J. C. Penney Co., Inc.

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. C. Penney Company, Inc. and Furniture, Depart- ment Store and Parcel Delivery Drivers, Helpers and Warehousemen Local Union No. 193, a/w The International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 25-CA-5876 November 21, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 23, 1974, Administrative Law Judge Ben- jamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended 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, J. C. Penney Company, Inc., In- dianapolis, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. I Member Kennedy concurs in the result in this case because it is clear that Union Officer Green made clear at both the June 5 and July 5 meetings that initiation fees of $8 would not be required until after the Union was certified and a contract negotiated . Member Kennedy believes that the Administrative Law Judge erred in excluding evidence as the statements of card solicitors to employees at the time the employees signed authorization cards In Member Kennedy's view, such evidence is relevant and material to a determination as to whether there has been compliance with the Su- preme Court's decision in N.LR B. v Savair Manufacturing Company, 414 US 270 ( 1973) That decision cannot be circumvented by a union 's having employees solicit signatures on authorization cards and then disclaiming responsibility for the statements of the card solicitors. DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: A hearing in this case was conducted on June 17, 1974 ,' in Indianapo- lis, Indiana, upon a complaint by the General Counsel' al- ' All dates are sequentially in 1973 and 1974, unless otherwise indicated leging that the Respondent refused to bargain with the certi- fied Union in violation of Section 8(a)(5) and (1) of the Act. On the entire record, the briefs filed by General Counsel and Respondent, and my observation of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION Respondent is engaged in the retail sale of general mer- chandise in several States. It maintains, inter alia, a carpet facility in Indianapolis, Indiana, which is solely involved in this proceeding. During the year preceding issuance of the complaint, Respondent had a gross volume of business in excess of $500,000, and a direct inflow in interstate commerce of goods and merchandise transported to its Indianapolis facility valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce, and that the Union is a labor organization, within the meaning of the Act. I I THE UNFAIR LABOR PRACTICES A. The Issue The factual question is presented whether the Union's waiver of initiation fees was limited to employees who joined the Union or signed authorization cards prior to the Board election as to constitute interference with the election under the recent holding of the Supreme Court in the Savair case.' After the Board overruled Respondent's objection to the election on such ground and certified the Union, Re- spondent refused the Union's request to bargain. B. Essential Background Pursuant to a stipulation for certification upon consent election, an election was conducted in an appropriate unit of the carpet facility employees on July 18.4 The election re- sults show that, of approximately 36 eligible employees, 23 votes were cast for, and 11 votes were cast against, the Union. Respondent filed a timely objection to the election alleging that the Union threatened "those who did not sign cards or support the Union with discriminatory initiation fees" and, as subsequently elaborated, that the Union made statements "offering to waive initiation fees for those employees who signed the Union's . . . authorization cards prior to the elec- tion or prior to the signing of the first contract." In his report on objections, the Regional Director recommended that the Respondent's objection be overruled, relying upon the deci- sional precedents then extant.' Thereafter, Respondent filed exceptions to this report. On September 11 the Board issued its decision in which it affirmed the Regional Director and ' The Union's charge was filed and served on October 15, and the com- plaint herein issued on November 1 3 N.LR B. v. Savair Manufacturing Co., 414 U S. 270 (1973). 4 Case 25-RC-5397 Official notice is taken of the record in the represen- tation proceeding as provided in Secs. 102 68 and 102.69 (f) of the Board's Rules and Regulations. The principal documents are in evidence as appen- dices to the General Counsel's motion for summary judgment, infra. 