would not be fair to penalize employees simply because the employer might be caught in some sort of `equitable estoppel .' " It ill behooves the Union to protest "penalizing" the employees in view of its history of highhanded disregard of the employees' rights. Although the Board has on occasion applied the principle of equitable estoppel,37 I should refrain from doing so in the present case against Respondent because, as I view the evidence, Respondent and the Union are in pari materia. Were this case concerned with the mutual rights and obligations of Respondent and the Union, I should leave the parties precisely where they placed themselves, i.e., with Respondent refusing to bargain with the Union. However, the interest of the employees must be decisive. Although the employees were never in a position initially to decide whether they wanted to be represented by the Union, as heretofore found, a majority knowingly and voluntarily continued their membership and evidenced their desire for a union contract. Whatever dissatisfaction was eventually expressed centered on the Union's failure to obtain a contract, for which, on the present record, Respondent must assume responsibility.38 The Union's subsequent apparent loss of majority followed Respon- dent's commission of serious unfair labor practices, "particularly the grant of a general increase to all employees." Royal Aluminum Foundry, Inc., 208 NLRB No. 8. Without minimizing the Union's past derelictions vis-a- vis Weber's employees, on balancing the various conflict- ing considerations, I am of the opinion that the employees' statutory rights will be most nearly vindicated by requiring Weber to bargain with the Union even if the Union did eventually lose its majority . Penn Pike & Supply Co., 208 NLRB No. 5. Accordingly, I shall recommend issuance of a bargaining order. In addition, because Respondent's entire course of conduct reflects an attitude of exclusive self-interest, in total disregard of the statutory rights of his employees, I shall recommend a broad cease-and-desist order. And, of course, I shall recommend the usual notice-posting requirement. In his brief the General Counsel requests "an order requiring Respondent to pay all the sums of money it should have paid since April 1973 to the Pension Fund under the terms of the old contract." 39 At no time does the General Counsel expressly contend or attempt to establish that the "old contract" survived its stated expiration date. If, as has been assumed herein, that contract expired in October 1972, under H.K. Porter Co. v. N.LR.B., 397 U.S. 99, it would be impermissible for the Board to order pension fund payments, which require a contractual basis. It is also possible that such payments would violate Section 302(cX5XB) of the Act. As noted above, the health and welfare fund trustees have pending an action against Weber for an accounting. It is believed that a court rather than the Board is the appropriate forum to adjudicate any questions with respect to the pension fund , which present essentially contract issues rather than unfair labor prac- tices. Accordingly denial of the General Counsel's request will be recommended. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- 37 E.g., Brooks Biddle Chevrolet Co, 177 NLRB 495. It cannot be assumed that previous contracts with other employers were 38 Ralph Lorenzetti, the union director of organization, testified, without sham contracts like Weber's. contradiction, that Weber was the only baker previously under contract 39 No similar request is made as to the health and welfare fund, who had not signed the renewal contract by the time of the present hearing . concerning which the present record contains very little clear evidence. WEBER'S BAKERY 17 ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended.40 ORDER Erich R. Weber and Bernadine T. Weber, co-partners, d/b/a Weber's Bakery, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Granting their employees wage increases to induce the employees to abstain from membership in Retail Food and Drug Clerks Union, Local 1550, Retail Clerks International Association, AFL-CIO, bypassing said Union to deal directly with employees, or granting any wage increases or other benefits unilaterally and without consultation with the said Union. (b) Persuading or advising employees not to retain membership in or pay dues to the Union. (c) Refusing to bargain with the Union as the exclusive representative of the employees in the unit herein found to be appropriate, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to be members of or to assist and support the aforenamed Union, to bargain collectively through representatives of their own choosing, and to engage in other mutual aid or protection guaranteed in Section 7 of the Act, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization;,as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Bargain in good faith with the aforenamed Union, upon request, `with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment as the exclusive representative of the employees in the unit herein found appropriate. (b) Post at its retail stores at 3425 West 63rd Street and 7053 West Archer Avenue, both in Chicago, Illinois, copies of the attached notice marked "Appendix." 41 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, includ- ing 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 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 40 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. 41 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Weber's Bakery, violated the National Labor Relations Act, and ordered us to post this notice. We intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things (except to the extent that such right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended). WE WILL NOT grant or promise employees wage increases or other benefits to induce them to forego adherence to Retail Food and Drug Clerks Union, Local 1550, Retail Clerks International Association, AFL-CIO. WE WILL NOT refuse to bargain collectively with the said Union as the exclusive representative of our employees in the appropriate bargaining unit described as follows: All full-time and regular part-time employ- ees engaged in selling or wrapping goods at our retail stores, excluding supervisors and guards, as defined in the Act, and all other employees. WE WILL NOT make any change in the wage rates or other terms and conditions of employment of any of the employees specified above without notifying the Union of what we want to do and giving the Union the opportunity to bargain about it with us. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL, upon request, bargain in good faith, in a sincere effort to reach a collective-bargaining agree- ment, with the Union concerning the wages, rates of pay, hours, and terms and conditions of the employees specified above. ERICH R. WEBER AND BERNADINE T. WEBER D/B/A WEBER'S BAKERY (Employer) Dated By (Representative) (Title) 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by ing this notice or compliance with its provisions may be anyone. directed to the Board's Office, Everett McKinley Dirksen This notice must- remain posted for 60 consecutive days Building, Room 881, 219 South Dearborn Street, Chicago, from the date of posting and must not be altered, defaced, Illinois 60604, Telephone 312-353-7572. or covered by any other material . Any questions concern-