City Supply Corp.

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City Supply Corporation and Teamsters, Chauffeurs, Warehousemen and Helpers , Local Union No. 828, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 18-CA-4138 May 13, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On August 30, 1974, Administrative Law Judge Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, Respondent Employer filed ex- ceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Union filed a brief in support of the Decision and in opposition to the Employer's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings' and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recom- mended Order: ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, City Supply Corporation, Mason City, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Or- der. I In his Decision the Administrative Law Judge made certain inadvertent errors In the second paragraph of sec III, A, he confuses the time of a meeting with the filing dates of both the charge in this case and an earlier charge, since dismissed In the fourth paragraph of the same section, the two charges are again confused In the first paragraph of sec. III, B, the date of employee Ewer's death is misstated as January 26 Instead of January 24 DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Administrative Law Judge: Upon a charge filed on March 5, 1974, against City Supply Corpora- tion, Respondent herein, by Teamsters, Chauffeurs, Ware- housemen and Helpers Local Union No. 828, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, the Regional Director for Region 18 of the National Labor Relations Board, herein called the Board, issued a complaint against Respondent on behalf of the General Counsel of the Board on April 12, 1974, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act (29 U.S.C., Sec. 151, et seq.) as amended, herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a hearing was held before meat Mason City, Iowa, at which all parties were present, represented, and afforded full opportunity to call, examine, and cross-examine witnesses, present oral argument, and file briefs. Briefs were filed by the General Counsel and Respondent on July 1, 1974. Upon consideration of all the foregoing, and upon the entire record in this case, substantial portions of which were stipu- lated by the parties, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE NATURE OF RESPONDENT' S BUSINESS City Supply Corporation is an Iowa corporation maintain- ing its principal office in Des Moines, Iowa. It maintains a facility at Mason City, Iowa, where it is engaged in the whole- sale sale of plumbing supplies and appliances. During the past calendar year, a representative period, it purchased and re- ceived at its Iowa facilities goods and services from sources directly outside the State of Iowa valued in excess of $50,000. Upon the foregoing stipulated facts, I conclude and find, and it is admitted, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is admitted by all parties and I accordingly conclude and find that Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 828, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Sequence of Events On or about October 2, 1972, Respondent purchased the assets of L. H. Kurtz Co. of Mason City and since that time has engaged in the same business operations as Kurtz, at the same location with the same or similar customers and the same work force. Beginning in October 1958, and until its acquisition by Respondent, Kurtz recognized the Union as employee repre- sentative of a majority of its employees and maintained a collective-bargaining relationship in a bargaining unit that is not in dispute. The unit stipulated by the parties to be appro- priate for bargaining purposes, and which I conclude and find to be such, is the following: All warehouse employees , truckdrivers and city desk clerks at the employer's Mason City, Iowa, facility, but 217 NLRB No. 156 CITY SUPPLY CORPORATION excluding professional employees , guards and supervi- sors as defined in the Act. Upon the acquisition of Kurtz by Respondent in October 1972, and since that time, there were a total of three em- ployees in this unit, for whom Respondent continued to check off dlues pursuant to the agreement . In this respect it had initially been contended by the Union, in a charge filed against Respondent with the Board, that Respondent, as successor to Kurtz, was obligated to assume the existing contract. On authority of N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972), the charge was dismissed. There is no contention, however, that Respondent was not obligated to continue recognition of Respondent's employees , it being the successor in the same employing industry.' Indeed, shortly following the charge in the in- stant proceeding, at a meeting of representatives of the Union and Respondent,- this recognition was affirmed by an agree- ment to commence negotiations for a new contract and, as previously noted, union dues were continued to be checked off. In November 1973 two of the three employees in the bar- gaining unit voluntarily quit and were replaced within several weeks, in December 1973. Neither replacement belonged to or joined the Union at this time. On January 24, 1974, em- ployee Clarence Evers died. He was the last of the original three union members employed by Kurtz prior to Respon- dent's October 72 takeover, and the only union member among Respondent's employees between late November 1-973 and his death. In fact Union Representative Roger Morse credibly testified at the hearing that upon Evers' death the Union had no current members in the bargaining unit and that between November 1973 and Evers' death it had but one member (Evers) of those employed in the unit. Later