Roza Watch Corp.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roza Watch Corp. and United Industrial Workers Union affiliated to Seafarers International Union of N.A., AFL-CIO. Case 24-CA-4199 May 5, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On January 9, 1980, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. We also find totally without merit Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge. Upon our full consideration of the record and the Administrative Law Judge's Deci- sion, we perceive no evidence that the Administrative Law Judge pre- judged the case, made prejudicial rulings, or demonstrated bias against the Respondent in his conduct of the hearing or his analysis or discussion of the evidence. The Respondent, inter alia, excepts to the Administrative Law Judge's denial at the hearing of its motion to dismiss the complaint on grounds that the charge was not filed within 6 months of the unfair labor prac- tices as is required by Sec. 10(b) of the Act, and excepts to the failure of the Administrative Law Judge to address this issue in his Decision. In view of the charge's filing date of July 27, 1979, and our adoption of the Administrative Law Judge's finding that the unfair labor practices com- menced March 5, 1979, we find that the charge was timely filed and, ac- cordingly, adopt the Administrative Law, Judge's denial of the Respond- ent's motion to dismiss the complaint for failure to comply with Sec. Il b). The General Counsel in his complaint listed the following exclusions in his description of the appropriate unit: managerial and professional per- sonnel, office clerical employees, specialists, messengers, drivers, guards, and supervisors as defined in the Act. In its answer the Respondent denied the complaint's allegation of the appropriate unit but did not affir- matively assert a description of the appropriate unit. The Administrative Law Judge noted that the certification listed the following exclusions: managerial and professional personnel, office cleri- cal employees, ';pecialists, guards, and supervisors as defined in the Act, and that the collective-bargaining agreement between the parties listed these same exclusions with the additional exclusion of drivers. He found, however. that the appropriate unit excluded those same employee classifi- cations as the General Counsel listed in his complaint. In the absence of exceptions to this finding, we adopt that description of the appropriate unit. In doing so, we note that it was proper for the parties to add the exclusion of drivers in the unit covered by their collective-bargaining agreement to the exclusions listed in the certification as that additional exclusion can have no effect on the basic appropriateness of the certified unit. the Union's majority therein, or the ability of the employees to bar- gain. See Sierra Pacific Htospitals, Inc., d/h/a Riverside Ilospital for Ex- tended Care, 222 NI.RB 767, 768, fn 4 (1976 ; Landis Idol Company, Di- vision of Litton Industries, 203 NLRB 10)25, 1126 (1973) 249 NLRB No. 36 and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Roza Watch Corporation, Christiansted, St. Croix, U.S. Virgin Islands, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, except that the attached notice is substituted for that of the Administrative Law Judge. :We have modified the proposed notice to conform with the provi- sions of the recommended Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bar- gain collectively with United Industrial Work- ers Union affiliated to Seafarers International Union of N.A., AFL-CIO, in the following appropriate unit: All production and maintenance employees employed at our Christiansted, St. Croix, U.S. Virgin Islands, plant, exclusive of all managerial and professional personnel, spe- cialists, drivers, messengers, guards, office clerical employees and all supervisors as de- fined in Section 2(11) of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them by the Act. WE WILL recognize and, upon request, bar- gain with the Union as the exclusive repre- sentative of our employees in the aforesaid ap- propriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an un- derstanding is reached, embody such under- standing in a signed agreement. ROZA WATCH CORP. ROZA WATCH CORP. 285 DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: This matter was heard in Christiansted, St. Croix, U.S. Virgin Islands, on November 13, 1979. The complaint al- leges, and Respondent's timely answer denies, that since on or about March 5, 1979, and continuing thereafter, Respondent, Roza Watch Corp., has withdrawn its rec- ognition of the Charging Party, United Industrial Work- ers Union, affiliated to Seafarers International Union of NA, AFL-CIO (the Union), as the exclusive collective- bargaining representative of a unit of Respondent's pro- duction and maintenance employees, and has refused to bargain collectively with the Union, in violation of Sec- tion 8(a)(5) and (1) of the National Labor Relations Act, as amended, referred to hereinafter as the Act (29 U.S.C. Sec. 151, et. seq.). On the basis of the entire record, the demeanor of the witnesses and the oral arguments given at the hearing in lieu of written briefs, I make the following findings, con- clusions, and recommendations.' The following facts were not disputed: On July 16, 1976, the Regional Director for Region 24, on behalf of the National Labor Relations Board, certified the Union as the exclusive collective-bargaining