Ingress-Plastene, Inc., 481 (1969)
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INGRESS-PLASTENE, INC. 481Ingress-Plastene, Inc. and International Union, Allied Respondent of its desire to negotiate for a new Industrial Workers of America, AFL-CIO. Case contract. On September 21, 1967, Respondent 25-CA-2969 offered to meet at an agreeable time for that June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On March 24, 1969, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner' s Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and qualifications. 1. The Trial Examiner found that during the period from late September 1967 to early December 1967, the Respondent engaged in extensive unfair labor practices in violation of Section 8(a)(1) of the Act. The Trial Examiner detailed many incidents of such illegal conduct, including instances of (1) interrogation of employees, (2) soliciting and assisting withdrawals of checkoff authorizations, (3) impressing upon employees the futility of continued adherence to the Union, (4) creating of the impression of surveillance, (5) announcement and promises of beneficial changes in wages and working conditions, and (6) disparagement of the Union by unilateral action. We agree with the Trial Examiner' s findings and conclusions in this regard. 2. The Trial Examiner also found that the Respondent illegally refused to bargain by withdrawing recognition and by unilaterally instituting changes in wages and conditions of employment, all in violation of Section 8(a)(5) and (1) of the Act. We believe that these conclusions are amply sustained by the evidence in the record. The Union was certified on September 30, 1966, and the first and only contract provided a term from April 24, 1967, to November 30, 1967. On September 13, 1967, the Union timely notified purpose. On October 18, 1967, the Respondent withdrew recognition, and on October 21 filed an RM petition which was dismissed on October 30. Thereafter, not only did Respondent refuse to recognize or negotiate with the Union, on November 1 it notified its employees it would put into effect on December 1 a number of beneficial changes which would be announced later. On November 10, Respondent announced that, effective December 1, employees would receive at least a 10-cent-per-mile wage increase, insurance improvements , and a bonus for a certain 'four-crew' operation. On November 17, Respondent announced that certain noneconomic conditions would become effective on December 1. On December 1, these changes in wages and working conditions were placed into effect. It is well settled that a certified union, upon expiration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues.' This presumption is designed to promote stability in collective-bargaining relationships, without impairing the free choice of employees.: Accordingly, once the presumption is shown to be operative, a prima facie case is established that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer affirmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed majority representative status;3 or (2) that the employer's refusal was predicated on a good-faith and reasonably grounded doubt of the union's continued majority status. As to the second of these, i.e., 'good-faith doubt,' two prerequisites for sustaining the defense are that the asserted doubt must be based on objective considerations' and it 'must not have been raised in the context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union.'' Respondent does not contend that it has rebutted the presumption of majority status of the Union; it contends, rather, that it has demonstrated that it had reasonable grounds for doubting that the Union continued to enjoy majority support, and that its 'Celanese Corporation of America, 95 NLRB 664, 671-672. 'Id. 'Majority representative status' means that a majority of employees in the unit wish to have the union as their representative for collective-bargaining purposes. Id. See Laystrom Manufacturing Company, 151 NLRB 1482, 1484, enforcement denied on other grounds (sufficiency of evidence) 359 F.2d 799 (C.A. 7); Terre!! Machine Company, 173 NLRB No. 230; N L R B v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5), enfg 147 NLRB 997 And cf. United States Gypsum Company, 157 NLRB 652. 'Celanese Corporation of America, supra at 673. See also Terre!! Machine, supra;Bally Case and Cooler, Inc., 172 NLRB No. 106, C & C Plywood Corporation, 163 NLRB No. 136. 177 NLRB No. 70 good faith in withdrawing recognition from the Union has been shown by the fact that it filed a petition in order to have the question of representation resolved in accordance with the Board's election procedures. Considering all the circumstances, we find this defense to be without merit. Assuming, arguendo, that the facts concerning the small number of unit employees participating in the dues checkoff program, and the Union's purported lack of aggressiveness in asserting contractual rights and privileges, coupled with attempts to increase its membership among unit employees , constitute the type of objective considerations which reasonably could have led Respondent to doubt the Union's continued majority status,' it is apparent that Respondent was not willing to have the question concerning the Union's representative status which it claims existed resolved by the election machinery provided in the Act. Though it is true that Respondent filed a petition for an election, that petition was filed during the last 60 days of its contract with the Union and was subject to dismissal under the normal application of the Board's contract-bar rules. Although Respondent argued before the Regional Director that the petition should nevertheless be processed, it did not appeal to the Board from the Regional Director's dismissal of the petition. Instead, it intensified its unfair labor practice campaign , a campaign initiated even before it filed the petition, in a patent effort to dissipate employee support of the Union and to destroy the conditions necessary to a free election. Quite clearly Respondent has not conformed its conduct to the requirements of the Act as spelled out in relevant Board decisions.' Accordingly, as Respondent has not rebutted the presumption flowing from the Union's certification, and as it, in any event, has engaged in substantial independent unfair labor practices tending to preclude the holding of a fair election, we find that Respondent, by withdrawing recognition from the Union on October 18, 1967, and thereafter refusing to bargain with the Union, violated Section 8(a)(5) of the Act. `There is, of course, no necessary correlation between the number of employees who are willing to give financial support to a union and the number of employees who wish to be represented by a union. See, e.g., Gulfmont, supra Nor does the fact that the Union may not have been aggressive in asserting certain contractual rights on behalf of employees necessarily give rise to the inference that it lacked majority status. Clearly the Union was not a dormant organization. Cf. Dietz Forge Company of Tennessee, 173 NLRB No. 5. As to Respondent's contention that Union President Sheets conceded to one of Respondent's officials that the Union represented only those employees who had signed checkoff authorizations, we note that Sheets denied having so stated, and the Trial Examiner did not resolve the issue of credibility raised by the conflicting testimony Without attempting to resolve that issue ourselves, we note that even Respondent's version of the discussion between Furgeson , its personnel director, and Sheets demonstrates that they were discussing additional checkoff cards in the possession of the Union , when Furgeson asked Sheets if that is all the employees you represent at this time In this context, it is highly likely that Sheets understood the inquiry as relating to union membership rather than the number of employees represented by the Union In any event, Respondent does not rely on Sheet's response as THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We expressly disavow the Trial Examiner's discussion in that section of his Decision entitled 'Recommended Remedy.' AMENDED CONCLUSION OF LAW Delete Conclusion of Law 6 and insert in its place the following: 6. By unilaterally changing wages and other terms and conditions of employment on December 1, 1967, the Respondent violated Section 8(a)(5) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations...
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