Fabric Warehouse

FABRIC WAREHOUSE Hancock Fabrics d/b/a Fabric Warehouse and United Food & Commercial Workers, Local 400. Cases 5-CA-18590, 5-CA-18734, and 5- CA-18943 May 25, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 28, 1988, Administrative Law Judge Martin J. Linsky issued the attached decision. The Charging Party, the General Counsel, and the Re- spondent filed exceptions and supporting briefs, and the General Counsel and the Respondent filed answering briefs. 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, i and conclusions only to the extent consistent with this Decision and Order. The Meetings about Benefits Without the Union and the Resulting Decertification Petitions The judge found that the Respondent violated Section 8(a)(1) of the Act by asking an employee to attend a meeting about company benefits and by telling another employee it would be a good idea to have a meeting to discuss company benefits. We disagree. The judge found that in October 1986 several employees from the Respondent's two Richmond stores told the Respondent's district manager, Cos- sitt, that they were unhappy with the Union and requested a meeting to discuss what their benefits would be if there were no union. As a result of these requests, Cossitt scheduled a meeting at each of the stores to discuss the company benefits. On the day before the meeting at store 138, Cossitt i The Charging Party, the General Counsel, and the Respondent have excepted to some of the judge's credibility findings The Board's estab- lished policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In adopting the judge's findings in this case, we note that the statement from Reichhold Chemicals, 277 NLRB 639 (1985) (Reichhold Chemicals 1), which he cited in sec III,A, of his decision, is no longer an accurate characterization of Board law See Reichhold Chemicals, 288 NLRB 69 (1988) (Reichhold Chemicals II) This does not affect our decision here, because his discussion of Reichhold Chemicals I involved only back- ground evidence of the Respondent's motive on which we find it unnec- essary to rely Member Johansen adheres to his dissenting opinion in Reichhold Chemicals II 189 told employee Dodson there was going to be a meeting the next day about the company benefits and asked her to attend. Cossitt also told employee Jackson before the meeting at store 138 that if the employees wanted to they could have a meeting to discuss the company benefits. It is not unlawful for an employer to hold a meeting to inform employees of the wages and ben- efits enjoyed by its nonunion employees, so long as it does no more than truthfully describe the wages and benefits of its other employees and does not make any implied promises that the wages and ben- efits of the employees at the meeting will be adjust- ed if the union is voted out. Viacom Cablevision, 267 NLRB 1141 (1983). The Respondent did not initiate these meetings, but rather scheduled them because several employees had requested a meeting to discuss what their benefits would be if there were no union. In these circumstances, it was not a violation of Section 8(a)(1) to ask an employee to attend such a meeting or to state that having such a meeting would be a good idea. Although we are finding in this case that the Respondent did make unlawful promises of benefits at the two meetings where it discussed the benefits it would provide to the employees if there were no union, the state- ments made before the meeting did not indicate that such promises would be made and thus are lawful. Accordingly, we shall dismiss these 8(a)(1) allegations. The judge dismissed the other complaint allega- tions about these meetings, specifically finding that the Respondent did not make any unlawful prom- ises of benefits to undercut union support or solicit its employees to circulate a decertification petition. We disagree. Contrary to the judge, we find that the Respondent did make promises of benefits at these meetings and in the context here did solicit employees to circulate a decertification petition. The facts are as follows. District Manager Cos- sitt held two meetings with employees at the Re- spondent's two Richmond stores represented by the Union, one on November 8, 1986, at its store 138 and one on November 15, 1986, at its store 241. As noted above, Cossitt called these meetings because several employees had asked him to have a meeting to discuss what their benefits would be if there were no union. At the first meeting, which was attended by the six most senior employees at store 138, the judge found that Cossitt told the employees they would be eligible for a 10-cent-per-hour merit wage in- crease every 6 months under the company plan and would be eligible for the company pension plan. Under their union contract, these employees had no retirement benefits and were not entitled to any 294 NLRB No. 4 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD further wage increases because they had reached the top of the wage scale provided in the contract. According to the testimony of witnesses credited by the judge, Cossitt also told the employees at the first meeting that their vacation benefits would remain the same as under the union contract, 2 their wage rate would remain the same as it was,3 they would be covered under the company health insur- ance plan which paid 100 percent of costs after yearly out-of-pocket costs to the employees of $1000 or $1500,' and the Company would pay the entire premium for health insurance coverage for employees and their dependents.5 All of these ben- efits were either better than their current benefits under the union contract or were better than the benefits the Respondent actually provided to its nonunion employees at that time. According to credited witnesses, at the end of this meeting Cos- sitt told the employees they had to let him know by the end of November which way they were going to go, stay with the Union or go with the company offer. The judge found that Cossitt told the employees it was irrelevant to him which way the employees went, but he thought they should go with the company plan. According to the same witness, Cossitt went on to say, "It is good insur- ance, and the company will take care of you." The judge found that, when asked by an employee how they could be sure if they would really get these benefits, Cossitt stated, while waving a set of papers from which he had been reading at the meeting, "It is in writing. It is their offer and promise." Four employees attended the second meeting at store 241. The judge found that before discussing the company benefits at this meeting Cossitt stated that things would be better once there was no longer a union in the store. The judge also found that Cossitt told the employees they would be eli- gible for a 10-cent-per-hour wage increase every 6 months under the company plan and would be eli- gible for the company pension plan. Again these employees had no retirement benefits under the union contract and at least one of them was not en- titled to any further wage increases because she had reached the top of the wage scale provided in the contract. The judge found that after a discus- sion of the company pension benefits, Supervisor Jacobs, a retired Navy man, stated that the Compa- ny's pension plan was better than his Navy pen- sion . According to the same credited witness, Cos- sitt then stated that the company benefits were better than the union benefits except for the eye- glass coverage, but that they would more than compensate for that by not having to pay union dues .6According to the same witness, Cossitt also stated that after a $100 deductible the company health insurance would pay 80 percent of costs up to $1000, that over $1000 it would pay 100 percent, and that this was better than their current health insurance.? According to two credited witnesses, Cossitt stated during this meeting that the company benefits were better and that in order to get these benefits they would have to get rid of the Union. The judge further found that, when Cossitt was asked by an employee at the second meeting how they could get rid of the Union, he stated that they would have to circulate a petition and