United Supermarkets, Inc.

UNITED SUPERMARKETS 119 United Supermarkets, Inc. and Retail Clerks Union, Local 386 Chartered by United Food & Com- mercial Workers International Union, AFL- CIO. Case 16-CA-11191 15 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 21 June 1984 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief and counsel for the General Counsel filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. Our dissenting colleague would hold that the Re- spondent was privileged to withdraw recognition from the Union based on employee disaffection as expressed in a petition supporting union decertifica- tion, and would, therefore, dismiss the allegation that this withdrawal of recognition violated Sec- tion 8(a)(5) and (1) of the Act. We believe that this analysis distorts the facts of this case as well as ap- plicable precedent. An appreciation of the background between the Respondent and the meat department employees here involved is essential to the analysis of this case. In mid-1977 the Union initiated an organiza- tional effort at the Respondent's seven Amarillo, Texas area stores within two multisite units of gro- cery employees and meat department employees. Following an intense campaign , marked by exten- sive conduct in violation of Section 8(a)(1) and the unlawful termination of nine unit employees, the Union received a majority of the 19 votes cast in the meat department unit and failed to receive a majority of the approximately 110 ballots cast in the grocery unit . On 28 May 1982, in a case con- solidating the two representation proceedings with eight separate unfair labor practice charges, the Board certified the Union as the representative of the meat department employees and ordered a second election among the grocery unit employees. See generally 261 NLRB 1291 (1982). Following its certification in the meat department unit, the Union requested bargaining in mid -June. However, the parties did not meet until 15 September and the Respondent did not provide a counterproposal until 7 October 1982. Throughout this time the Re- spondent continued to litigate the 1977 unfair labor practices in the court of appeals and had neither of- fered reinstatement or backpay to all the unlawful- ly discharged employees nor otherwise complied with the Board's remedial Order. On 27 October 1982 a decertification petition was filed. On 15 March 1983, following the court of appeals' en- forcement of the Board's Order, the Respondent made offers of reinstatement to the discriminatees. However, the evidence establishes that the Re- spondent continued to contest its backpay liability at least through the April 1984 date of the hearing in this proceeding. Meanwhile, the parties did not meet again for bargaining but communicated inter- mittently by telephone and letter until 15 July 1983 when the Respondent advised the Union that it doubted the Union's majority status and would no longer engage in bargaining. The dissent argues that the October 1982 decerti- fication petition supported by 90 percent of the unit employees is a reliable and objective manifes- tation of the Union's loss of employee support and that it provides a good-faith basis for withdrawing recognition from the Union. Citing the passage of 5 years between the commission of the unfair labor practices in the underlying case and the appearance of the decertification petition, the dissent contends that whatever coercive impact may have been gen- erated during the organizational campaign had so dissipated as to have had no possible lingering effect on the unit employees. Moreover, the dissent states, "only a few of the Respondent's unfair labor practices" took place in the meat department unit, "only two of seven stores in this unit" were in- volved, and "only two of the unlawfully discharged employees were from the meat department." (Em- phasis added.) Given that the unit employees freely chose in the 1977 election to be represented by the Union when these unfair labor practices were fresh, the dissent asserts that it is "illogical" for the majority to rely on a delayed coerced reaction in finding that the decertification petition was tainted. We cannot agree with these assertions. First of all, although the election in this unit and the unfair labor practices committed by the Re- spondent may have occurred in 1977, it was not until 1982 that the Union was certified and the Re- spondent was ordered to remedy its "extensive and serious" ' unlawful conduct. The unit employees were deprived of their representational rights throughout the time that the Respondent was liti- gating its position before the Board-a fact that the dissent ignores and one that would not likely have enhanced the Union's standing with the employees 1 United Supermarkets, 261 NLRB 1292 ( 1982). 287 NLRB No. 11 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as the years passed without their selection of the Union as bargaining representative bearing them any fruit. In any event, by the time the decertifica- tion petition appeared, the Union had been certified for only 5 months, and bargaining for an initial contract was just beginning. (The Respondent had provided its first counterproposal to the Union 3 weeks prior to the filing of the decertification peti- tion.) It is well established that a union's majority status cannot be challenged within its certification year. Brooks v. NLRB, 348 U.S. 96 (1954). Al- though certain "unusual circumstances" are recog- nized as exceptions to this otherwise irrebutable presumption, i.e., defunctness of the union, schism within the certified representative, and radical fluc- tuation of the size of the bargaining unit, none of these exceptions is present here. The Board has held that "[a] petition bearing the signatures of a majority of unit employees . . . during the certifi- cation year `is not the type of unusual circum- stances warranting suspension of the 1-year rule."' Ben Franklin National Bank, 278 NLRB 986, 992 (1986).2 So strictly has the Board held to the con- clusive nature of a newly certified union's unchal- lenged status that it will dismiss representation peti- tions filed before the expiration of the 12-month period following a certification, on the basis that "the mere retention on file of such petitions, al- though unprocessed, cannot but detract from the full import of a Board certification, which should be permitted to run its complete 1-year course before any question of the representative status of the certified union is given formal cognizance by the Board." Centre-O-Cast & Engineering Co., 100 NLRB 1507, 1508 (1952).3 Although it is not ex- plained why the Regional Office departed from this longstanding practice in this case, it is certain that the petition should have been