Boot-Ster Manufacturing Co., Inc., 933 (1964)

DECISION AND ORDER

On July 15, 1964, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and he recommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.

Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a threemember panel [Chairman McCulloch and Members Leedom and Brown].

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 entire record in this case, including the Trial Examiner's Decision, the exceptions, and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modification? 1 Member Leedom does not reach, and therefore does not pass on, the question as to whether the Respondent' s speeches , and its remarks incident thereto, made during the period between October 7 and 17 , 19G3, standing alone, were violative of Section '8(a) (1) of the Act, as he believes that, in the light of the Respondent 's contemporaneous coercive statements to employees, involving similar remarks, which the Board is finding herein violated Section 8(a) (1), the Respondent ' s speeches take on a coercive connotation and hence are unlawful. See Member Leedom 's separate views as expressed in Brownwood Mannfactarsng Company, 149 NLRB 921.

149 NLRB No. 91.

We agree with the Trial Examiner's finding that the Respondent refused to recognize and bargain with the Union in' violation of Section 8(a) (5) of the Act. However, in holding that the Respondent violated Section 8(a) (5) of the Act, we find, specifically, that the Respondent's refusal to bargain was motivated by a desire to gain time, within which to undermine the Union's majority status.

As more fully set forth in the Trial Examiner's Decision, the Union began its organizational campaign in September 1963. During the period from early October 1963 to late November, the Respondent, through its supervisors and officers, engaged in a course of conduct which included numerous and varied violations of Section 8 (a) (1) of the Act. On October 10, 1963, the Union, which at that time represented a majority of employees in the appropriate unit, wrote a letter to the Respondent and requested that the Respondent recognize it as bargaining representative of these employees. In this letter, the Union stated that it was willing to submit its authorization cards to an impartial third party in order to prove its majority status. On October 16, the Respondent rejected the Union's request for recognition, stating that it did not believe the claims set forth in the Union's letter. The Union thereupon filed a representation petition with the Board. On October 30, a stipulation for certification upon consent election was signed by the parties, setting the election for November 22. ' However, on November 8 the Union filed the instant unfair labor practice charges, and, thereafter, on December 13 the Union requested withdrawal of its petition, which was approved by the Regional Director on December 16. It is well established that while an employer may in good faith insist upon a Board election as proof of a union's majority, it unlawfully refuses to bargain if its insistence on such an' election is motivated, not by any bona fide doubt as to the 'union's majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the union.z ' In our view, it is clear from the Respondent's entire coercive course of conduct herein, which occurred both before and after it refused to recognize the Union,3 that its refusal to bargain with the Union on October 10 was motivated, not by any good-faith doubt as to the Union's majority, but rather both by a desire to gain time to dissipate the Union's majority status and bargaining position and by a rejection of the collective-bargaining principle.

2 Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F. 2d 732 ( C.A. 1), cert. denied 341,

U S. 914. 8 As described more fully in the Trial Examiner 's Decision , the Respondent engaged in 19 Instances of conduct violative of Section 8(a) (1) of the Act, including threats of reprisal for engaging in union activity , interrogations, promises of benefit for refraining from engaging in union activity, and the creation of the impression of surveillance, and at least 9 of these instances occurred after the Respondent 's refusal to bargain with the Union.

BOOT-STER MANUFACTURING COMPANY, INC. 935

ORDER,

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recommended by the Trial Examiner and orders that the Respondent,

Boot-Ster Manufacturing Company, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

Upon a charge filed November 8, 1963, by United Rubber , Cork, Linoleum and Plastic Workers Union, AFL-CIO, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO. herein referred to as the Union, the Regional Director for Region 26 of the National Labor Relations Board , herein called the Board, issued a complaint on December 20, 1963, on behalf of the General Counsel of the Board against Boot-Ster Manufacturing Company, Inc., hereinafter referred to as the Respondent or the Company ;,alleging-violationsof,Section 8(a),(1) and (5 ) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called the Act In its duly filed .answer to the aforesaid complaint,

Respondent, while admitting certain of the allegations thereof, denied the commission of any unfair labor practices.

Pursuant to notice, a hearing was held before Trial Examiner Morton D . Friedman in Clarksville, Tennessee, on January 21 and 22, 1964. All parties were represented and afforded full opportunity to be heard , to introduce relevant evidence, to present oral argument, and to file briefs. Oral argument was waived. Briefs were filed by the Respondent and counsel for the General Counsel.

Upon consideration of the entire record in this case , including the briefs of the parties, and upon my observation of the demeanor of each of the witnesses testifying before me, I make the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. THE BUSINESS OF, THE,RESPONDENT At all times material herein the Respondent has been and is a Tennessee corporation having,its principal office and place of business located at Clarksville ,-Tennessee, where it is engaged in the manufacture of footwear . During the 12 months immediately preceding the issuance of the complaint herein, a representative period, in the course and conduct of its business operations the Respondent purchased and received at its Clarksville, Tennessee , location materials and supplies of a value in excess of $50,000 directly from points outside the State of Tennessee. During the same period of time, Respondent sold and shipped finished products of a value in excess of $50,000 directly to points outside the State of Tennessee.

   It is admitted, and I find and conclude , that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.

   H. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of -Section 2(5) of the,Act.

   3. THE ISSUES A. Whether the Respondent through its officers and supervisors threatened and interrogated its employees , made promises of benefits, and created the impression of surveillance , constituting interference, coercion, and restraint within the meaning of Section 8 (a) (1) of the Act.

      B. Whether the Union's apparent majority, at the time it made its demand for recognition and request for bargaining , was, in fact, uncoerced or whether the majority was obtained through misrepresentation. .

      C. Whether the Respondent's refusal to recognize and bargain with the Union was based upon a good-faith doubt as to the Union 's majority status or whether the doubt, was asserted for the purpose of gaining time in which to destroy the Union's majority or rejecting collective -bargaining principles by engaging in the conduct with which issue (A) above, is concerned.

   4. THE UNFAIR LABOR PRACTICES A. Background The Union began its organizational campaign sometime in September 1963. The campaign was directed by James Temple, a field director for the Union. Temple held meetings with the employees and had them sign authorization cards. The employees who attended the meeting were, in turn, given authorization cards to distribute among the employees in the plant. These cards were thereafter signed and returned to Temple at subsequent meetings. This activity resulted in the obtaining of approximately 130 signed authorization cards from employees in the Respondent's employ.

      By letter dated October 10, 1963, the Union requested that the Respondent recognize it as the exclusive representative of the Respondent's employees in a production and maintenance unit and requested that the Respondent bargain with it In this letter the Union stated that it was willing to submit the authorization cards to an impartial third party in order to prove the Union's majority...