get the em- ployees to sign it by December 6 or 9. According to the credited witnesses, Cossitt also stated that if they did not get the petition signed by that date it would be too late and they "would not get a second chance." According to the same witnesses, when an employee asked how to do the petition, Cossitt replied that he could get the petition typed but he could not circulate it. Then the employee who had requested the meeting offered to circulate 2 Cossitt admitted making this statement The vacation benefits under the union contract were better than the vacation benefits provided to the Respondent' s nonunion employees, because the union contract provided for 2 weeks of vacation after only 2 years of service while the nonunion employees only received 2 weeks of vacation after 3 years of service and the union contract provided for 3 weeks of vacation after only 5 or 8 years of service (depending when the employee had been hired) while the nonunion employees only received 3 weeks of vacation after 10 years of service 3 The employees at this meeting, being the most senior , had already reached the top of the wage scale in the union contract ($5 25 an hour), which was more than most of them would have been making under the nonunion wage progression for their years of service if their wage rate did not remain the same as under the union contract 4 The health insurance under the union contract only paid a maximum of $25,000 for major medical coverage per calendar year and had stated maximum payments for other specified items, while the nonunion plan had no maximum limits on most items 6 Although the union contract provided that the Company paid the entire premium for the represented employees' health insurance (includ- ing dependent coverage for health and dental care), the Respondent's nonunion employees had to pay the full cost of dependent coverage for dental care it. Between about December 9 and 13, 1986, the same employees who had requested the meetings circulated separate but identical petitions among the employees at both stores. At store 138, 10 out of 12 unit employees signed a petition stating they no longer wished to be represented by the Union, and at store 241, 11 out of 12 unit employees signed such a petition. Of the 21 signers, 13 had not attended the meetings with Cossitt about bene- 6 The union health insurance provided $100 a year for eyeglasses, which the Respondent's health insurance did not cover The represented employees were paying $3 75 per week in union dues at that time ' As noted above, the health insurance under the union contract only paid a maximum of $25,000 for major medical coverage per calendar year and had stated maximum payments for other specified items, while the nonunion plan had no maximum limits on most items FABRIC WAREHOUSE fits; however, the employees who had requested the meetings and circulated the petitions testified that all the employees knew about the meetings and that a notice about the second meeting was posted at store 241. Further, contrary to the judge's finding, the testimony of the employees who solicited signatures on the petitions indicates that they did discuss what was said at these meet- ings when they were circulating the petitions. Thus, employee Weaver, who solicited signatures at store 241, testified that she told employees that they would have just about the same benefits if they got rid of the Union and that she spent several hours convincing employees to sign the petition. Moreover, employee Cumber, who solicited signa- tures at store 138, testified that she spent 2 or 3 days continuously soliciting signatures during the week and a half the petition was circulating, that not everyone signed it right away, and that she had to go back to some employees because they wanted to wait and see what the majority wanted to do. On December 15, 1986, the employees who had circulated the petitions presented them to Cossitt. The judge concluded that the Respondent did not make any express promises to the employees during these meetings, finding that Cossitt's state- ments were simply honest answers to questions posed by inquiring employees who had a right to know. The judge also concluded that the Respond- ent did not solicit its employees to circulate a de- certification petition, because there was no evi- dence the Respondent participated in preparing or circulating the petitions. We disagree with the judge on both allegations. Contrary to the judge, we find that the Respond- ent made express promises to its employees at both meetings that they would receive better benefits if they got rid of the Union. The Respondent did not merely compare the benefits it currently provided its union employees with those it provided its non- union employees or simply promise to maintain the status quo if there were no union. Instead, the Re- spondent told the employees they would receive a certain package of benefits that combined some of the best elements of both the union and the non- union benefits it currently provided its employees, thus offering them a better set of benefits than either their own or the nonunion employees' cur- rent benefits. Further, the Respondent told the em- ployees that these benefits were better than the benefits they currently received and that they had to decide whether they wanted to go nonunion by a specific date.8 At the second meeting, the Re- 8 We note that the deadline Cossitt gave these employees for going nonunion coincided almost exactly with the beginning of the window period for filing a decertification petition with the Board, which is 90 191 spondent stated directly that they could only get these benefits if they got rid of the Union; and at the first meeting, when questioned by employees about whether the Company would keep its word about giving them these benefits, the Respondent explicitly said it was a promise. Express promises of better benefits linked to getting rid of the Union clearly tend to undercut support for the Union. Accordingly, we find that these statements violated Section 8(a)(1) of the Act. Contrary to the judge, we find that in the con- text here the Respondent solicited its employees to circulate a petition to decertify the Union by its conduct at these meetings. First, the Respondent promised the employees better benefits if they got rid of the Union. Then, the Respondent told them they would be better off without the Union. Final- ly, the Respondent told them they had to decide whether to go nonunion by a certain date. At the second meeting, when questioned about how the employees could get rid of the Union, the Re- spondent stated directly that they needed to circu- late a petition and even offered to get a petition typed for them.9 These statements would normally tend to encourage employees to circulate a decerti- fication petition, and that was the result here. Thus, a few weeks after the second meeting, about the time of the deadline the Respondent had given them for going nonunion and getting the better benefits, employees at both stores circulated identi- cal petitions seeking to decertify the Union. i 0 Ac- cordingly, we find that the Respondent violated Section 8(a)(1) of the Act by soliciting its employ- ees to circulate decertification petitions. See, e.g., Architectural Woodwork Corp., 280 NLRB 930 (1986). The 8(a)(5) Allegations The Charging Party and the General Counsel have excepted to the judge's failure to make any findings about the complaint allegation that the Re- days before the expiration of the current collective-bargaining agreement The union contract in this case was due to expire on March 7, 1987, and thus the window period began on December 8, 1986 s It is undisputed that employee Weaver, who circulated the petition at store 241 where the second meeting was held, had previously worked at store 138 and actually spoke to employees Cumber and Bass, who circu- lated the petition at store 138, about drafting and circulating such a peti- tion 10 We note that, even though three employees had requested Cossitt to hold a meeting to discuss what their benefits would be if there were no union, this request would not by itself establish that they intended to cir- culate a