dismissed and not permitted to remain on record as a continuing threat to the rightful representative status of the Union. Although it is true that the Respondent de- layed formally withdrawing recognition from the Union until the certification year expired, it is also true that the Respondent relied in part on this pre- maturely filed petition to support its withdrawal. We believe that just as the petition could not raise a question concerning representation nor be acted on by the Respondent within the certification year, 2 See also NLRB v Pepsi-Cola Co, 613 F 2d 267 ( loth Cir 1980), in which a change in ownership of a company within the certification year is similarly held not to constitute an "unusual circumstance" even if the employer is correct in its asserted belief that the union no longer repre- sents a majority of the employees a See also Lee Office Equipment, 226 NLRB 826 ( 1976), in which the Board found untimely a decertification petition filed before a respondent had complied with an outstanding remedial bargaining order the Respondent cannot subsequently rely on it to justify a more timely withdrawal of recognition. More significant, however, than the untimeliness of the decertification petition is the fact that the underlying expression of support was itself unreli- able as an indicator of uncoerced employee senti- ment because it arose during the time when the Re- spondent had not yet fully remedied its many unfair labor practices. See Robertshaw Controls Co., 263 NLRB 958, 959-960 (1982). Employees who had been dismissed in retaliation for their support of the Union some 5 years earlier were still not re- instated. This kind of unlawful action by an em- ployer is precisely the type of coercive conduct that may be expected to impress the remaining work force and not soon be forgotten. See, e.g., Pittsburgh Trucking Co., 249 NLRB 833 (1980); Doug Hartley, Inc., 255 NLRB 800 (1981); Taylor Hospital, 279 NLRB 28 (1986); and Groves Truck & Trailer, 281 NLRB 1194 (1986). Therefore it is not likely, as the dissent describes, that there were but "speculative remnants" of lingering coercion within the unit, but rather that the expression of support for decertification was a direct and tainted byproduct of the Respondent's unfair labor prac- tices. Finally, we disagree with the dissent's attempt to minimize the extent of the unlawful conduct affect- ing the meat department unit. Two of 19 unit em- ployees were dismissed. Seven grocery unit em- ployees (of approximately 110) were fired during the same time period, two of whom worked at the same stores as the terminated meat department em- ployees. There were pervasive violations of Section 8(a)(1) in at least five of the stores. Employee transfers among the stores were common and, given the nature of the Respondent's business, con- tacts between grocery unit employees and meat de- partment employees occurred frequently. There- fore, events occurring at any of the seven stores or within either unit were not isolated to the particu- lar unit, but rather had rippling effects across unit boundaries and spread readily through the system and throughout both units. Accordingly, in view of the timing and the cir- cumstances existing when the decertification peti- tion arose-during the certification year and while the Respondent continued to delay taking remedial action for its own unlawful prior actions-we be- lieve that the judge correctly determined that the 1982 decertification petition and the signatures of the employees supporting it are unreliable indica- tors of employee sentiment toward the Union, and UNITED SUPERMARKETS 121 that the Respondent's subsequent withdrawal of recognition violates the Act.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Su- permarkets, Inc., Amarillo, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting. I do not agree with my colleagues ' adoption of the judge's finding that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union. For the reasons set forth below, I would find that the Respondent was privileged to rely on the decertification petition signed by 90 percent of its employees as a basis for a good-faith doubt of the Union's continued majority status. The relationship between the Union and the Re- spondent began in 1977 when the Union initiated an organizational campaign among separate meat department and grocery department units of the Respondent's employees in the Respondent's seven Amarillo, Texas stores. Those organizational efforts led to the events that were the subject of an earlier Board decision." In that case, the Board found nu- merous preelection violations of Section 8(a)(3) and (1), directed a second election in the grocery de- partment unit, and certified the Union as the repre- sentative of the employees in the meat department. 4 The dissent's reliance on certain Board precedent is misplaced. In Johns-Manville Sales Corp , 282 NLRB 182 (1986), the decertification peti- tion was not given to the employer until the certification year had ex- pired, and the extant unfair labor practice concerned the out -of-seniority layoff of three employees who were recalled from layoff after 12 weeks and some 5 months prior to the withdrawal of recognition In Master Slack Corp., 271 NLRB 78 ( 1984), the respondent's prior unfair labor practices had been substantially remedied and the respondent had bar- gained in good faith with the union to an agreement before the employee petition against union representation appeared . The situation in Burger Pits, Inc., 273 NLRB 1001 (1984), involved an unlawful, premature with- drawal of recognition from the union during the term of a collective-bar- gaining agreement, based on an untainted expression of employee senti- ment against continued union representation in an unfair labor practice- free environment In Bennington Iron Works, 267 NLRB 1285 (1983), the employer did not withdraw recognition from the union , but merely law- fully announced during the contract term its intent not to negotiate a suc- cessor agreement when presented with an antiunion petition that was nei- ther directly urged by the employer nor indirectly the result of a coer- cive atmosphere of employer unfair labor practices . Finally, in Abbey Medical/Abbey Rents, 264 NLRB 969 (1982), the Board found that the employer impermissibly withdrew recognition from the union based on employee representations of disaffection that arose in a context tainted by the employer's unfair labor practices In summary , all the cases cited by the dissent correctly stand for the proposition that an employer may withdraw recognition from a union only when the withdrawal is founded on objective manifestations of the union's loss of majority raised in a con- text free of unfair labor