in January, sometime after Evers' death, Morse pro- cured signed union dues-checkoff authorization cards from employees Terry. D. Frein and Douglas D. Kolb, the remain- ing employees in the unit , and had them dated February 1, 1974. On this date Morse sent the cards to Respondent, together with a request for a remittance of the dues and for initiation fees which the two employees had agreed be checked off. It is stipulated that these authorizations were not received by Respondent until February 7. On February 11, Evers was replaced and his replacement, now the third mem- ber of the bargaining unit, signed a dues-checkoff cardwhich was dated March 1 , but never submitted to Respondent. Meanwhile, on February 5, Respondent, by its vice president, Bernard Kurtz, wrote a letter to the Union, without knowing of the intervening union affiliation of its two employees, not- ing the demise of Evers as the "last remaining union em- ployee at our Mason City operation." He also expressed the desire of "final resolution" of the issues raised by the charge in instant proceeding. On February 22 Vice President Kurtz replied to the Union's February- 1 submission of authorization cards, re- turning the cards and stating that Respondent had no knowl- edge of the validity of the cards or of the men's desires for representation. In this latter respect Respondent suggested that if the Union were seeking recognition as representative of i Cf Burns, supra. 951 the employees in the unit that it do so by recourse to the processes of the Board, referring, of course, to an election. At a meeting thereafter held between representatives of the Union and Respondent, on February 26, it appears from Attorney Phipps' notes of the meeting , that Vice President Kurtz, when asked if Respondent denied the authenticity of the authorization cards submitted by the Union, replied that he would not deny that the men signed the cards but that he did have "a real question as to whether or not the Union, in fact, represented the men in a bargaining capacity." Kurtz' own notes of the meeting state: "I told him we felt that we had good reason to wonder if the men really wanted to be represented by the Union and we felt this because of the men's newness in the organization and as a result not being conver- sant with everything that had taken place in regard to the entire labor situation in our Mason City office." Questioning the Union's representative status Respondent specifically refused to negotiate a contract, referring as an alternative to the procedure suggested in their February 22 letter, a Board election. Meanwhile, as previously noted, on February 11, the vacancy created by Evers' death was filled by a new employee who thereafter signed a dues-checkoff authorization card dated March 1, 1974. This raised the existing union member- ship complement to three. On March 1 Vice President Kurtz met with the three unit employees and engaged them in an extended discussion relat- ing to "our entire labor situation because . . . with them being new employees [he knew] that they were not fully aware of all the developments since City Supply Corporation had purchased the plumbing, heating and air conditioning from L. H. Kurtz Co., of Mason City Iowa." A summary of this meeting prepared by Kurtz was incorporated into the record on stipulation of the parties. This discloses that, in the course of the meeting referred to, Kurtz made specific points to the men which related to the Union. He assured them that insofar as union membership was concerned they were free agents and could do as they chose. He then told them that it was his belief that the Company could do a better job than the Union in representing them and that it would do so fairly; that there would be a savings to them in letting the Company handle their affairs instead of the Union, referring to the fact that they would not have to pay dues; and finally, that by being represented in a small bargaining unit such as the three-man warehouse unit they were restricting their opportunities for advancement in the Company beyond the warehouse opera- tion. When asked to explain his basis for making the latter observation relating to access to other employment within the Company, Kurtz credibly testified as follows: Well, in no way did I intend to imply to the men that they would be restricted from not wanting to get in or choosing as time went on to get into sales work or into pricing or cataloguing, whatever it might be, but know- ing the history of this particular business where there has been representation by, for instance, a union, a local, most of the fellows over the years have elected to stay right back in the warehouse area, the drivers, and to advance along as they could best advance along to the notches that were in the contract, like an order picker or 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a driver or whatever it might be.2 Thereafter, on March 5, there was an exchange of tele- phone calls between employee Douglas Kolb, a member of the bargaining unit, and Vice President Kurtz. These calls were initiated by employee Kolb and generated two further calls by Kolb and a total of two responding calls by Kurtz. Submitted into the record upon stipulation of the parties are Kurtz' account of each conversation, the total of which con- stitutes the entire record of what occurred on March 5. Be- cause they best describe what occurred they are set forth here: March 5, 1974; 10:30 a.m.: I just had a telephone call from Doug Kolb saying that they wanted to reach a conclusion about whether they wanted the Company or the Union to represent their interest and he wanted to know if there was anything I could actually promise to them in the area of their own betterment and I responded by saying that I hoped they all