decertification petition regardless of what they learned at the meeting about the Company's benefits Moreover, the record shows that these three employees still maintained their membership in the Union at the time of this request, although the Respondent's stores are located in a right-to-work state where they were not required to do so Therefore, it is not at all clear that these employees had any intention of circulating a decertification petition before the Respondent encouraged them to do so by its comments at these meetings 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent dealt directly with its employees. They contend that the Respondent undermined the Union's status as the employees' bargaining repre- sentative when it held meetings with its represent- ed employees where it promised the employees a better benefit package without first making this offer to the Union or giving the Union the oppor- tunity to be present. We agree with these excep- tions. It is undisputed that the Respondent had never proposed any of the improved benefits it of- fered to the employees at these meetings during bargaining with the Union and that it did not notify any of the Union's officials who were au- thorized to bargain with it of these meetings. This constitutes unlawful direct dealing that is inconsist- ent with the Respondent's duty to bargain only with the Union as the exclusive representative of these employees. See, e.g., Ross Crane Rental Corp., 267 NLRB 415, 416 (1983). Accordingly, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by dealing directly with its rep- resented employees. The judge found that, based on the decertifica- tion petitions signed by a majority of its represent- ed employees, the Respondent had a reasonable good-faith doubt as to the Union's continued ma- jority status and thus did not violate Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union, refusing to bargain with the Union for a new contract, and unilaterally changing terms and conditions of employment. The judge found that the Respondent's conduct at the two meetings did not taint the petitions because the statements made did not tend to undercut employee support for the Union and were not so egregious as to war- rant frustrating the will of the majority of the em- ployees. In making this finding, the judge noted that a majority of the petition signers did not attend either of the meetings and found that they thus could not have been influenced by what the Respondent said at the meetings. We disagree with all of these findings.11 It is well established that, where an employer has engaged in unlawful conduct tending to undercut its employees' support for their bargaining repre- sentative, the employer cannot rely on any result- ing expression of disaffection by its employees be- cause its asserted doubt of the union's majority status has been raised in the context of its own unfair labor practices directed at causing such em- ployee disaffection. Hearst Corp., 281 NLRB 764 1 i In reversing the judge on these points, we specifically do not rely on his comments that times change, the employees may feel differently (1986), affd. mem. 837 F.2d 1088 (5th Cir. 1988). Further, such misconduct will bar any reliance on a tainted decertification petition even though a ma- jority of the petition signers profess ignorance of their employer's misconduct. Id. at 765. In this case, we have found that the Respondent did engage in conduct designed to undercut its employ- ees' support for the Union and aimed at causing them to circulate a decertification petition. There- fore, we find that the Respondent cannot rely on the predictable results of this unlawful conduct to justify its withdrawal of recognition from the Union and its later refusals to bargain. It is undisputed that beginning on December 16, 1986, the Respondent refused to engage in negotia- tions for a new contract after being requested to do so by the Union. It is also undisputed that, after the contract expired on March 7, 1987, the Respondent made unilateral changes in the terms and conditions of employment of its represented employees with- out notifying the Union or giving it the opportuni- ty to bargain about these changes. Thus, the Re- spondent instituted a new pension plan and new in- surance plans in April 1987, changed the holidays and disability pay it afforded employees in May 1987, granted wage increases in May and August 1987, and denied the Union access to its facility as required by its expired contract in May 1987. Ac- cordingly, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union, by refusing to bargain with the Union over a new contract, and by making these unilateral changes in working condi- tions. The Other 8(a)(1) Allegations We agree with the judge that the Respondent violated Section 8(a)(1) of the Act by denying Union Representative Colbert access to its store and by calling the police to remove her from the store under threat of arrest.12 In adopting the judge's finding of this violation, we note that the Respondent's most recent collective-bargaining agreement with the Union gave the Union the right to post notices on bulletin boards provided by the Respondent and the right to visit the Respondent's premises during working hours. Such a contractual right of access survives the expiration of the agree- ment. Gilberton Coal Co., 291 NLRB 344, 347 (1988). The judge found that the eligibility provision of the Respondent's pension plan, which states one of now that a year has passed, and thus the Union might be able to mount a 12 We do not rely, however, on the judge's description of Colbert as a successful organizing drive at this time These statements are not relevant young woman who had recently given birth to a child in finding this vio- to our decision in this case lation FABRIC WAREHOUSE the requirements for membership in the plan is that an employee "not be working under a collective bargaining agreement ," did not violate Section 8(a)(1) of the Act because the Respondent's vice president, Jensen, testified any pension plan for represented employees would be a matter for nego- tiations with the Union. In adopting the judge's dis- missal of this allegation , we note that the Respond- ent did not announce a new pension plan excluding represented employees as a device to defeat the Union and that the Union had never proposed a pension plan during previous negotiations . We have held that an employer's institution of a benefit plan excluding its employees covered by a collective- bargaining agreement is not a per se violation of the Act, where the employer's represented employ- ees had historically been excluded from coverage under the employer's nonunion plans and these benefit plans had been the subject of negotiations. Dallas Morning News, 285 NLRB (1987). We have also held that an eligibility provision in an employ- er's existing pension plan excluding its employees covered by a collective-bargaining agreement does not violate the Act, where the provision does not automatically terminate employees' benefits upon selection of a union, but contemplates that retire- ment benefits for the covered employees would be the subject of good-faith bargaining. Lynn-Edwards Corp., 290 NLRB 202, 203-204 (1988). As the Re- spondent's represented employees have historically been excluded from coverage under this pension plan and retirement benefits for these employees could have been negotiated during bargaining, we agree with the judge that the eligibility provision in the Respondent's pension plan does not violate Section 8(a)(1) of the Act. In addition, the General Counsel has excepted to the judge's failure to discuss a similar provision in the Respondent's employee handbook, which states that one of the requirements for membership in the Respondent's pension plan is that an employee "not be a member of any union." We find that this pro- vision does violate Section 8(a)(1) of the Act be- cause it suggests coverage under the plan will auto- matically be withdrawn as soon as an employee joins a union regardless of whether the union is a bargaining representative that could bargain over retirement benefits. See Handleman Co., 283 NLRB 451 at 452 (1987). Accordingly, we find the de- scription of the pension plan membership require- ments in the employee handbook violates Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. By asking an employee to attend a meeting and by telling another employee it would be a 193 good idea to have a meeting to discuss company benefits, the Respondent did not violate the Act. 2. By promising employees that they would re- ceive better benefits if they got rid of the Union, the Respondent violated Section 8(a)(1) of the Act. 3. By soliciting employees to circulate petitions to decertify the Union, the Respondent violated Section 8(a)(1) of the Act. 4. By denying Union Representative Colbert access to its store and calling the police to remove her from its store under threat of arrest, the Re- spondent violated Section 8(a)(1) of the Act. 5. By maintaining a provision in its employee handbook that states that one of the requirements for membership in its pension plan is that an em- ployee not be a member of any union, the Re- spondent violated Section 8(a)(1) of the Act. 6. By maintaining a provision in its pension plan, which states that one of the requirements for mem- bership in that plan is that an employee not be working under a collective-bargaining agreement, the Respondent did not violate Section 8(a)(1) of the Act. 7. By holding meetings directly with its employ- ees to offer them a better benefit package without notifying or bargaining with the Union, the Re- spondent violated Section 8(a)(5) and (1) of the Act. 8. By withdrawing recognition from the Union, the Respondent violated Section 8(a)(5) and (1) of the Act. 9. By refusing to bargain with the Union for a new collective-bargaining agreement, the Respond- ent violated Section 8(a)(5) and (1) of the Act. 10. By unilaterally instituting a new pension plan and new insurance plans, unilaterally changing the holidays and disability pay afforded employees, unilaterally granting employees wage increases, and unilaterally denying the Union access to its store as required under its collective -bargaining agreement, the Respondent violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices , we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent, on request by the Union, to rescind any unilateral changes it made in wages and benefits; however, our Order should not be construed as requiring the Respond- ent to cancel any wage increase or other improve- ment in benefits without a request from the Union. See, e.g., Elias Mallouk Realty Corp., 265 NLRB 1225 fn. 3 (1982). We shall also order the Respond- 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent to make its employees whole by reimbursing them for any wages or benefits they may have lost as a result of its unlawful unilateral changes, with interest.13 Finally, we shall order the Respondent to pay any contributions it has failed to make on behalf of unit employees to fringe benefit funds as required under its collective-bargaining agreement, if the Union requests it to cancel a unilateral change in benefits and reinstate the contractual fringe benefit fund payments instead, and to make its employees whole by reimbursing them for any other expenses ensuing from its failure to make such required contributions, with interest.14 ORDER The National Labor Relations Board orders that the Respondent, Hancock Fabrics d/b/a Fabric Warehouse, Richmond, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promising its employees that they will re- ceive better benefits if they get rid of the Union. (b) Soliciting its employees to circulate petitions to decertify the Union. (c) Denying representatives of the Union access to its stores and calling the police to remove repre- sentatives of the Union from its stores under threat of arrest. (d) Maintaining a provision in its employee hand- book that states that one of the requirements for membership in its pension plan is that an employee not be a member of any union. (e) Holding meetings directly with its employees to offer them a better benefit package without noti- fying or bargaining with the Union. (f) Withdrawing recognition from the Union as the exclusive bargaining representative of its em- ployees in the following appropriate bargaining unit: All full-time and part-time employees em- ployed by Respondent at its Richmond, Vir- ginia facilities, but excluding Store Managers, Assistant Store Managers, Management Train- 19 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 14 The Board does not provide for the addition of interest at a fixed rate on unlawfully withheld fund payments Instead, see Merryweather Optical Co, 240 NLRB 1213, 1216 In 7 (1979), for the method of deter- mining any additional amounts owed to such funds as reimbursement for losses attributable to the unlawfully withheld contributions However, the Board does provide interest at a fixed rate on amounts owed to individual employees for their losses attributable to the unlawful withholding of benefit fund contributions Kraft Plumbing, 252 NLRB 891 In 2 (1980), enfd mem 661 F 2d 940 (9th Cir 1981) Interest on such amounts shall be computed in accordance with our decision in New Horizons, supra ees, guards, watchmen and supervisors as de- fined in the Act. (g) Refusing to bargain over a new collective- bargaining agreement with the Union as the exclu- sive bargaining representative of the employees in the bargaining unit. (h) Unilaterally instituting a new pension plan and new insurance plans, unilaterally changing holidays and disability pay, unilaterally granting wage increases, or unilaterally making any other changes in the terms and conditions of employment for bargaining unit employees without notifying or bargaining with the Union. (i) Unilaterally denying representatives of the Union access to its stores as required under its col- lective-bargaining agreement. (j) In any like or related manner interfering with, restraining, or coercing its employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Amend its existing employee handbook to eliminate the provision that states that one of the requirements for membership in its pension plan is that an employee not be a member of any union. (b) Recognize the Union as the exclusive bar- gaining representative of its employees in the bar- gaining unit. (c) On request, bargain with the Union about the terms and conditions of employment for its em- ployees in the bargaining unit and, if an under- standing is reached, embody the understanding in a signed agreement. (d) On request, cancel the new pension plan; the unilateral changes in insurance plans, holidays, and disability pay; the unilaterally granted wage in- creases; and any other unilateral changes in the terms and conditions of employment for bargaining unit employees it has made without notifying or bargaining with the Union. (e) On request, grant representatives of the Union access to its stores as required under its col- lective-bargaining agreement. (f) Make its employees whole by reimbursing them for any wages or benefits they may have lost as a result of its unlawful unilateral changes, with interest, in the manner set forth in the remedy sec- tion of this Decision and Order. (g) If the Union requests it to cancel a unilateral change in benefits and reinstate the contractual fringe benefit fund payments instead, pay any con- tributions it has failed to make on behalf of unit employees to fringe benefit funds as required under its collective-bargaining agreement and make its FABRIC WAREHOUSE employees whole by reimbursing them for any other expenses ensuing from its failure to make such required contributions, with interest, in the manner set forth in the remedy section of this De- cision and Order. (h) Post at its facilities in Richmond, Virginia, and at all other locations where its employee hand- book has been distributed to its employees, copies of the attached notice marked "Appendix." 