practices The instant case does not meet this standard. i 261 NLRB 1291 (1982). The Board's Decision and Order was en- forced without opinion by judgment of the Fifth Circuit Court of Ap- peals on 16 February 1983. The vast majority of the Respondent's 1979 unfair labor practices, including seven of the nine unlaw- ful discharges, arose in the grocery department unit. The other two unlawful discharges and four 8(a)(1) violations took place before the election in the meat departments of two stores in the seven- store unit. The events of the instant case concern only that meat department unit. Following its May 1982 Board certification, the Union requested bargaining. The parties' first nego- tiating session was held on 15 September 1982 at which time the Union presented its initial contract proposal. The Respondent's counterproposal was followed by letter of 7 October 1982. Sporadic communication by letter, telephone, and meeting continued over the course of the next several months until the Respondent notified the Union on 6 July 1983 that it had determined from objective evidence that the Union no longer represented a majority of the unit employees. The Respondent cited as its evidence: the October 1982 filing of a then-pending decertification petition, the 90-percent showing of employee support for that petition, cer- tain statements from union representatives indica- tive of a total lack of employee interest in assisting the Union or attending its meetings, and the Union's own failure to respond promptly to the Respondent's bargaining proposals . The Respond- ent stated that it would not bargain with the Union until the decertification issue was resolved.2 There was no further communication between the parties. The judge correctly stated that following the end of a union's certification year there are two ways in which an employer can lawfully withdraw recognition: (1) by showing that on the date recog- nition is withdrawn the union in fact does not enjoy majority status, or (2) by presenting evidence establishing a sufficient basis to create a reasonable doubt of the union's continued majority. The judge further correctly stated that if, as in this case, an employer relies on the reasonable-doubt approach, the asserted doubt must be based on objective con- siderations and in a context free of unfair labor practices that could have contributed to employee disaffection from their union. The judge then deter- mined that, although the Respondent had not en- gaged in any unfair labor practices during the certi- fication year, its asserted objective considerations were nevertheless tainted by unremedied unlawful conduct which it committed during the 1977 orga- nizational campaign. The judge concluded that be- cause the Respondent had not yet fulfilled its back- 2 By letter of 12 March 1984, the Regional Director for Region 16 in- formed the parties that he was dismissing , subject to reinstatement, the decertification petition in Case 16-RD-978 due to the issuance of the unfair labor practice complaint in this case 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pay obligation to the discriminatees from the earli- er case and because the Respondent had not posted a remedial notice or offered reinstatement to five of the nine discriminatees until after the 16 February 1983 circuit court enforcement judgment, the Octo- ber 1982 decertification petition was tainted by the lingering coercive effects of the 1977 violations. Accordingly, he rejected these indicators of em- ployee sentiment as objective considerations on which a reasonable doubt of union support could be based. The judge then determined that the other asserted evidence of employee disaffection failed to prove sufficient objective considerations. The judge therefore concluded that the Respondent did not effectively rebut the presumption of the Union's continuing majority status and was not justified in withdrawing recognition from the Union. By doing so it violated Section 8(a)(5). While I do not quarrel with the judge's recita- tion of the applicable law, I do not agree with his assessment of the lingering impact of the Respond- ent's 1977 conduct on the employees' activities in 1982. Instead, I find that the passage of 5 years be- tween the time of the Respondent's unlawful ac- tions and the filing of the decertification petition was sufficient to diminish any possible coercive ef- fects that they might have had on employees' ex- pressions of prounion sentiment. It is important to note that the Respondent has not engaged in any independent unfair labor practices during the certi- fication year. Based on findings in the judge's deci- sion, it has bargained in good faith. There is no evi- dence of attempts by the Respondent to coerce em- ployees regarding their union or other protected activities since 1977. Although I do not discount entirely the relevance of history in evaluating cur- rent events, there is insufficient evidence to suggest that the employees involved in supporting the filing of the decertification petition in 1982 were in any way encouraged in this endeavor by the Re- spondent's actions of 5 years ago. As previously noted, only a few of the Respondent's unfair labor practices in 1977 took place within the meat de- partment unit. Only two of seven stores in this unit were involved. With respect to the most serious of the unremedied unfair labor practices, only two of the unlawfully discharged employees were from the meat department. Furthermore, I note that a majority of employees in the department cast votes for the Union at the time of the Respondent's un- lawful conduct in 1977. It seems most illogical to assert, as my colleagues and the judge apparently do, that unfair labor practices that did not prevent a contemporaneous showing of majority support in 1977 might somehow have effected the drastic ero- sion of that support 5 years later. . To view the events of this case by the dim light of the distant past would permit the uncoerced ex- pression of current employee sentiment to be over- shadowed by speculative remnants of the Respond- ent's prior misconduct. I believe that such a view does not reflect reality.3 A question remains, then, whether the Respondent withdrew recognition on the basis of objective considerations sufficient to support a good-faith and reasonable doubt of the Union's continuing majority status.4 In this regard, the mere filing of a decertification petition with the Board, standing alone, may not be sufficient by itself to support a reasonable doubt. In this case, however, the Respondent received a copy of the October 1982 petition and thereby gained knowledge that it had been signed by 90 percent of the employees in the unit. Contrary to the stated belief of my colleagues, a