representative of the following unit of Respondent's employees: All production and maintenance employees em- ployed by [Roza Watch Corp.] at its Christiansted, St. Croix, U.S. Virgin Islands, plant, excluding all managerial and professional personnel, specialists, messengers, office clerical employees, and all guards and supervisors as defined in the Act. Thereafter, on December 10, 1976, Respondent, which assembles watches, entered into a collective-bargaining agreement covering the certified unit with the additional exclusion of drivers. The contract was effective from July 1, 1976, up to and excluding December 31, 1978. The contract included the following union-security provision: Subject to the provisions of the Labor Management Relations Act, 1947 as amended, it shall be a condi- tion of employment that all Employees of the Em- ployer covered by this Agreement, who are mem- bers of the Union in good standing on the day of the execution of this Agreement, shall continue to remain members thereof in good standing, as de- fined in the Act, throughout the entire term of this Agreement and those Employees who are not mem- bers of the Union on the date of the execution of this Agreement shall, on the thirty-first (31st) calen- dar day following the date of the execution of this Agreement, become and remain members in good standing in the Union as defined in the Act. It shall also be a condition of employment that all Employ- ees covered by this Agreement hired on or after its ' I find from the pleadings that Respondent's business operations satis- fy the Board's jurisdictional standards, and that the Union is a labor orga- nization within the meaning of Sec. 2(5) of the Act. execution date shall, on the sixty-first (61st) calen- dar day following the beginning of such employ- ment, become and remain members in good stand- ing in the Union. In November 1978, the Union's regional director, Felix A. Francis, approached Respondent's bargaining negotia- tor, Attorney John James, regarding negotiations for a new contract. James invited Francis to submit the Union's proposals. On or about December 29, 1978, the Union mailed to James its proposals for a new collective- bargaining agreement covering Respondent's production and maintenance employees. Having received no re- sponse, Francis, by letter dated February 9, 1979, re- quested that negotiations for the new contract begin, and pressed for word of Respondent's intentions in this regard. By letter of February 13, 1979, James, answering on Respondent's behalf, rejected the Union's contract pro- posals, and agreed that negotiations should go forward as soon as he and Francis could agree on a date. By a sub- sequent letter of February 27, 1979, James advised Fran- cis that James had "been advised that the Union employ- ees at Roza Watch may be petitioning for a decertifica- tion of the Union." Thereafter, on March 5, 1979, James sent the following letter on Respondent's behalf to Fran- cis: Thank you for your letter of March 1, 1979. The information that employees at Roza Watch wish to get out of the union wasn't given to me until after my phone conversation with you, and I immediately wanted to advise you of it. What action, if any, the employees have taken is un- known to me. I would assume that by the time of your return, we would have heard from the NLRB; or you would have made your own investigation and can advise me. It would seem academic to come up with a counterproposal until that situation is re- solved. [Emphasis supplied.] In May 1979, the Union again requested negotiations with Respondent. Francis telephoned James and asked that Respondent release two employees to participate in the negotiations to be held in James' office on May 28. On the appointed day, Francis appeared at James' office. However, the two employees did not appear as request- ed and the negotiations did not proceed. On another occasion in early June, Francis again came to James' office to begin negotiations on behalf of Re- spondent's production and maintenance employeees. However, such negotiations did not occur. James said that he forgot to call Respondent to obtain the release of two unit employees to participate with Francis in the ne- gotiations. Finally, on June 28, Francis appeared at James' office to commence negotiations regarding Respondent's pro- duction and maintenance employees. However, James re- fused to engage in collective bargaining on the ground that he did not believe the Union enjoyed the support of a majority of Respondent's production and maintenance employees. There has been no collective bargaining be- I ROZA WATCH CORP. 285 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween the parties regarding a new contract since this last encounter. The parties stipulated that on March 5, 1978, the col- lective-bargaining unit involved in this case included 45 employees. The parties have also stipulated that from January I to September 1, 1979, the size of the bargain- ing unit averaged 55 employees. During a Christmas party for Respondent's employees held on December 15, 1978, an unspecified number of employees 2 approached Respondent's plant manager, Wilfried Brockmeyer, and asked him how to get rid of the Union. His informants assured him that most of the unit employees favored the same sentiment toward the Union. 