1 s Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. ' 5 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 ordered us to post and abide by this notice. WE WILL NOT promise our employees that they will receive better benefits if they get rid of the Union. WE WILL NOT Solicit our employees to circulate petitions to decertify the Union. WE WILL NOT deny representatives of the Union access to our stores or call the police to remove representatives of the Union from our stores under threat of arrest. WE WILL NOT maintain a provision in our em- ployee handbook that states that one of the require- ments for membership in our pension plan is that an employee not be a member of any union. WE WILL NOT hold meetings directly with our employees to offer them a better benefit package without notifying or bargaining with the Union. WE WILL NOT withdraw recognition from the Union as the exclusive bargaining representative of 195 our employees in the following appropriate bar- gaining unit: All full-time and part-time employees em- ployed by us at our Richmond, Virginia facili- ties, but excluding Store Managers, Assistant Store Managers, Management Trainees, guards, watchmen and supervisors as defined in the Act. WE WILL NOT refuse to bargain over a new col- lective-bargaining agreement with the Union as the exclusive bargaining representative of our employ- ees in the bargaining unit. WE WILL NOT unilaterally institute a new pen- sion plan and new insurance plans, unilaterally change holidays and disability pay, unilaterally grant wage increases, or unilaterally make any other changes in the terms and conditions of em- ployment for bargaining unit employees without notifying or bargaining with the Union. WE WILL NOT unilaterally deny representatives of the Union access to our stores as required under our collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL amend our existing employee hand- book to eliminate the provision that states that one of the requirements for membership in our pension plan is that an employee not be a member of any union. WE WILL recognize the Union as the exclusive bargaining representative of our employees in the bargaining unit. WE WILL, on request, bargain with the Union about the terms and conditions of employment for our employees in the bargaining unit and, if an un- derstanding is reached, embody the understanding in a signed agreement. WE WILL, on request, cancel the new pension plan; the unilateral changes in insurance plans, holi- days, and disability pay; the unilaterally granted wage increases; and any other unilateral changes in the terms and conditions of employment for bar- gaining unit employees we have made without no- tifying or bargaining with the Union. WE WILL, on request, grant representatives of the Union access to our stores as required under our collective-bargaining agreement. WE WILL, make our employees whole by reim- bursing them for any wages or benefits they may have lost as a result of our unlawful unilateral changes, with interest. WE WILL, if the Union requests us to cancel a unilateral change in benefits and reinstate the con- 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tractual fringe benefit fund payments instead, pay any contributions we have failed to make on behalf of unit employees to fringe benefit funds as required under our collective-bargaining agreement and make our employees whole by reimbursing them for any other expenses ensu- ing from our failure to make such required contributions, with interest. HANCOCK FABRICS D/B/A FABRIC WAREHOUSE of its 24 employees stated they did not want to be repre- sented by the Union any more, nor when it unilaterally implemented changes in wages and other terms and con- ditions of employment of its employees following the withdrawal of recognition and the expiration of its col- lective-bargaining agreement with the Union. Upon consideration of the entire record, including briefs filed by General Counsel, Respondent, and Charg- ing Party, and my observation of the witnesses and their demeanor, I make the following Eric M. Fine, Esq., for the General Counsel. Lawrence S. Wescott, Esq., of Baltimore, Maryland, for the Respondent. Jeffrey D. Lewis, Esq., of Landover, Maryland, for the Charging Party. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On 8 January, 19 March, and 16 June 1987, charges were filed against Hancock Fabrics d/b/a Fabric Warehouse (Re- spondent), by United Food & Commercial Workers Union, Local 400 (Union or Charging Party). Following an investigation the National Labor Relations Board, by the Regional Director for Region 5, issued a second con- solidated complaint, dated 28 August 1987, which was amended at and after the hearing, which complaint al- leges, inter alia, that Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) when it unlawfully withdrew recognition of the Union after unlawfully making promises of benefits to the em- ployees to undercut union support, when it refused to bargain with the Union, and when it unilaterally and without bargaining with the Union implemented changes in the wages and other terms and conditions of employ- ment of its employees. Respondent denied that it violated the Act in any way. A hearing was held before me in Richmond, Virginia, on 7, 8, 9, and 13 October 1987. It is my conclusion that Respondent violated the Act when (1) it encouraged employees Susan Dodson and El- eanor Jackson in November 1986 to attend a meeting where company versus union benefits would be discussed and to ask management to hold such a meeting, respec- tively, as set out more fully below, and when (2) it threatened to have Union Business Representative Lynn Colbert arrested in May 1987 if she did not leave its store when she had gone to the store to post an NLRB complaint' and to solicit grievances from the employees in the store. Further, it is my conclusion that Respondent did not violate the Act when it held two meetings with employ- ees in November 1986, when it withdrew recognition from the Union after its meetings with employees and after receipt of two petitions from employees wherein 21 ' This was after the first complaint issued which was captioned 5-CA- 18590 and 5-CA-18734 Following this incident with Lynn Colbert the Union filed the charge in 5-CA-18943 and, thereafter, the second con- solidated complaint, the subject matter of this hearing , was issued FINDINGS OF FACT I. JURISDICTION The Respondent, a Mississippi corporation with offices and places of business at 5503 Midlothian Turnpike and 8051 West Broad Street, Richmond , Virginia, has been engaged in the business of retail sale of fabric goods. During the 12 months preceding issuance of the second consolidated complaint, a representative period, Respondent in the course and conduct of its business op- erations described above derived gross revenues in excess of $500,000 and purchased and received at its two Richmond facilities products, goods, and materials valued in excess of $ 10,000 directly from points located outside the State of Virginia. Respondent admits, and I find, that it is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that United Food and Commercial Workers, Local 400, is now, and has been at all times material , a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. General Background Respondent is a Mississippi corporation. Its central of- fices are located in Tupelo, Mississippi. It is engaged in the retail sale of fabric goods and operates over 300 stores and has over 5000 full-time and part-time employ- ees. The vast majority of these employees are not union- ized.z Respondent, while always individually incorporated, was part of a larger corporate entity, i.e., Lucky Stores, Inc., until May 1987 when it was "spun oft' from Lucky Stores. Plans regarding the "spin off' were in the works at and about the time the employees of the two Rich- mond stores met with Respondent's management and at the time the employees circulated and presented a peti- tion to decertity the Union to management. Lucky Stores has approximately 40,000 employees. Lucky stores had and continues to have a largely organized work force as distinguished from Respondent, which as noted above is largely unorganized. As a result of the "spin off' 2 Respondent has approximately 10 stores with a total of 100 employ- ees in the State of Washington, who are untomzied FABRIC WAREHOUSE Respondent went from being part of a large mostly orga- nized operation to being a smaller largely