decertification petition signed by a majority of unit employees and received at a time when an incumbent union's ma- jority status is irrebuttable can support a reasonable doubt of that status when it subsequently becomes rebuttable.5 Indeed, even during the time when majority status is irrebuttable, an employer relying on such evidence can lawfully insist on a contract's duration coextensive with a certification year6 or announce that it does not intend to negotiate a suc- cessor contract and will withdraw recognition on the current contract's expiration.7 Although the October 1982 employee petition predated the certification year's expiration and the Respondent's withdrawal of recognition by 9 months, there is no indication in the record of any interim shift in the employees' sentiments against the Union I therefore find that the Respondent's receipt of the decertification petition supported by 90 percent of unit employees and untainted by remote unfair labor practices remained sufficient objective proof of the Union's loss of majority sup- port in the meat department unit.8 Accordingly, I 3 See, e g, Johns-Manville Sales Corp, 282 NLRB 182 (1986), Master Slack Corp, 271 NLRB 78 fn 1 (1984) 4 See Terrell Machine Co, 173 NLRB 1480 (1969), enfd 427 F 2d 1088 (4th Cir 1970) e See, e g , Burger Pits, Inc, 273 NLRB 1001 (1984), Bennington Iron Works, 267 NLRB 1285 (1983) The Respondent here did not act on the decertification petition to withdraw recognition until after expiration of the Union's certification year Consequently, the well-established law of a union's irrebuttable majority status during its certification year is inappo- site 6 Grace & Hornbrook Mfg, 225 NLRB 15, 17 (1976), Lloyd A Fry Roofing Co, 123 NLRB 647 (1959) Abbey Medical/Abbey Rents, 264 NLRB 969 (1982) The Board has also held that an employer's remedial liability for pre- mature withdrawal of recognition during a contract term runs only until the contract's expiration if the employer acted on the sufficient objective consideration of an employee petition Burger Pits, supra 8 I note that it is immaterial whether the decertification petition was timely filed with the Board during the certification year The Respondent Continued UNITED SUPERMARKETS 123 would reverse the judge's finding that the Re- spondent violated the Act by withdrawing recogni- tion from the Union on 6 July 1983 and would dis- miss the complaint in its entirety. was entitled to rely on the signed petition it had received from employees even if the Board's Regional Office had dismissed the petition immediate- ly or if no petition had ever been filed with the Board. Amarillo stores are the only ones involved in this pro- ceeding . During the past 12 months Respondent pur- chased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Texas. In the same period Respondent derived gross rev- enue exceeding $500,000 from its Amarillo stores. Re- spondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. Edward B. Valverde, Esq., for the General Counsel. Marvin Menaker, Esq. (Menaker & Huffman), of Dallas, Texas, for the Charging Party. Donald C. Dennis, Esq. (Crenshaw, Dupree and Milam), of Lubbock, Texas, for the Respondent. DECISION STATEMENT OF THE CASE RICHARD J . LINTON, Administrative Law Judge. Did United Supermarkets unlawfully withdraw recognition from Retail Clerks Union 368 following expiration of the Union's certification year? I find the answer to be affirm- ative and I order United to resume bargaining on request by Local 368. This case was tried before me in Lubbock , Texas, on April 2, 1984, pursuant to the January 20, 1984, com- plaint issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 16 of the Board . The complaint is based on a charge filed July 13, 1983, by Retail Clerks Union, Local 368, chartered by United Food & Commercial Workers International Union, AFL-CIO (the Union or Local 368) against United Supermarkets, Inc. (Respondent or United). I In the complaint the General Counsel alleges that the Respondent violated Section 8(a)(5) of the Act on March 31, 1983, by submitting a proposed collective -bargaining agreement containing a May 31 expiration date, by en- gaging in dilatory bargaining in April-May, and in June by withdrawing recognition from Local 368. By its answer Respondent raises a procedural issue, admits certain factual matters, and denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses,2 and after due consideration of the briefs filed by the General Counsel, by Local 368, and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Texas corporation with its principal office in Lubbock, Texas, sells and distributes groceries at retail. Its operation includes seven retail grocery stores in and around Amarillo, Potter County, Texas. The I All dates are for 1983 unless otherwise indicated. 8 Two witnesses testified before me The General Counsel called Marvin Menaker, the Union's attorney and chief negotiator, and Re- spondent called Don Graf, United's attorney and chief negotiator United retained a different attorney for this hearing , and Menaker declined to ex- amine Graf in order to avoid any appearance of impropriety (Tr. 5). II. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Local 368 is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In 1977 elections were held in two separate units among the employees of Respondent's Amarillo stores. The Union won the election for the meat market unit, but was defeated in the election on the grocery unit. Ob- jections and unfair labor practice charges were filed and litigated. The Board's May 28, 1982, opinion on the matter is reported at United Supermarkets, 261 NLRB 1291. As the instant proceeding is concerned with the meat market unit, I note that the Board, in the cited case, certified Local 368 as the exclusive bargaining represent- ative of Respondent's employees in the following unit: All butchers and wrappers located in the United Su- permarkets, Inc., stores in Amarillo, Texas, exclud- ing head meat cutters, all other employees (grocery department employees), office clerical employees, managers, assistant managers, watchmen, and super- visors as defined in the Act. The parties stipulated here that on February 16, 1983, the Fifth Circuit, without opinion, enforced the Board's order (Tr. 26, 49). The decision in United Supermarkets, supra, is lengthy, covering 31 printed pages in the bound volume. The Board, at 1293, found that the circumstances of the case presented "serious and rather widespread unfair labor practices of Section 8(a)(1) and (3) of the Act.3 Among other remedial requirements, the Board, adopting Judge Robert C. Batson's findings and recommendations with only minor modification , ordered United to cease coer- cively interrogating employees , threatening them with loss of benefits, store closures, or discharge if they con- tinued their support of Local 368, threatening employees that it would be futile for them to select the Union to represent them by telling them that it would never sign a contract, soliciting employees to spy on the union activi- ties of others and report on such activities to manage- ment, and discharging employees . Respondent also was ordered to offer reinstatement to nine employees and to make them whole, with interest. Graf testified that two of the nine were employed in the meat market unit (Tr. 93). 