Universal Life Insurance Co., 1118 (1968)
Universal Life Insurance Company and Office & Professional Employees International Union, Local 367. Cases 26-CA-2709 and 26-CA-2827
February 29, 1968 DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 1, 1967, Trial Examiner James T.
Barker issued his Decision in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that 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 alleged;
in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief.
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 threemember 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith:
The Trial Examiner found that Respondent, by providing Memphis home office employees with transportation, per diem, and other expenses incident to their trip to Houston, Texas, to attend an annual awards event, by granting an increase in Christmas bonus to unit employees, and by reinstating Good Friday as a paid holiday for unit employees, violated Section 8(a)(1). The Trial Examiner found, with respect to the three incidents, detailed below, that 'there existed a sound basis for each of the determinations made which resulted in the modification of employee benefits.' He concluded, however, that this was 'not significant' in view of 'the underlying motivation of Respondent in granting the benefits.' This underlying motivation, according to the Trial Examiner, was 'disparagement of the Union in its present role and denigration of its value as an intermediary and representative of unit employees in the future.' We do not agree.
The evidence shows that Office & Professional Employees International Union, Local 367, hereinafter referred to as the Union, was certified as the exclusive collective-bargaining representative in a unit of office employees of Respondent's Memphis, Tennessee, office, on May 10, 1966.
Thereafter, on July 8, 1966, an economic strike commenced in which 64 of the 99 employees in the bargaining unit participated. The striking employees offered to return to work on or about September 12. Respondent informed them that all striking employees had been permanently replaced, prior to the date of their request, and their offer was refused.
According to the credited testimony of Respondent's witnesses, Respondent decided in 1965 that a bonus liberalization was economically justified. In late November 1966 the Respondent decided it would pay the larger Christmas bonus.
As the employee complement was comprised preponderantly of employees with less than 1 year's service, the funds available for bonus purposes would not have been fully utilized under the existing bonus formula. Therefore, Respondent revised this formula and by letter of December 9, Respondent informed the Union of the provisions of the liberalized Christmas bonus plan which it desired to institute. The letter stated: 'If we do not hear from you by December 13, we will assume you have no objections.' The Union replied on December 13, giving its assent to the institution of the plan.
The industrial realities inherent in a Christmas bonus plan, such as yearend economic decisions and mathematical calculations based on annual accounting, make the timing element of short notice and limited deadline less significant as an indication of motive than this would be in the granting of other benefits during bargaining. It is clear that had the Union desired bargaining, concerning the increase in the bonus payment or the revision of the formula for distribution, it could have so notified the Respondent, even up to the deadline date when it chose to give its consent to the Respondent's proposal. Respondent was required to act on the Christmas bonus within these same time limits even to maintain the status quo. Accordingly, we make no adverse inference as to Respondent's motive based on timing.
(b) For a number of years prior to 1966, Respondent had held an annual awards event at the home office in Memphis, Tennessee, which was attended by employees from the field offices of Respondent's 10-State operation. Respondent decided to hold the 1966 annual awards event in Houston, Texas. According to the credited testimony, the Respondent's decision to depart from the previous practice of holding the event in Memphis, was dictated by 169 NLRB No. 165
UNIVERSAL LIFE INSURANCE COMPANY 1 119 picketing and the strike-generated atmosphere that existed there during September 1966, which it deemed not conducive to a successful event.
The Union was informed on September 22 of Respondent's intentions to hold the awards event in Houston, in November, and, in response to Respondent's inquiry as to whether or not the Union had any objections, Murphy, the president of the Local, told Respondent that she thought the Houston trip would be a 'nice trip.' On or about October 6, Murphy reiterated the Union's position, stating 'that's a nice trip for the girls.'t In acquiescing to Respondent's plan, the Union raised no question concerning the attendant arrangement and benefits and is therefore presumed to have left such matters to the Respondent.
(c) In the past, Respondent granted Good Friday as a paid holiday to its employees in the collective-bargaining unit when it did not occur during a peak activity period. Thus, it granted the holiday during the years 1963 through 1965. It did not do so in 1966. In bargaining sessions with the Union, the Respondent took the position that Good Friday should not be a contract holiday as this day periodically fell at or just after the end of the first calendar quarter, when manpower needs of its business are particularly heavy. In 1966, Good Friday fell on April 8; in 1967, it was on March 24. The Union first became aware of Respondent's intention to observe Good Friday as a paid holiday in 1967, during a March 16 telephone conversation. In a subsequent telegram, Respondent stated: 'We propose to grant to employees Good Friday as holiday this year as same occurs before our quarter ends on March 31, and will not interfere with post-quarter processing for field accounting. Please advise if you have objection.' The Union acceded to the Employer's proposal. Not only was this benefit given with the Union's consent, but it also was in accord with the practice in existence when the Union was selected as the bargaining representative and may be viewed as maintenance of the status quo.
As indicated by the foregoing, the record establishes that each benefit was put into effect only after Respondent obtained the acquiescence of the bargaining representative. We note, too, the lack of any evidence showing that Respondent attempted to publicize to employees its so-called beneficence, or any effort on its part to create a belief among employees that the benefits here involved were something other than the product of normal collective bargaining. Of course, if it were established that Respondent adopted this approach for the purpose of impinging upon employees' Section 7 rights, such conduct would be unlawful.2
However, the Trial Examiner does not identify any evidence of such intent, and, in these circumstances, we are unable to attribute an unlawful motive to Respondent. Accordingly, we find, contrary to the Trial Examiner, that Respondent's actions were not violative of Section 8(a)(1) of the Act.
On June 5, 1967, after the certification year had expired, Respondent withdrew recognition of the Union as bargaining representative, claiming on the basis of certain 'objective' evidence, a goodfaith doubt that the Union continued to represent a majority of the employees in the unit. The Trial Examiner, relying on the Board's decision in C & C Plywood Corporation and Veneers, Inc., 3 found that Respondent's 8(a)(1) violations precluded it from raising the majority issue in good faith. However, as Respondent has not been found to have otherwise violated the Act, Respondent was not precluded from questioning the Union's continued majority status upon expiration of the certification year on May 9, 1967, provided it could demonstrate by objective considerations that it had a reasonable basis for believing that the Union has lost its majority status since its certification.4 Here, on May 18, 1967, the Union's chief negotiator, in conversation with Respondent's attorney, conceded that the Union no longer represented a majority, and went on to state, 'What do you expect with a bunch of scabs in there?' In light of this admission on the part of the Union, we cannot say that the Respondent's asserted doubt as to the Union's representative status was unreasonable, unsupported, or urged in bad faith. Accordingly, we find that Respondent's withdrawal of recognition on June 5 did not violate Section 8(a)(5) of the Act.
We shall, therefore, dismiss the complaint in its entirety.
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety.
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