unorganized operation. Respondent's two Richmond stores-store 138 on Midlothian Turnpike and store 241 on West Broad Street-were organized and its employees had been rep- resented by the Union since approximately 1976 3 Re- spondent and the Union had entered into a number of collective-bargaining agreements over the years each of which was for a 3-year period until 1986 when the par- ties-at the insistence of Respondent-entered into a 1- year collective-bargaining agreement, effective from 2 March 1986 to 7 March 1987. I note that during negotia- tions leading up to this 1-year agreement Respondent did not offer a pension plan to its Richmond employees nor did the Union make a demand for a pension plan. Fur- ther, Respondent during negotiations proposed some limits on the Union's access to the stores which propo- sals did not wind up in the final agreement. The General Counsel and the Union suggest that Respondent's insist- ence on a 1-year contract, its proposal to limit union access to the stores, and its failure to offer a pension plan show antiunion animus and are evidence of a master plan to get nd of the Union. I disagree. The mere substance of bargaining proposals is not evidence of a violation of the Act. Reichhold Chemicals, 277 NLRB 639 (1985). Between October and 15 December 1986 when two petitions-one from each store-were presented to Re- spondent reflecting that 21 of 24 unit employees did not want to be represented by the Union any longer and Re- spondent withdrew recognition, a number of events tran- spired. In deciding what happened I have examined the documentary evidence and heard and studied the testi- mony of the witnesses. I found all witnesses, with the ex- ception of Paul Cossitt, Respondent's district manager, to be credible. Some of the witnesses, however, had a more complete recollection of events than did some others and I have relied more heavily on their testimony as a result. Paul Cossitt is a district manager for Respondent. As such he oversees the two Richmond stores. In October 1986-more than half way into the 1-year contract be- tween Respondent and the Union-employees ap- proached Cossitt and told him they were dissatisfied with the Union because they had not seen a copy of the contract yet and no one from the Union had been around to see them. Later in October employees approached Cossitt and told him they were interested in having a meeting with him to find out what their benefits would be if there was no union. Cossitt called David Jensen, Respondent's vice presi- dent for personnel, in Tupelo, Mississippi, and told him about the expressions of dissatisfaction with the Union. Jensen took no action. Later, when Cossitt called Jensen and told him that some employees had asked about having a meeting, Jensen told Cossitt that Cossitt could attend a meeting called by employees and answer their questions but he was to make no promises to the employ- 3 It was stipulated that Local 400, United Food and Commercial Workers was a lawful successor to Local 157, United Food and Commer- cial Workers, which local had originally represented Respondent's Rich- mond employees 197 ees. Jensen, thereafter, sent a memo to his superiors in Respondent's management. He sent a copy of the memo, dated 5 November 1986, to Cossitt. The memo listed the benefits-wages, vacation, etc.-for the unionized Rich- mond employees under their contract with Respondent and what the employees would get if they were not under the union contract, i.e., were nonunion employees of Respondent. For the most part the list of benefits the employees would receive if they became nonunion and received so-called company benefits were the same that other employees of Respondent who were nonunion re- ceived. B. 8 November 1986 Meeting at Store 138 (Midlothian Turnpike) In October 1986 two employees of store 138-Elva Cumber and Betty Bass-asked Cossitt to have a meeting with the employees to discuss benefits the employees would get if there was no union. The meeting was held after the store closed about 6 p.m. on Saturday, 8 No- vember 1986. In attendance were Cossitt, Robert Ratz, a manage- ment trainee, who was not a statutory employee, and six employees, i.e., Elva Cumber, Betty Bass, Susan Dodson, Eleanor Jackson, Margaret Creekmore, and Mary Nester. Prior to the meeting Cossitt had approached two em- ployees-Susan Dodson and Eleanor Jackson. Cossitt told Dodson there was going to be a meeting and asked her to attend. Cossitt told Jackson not about the specific meeting but mentioned to her that it would be a good idea if the employees had a meeting with him to discuss company benefits. Jackson later heard, as did all other employees at the meeting, about when the meeting would be from employees Cumber and Bass. As dis- cussed below, almost a month after the meeting a peti- tion was circulated by employees Cumber and Bass among the employees to decertify the Union. Ten out of the twelve employees in that store signed the petition, which stated that they did not want to be represented any longer by the Union. Neither Dodson nor Jackson signed the petition. Accordingly, while Cossitt violated the Act in suggesting to Jackson that a meeting to dis- cuss company benefits be held and in telling Dodson to come to the meeting, in the context of this case such mis- conduct was not so serious as to cause me to ignore the petition since neither Dodson nor Jackson (who was a union steward at the time of the meeting) signed the peti- tion. Cossitt began the meeting by discussing the "spin off' of Respondent from Lucky Stores. He then answered questions about company benefits asked by the employ- ees. The company medical insurance was described as about the same as the employees had with the Union except no vision case (i.e., the Company would not pay for glasses), vacation was the same, life insurance under the Union was better than nonunion, and holiday and personal days worked out such that there was one less day off with the company plan than under the unioncon- tract. Cossitt told them that they would be eligible for a 10-cent-an-hour merit increase every 6 months under the 198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD company plan and would be eligible for a pension plan. In order to be eligible for the pension an employee must work 1000 hours a year, which averages out to 20 hours per week. Clearly, employee Dodson understood Cossitt to say that longtime employees would be guaranteed 32 hours per week but I do not believe any such statement was made. The examples Cossitt used-Cumber and Jackson-were based on 30 hours per week employees, but I credit Cossitt on this point that he made no such guarantee He told the employees what pension in terms of monthly retirement benefits employees Elva Cumber and Eleanor Jackson would get if they were covered by the pension. Under the contract between Respondent and the Union the employees were not eligible to receive a merit raise every 6 months nor did the employees have a pension. Were these promises made to induce the em- ployees to decertify the Union or were these simply honest answers to questions posed by inquiring employ- ees who had a right to know? I believe it was the latter. The meeting on 8 November at the Midlothian Turn- pike store and the later meeting on 15 November dis- cussed below at the West Broad Street store were not captive audience meetings but were attended only by those employees who wished to do so and Cossitt, for the most part, responded with accurate information to questions asked by inquiring employees However, ac- cording to Susan Dodson, who is still employed at the Midlothian Turnpike store and who I credit, Cossitt vol- unteered at the 8 November 1986 meeting that it was ir- relevant to him which way the employees went but he thought they would be better off nonunion than union. Also, when asked by an employee at the meeting if they would really get the benefits Cossitt said they would get if they went nonunion, Cossitt said that "it's in writing, it's their offer and promise," or words to that effect. C. 15 November 1986 Meeting at Store 241 (West Broad Street) In October 1986, 7 months into the March 1986 to March 1987 contract, employee