3 The unlawful conduct occurred in 1977. 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Facts The current facts began to develop on June 18, 1982, when Marvin Menaker, counsel for Local 368, wrote Don Graf, attorney for United, requesting a meeting to initiate collective-bargaining negotiations for a contract covering the meat market employees (G.C. Exh. 2).4 Menaker suggested a meeting date of June 30, 1982, in Amarillo and asserted, "we will be prepared to stay whatever period [of] time is necessary to conclude our bargaining " Following that letter Menaker and Graf apparently had a conversation in which Graf asked for additional time to consider United's position, for on July 21, 1982, Menaker again wrote Graf. In this second letter Men- aker, after asserting that the additional time "has come and gone," renews the Union's request to meet and bar- gain in Amarillo. Menaker now had to revise the sug- gested meeting date to August 10 (G.C. Exh. 3). The record does not reflect exactly what triggered the next event, but on July 29, 1982, Local 368, by Menaker, filed a charge in Case 16-CA-10571 alleging that United was refusing to bargain as requested (G.C. Exh 4). Men- aker credibly, and without dispute, testified that thereaf- ter he and Graf had a telephone conversation in which Graf informed Menaker that there was no need to pro- ceed with the NLRB charge because United would meet with the Union (Tr 14). On Monday, August 9, 1982, Graf wrote Menaker thanking Menaker for calling on Friday, presumably August 6 Graf then asserts (G.C. Exh 5). As I indicated we will not be able to meet on August 10th in response to your letter of July 21st. However, I hope to be able to firm up a date some- time during the week of August 16th. I will be in touch with you this week again regarding this matter. By letter dated August 20, Graf wrote Menaker to confirm a meeting set for September 15 at Graf's office in Lubbock (G.C Exh. 6) On August 27 Menaker with- drew the charge in Case 16-CA-10571 because, Menaker testified, United was now willing to meet (Tr. 15). Although there is no dispute that the parties met on September 15, Menaker's recollection of the event is not as clear as Graf's. Menaker could not recall whether he attended, testified that he was not the Union's chief spokesman if he did, and explained that he was not fol- lowing the negotiations on a daily basis at that point (Tr. 15-16, 55). Graf testified that at the September meeting he was Respondent's spokesman, assisted by Randell Stewart, United's general manager, and that Menaker was also present for the Union along with Bobby D. Crumby, Local 368's president, and a Mr Patterson (Tr. 70). I credit Graf because of his clearer memory of this event. At the September 15 meeting, Graf testified, the Union submitted an 18-page proposed contract to United (Tr. 69; G.C. Exh. 12a). Other details of the meeting are not described in the record. Menaker's recollection is that it was at the March 9 meeting that he submitted the Union's contract proposal that Graf testified, and I have found, was submitted by the Union on September 15 (Tr. 24, 56) I credit Graf's clearer recollection on this sub- ject. By letter dated September 21, Graf sent Crumby a list of the names and addresses of the 33 employees in the meat market unit (G C. Exh. 8). Menaker vaguely recalls that he authorized Graf to deal directly with Crumby (Tr. 17). By letter dated October 7, Graf mailed to Crumby certain insurance and pension items plus Unit- ed's 13-page counterproposal for a collective-bargaining agreement (Tr. 69; G C. Exh 9). The counterproposal did not contain a wage scale For that matter, neither did the Union's proposal of September 15 There was no contract between the parties between Graf's letter of October 7, with enclosures, and January 18, 1983, when Graf again wrote Crumby (Tr. 20, 60, 69). Graf's letter of January 18, 1983, reads (G.C. Exh. 10). Dear Mr. Crumby: We have heard nothing from you regarding the draft of the proposed contract which we sent on October 7, 1982. We assume, therefore, that you do not wish at this time to pursue further discussion. In view of the length of time that has past we wish to withdraw the proposed document from consideration Should you desire to reinstate negoti- ations we would again consider sending you a re- vised draft. Very truly yours, McCleskey, Harriger, Brazill & Graf Don Graf The gap in communications reflects the apparent fact that the Union was experiencing certain difficulties with the unit employees Thus, on October 27, 1982, unit em- ployee Ferrell L. Wheeler filed a petition in Case 16- RD-978 seeking to decertify the Union from represent- ing the unit (G.C Exh. 26) Graf testified that Wheeler furnished to United a copy of the 1-page document, con- taining 28 signatures,5 authorizing Wheeler to represent the signatory employees in an effort to decertify the Union (Tr. 78) A copy of the list with the 28 signatures is in evidence (Tr. 88-89; R. Exh 2). Graf testified that as of late October 1982 the unit consisted of 31 or 32 em- ployees (Tr. 78). Also around October, Graf testified , management re- ceived word that Union Representative James Shelton had been unsuccessful in persuading unit employees to attend a union meeting (Tr. 76-78, 84). Of course, Graf's testimony, hearsay as to the truth of the report, goes only to Respondent' s reasons for its subsequent with- drawal of recognition. It remains to be considered what weight can be attached to the hearsay evidence even as to the limited issue indicated. ' Menaker's office is in Dallas, Texas,, and Grafs office is in Lubbock, 5 The General Counsel makes no contention that one 'or more of the Texas employees so signing are not unit employees UNITED SUPERMARKETS Nearly a month passed after Grafs letter before Crumby, by letter dated February 10, responded to Graf as follows (G.C. Exh. 11). Dear Mr Graf. In response to your letter dated January 18, 1983, I apologize for not getting back with you sooner, but due to circumstances beyond my control, I was unable to do so. It is true that you have the authority to withdraw your proposal at any time, and so do I. I