would rely on the integrity of Art Petersen, myself and the principles of this business in dealing with them in as fair a way as we know how. I further told him that this was all I could say pertain- ing to this subject, that I was not in a position because of the law to make promises. I told him I knew they were concerned as I had mentioned to them on Friday eve- ning, but that once again, it was my opinion as well as the opinion of our attorney and the principles of this business that Clarence's wife did qualify for benefit at the time of Clarence's death. I told him that we wanted them to be free in making the proper decision either way and we knew in order for them to do this, they had to be aware of everything we had gone through with the Union back to the time City bought Kurtz inventory. I also told him that I had no axe to grind with the Union and that as I had told them I had good regard for Roger Morse and Larry Squires whom I had dealt with over the years. Doug asked me to call him back as to a question he had concerning his insurance coverage. I said I would. March 5, 1974; 11:45 a.m.: I phoned Doug Kolb back to relate to him the infor- mation he wanted to know on his insurance coverage and stressed once again that I hoped he and the men would have confidence in Art Petersen, the principles of this business and myself in being dealt with in a fair and equitable way. March 5, 1974; 1:30 p.m.: Doug Kolb called me again wanting to know if there wasn't some form of a guarantee we could give about their future betterment and I indicated once again that there was no guarantee that I could give and that all I could ask of them was for confidence in me. I told them that if they chose to request the return of their authoriza- tion slips and not to be represented by the Union that they should call the party to whom they returned the authorization to and ask him to return them. 2 So that a complete understanding of this meeting may be available a stipulated summary referred to above has been attached to this decision as Appendix A and is incorporated by reference into this decision for all purposes I asked him to phone me if they decided that they wanted the Company to deal with them directly so that we would know how to proceed. March 5, 1974; 4:00 p.m.: Doug Kolb called to say that all the men had voted unanimously that they wanted their authorization slips returned to them by the Union and that they did not want Union representation. I thanked him for the confi- dence that he, in addition to the rest of the men, had placed in us and I knew that we would be able to have a good bargaining relationship I told them I would be getting together with them within the next several weeks to outline our proposal. He told me that all of the men had signed union cards because Morse had been there and signed Harlan Helps up. He asked what they could do about those cards if they really didn't want the union to represent them. I told him that it is an employees right to be repre- sented by the Union or not as they pleased. I also told him that they had a right to have the cards returned if they didn't want to be represented. I suggested he con- tact the man who gave him the card. He said they had already talked to Roger Morse about getting the cards back. Morse had the cards with him that morning at the office but now said he had sent them to the attorney. March 5, 1974; 4:00 p.m.: After I talked to David Phipps on the phone about this situation, I called Doug Kolb back. I told him that the company would not tell them what to do but I felt if I were in their shoes that I would direct a personal letter to the Union asking for the return of the authorization slips and that I would keep a copy. He said they would do this. On the same day, March 5, by letters to the Union, the three .members of the bargaining unit requested that their authorization cards be withdrawn, and this was done. B. Analysis and Conclusions In charting the bargaining obligations of a successor em- ployer, N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272, the Supreme Court made an observation that has surface appeal in the treatment of the issues herein. Thus it is stated (at 279, fn. 3): Where an employer remains the same, a ioard certifica- tion carries with it an almost conclusive presumption that the majority representative status of the union con- tinued for a reasonable time, usually a year. See Brooks v. N.LR.B., 348 U.S. 96, 98-99. After this period, there is a rebuttable presumption of majority representation. Celanese Corp. ofAmerica, 95 N.L.R.B. 664,672 (1951). If there is a change of employers, however, and an al- most complete turnover of employees the certification may not bar a challenge if the successor employer is not bound by the collective-bargaining contract, particularly if the new employees are represented by another union or if the old unit is ruled an accretion to another unit. CITY SUPPLY CORPORATION But here, it must be remembered, the membership of the Union was not merely depleted. Indeed, upon the death of Evers it became nonexistent. At that point the Union was admittedly not merely a minority representative, but, in fact, a representative of no one at all. Certainly it was not the intent of the Supreme Court to underwrite continuing recog- nition where no one was, in fact, represented by the organiza- tion seeking it. Accordingly, I would conclude at this junc- ture that such issues as employee turnover, presumptions of continuing majority status, and the continuing obligation of a successor employer to recognize it all evaporated with the demise of the last union member on January 26. What is significant in the circumstances present here is that ,.on February 1 two of the then employees of the unit, em- ployees Frien and Kolb, selected