Lois Weaver ap- proached District Manager Paul Cossitt and told him she was dissatisfied with the Union because she had not seen the contract yet and no one from the Union ever came around. She asked to have a meeting between Cossitt and the employees in which the company benefits could be discussed. The time and place of the meeting was set by Weaver who notified the other employees of the meeting. There is no evidence that Cossitt or any other management offi- cial of Respondent told employees at this store about the meeting. The meeting took place at approximately 6 p.m after the store closed on Saturday, 15 November 1986. In at- tendance were Paul Cossitt, his wife, who sometimes managed one of the stores in her husband's absence, management trainees Walter Jacobs and Becky Roach, and four employees, i.e., Lois Weaver, Judith Kerley, Willavene Maxey, and Sally Farren Cossitt started the meeting by talking about the "spin off" of Respondent from Lucky Stores. He then an- swered questions posed by employees. He said on the holidays, personal days, 10-cent-an-hour merit increase every 6 months, and pension plan what he said at the meeting at the Midlothian Turnpike store 1 week earlier. Judith Kerley, who later signed a petition saying she did not want to be represented by the Union, was used an example on the pension, i e., Cossitt said what Kerley's monthly pension would be under the company pension plan Cossitt's wife and Supervisor Becky Roach said nothing at the meeting but Supervisor Walter Jacobs, a retired career Navy enlisted man, commented that Re- spondent's pension plan was better than his Navy pen- sion. One of the employees in attendance at this meeting was Sally Farren. Farren had never joined the Union and4 signed the petition stating that she no longer wanted to be represented by the Union. She subsequently left Respondent's employ prior to this meeting but before the hearing for a better paying job. She lacked any motive to fabricate. Her demeanor was such that I am convinced she was telling the truth when she testified as a witness for the General Counsel. Accordingly, I credit her testimony that Cossitt recommended to the employ- ees at the meeting that they should get rid of the Union and that he did so prior to anyone mentioning the Union at the 15 November meeting. According to Farren, Cos- sitt also said-not in response to a direct question-that employees would be better off without the Union. Ac- cording to Farren, the benefits under the Company as discussed by Cossitt were pretty much the same, in her opinion, as the benefits the employees enjoyed under the union contract. At the end of the meeting Lois Weaver asked how do we get rid of the Union. Cossitt suggested getting up a petition. He went on to say, however, that he could not circulate any such petition. At both meetings Cossitt gave a deadline for the em- ployees letting Respondent know if they wanted to stay union or go nonunion. According to employees Eleanor Jackson and Susan Dodson, who were present at the 8 November meeting, Cossitt said Respondent wanted to know by the end of November and according to employ- ees Willavene Maxey and Sally Farren, who attended the 15 November meeting, Respondent wanted to know by 6 or 9 December. As noted below, petitions were not cir- culated until 6 December and not given to Respondent until 15 December. D. Petitions Subsequent to both meetings employees Betty Bass and Elva Cumber from store 138 (Midlothian Turnpike) prepared a petition headed "We the undersigned employ- ees of Hancock Fabric store 138, Richmond, Virginia no longer want to be Represented by Local 400 of the United Food and Commercial Workers." Cumber and Bass circulated the petition and between 9 and 13 De- cember 1986 got 10 out of 12 of their fellow employees to sign the petition. Employee Lois Weaver from store 241 (West Broad Street) spoke with Cumber and Bass about circulating a subjects of medical insurance, vacations, life insurance , 4 Virginia is a so-called right-to-work state FABRIC WAREHOUSE petition at the store where she worked. Cumber and Bass helped Weaver prepare the language on Weaver's peti- tion which was the same as the language on the petition they circulated except that "Store No. 241" was substi- tuted for "Store No. 138." Weaver circulated the petition and between 9 and 13 December 1986 got 11 out of 12 of her fellow employees to sign the petition. In all 21 out of 24 employees signed the petition. There is no evidence that Respondent participated in preparing the petitions or in circulating the petitions. In addition, those who circulated the petitions-Cumber, Bass, and Weaver-testified they did not tell employees what Cossitt had said at the two meetings. I note that 14 employees between the two stores did not attend either meeting and 13 of these employees signed one or the other of the two petitions 5 Those 13 employees consti- tute a majority of the employees and since they did not attend either meeting and since those who circulated the petitions did not discuss with them what was said at the meetings it is clear they could not have been unlawfully or improperly influenced by what Cossitt said at the meetings. E. Petitions Presented to Management On Monday, 15 December 1986, employees Elva Cumber and Betty Bass presented the petition from the employees at store 138 (Midlothian Turnpike) to Paul Cossitt. Later that day, Lois Weaver presented the peti- tion from the employees at store 241 (West Broad Street) to Cossitt. Following receipt of the petitions Cossitt telephoned David Jensen, Respondent's vice president for personnel in Tupelo, Mississppi, and informed him of what had happened. He thereafter forwarded the two petitions to Jensen. On 16 December 1986, Jensen sent two letters to the Union (one for each store) advising that Respondent would no longer recognize the Union in light of the peti- tions it had received Respondent honored all terms and conditions of the contract until it expired on 7 March 1987. From 16 De- cember 1986 Respondent refused to engage in reopened negotiations on wages or to engage in negotiations for a new collective-bargaining agreement when requested to do so by the Union. Respondent, after the expiration of the contract, unilaterally implemented changes in the terms and conditions of employment of its employees (e g., implemented the pension plan, etc.) without first notifying the Union and giving it an opportunity to bar- gain over the changes. These unilateral changes gave to the Richmond employees the benefits that Cossitt said they would get if they were not covered by the union contract but were nonunion employees. In addition, these 5 Employees Covington, Downie, Evans, Gonzalez, Phan, Poore, and Shelton from store 241 (West Broad Street) signed the petition but did not attend the meeting as did employees Boyd, Lowe, McGhee, Phillips, Pufahl, and Wiggins from store 138 (Midlothian Trunpike) who likewise did not attend the meeting at their store but did sign the petition Only Taylor, a union steward at store 241, neither attended a meeting nor signed a petition although she was told about the meeting and evidental- ly, for her own personal reasons, chose not to attend 199 were benefits that Respondent's nonunion employees re- ceived. F. Discussion Respondent had a good-faith, reasonably grounded doubt as to the Union's continued majority status when it withdrew recognition. The misconduct of Cossitt in tell- ing Eleanor Jackson to call a meeting, in telling Susan Dodson about the meeting and volunteering at the 15 November 1986 meeting that employees would be better off without a union, and suggesting to the four employ- ees at that meeting that they get rid of the Union were not so egregious in the context of this case that the clear will of the overwhelming majority of Respondent's Rich- mond employees should be frustrated and those employ- ees forced to have union representation when they have clearly indicated they do not want it However, times change and those employees may feel differently today about union representation from how 'they felt back in December 1986 when they signed the petitions. Accordingly, the Union may meet with success