Cummings and Kerner, Circuit Judges, and Hoffman, District Judge.*fn1
Petitioners, National Labor Relations Board (Board) and Local 1401, Retail Clerks International Association (Union) seek enforcement of an order of the National Labor Relations Board. The Board found that respondent C & P Plaza Department Store (C & P Plaza) violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing and refusing to bargain with the Union even though the Union represented a majority of the employees in an appropriate unit. The Board also found that C & P Plaza violated Section 8(a)(1) of the Act by conducting a poll to determine its employees' union sympathies and affiliations.
Between the years 1948 and 1960, C & P Plaza operated a combined food and department store. The Union won representation for the employees in 1948 with C & P Drive-In, a predecessor of C & P Plaza. In 1960, the department store operations were separated from the food store and established at a new location. The department store was named C & P Plaza Department Store. Following the separation, the Union was recognized as the collective bargaining representative at each store. The first department store contract was negotiated for the April-June, 1960, period. An industry-wide work stoppage intervened and the second contract of March, 1961, was retroactive, running from January 1, 1961, through December 31, 1962. A third contract dated May 17, 1963, was entered into for the period January 1, 1963, through December 31, 1964. The 1963-64 agreement contained a union security clause without check-off as in the 1961-62 contract and also provided for automatic annual renewal after December 31, 1964, unless either party served notice of a desire to modify the agreement 60 days prior to the expiration date.
Peter Voeller, the Union's Secretary-Treasurer, on October 26, 1964, informed C & P Plaza of the Union's desire to modify the 1963-64 agreement. As was their practice, no negotiation commenced until January 14, 1965, when a meeting took place between Voeller and General Manager Russell Weber and other company officials. Weber stated no contract was in existence since the contract expired December 31, 1964. Voeller and C & P Plaza President Carl Payne agreed to extend the contract to July 1, 1965, and negotiate a new contract at that time because of the probability of converting to a self-service store. Payne assured Voeller he had no intention of "throwing out" the Union. Twenty-two members of the Union attended a union meeting that evening and agreed to the extension of the contract for the six-month period and paid their union dues.
The Union records indicate that on January 1, 1965, thirty-nine of the forty-seven employees were union members. Six left the employment before July 1. Twenty-eight of the remaining thirty-three members paid union dues through the end of June. A new employee, beginning in March, paid his dues through September.
On April 27, 1965, Weber sent Voeller the following letter:
By verbal agreement we extended the above contract to 1st of July 1965.
We write this letter to notify you of our desire to terminate that agreement on July 1, 1965.
Voeller, who was out of town on union business, did not respond to the letter until early July, at which time a meeting was arranged at Weber's office for July 8. The conference terminated with Weber stating that there was no contract, that there would be no negotiation for a new contract and that he believed that the Union did not represent a majority of the employees.
Voeller called a union meeting which was attended by twenty employees, and Authorization of Representation cards were completed by thirteen of those present. By personal solicitation, an additional seventeen employees signed authorization cards, totalling thirty of the forty-six employees. Weber refused to accept the cards as evidence of majority representation, though he accepted the suggestion that bargaining sessions be held.
On July 27, the day following the Voeller-Weber meeting, management posted a notice for an employee meeting to be held on July 30. Management was represented by President Payne, General Manager Weber, and managers Witcomb and Hannon; twenty-seven employees attended. Weber stated that C & P Plaza felt that the Union no longer represented the employees, making no comment concerning the thirty authorization cards, and after stating that no one had to vote, asked the employees present how many wished to have the Union represent them. Only two or three responded.
Union proposals were submitted to the company on July 26 followed by bargaining sessions held on July 30, August 10 and 20. At each session, Weber stated any agreement would be dependent upon the results of an election. On August 6, the company filed an election ...