3 I find from the testimony of James that in late Febru- ary or early March 1979 Plant Manager Brockmeyer for the first time told James "that there was an indication that the [Respondent's] employees wished not to be in the Union." Based on this report,4 James, acting as Re- spondent's negotiating agent, sent the letter of March 5, 1979, quoted above, to the Union. At no time material to this case has a decertification petition been filed concern- ing Respondent's production and maintenance employ- ees. Nor is there any showing that Respondent was at any time confronted by a petition signed by a majority of its production and maintenance unit employees declaring that they no longer wished the Union to represent them as their exclusive collective-bargaining representative. The General Counsel and the Union contend that Re- spondent's refusal to proceed with bargaining on March 5, 1979, constituted a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. Respondent argues that its refusal to offer a counterproposal on March 5 did I On direct examination, Brockmeyer, in testifying about this incident, first provided three names, then stated that he could not recall exactly who spoke to him. Later, on cross-examination, Brockmeyer testified that he could not recall how many and which employees spoke to him at the December party. I Brockmeyer also testified that at a second party held in February several employees again asserted their desire to be rid of the Union. However, I find this testimony wanting in reliability. My doubt arose ini- tially from the serious conflicts between this testimony at the hearing on November 13, 1979, and his affidavit given on October 25, 1979, in which he averred that, aside from "side remarks against the Union" he over- heard, he had no other conversation "since December 1978 with employ- ees of Roza Watch concerning the dissatisfaction with the Union." How- ever, on cross-examination, Brockmeyer added to my suspicion. For when asked if he had testified that he had told James of the February incidents, Brockmeyer became troubled and answered: "I did not. We did. The company and the secretary told me about that. I don't know-." In sum, his troubled response, coupled with the contradiction of his recent affidavit, persuaded me that Brockmeyer's testimony regarding a February encounter with antiunion employees was not worthy of belief. Nor have I credited his testimony to the effect that he was "convinced a long time ago" that a majority of the unit employees did not want the Union. My general impression that Brockmeyer was not a candid witness, and the absence of record evidence to support this last assertion, persuad- ed me that it was unfounded. 4 James testified that Brockmeyer's report included the asserted Febru- ary episode in which employees told Brockmeyer that a majority no longer supported the Union. I have previously rejected Brockmeyer's tes- timony regarding this asserted incident. This factor together with my im- pression of James as he was testifying cast serious doubt upon his reliabil- ity. For James, who conceded his partisanship and enthusiasm, manifested willingness to embellish his testimony when he proffered the unfounded suggestion that the Union had intimidated unit employees to gain their support. I have therefore rejected James' testimony that Brockmeyer re- ported the asserted February episode to him. not constitute a refusal to bargain. Instead, Respondent asserts that its initial refusal to bargain occurred on June 28, at which time the Union's failure to produce two em- ployees as a bargaining committee, combined with Brockmeyer's report, convinced it that the Union did not enjoy the support of a majority of the unit employees. I find merit in the contention of the General Counsel and the Union. Before resolving the issue of whether Respondent has violated Section 8(a)(5) and (1) of the Act, I must fix the time of its initial refusal to bargain and withdrawal of recognition. On March 5, 1979, Respondent had before it the Union's contract proposals which, according to Re- spondent's letter of February 13, were unacceptable. Further, in that same letter Respondent had agreed that negotiations would proceed as soon as its negotiator and the Union's regional director could agree on a time. In this context, Respondent's declaration in its March 5 letter to the effect that it could not present any counter- proposal until the Union's representative status was re- solved amounted to a refusal to bargain collectively with the Union as the exclusive representative of Respond- ent's production and maintenance employees. Thus, con- trary to Respondent, I find that March 5 was the date of its initial refusal to bargain with the Union. In determin- ing whether Respondent's refusal to bargain with the Union on and after March 5 violated the Act, I am guided by well-settled Board doctrine. The Board has re- peatedly declared that "a certified union, upon expiration of the first year following its certification, enjoys a re- buttable presumption that its majority representation status continues." E.g., Triplett Corporation, 234 NLRB 985 (1978). It is similarly settled "that the existence of a contract gives rise to a presumption that the Union was the majority representative at the time the contract was executed and through the life of the contract, and to a rebuttable presumption of majority support following its expiration." Triplett Corporation, supra at 985-986. As the Union here was the certified representative and had been party to the recently expired collective-bar- gaining agreement, there was a rebuttable presumption of continued