if it undertakes an organizing campaign at Respondent's Richmond stores. On 19 May 1987, after the contract expired and recog- nition was withdrawn, Union Representative Lynn Col- bert returned to store 241 (West Broad Street) to go to the employee break area with the intention of doing two things: (1) posting on the employee bulletin board a copy of a complaint issued by the Regional Director for Region 5 alleging,: inter alia, that Respondent had unlaw- fully withdrawn recognition,6 and (2) to see if the em- ployees had any grievances to bring to her attention. Cossitt, after checking with Jensen in Tupelo, ordered Colbert to leave the store unless she wanted to buy something or he would call the police and have her ar- rested. She insisted she had a right to be there Cossitt called the police, who, upon arrival, threatened her with arrest if She did not leave. Colbert left under protest. Respondent's incredibly heavy handed manner of dealing with Colbert with employees present in the store could only have a chilling effect on the Section 7 rights of Re- spondent's employees. Colbert is a young woman who had given birth just months prior to this incident. The employees had a right to see the complaint and Colbert had a right to see if the employees had any grievances. It is possible that even though recognition was withdrawn and the contract had expired employees could have grievances to present under that expired contract. Some grievances survive the expiration of the contract contain- ing the grievance-arbitration clause. See Indiana & Michigan Electric Co., 284 NLRB 53 (1987). In the unique circumstances present here Respondent violated the Act by threatening to have Colbert arrested. Those unique circumstances include the fact that an agency of the United States Government (Region 5, NLRB) had issued a formal complaint which gave Col- bert a good-faith belief that the Union still represented the employees, her presence at the store was not unique, 6 This complaint was superseded by the second consolidated complaint following the filing of a new charge 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and the employees should know as soon as possible what violations of the law the Board was charging Respond- ent with violating. The Union in this case was well beyond its first year of certification and, therefore, enjoyed only a rebuttable presumption that its majority representative status con- tinued. Terrell Machine Co., 173 NLRB 1480, 1481 (1969). It is my considered judgment that Respondent had a good-faith, reasonably grounded doubt as to the continued majority status of the Union, i.e., the presump- tion was rebutted, when Respondent received two peti- tions showing that 21 out of 24 employees did not want to be represented by the Union any longer. If an employ- er has a reasonably grounded good-faith doubt as to the continued majority status of a union, it has a right to withdraw recognition. BASF Wyandotte Corp., 276 NLRB 1576 (1985); Bennington Iron Works, 267 NLRB 1285 (1983). While a reasonably grounded good-faith doubt as to continued majority status should take place in an atmosphere free of unfair labor practices before recognition can be withdrawn, the unfair labor practices must be "sufficiently serious to warrant a determination that they possessed an inherent tendency to produce dis- affection and, thereby, contributed to the union's loss of majority status." Chicago Magnesium Castings, 256 NLRB 668, 674 (1981); BASF Wyandotte Corp., supra. While Cossitt should not have told employee Jackson to call a meeting to discuss company benefits (which she did not do) and Cossitt should not have invited employee Dodson to the November 1986 meeting, the fact is that that particular meeting was called by employees Cumber and Bass and not by any management official of Re- spondent. In addition, the meeting of 15 November 1986 was called by employee Weaver and not Respondent. Cossitt's responses to questions from employees at the two meetings were essentially factual. BASF Wyandotte Corp., supra; and KCRA-TV, 271 NLRB 1288 (1984). Cossitt was wrong to express his opinion as he did at the 15 November 1986 meeting that the employees would be better off without the Union, but it is noted that a major- ity of the employees who signed the petitions stating they no longer wanted to be represented by the Union attended neither meeting and there is no evidence they were told what Cossitt said at the meetings. Although Cossitt at the 8 November 1986 meeting did wave some pages in the air and say in response to a question whether employees could rely on these being the company benefits "It's in writing. It's their offer and promise," or words to that effect, I suggest that if he had said "no, you can't rely on what I say" his response would have been erroneous and if he had said "no com- ment" he would not have been terribly responsive to a reasonable question the employees had a right to ask. His response did not contain the kind of express promise de- signed to undercut union support such as a promise to treat these Richmond employees substantially better than Respondent's other 5,000 nonunion employees to get them to decertify the Union would have been.? 7 Respondent's pension plan stated that it applied only to employees who were not working under a collective-bargaining agreement This If a respondent lawfully withdraws recognition of the Union effective at the end of an existing collective-bar- gaining agreement it can, when the contract expires, op- erate unilaterally regarding the terms and conditions of employment of its employees. Accordingly, Respondent, in May 1987 and, thereafter, when it made unilateral changes in the terms and conditions of employment of its employees, did not act unlawfully. Once recognition is lawfully withdrawn, as it was here, an employer need not honor a request to bargain by the former representa- tive of its employees. When this decision issues Respondent's Richmond em- ployees will have been without union representation for approximately 1 year. They may want the Union back. The Union is obviously at liberty to undertake an organi- zational drive among these employees. CONCLUSIONS OF LAW 1. Hancock Fabrics d/b/a Fabric Warehouse is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2 United Food and Commercial Workers, Local 400, is a labor organization within the meaning of Section 2(5) of the Act. 3. When Respondent, by District Manager Paul Cos- sitt, told employee Eleanor Jackson to have the employ- ees who were represented by the Union ask to have a meeting with him to discuss benefits employees would receive if there was no union, Respondent violated Sec- tion 8(a)(1) of the Act. 4. When Respondent, by District Manager Paul Cos- sitt, told employee Susan Dodson to attend a meeting with other employees who were represented by the Union where Cossitt would be discussing benefits those employees would receive if there was no union, Re- spondent violated Section 8(a)(1) of the Act. 5. When Respondent, by District Manager Paul Cos- sitt, threatened Union Representative Lynn Colbert with arrest when she entered store 241 on West Broad Street, Richmond, to go to the breakroom to see if any employ- ees had any grievances and to post a copy of a NLRB complaint charging Respondent with unfair labor prac- tices on the employee bulletin board, it violated Section 8(a)(1) of the Act 6 Respondent did not violate the Act in any other way. More specifically, it did not violate the Act when it withdrew recognition of the Union, refused to bargain for a new collective-bargaining agreement, and when, after its contract with the Union expired, it unilaterally changed some of the terms and conditions of employ- ment of its employees. 7. The unfair labor practices of the Respondent, de- scribed above, affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] provision is not illegal in the context of this case since the meaning of that language, as explained by Vice President Jensen, was that the pen- sion plan applied to all employees not represented by a union and any pension plans for represented employees would be a matter of negotiation between Respondent and the Union