5 I e, DIT-MCO, Inc., 171 NLRB 1458 (1968), enfd 428 F 2d 775 (C A 8, 1970) 215 NLRB No. 19 J C. PENNEY CO. certified the Union as exclusive representative . On September 25 the Union requested bargaining , and on October 4 Re- spondent declined to recognize the Union or to meet with it for contract negotiations . On November 16, General Counsel filed with the Board a motion for summary judgment based upon the admitted refusal to bargain in Respondent's answer to the instant complaint. On December 17 the Supreme Court handed down its decision in Savair, supra, holding that a waiver of initiation fees limited to employees joining prior to the election interfered with the employees ' free choice and rendered the election invalid . On April 26 the Board issued an order, in the light of the Savair case, denying the motion for summary judgment and remanding this proceeding for the purpose of the present hearing. C. The Pertinent Evidence Shirley Green, secretary-treasurer of the Union, testified without contradiction, viz: Prior to the Board election sche- duled on July 18, he held two meetings with employees at the union hall. At the June 5 meeting, attended by about 15 employees, he told them that the initiation fees would be equal to 1 month's dues of $8, and that the employees would not have to pay initiation fees or monthly dues until the Union was certified by the Board and a contract was nego- tiated and accepted by a majority of the employees. At such time, membership would be acquired by payment of $8, con- stituting the initiation fee, plus actual dues of $8. Employees hired following execution and ratification of the contract, and "normally" after 30 additional days, would have to pay the regular initiation fee of $50 and $8 monthly dues in order to join the Union. These fee requirements applied across-the- board to all unit employees. At the meeting on July 5, with about 20 employees in attendance, Green was questioned by an employee concerning a rumor that the initiation fee would be $100. Green repeated in detail the statements he made at the June 5 meeting on the subject of initiation fees. Four employees called by General Counsel testified substantially in corroboration of the foregoing. Respondent presented no wit- nesses to testify with respect to these union meetings and concedes in its brief that Green did not make an "unlawful offer" to reduce initation fees. There is no evidence that any official of the Union, other than Green, spoke to employees with respect to waiver of initiation fees. At the inception of the organization campaign, Green was made aware that about 10 employees picked up blank authorization cards at the Union's office. Green testi- fied that no employees, individually or as a committee, were appointed to act as organizers for the Union. Respondent offered no evidence materially to support the allegations in its objection to the election. It was restricted from adducing statements concerning the waiver of initiation fees purportedly made by employee card solicitors without first showing they were agents of the Union.6 Full oppor- 6 Certain offers of proof by Respondent were rejected For example, Respondent offered to prove that Freddie R Covert, hired subsequent to the election, was told by employee Algon L Smith that Smith would talk to Union Agent Green about providing Covert with the same "deal" on the initiation fee which the Union offered to the employees poor to the election Such testimony, even if accepted, would serve only to confirm the waiver policy announced at the union meetings A further offer was made to show 25 tunity was afforded to adduce such evidence on agency, ex- press or implied. Respondent's arguments are plainly without merit that employees Smith and Owsley were agents of the Union simply upon a showing that they distributed or solic- ited authorization cards or extended invitations to other em- ployees to attend union meetings.' Indeed, it appears that about 10 employees picked up blank authorization cards at the union hall, presumably to sign themselves or solicit signa- tures of others; they were not designated by the Union to act as organizers. Respondent has no evidence that Smith or Owsley were authorized to make the purported waiver state- ments on the Union's behalf or that the Union approved or ratified any statements of these employees which were incon- sistent with the clearly announced policy at two union meet- ings prior to the election.' D. Conclusion In the Savair case, supra, the Supreme Court specifically indicated that a union could preserve its legitimate interest by the waiver of initiation fees across-the-board to all employees regardless of whether they signed up with the union before or after the election. Here, the Union's waiver of initiation fees clearly conformed with the Court's test since the waiver was available to all employees who joined the Union before and after the election except those hired subsequent to the execu- tion and ratification of a contract.' Thus, the waiver was not conditioned upon support of the Union in the Board election, which is the essence of the question involved. Ac- cordingly, it is concluded that, by refusing to recognize and that Smith spoke to Charles W Hawkins "with regard to the signing of the union card" and "with regard to the initiation fee that would have to be paid by the employees " Respondent's counsel then stated he had two more witnesses who "would attempt to testify basically the same matters Mr. Hawkins attempted to testify" and proposed the same offer of proof without calling the witnesses However, he then withdrew his proposal because he could not recall "word for word" the offer of proof as to Hawkins, and the two further witnesses were called As represented by counsel, it was offered to prove through employee William D Clark, that employee B T. Owsley, while soliciting an authorization card, stated that employees would not be eligible for the reduced initiation fee if they signed a union card after the