majority status when Respondent withdrew recognition and refused to bargain on March 5, 1979. Re- spondent had the burden of showing either that the Union did not in fact enjoy majority status on March 5, 1979, or that Respondent had a reasonable doubt based upon objective considerations for believing that the Union no longer enjoyed majority status as of that date. Dalewood Rehabilitation Hospital, Inc. d/b/a Golden State Habilitation Convalescent Center, 224 NLRB 1618, 1619 (1976). Respondent has not sustained this burden. It made no showing that the Union did not in fact enjoy majority status as of March 5, 1979. All that Respondent had was the assertion of some employees made to a member of management at a social gathering that a majority of their members wanted to get out of the Union. Such evidence is not sufficient to rebut the presumption of majority status arising from the Union's certification and the re- cently expressed collective-bargaining agreement. Pick- Mt. Laurel Corporation, 239 NLRB 1257 (1979). ROZA WATCH CORP. 287 Nor did Brockmeyer's report provide an objective consideration affording a reasonable ground for a good- faith belief that a majority of the unit employees no longer supported the Union. For the reported assertions by some employees about other employees' expression of union sentiment were pure hearsay. Further, the atmos- phere at Respondent's Christmas party was likely to prompt some employees to make remarks calculated to please their Employer. In any event, there was no show- ing that as of March 5, 1979, Respondent was informed that a majority of the unit employees had individually told Brockmeyer that they no longer wanted the Union to represent them. In sum, Respondent has failed to establish either that, as of March 5, 1979, the Union did not in fact enjoy ma- jority support or that Respondent had reasonable grounds on that date for a good-faith belief that the Union had lost its majority status. Accordingly, I find that Respondent was not justified in its refusal to bargain with the Union on and after March 5, 1979, and thereby violated Section 8(a)(5) and (1) of the Act. Terrell Ma- chine Company, 173 NLRB 1480, 1481-82 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970). I have not considered Respondent's proffered evidence of occurrences which took place subsequent to March 5, 1979, as grounds to justify its withdrawal of recognition. For, as March 5, 1979, was the day of Respondent's un- lawful refusal to bargain with and recognize the Union, such evidence cannot assist Respondent's defense. Triplett Corporation, supra at 986. CONCLUSIONS OF LAW 1. The Respondent, Roza Watch Corp., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Industrial Workers Union affiliated to Sea- farers International Union of N.A., AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Re- spondent employed at its Christiansted, St. Croix, U.S. Virgin Islands, plant, excluding all managerial and pro- fessional personnel, specialists, drivers, messengers, office clerical employees, and all guards and supervisors as de- fined in Section 2(11) of the Act, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union at all times hereto has been the exclusive bargaining representative of all employees in the afore- said appropriate bargaining unit within the meaning of Section 9(a) of the Act. 5. Respondent has, in violation of Section 8(a)(5) and (I) of the Act, refused on and after March 5, 1979, to recognize and bargain with the Union as the exclusive representative of the employees in the appropriate unit. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REM D)Y Having found that Respondent has committed certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and from like or re- lated unfair labor practices, and that it take affirmative action provided for in the recommended Order below, which I find necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER S The Respondent, Roza Watch Corp., Christiansted, St. Croix, U.S. Virgin Islands, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with the Union, United Industrial Workers Union affiliated to Seafarers International Union of N.A., AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of Re- spondent employed at its Christiansted, St. Croix, U.S. Virgin Islands, plant, excluding all managerial and professional personnel, specialists, drivers, mes- sengers, office clerical employees, and all guards and supervisors as defined in Section 2(11) of the Act. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Recognize and, upon request, bargain collectively with the above-named Union as the exclusive representa- tive of all the employees in the appropriate unit de- scribed above with respect to rates of pay, wages, hours of employment, and other terms or conditions of employ- ment, and, if an understanding is reached, embody such an understanding in a signed agreement. (b) Post at its Christiansted, St. Croix, U.S. Virgin Is- lands, plant copies of the attached notice marked "Ap- pendix. " 6 Copies of said notice, on forms provided by the Regional Director for Region 24, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. I In the event no exceptions are filed as provided by Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed waived for all purposes 6 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing all Order of the National abor Relations Board " ROZA WATCH CORP. 287 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.