the Union to represent them by signing union dues-checkoff cards which were thereupon presented to Respondent. It is Respondent's negative reaction at this time to the Union's implicit request for recognition at this time, and not what happened earlier, and as far back as November, that is the crux of this case. The question really raised here is whether, by presentation of authorization cards for two of the three employees in the bargaining unit, the case is not in the category of those re- served for future consideration by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), wherein it stated (at 601, fn. 18) that "a union's right to rely on cards as a freely interchangeable substitute for elections where there has been no election interference is not put in issue here." For reasons which follow I am not persuaded that this is among the cases devoid of election interference and hence is not one of those beyond the contemplation of Gissel. Clearly the determinate of such a question is whether or not "there has been no election interference." And to this end further consideration must be given to Kurtz' March 1 visita- tion with the three employees in the bargaining unit and to the series of telephone conversations with Employee Kolb on Maich 5 which culminated in the employees' withdrawal of their union dues-checkoff authorizations. A review of Kurtz' summary memorandum submitted by stipulation into the record discloses that apart from back- ground information and general matters which he conveyed to the men he did indulge in comments concerning the Union and their membership that are of questionable propriety. Specifically he told them the Company could do a better job representing them than the Union could; that there would be a savings to them, presumably of union dues; and that the limited classifications comprising the bargaining unit in which the Union represented them would inhibit their ad- vancement elsewhere in the plant, a factor which Kurtz elaborated on in his testimony. These remarks, directed as they obviously are to Kurtz' opposition to the unionization of his employees, can best be assessed by his subsequent behavior. This took form in a series of telephone calls admittedly initiated by employee Kolb, and set forth in full above. Therein it is apparent that Kurtz resumed the same theme of his March 1 meeting after giving his attention to Kolb's personal insurance problems and to his expression of the men's concern for the welfare of the widow of the deceased, employee Evers. Thus when Kolb asked him what guarantees Respondent would provide for 953 the fairness which Kurtz had promised in his earlier tele- phone conversations and at his March 1 meeting with the men, Kurtz asked only that they have confidence in him; and then suggested the method whereby the employees could withdraw their union authorization-asking them to tele- phone him back if the men wanted to deal directly with him. The men complied with his suggestion in a matter of hours, withdrew their authorizations, and so informed Kurtz. It is well established that the lending of assistance by an employer in an employee's withdrawal from a union, or the suggestion of the means and manner by which this can be accomplished, encourages and assists employees in their withdrawal and thereby interferes with, restrains, and coerces such employees in the exercise of their statutory right to retain union membership, and is in violation of Section 8(a)(1) of the Act.' As this is precisely what Kurtz accom- plished here I conclude and find that he violated the Act in these respects. Suffice it to say the procuring of union authorization with- drawals go to the heart of the election process, an absence of at least some evidence that employees wish an election, the so-called 30 percent showing of interest being sufficient to preclude the holding of the election itself. Kurtz' efforts to procure employee withdrawal may like- wise be viewed as a final step in the effort at employee dissua- sion which commenced in his March 1 meeting. Linking the two, as indeed Kurtz in his telephone conversation linked the foresaking of the Union with his talk to the group 5 days earlier, it is clear that the several factors raised by him in opposition to the Union and in concern for their alleged naivete was something more than the expression of free speech permitted the employer in such matters. On the con- trary, they constituted a prelude to the withdrawals that were accomplished at his importuning on March 5. I accordingly conclude and find that Respondent through the statements of Kurtz in which he urged upon the men that (1) the employer could do a better job than the Union at representing their interest, (2) that they would effect a personal savings by not paying union dues, and (3) that their area of advancement would be improved without the Union, all constituted further interference, restraint, and coercion. This I conclude and find to constitute a further violation of Section 8(a)(1) of the Act. Against such a backdrop as is formed by the foregoing findings of interference, restraint, and coercion, Respondent's rejection of the Union's request to bargain based upon the Respondent's alleged doubts that the employees did not really want the Union now becomes transparent, to say the least. In language equally applicable to the Respondent's claim here the Supreme Court in Gissel Packingnoted (395 U.S., at 607): We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. Here the two employees whose cards were presented to Kurtz by the Union had been employed since late November 1973. To attribute to them such a lack of understanding or naivete 3 Cumberland Shoe Company, 160 NLRB 1256, 1259 (1966), Fortrex Manufacturing Company, Inc., 184 NLRB 22 (1970); Ingress-Plastene, Inc., 