suggest we meet again for contract negotiations, at your earliest convenience. Please advise me as to a desired date so that we can resume contract negotiations. Sincerely, Retail Clerks Union, Local 368 Bobby D. Crumby President Menaker testified that about February 10 the Union asked him to take over as chief negotiator for Local 368 (Tr. 59). Menaker arranged with Graf for a meeting to be held on March 9. By letter dated March 11 Menaker briefly summarized the meeting of March 9 and recited that at the meeting Menaker had requested Graf to furnish certain data and to respond to the "Union's offer which is presently on the table " According to Menaker's letter, Graf agreed to so respond during the week of March 21 (G C. Exh 12) Graf confirmed this time schedule in his testimony (Tr. 70). Menaker concluded his letter by stating that on re- ceipt of the data he would contact Graf to arrange an- other meeting. By letter dated March 25, Graf, asserting that a trial lasted longer than anticipated, begged Menaker's indul- gence for more time, until March 30, to send the request- ed items (G C Exh 14) On March 31 Graf forwarded a list of current pay rates for the unit (R Exh 1; Tr. 72), copies of the medical and pension plans, and a proposed 13-page contract (G C. Exh 15) No mention is made of a list of names and addresses of unit employees also re- quested by Menaker in his March 11 letter Article 23 of the proposed contract contains a 'duration clause showing effective dates of June 1, 1982, through May 31, 1983 On April 19 Menaker wrote Graf as follows (G C Exh. 16) Dear Mr Graf- Thank you for your letter of March 31, 1983, with attachments I have reviewed the contract that you included and find that there is much that I can agree with. I would appreciate scheduling a new meeting date with you to see if we can finalize an agreement. I will come complete with wage propos- al at that time. I have also received copies of the hospitalization and pension plan at the same time. However, I cannot tell from the material sent to me what the hospitalization plan provides for the Company's em- ployees in the form of benefits, nor have you given me information as to what are the amounts of 125 money contributed by the Company to both the hospitalization and pension plans, and what contri- butions, if any, employees make for those plans. I would appreciate your having that information available for me at the time of our next meeting or before if it is convenient. Very truly yours, Marvin Menaker Grafs secretary, Susie Freeman, wrote Menaker on April 25 that Graf was in trial for the rest of the week and would respond on his return to the office (G.C Exh. 17) Freeman followed this with her letter of May 2 ad- vising Menaker that Graf, in Snyder, Texas, the previous week, was now in trial in Falfurrias, Texas (G C Exh. 18) Snyder is less than 100 miles from Lubbock, but Fal- furrias is several hundred miles away, almost in the Valley of Texas. By letter dated May 5, Graf wrote Menaker that he would be available to meet on either May 16, 24, or 25, but would prefer either of the latter two dates (G C Exh 19) Menaker responded by letter dated May 13 that he tentatively planned to meet Graf on May 25. He en- closed proposed wage rates for "meat cutter, head meat cutter, and wrappers." (G C. Exh. 20) A conflict thereafter developed for Graf pertaining to a criminal case, and he and Menaker agreed to meet on June 15 in Graf's office (G C Exh 21, Tr. 63, 74)., The June 15 meeting was not held It appears that on June 14 Board agent Sharon Boles called counsel and discussed the date of July 20 for holding the election on the decertification petition still pending in Case 16-RC- 978. Counsel decided to postpone the collective-bargain- ing session until after the decertification election (Tr. 83). At this same time the attorneys debated the correct date that the certification year expired Menaker took the position that the certification year should date from the Fifth Circuit's enforcement judgment of February 16, 1983, and Graf argued that the year should run from the Board's May 28, 1982 order certifying the Union They agreed to furnish each other case authority supporting their positions (Tr. 39, 83) On June 22 Menaker wrote Graf relying on a cited case as his authority He asserted that the decertification petition "is not entitled to processing." Absent agree- ment, Menaker advised that he would file a charge (G.C Exh 23). Graf responded by letter of July 6 as follows (G.C. Exh. 24) Dear Mr Menaker. You have written to us regarding continuing ne- gotiations in connection with the contract for the meat market employees at United's Amarillo stores As I have indicated by telephone we are of the opinion that the decertification petition which has been filed in this unit is no longer blocked, if it ever was, and that a decertification election should be held in this unit. You, on the other hand, have re- cently filed a Motion to Dismiss that petition. Be- cause we are of the opinion that this election should 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD be held we do not believe it would be fruitful to continue negotiations at this time More than a year has passed since this unit was certified. Although we met with you at your re- quest for bargaining purposes and gave to you a proposed contract, for months we heard nothing from the union regarding this matter We believe this was because the union is aware that they do not represent a majority in this unit. This lack of major- ity status is shown by the filing of the decertifica- tion petition, by the union's failure to respond to our suggested contract and by the failure of the union to attract any of our employees to meetings that the union has called. As I think you are aware I am out of the office this week, but will respond to your Motion to Dis- miss early next week Very truly yours, McClesky, Harriger, Brazill & Graf Don Graf On July 12 Regional Director Michael Dunn of Region 16 wrote Menaker, Graf, and Ferrell Wheeler denying the Union's motion to dismiss Case 16-RD-978 (G C Exh 27). Dunn also informed the parties that the certification date of May 28, 1982, had not been extended and the parties had engaged in bargaining during the cer- tification year, including,during 1983. "However," Dunn wrote, "as there has not been full and complete compli- ance, i e , the discrimmatees have not been paid their backpay renumeration, the petition herein remains blocked until such time as there is full compliance." Dunn concluded by informing them that he would advise when the case became unblocked. Graf then, on July 15, wrote Menaker his clearest statement yet concerning Respondent's position (G.C. Exh. 25)• Dear Mr. Menaker Yesterday we received the Regional Director's letter denying your Motion to Dismiss the Decerti- fication Petition. We are therefore not responding to your Motion to Dismiss in writing. You will note that the letter supports my view that the certification year began May 28, 1982 and has not been extended. We are firmly of the opinion that all of the objective evidence supports the view that your union no longer represents a majority of the employees in the unit. These objective facts in- clude. 