election And it was offered to prove that Smith made a similar statement to employee William Karandos It was further offered that Karandos would testify he saw Smith handing out union cards, that Smith invited him to attend meetings at the union hall, and that "Smith was the one employee to whom other employees turned for information concerning the union." The latter clause, in particular, purported to state a conclusion of the wit- ness, was based upon gross hearsay and, in any event, would not establish the agency of Smith It is noted that Karandos and Clark each attended one of the two union meetings, although Karandos could not recall Green's discussion of initiation fees, while Clark testified he came late and heard no mention of the subject 7 E g, BuJkor-Pelzner Division, Inc, 169 NLRB 998, 999 (1968) 8 See DIT-MCO, Inc., 163 NLRB 1019, 1020 (1967) There, employee Everett, who was an active union organizer and union election observer, told another employee that, by signing an authorization card, he would not have to pay an initiation fee if the union won the forthcoming election The Board found that Everett's remark was not authorized, approved, or ratified by the union, was inconsistent with the statements of the union president at em- ployee meetings, and was not attributable to the union 9 Irwindale Di vision, Lou Industries, A Division ofPhillips Industries, Inc, 210 NLRB 182 (1972), Endless Mold, Inc., 210 NLRB 159 (1974) Contrary to Respondent's contention, there is no ambiguity in the Union's announced waiver as could reasonably be interpreted by employees as limiting the waiver to those employees who actually joined or were employed by the election date Cf. Inland Shoe Manufacturing Co., Inc., 211 NLRB 724 (1974) 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain with the certified Union, Respondent violated Sec- tion 8(a)(5), as alleged. THE REMEDY Having found that Respondent is engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time stock handlers, re- ceivers, custodians, cutters, unit heads and plant clerical em- ployees including clerks A and clerks B at the Indianapolis, Indiana, carpet facility, excluding all office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act; constitute a unit appropriate for the pur- pose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is the certified exclusive representative of all employees in the appropriate unit for the purposes of collec- tive bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By refusing to recognize and bargain with the Union, upon request, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing, Respondent has interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'° Respondent, J. C. Penney Company, Inc., Indianapolis, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Furniture, Department Store and Parcel Delivery Drivers, Helpers and Warehousemen Local Union No. 193, a/w The International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the certified exclusive representative of its employees in the appropriate unit. The 10 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 find- ings, 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. initial year of certification shall be deemed to begin on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit." (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights gua- ranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act. (a) Upon request, bargain collectively and in good faith with the above-named Union as the exclusive representative of its employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its Indianapolis, Indiana, carpet facility, copies of the notice attached hereto as "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 25, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 11 The purpose of this provision is to ensure that the employees in the appropriate unit will be accorded the statutorily prescribed services of their selected bargaining agent for the period provided by law See, Mar-Jac Poultry Co, Inc., 136 NLRB 785 (1962), Commerce Co d/b/a Lamar Hotel, 140 NLRB 226, 229 (1963), enfd. 328 F 2d 600 (C A 5), cert. denied 379 U S. 817 (1964), Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd 350 F 2d 57 (C A 10, 1965). 12 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 WE WILL NOT refuse to recognize and bargain collec- tively with Furniture, Department Store and Parcel Delivery Drivers, Helpers and Warehousemen Local Union No. 193, a/w The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the certified exclusive representative of our employees in the appropriate unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL, upon request, bargain collectively and in good faith with the above-named labor organization, as the exclusive representative of our employees in the ap- propriate unit, and embody in a signed agreement any understanding reached. The bargaining unit is: All full-time and regular part-time stock handlers, receivers, custodians , cutters, unit heads and plant clerical employees including clerks A and clerks B at J. C. PENNEY CO. 27 the Indianapolis, Indiana, carpet facility, excluding all guards and supervisors as defined in the Act. office clerical employees, professional employees , J. C. PENNEY COMPANY, INC.