177 NLRB 481, 489 (1969) 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as Respondent suggests does not realistically assess the intel- ligence of men whom they would retain in their employ. Specifically I do not credit this stated reason but find it to be a pretext. Indeed, nowhere has it ever been held that the benefits granted employees by Section 7 of the Act might require an employer's counseling before they become viable. On the contrary, Respondent's protestations of the em- ployees' lack of understanding of the Company's labor rela- tions situation become hollow when considered with Kurtz' telephone conversation with employee Kolb on March 5. What Respondent really wanted and what it got was a with- drawal of the employees from the Union . Indeed this was the only way it could accomplish its stated desire to deal directly with the men. And it is this that has already been found to constitute unlawful interference, restraint, and coercion. In such a posture I would reject out of hand any suggestion that' Respondent doubted, in good faith, its employees' desire to be represented by the Union. Equally without merit is its repeatedly stated willingness to go to an election. Quite apart from the good faith that would have been manifest -in this area by Respondent itselffiling a petition for an election,4 the circumstances , as they deve- loped by Respondent's conduct, made it impossible for the Union to petition for an election . Respondent, by procuring the withdrawals of employees Frein and Kolb, had effectively destroyed the 30-percent showing of interest administratively required by the Board for the consideration of an election petition. This, then, presents the classic case where an employer had effectively frustrated the very means of determining the em- ployee choice by an election. And if ever the use of cards has warrant under the terms of N.L.R.B. v. Gissel Packing Co. supra, this is it. I accordingly conclude and find that by rejecting the proffer of two authorization cards of unques- tionable validity, as majority status evidence in the three-man bargaining unit, when it wrote the Union its letter of Febru- ary 22, and thereafter by procuring the withdrawal of these employees from the Union, and by at all times refusing to bargain with the Union as their representative, Respondent has thereby refused to bargain in good faith with the repre- sentative of a majority of its employees in an appropriate unit, the Union herein, in violation of Section 8(a)(5) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth herein in section I, above, have a close' 'intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1) and (5), I shall recommend that an order issue requir- ing that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive represen- tative of the employees in the unit found appropriate herein. 4 Cf San Luis Obispo County, et at, 196 NLRB 1082, 1087 (1972) I shall also-recommend that Respondent be ordered to post appropriate notice of compliance with such order as is issued herein. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, City Supply Corporation, Mason City Iowa, its officers, agents, successors, and assigns, shall: 1. Cease and desist: (a) Suggesting or urging employees to withdraw from or lending assistance to employees to withdraw from member- ship in Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 828, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. - (b) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployees' employment with the aforesaid labor organization as the exclusive representative of its employees in the following unit found to be appropriate for the purposes of collective bargaining: All warehouse employees, truckdrivers and city desk clerks at the employer's Mason City, Iowa, facility; but excluding professional employees, guards, and supervi- sors as defined in the National Labor Relations Act as amended. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the rights guaranteed them by Section 7 of the Act. - 2. Take the following affirmative action which it is found will effectuate the policy of the Act. (a) Upon request bargain with the above-named labor or- ganization as the exclusive representative of all the employees in the aforementioned appropriate unit, with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and if an agreement is reached reduce such agree- ment in writing. (b) Post at its Mason City, Iowa, facilities copies of the attached notice marked "Appendix B."6 Copies of said no- tice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's authorized repre- sentative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. 5 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 6 In the event 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 read "Posted Pursuant to a Judgment of The United States Court of Appeals Enforcing an Order of the National Labor Relations Board." CITY SUPPLY CORPORATION 955 (c) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX A MEMORANDUM In Re: Mason City Labor Situation Visit I had with the three warehousemen On Friday evening, March 1, 1974, at approximately 6:15 p.m. after we had returned from having dinner because we were working inventory on that particular evening, I told everyone, even Harlan Kolb that I would like to visit with them in the City Desk area. Art Petersen accompanied me with the three warehousemen and Harlan Kolb elected to do some work in the office. I opened my visit by telling them that I wanted to meet with them in a place common to their ordinary every day work and that my purpose for calling them together was to make them conversant on our entire labor situation because I knew that with them being new employees that they were not fully aware of all the developments since