1. The filing of a Decertification Petition by the unit employees. We understand that over 90% of the employees signed this petition. 2. Statements made by union representatives to our employees in the presence of supervisors that no one had come to union called meetings and no one appeared to want the union to help them. 3. The failure of the union to respond for many months to our contract proposal further in- dicates the lack of support that exists. We therefore do not believe it is appropriate to bargain further until the election called for by the Decertification Petition has been resolved. Very truly, McCleskey, Harriger, Brazill & Graf Don Graf The record contains no evidence of further contact be- tween the parties. The final item of correspondence'in the record is Re- gional Director Dunn's letter of March 12, 1984, to Wheeler, copies to the parties, dismissing Case 16-RD- 978 because (G.C. Exh. 28): As a result of the investigation, it appears that be- cause a complaint has issued in Case No. 16-CA- 11191 alleging inter alia a refusal to bargain against the employer, further proceedings are not warrant- ed at this time. I am, therefore, dismissing the peti- tion in this matter subject to reinstatement, if appro- priate, upon the Petitioner's application after dispo- sition of the unfair labor practice proceeding. Dunn's final paragraph informed Wheeler of his right to file an appeal by close of business March 26, 1984. The record contains no reference to any appeal. C. Analysis and Conclusions 1. Short-term duration clause The General Counsel and Local 368 argue that the contract proposal submitted by United on March 31 bearing an expiration date 2 months hence constitutes bad-faith bargaining. Complaint paragraph 11(a) so al- leges. The evidence does not support this contention. Graf testified, without dispute, that there was practically no mention of the termination date (Tr. 75-76). There is no evidence that Respondent insisted on this date or even briefly pressed it. United freely concedes that it proposed that date as a time immediately after the expiration of the certification year because of the factors indicating that the Union lacked employee support (Tr. 90; United' s Br. 8) Stand- ing alone, such a position does not establish a refusal to bargain. I therefore shall dismiss complaint paragraph 11(a) even though I hereafter find merit to the withdraw- al of recognition allegation. 2. Dilatory bargaining Did Respondent refuse to bargain by engaging in dila- tory conduct in April-May 1983 as alleged in complaint paragraph 11(b)? No. I so find because Menaker agreed to each of Grafs delay requests without protest. Indeed, Menaker testified that he was glad to accommodate Graf, at least as to the latter date in May (Tr. 64). Men- aker testified that he had a busy law practice during this period, that Graf reported having an unusually heavy trial schedule at the time, and that he accepted Grafs statement "at face value " (Tr 61) Graf testified that he did not cause any postponement for the purpose of de- UNITED SUPERMARKETS 127 laying the contract negotiations (Tr 75) There was nothing in Grafs demeanor as a witness to cause me to disbelieve him on demeanor grounds and find the oppo- site to be true. At no point did Local 368 protest to Respondent that United had a duty under the Act to find another attor- ney or other representative in view of Graf's consistent unavailability.6 Local 368 simply did not press the issue Accordingly, I find that the Union has waived its right to protest, and I shall dismiss complaint paragraph 11(b) 3. Withdrawal of recognition Although Graf's letter of July 6 does not explicitly withdraw recognition from the Union, United, in its answer to complaint paragraph 11(c), admits that it did so on July 6, 1983. Thus, United did not merely suspend bargaining pending resolution of Case 16-RC-978 7 The basic legal principles are well settled. Absent un- usual circumstances, a union is irrebuttably presumed to enjoy majority status during the first year following its certification. Dresser Industries, Inc, 264 NLRB 1088 (1982). On expiration of the certification year, the pre- sumption of majority status becomes rebuttable. Pennco, Inc., 250 NLRB 716 (1980), enfd. 684 F 2d 240 (6th Cir. 1982). That rebuttable presumption also continues to apply after the expiration of a collective-bargaining agreement. Guerdon Industries, 218 NLRB 658, 659 (1975). An employer who wishes to withdraw recogni- tion from a certified union after the first year, or after the expiration of a collective-bargaining agreement, may rebut the presumption of majority status in either of two ways: (1) By showing that on the date recognition was withdrawn the union did not in fact enjoy majority status, or (2) by presenting evidence of a sufficient objec- tive basis for a reasonable doubt of the union's majority status at the time the employer refused to bargain Pennco, id.; Guerdon, id. The employer's burden is a "heavy one." Pennco, 250 NLRB at 717. United did not seek to prove facts establishing the first option. It relies on the second method. As to the reason- ably based doubt defense asserted by Respondent, "two prerequisites for sustaining that defense are that the as- serted doubt must be based on objective considerations and such doubt must be raised in a context free of unfair labor practices." Guerdon, 218 NLRB at 659; Pittsburgh & New England Trucking Co., 249 NLRB 833, 836 (1980). In this case the General Counsel does not contend that Respondent committed any unfair labor practices during the certification year other than the three alleged here. I have dismissed two of these allegations. The General Counsel is arguing, in effect, that the unremedied unfair labor practices from the prior case taint the atmosphere here. The portion remaining unremedied as of July 6, 1983, was the backpay due, and on that point it appears that Respondent, as Graf testified, contests the correct- ness of the Regional Director's calculations (Tr. 95) 8 There must be a causal relationship between the un- lawful conduct and the employee disaffection Chicago Magnesium Castings, 256 NLRB 668, 674 ( 1981), Olson Bodies, Inc, 206 NLRB 779 (1973) At least, the unfair labor practices must have had a "meaningful impact" in