City Supply Corporation had purchased the plumbing, heating, and air conditioning from L. H. Kurtz Co. of Mason City, Iowa. I indicated that were were not convinced that they really wanted the Union to represent their interests and therefore I wanted to tell them of all the developments that had taken place. I went on by telling them that at the time of City's purchase of the plumbing, heating and air conditioning inven- tory that I visited with the warehousemen and told them that City Supply would like to have them come into their employ if they wanted to and that City Supply would continue them on at, their same rate of pay and that the only thing I could not commit myself on was the vacation- and sick leave that they would be entitled to because we would be considering them as new employees. I told them the Union subsequently said that these people should be continued along at their seniority level and therefore should have all of the vacation they had earned over the years as well as sick leave. I told them that the Union in Des Moines did not see it this way and that the people that came from Kurtz to City in Des Moines had to start over again gaining seniority. I also told them that when Kurtz bought Crane that the people had to start over again. I indicated that we had not paid any pension on the men in Mason City because the matter of seniority had not been resolved. I indicated the Union was still sticking firm to their convic- tions and ultimately filed suit in court against City Supply Corporation and after that filed the claim through the NLRB . I told them I thought it would be well if I would read the claim the Union had made against us which I did and then said That I felt they should know exactly what the response of the NLRB was. Thus I read the response. I told them that each person had the right to belong to the union, that there was still an open shop law in the State of Iowa, and no one could force them either way. I said that I knew they were concerned about the widow of Clarence Ewers being cared for with what Clarence had earned in the pension program over the years. I told them that it was the conviction of our attorney in•Des Moines, as well as the Company in addition to myself, that Mrs. Ewers would qualify right at the point of the City takeover because Clarence had earned the privilege to retire at that time and all payments had been made for him to that point. I told them that should we be proved wrong there was another solution to it. I further told them that if anyone should have interest in Clarence it would be Art and myself because we had worked with him for many years and would want to see something worked out for his widow's best interest. I told the men that I felt the Company could do a better job than the Union in representing them and they could expect the Company would be fair with them in every way. I also told them I had regard for the Union agents I had been dealing with in Mason City. I pointed out the savings to them in letting the Company handle their affairs rather than the Union. I told them that the Company had a high regard for them and they would never have hired them if they felt they could, not advance. I told them that there were very limited job classifications represented by the union in the warehouse and there were several areas of advancement in the overall company-operation. I told them in conclusion that I wanted them to be aware of the entire situation so that they were truly making their decision in the right frame of mind and that this was to be solely a visiting session in laying the facts before them. Terry Frein asked if questions could be directed and I said it was not my intention that this be a question and answer period and he immediately said, "Well, we are concerned about Mrs. Ewers." I told him I could appreciate his concern and went over again that part of the conversation that I had had with the men concerning this point. Then Harlan Helps immediately spoke up and said, "What can be guaranteed to us in the way of benefits?" and I told him that I wasn't in a position to guarantee him anything but that they could only rest upon the integrity of Art Petersen and myself as well as with the principles of the business in being fair with them. I then thanked them for listening to me and said that we would return to the inventory, which we did. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suggest to or urge our employees to withdraw from membership in Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 828, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT lend assistance to our employees in with- drawing their membership from the aforementioned Union or any other labor organization. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL bargain with Teamsters, Chauffeurs, Ware- housemen and Helpers, Local Union No. 828, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our employees in the following bargaining unit: All warehouse employees, truckdrivers and city desk clerks at the employer's Mason City, Iowa, facility; but excluding professional employees, guards, and supervisors as defined in the National Labor Relations Act. WE WILL, upon request, bargain collectively with the aforementioned Union with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and if an understanding is reached, we will em- body such understanding in a signed contract. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of you in the exercise of your rights guaranteed by the National Labor Relations Act. All of you, our employees, are free to remain, or become, or to withdraw from, or to refrain from becoming, members of Teamsters, Chauffeurs, Warehousemen and Helpers, Lo- cal Union No. 828, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. CITY SUPPLY CORPORATION