bringing about that disaffection Debltn Mfg. Corp., 208 NLRB 392, 402 ( 1974) In sum , the unfair labor practices must be of such a character as to ( 1) affect the union's status, or (2) cause employee disaffection, or (3) improp- erly affect the bargaining relationship itself Guerdon In- dustries, supra, 218 NLRB at 661. Although the only matter unremedied as of July 6 was the outstanding backpay, it was not until after the court's enforcement order of February 16, 1983, that Respond- ent offered reinstatement to the remaining five discharg- ees of the earlier case (Tr 93, G C. Exh. 13).9 Thus, at the time the signatures were obtained on the document (R. Exh 2) supporting the decertification petition (G.C. Exh 26), Respondent had not offered reinstatement to most of the discriminatees, nor posted a notice, nor paid backpay. As a matter of law, therefore, the decertifica- tion petition is tainted and cannot be relied on by Re- spondent as a basis in July 1983 for withdrawing recog- nition from the Union Even if the statements of a lack of interest by employ- ees regarding meeting with a representative of Local 368 in October 1982, as described by Graf, were entitled to any weight despite the hearsay nature of their descrip- tion before me, i 0 they are tainted for the same reason as is the decertification petition. The third ground Graf listed on July 6, being the Union's 1982 delay in responding to Respondent's con- tract proposal, is irrelevant Thereafter the Union met on one occasion, and the Union was seeking a final meeting or meetings when Respondent, following certain post- poned meetings, withdrew recognition. I therefore find merit to complaint paragraph 11(c). CONCLUSIONS OF LAW 1. United is an employer within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Retail Clerks Local 368 is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act- All butchers and wrappers located in the United Su- permarkets, Inc , stores in Amarillo, Texas, exclud- ing head meat cutters, all other employees (grocery department employees), office clericals employees, 6 It is well settled that the fact a respondent's chosen bargaining repre- sentative has a busy I'iw or consulting practice is not a defense that is available to the party 0 & F Machine Products Co, 239 NLRB 1013, 1018-1019 (1978), Imperial Tile Co, 227 NLRB 1751, 1754 (1977) ° The distinction is noted only in passing, for a suspension of bargain- ing would not call for a different result in this case 8 Presumably Graf, in referring to "calculations," meant something more than mere accuracy in arithmetic s Graf testified that reinstatement offers had been made to the other four in 1981 (Tr 93) 10 It is doubtful that testimony from anyone without direct and person- al knowledge would even constitute the necessary objective evidence See Distribution Services West, 262 NLRB 764 fn 2, 772-773 (1982) 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD managers, assistant managers, watchmen, and super- visors as defined in the Act. managers, assistant managers , watchmen, and super- visors as defined in the Act. 4. At all times material , Local 368 has been the exclu- sive collective -bargaining representative of all the em- ployees in the unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5. By withdrawing recognition from Local 368 on July 6, 1983, and refusing to bargain with the Union thereaf- ter as the bargaining representative of the employees in the unit described above, Respondent has violated Sec- tion 8(a)(5) and (1) of the Act. 6 Respondent has not violated the Act by proposing a 2-month duration clause for a collective-bargaining agreement 7. Respondent has not violated the Act by engaging in alleged dilatory bargaining during April-May 1983. THE REMEDY Having found that United has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall order it to cease and desist and to take certain affirmative action necessary to effectuate the poli- cies of the Act. Neither the General Counsel nor Local 368 seeks entry of a broad order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'I ORDER The Respondent, United Supermarkets, Inc., Amarillo, Texas, United, its officers, agents, successors , and assigns, shall 1. Cease and desist from (a) Unlawfully withdrawing recognition from Local 368 and refusing to bargain with it as the exclusive bar- gaining representative of the employees employed in the unit 'described below in paragraph 2(b). (b) In any like or related manner interfering with, re- straining , or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Advise Local 368 in writing that United is reinstat- ing its recognition of the Union as the exclusive collec- tive-bargaining representative of the employees em- ployed in the appropriate unit described below (b) On request, meet and bargain with Local 368 as the exclusive collective-bargaining representative of the employees employed in the following unit- All butchers and wrappers located in the United Su- permarkets, Inc., stores in Amarillo, Texas, exclud- ing head meat cutters , all other employees (grocery department employees), office clericals employees, " If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (c) Post at its Amarillo, Texas stores copies of the at- tached notice marked "Appendix." i 2 Copies of the notice, on forms provided by the Regional Director for Region 16, after being dated and signed by Respondent's authorized representative, shall be posted by the Re- spondent immediately on receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 16 in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that complaint paragraphs 11(a) and (b) are dismissed. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading " Posted by Order of the Nation- al 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT unlawfully withdraw recognition from Retail Clerks Union, Local 368, nor unlawfully refuse to bargain with it as the exclusive bargaining representative of the employees employed in the meat market unit de- scribed below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL advise Local 368 in writing that we are rein- stating our recognition of it as the exclusive bargaining representative of the employees employed in the meat market unit described below WE WILL, on request of Local 368, meet and bargain with it as the exclusive collective -bargaining representa- tive of the employees employed in the following unit: UNITED SUPERMARKETS 129 All butchers and wrappers located in the United Su - managers, assistant managers, watchmen, and super- permarkets, Inc, stores in Amarillo, Texas, exclud- visors as defined in the Act ing head meat cutters, all other employees (grocery department employees), office clerical employees , UNITED SUPERMARKETS, INC.