Clark Equipment Co.

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clark Equipment Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW) United Furniture Workers of America, AFL-CIO, and its Local 415 and Mark Telder. Cases 7- CA-13790 and 7-CB-3868 May 20, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On March 29, 1979, Administrative Law Judge Irwin H. Socoloff issued the attached Supplemental Decision in this proceeding. Thereafter, the Gener- al Counsel and Charging Party International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America, (UAW) each filed exceptions with supporting briefs. Re- spondent Clark Equipment Company and Respond- ent United Furniture Workers of America, AFL- CIO, and its Local 415 (herein called UFW), each filed briefs in answer to the exceptions of the Gen- eral Counsel and the UAW. 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 Supplemental Decision in light of the ex- ceptions and briefs' and has decided to affirm the rulings, findings, 2 and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order. This case is before the Board pursuant to our Decision and Order Remanding Proceeding to Ad- ministrative Law Judge.3 We there found that the Administrative Law Judge erred by granting Re- spondents' motion to dismiss the complaints on the ground that the General Counsel had failed to es- tablished a prima facie case of unfair labor practice conduct. We therefore remanded the case to the Administrative Law Judge for the completion of the hearing. In his Supplemental Decision he found I Respondent Clark Equipment Company's request for oral argument is hereby denied because the record, the exceptions, and the briefs ade- quately present the issues and positions of the parties. 2 The General Counsel and Charging Party UAW have each 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 credibility unless the clear preponder- ance of all of the relevant evidence convinces 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. The Administrative Law Judge's reference in fn. 16 of his Decision to a negotiating session on December 18 was an inadvertent error. The meeting in question took place on January 18, 1977. 3 234 NLRB 935 (1978). 249 NLRB No. 94 that Respondents' negotiation and execution of a collective-bargaining agreement for the term Feb- ruary 1, 1977, through January 31, 1980, was not violative of the Act and again dismissed the com- plaints. The Administrative Law Judge concluded with respect to the 8(a)(2) allegation that, prior to the execution of the 1977-80 contract with Respondent UFW, Respondent Clark was not presented with objective evidence of the incumbent UFW's loss of majority support. He further concluded that the UFW did not violate Section 8(b)(l)(A). The Ad- ministrative Law Judge found that, even though the dissident employees' committee had presented the UFW with firm evidence in December 1976 that a majority of the unit employees wished to be represented by the UAW, the committee had not thereafter maintained that position in an unalterable and unambiguous manner. 4 The Board's remand order was predicated on our finding that the General Counsel had estab- lished a prima facie case of Clark's knowledge, prior to the January 18, 1977, negotiating session, of several key pieces of evidence indicating a unit majority's rejection of the UFW in favor of the UAW. Committee Leader Mark Telder testified that a list of UAW authorization card signers, which had been posted on the UFW's plant bulle- tin board, was brought to the January 18 session by a Clark official. We concluded that, in the light of the other evidence available to it, "Clark was not warranted in ignoring the import" of the list be- cause it "could not reasonably be concluded that such a list was the fictive product of a handful of dissidents" rather than a "substantially clear reflec- tion of the Furniture Workers' loss of majority status." However, it is now clear from the full record as developed on remand that most of the key events established in the General Counsel's prima facie case and relied upon by the Board did not, in fact, occur. We will not disturb the Administrative Law Judge's findings, based on his credibility resolu- tions, that on December 13, 1976, Telder did not inform Clark representatives that the employees' committee intended to "protect the people" rather than represent the UFW. He found also that UFW Business Agent Yeager did not present to Clark representatives at the December 13 meeting a notice of a UFW membership meeting which stated, inter alia, that Telder had advised Yeager that 70 percent of the employees wanted to go to the UAW. ' See General Fibre Box Company. Division of Langview Fibre Company, 219 NLRB 569 (1975). CLARK EQUIPMENT COMPANY 661 We also find that the Administrative Law Judge correctly determined that the typed list of UAW card signers was not presented to Clark at any time and particularly that Clark did not bring it to the negotiation session of January 18, 1977. Our dis- senting colleague, while accepting this last finding, stresses his belief that Clark must still have had not only knowledge but possession of the UAW card list. We agree with Member Jenkins that the fact that the list was not presented by Clark at the Jan- uary 18 meeting does not resolve the overall issue of knowledge. However, we note that the Adminis- trative Law Judge did not limit himself to this find- ing as to the list in concluding that Clark did not know, prior to executing the new contract, that the UFW no longer enjoyed majority status. As discussed, supra, the list's significance in our original Decision rested on other events, some of which are now shown not to have taken place. Therefore, we are left only with UAW Official Schultze's December 20 claim of a UAW majority and Telder's January 7 claim of a unit majority's vote to disaffiliate from the UFW. Both claims were unsupported, as far as Respondent Clark knew, by any objective considerations. Appropriate documents, which would have constituted such consideration, in the form of signed UAW cards and a signed petition disavowing the UFW were held by Telder. We emphasize that it was Telder and the employees' committee who chose to with- hold from Clark the very evidence that would have required it to cease negotiating with the UFW. Thus, we find that Respondent Clark did not violate Section 8(a)(2) because it lacked the requisite knowledge of the incumbent UFW's loss of majority support. 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 complaint be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: I disagree with my colleagues. Admittedly the strength of the General Counsel's prima facie case has been eroded by evidence adduced by Respond- ents. However, I read the record as fully devel- oped on remand as adequately supporting the Gen- eral Counsel's contention that Clark violated Sec- tion 8(a)(2) and the United Furniture Workers (UFW) violated Section 8(b)(l)(A) by negotiating and executing a collective-bargaining agreemnt at a time when the UFW no longer represented a ma- jority of Clark's employees. My colleagues find that Clark at no time knew of the UFW's loss of majority support and that while the UFW did know as long as 6 weeks before the new contract was executed it was nevertheless entitled to pro- ceed because the conduct of the employee negotiat- ing committee was later ambiguous under the rule of General Fibre Box Co.5 In my view, however, contrary conclusions are mandated by the answer to the simple question: What did the contracting parties know and when did they know it? Clark and the UFW were parties to a 3-year col- lective-bargaining agreement which expired on Jan- uary 31, 1977. Negotiations for a new contract were conducted from December 13, 1976, until January 29, 1977, with the UFW being represented by a five-member employees' committee and sever- al UFW officials. On January 28, Clark withdrew all its proposals and claimed that the UFW had ceased to bargain in good faith. The employees' committee had submitted a new vacation proposal after Clark had thought that the issue had been re- solved. The following day UFW President Scar- brough dismissed the entire employees' committee. He then appointed Alfred May, a UFW official who had not participated in any prior negotiating sessions, to take over for the UFW and conclude a final agreement with Clark. The contract date, Jan- uary 30, is thus the critical date for determining whether either or both of Respondents violated the Act. The Administrative Law Judge has found for a second time that the General Counsel's evidence of Clark's knowledge of the UFW's loss of majority status consists exclusively of "naked claims" made by Shop Steward Telder and UAW Representative Schultze. In both his Decisions the Administrative Law Judge found that Telder and the employees' committee chose to show Clark neither the 119 UAW authorization cards nor the December 1976 petition repudiating the UFW signed by 128 of the 176 unit employees. Therefore he concluded that Clark was not provided with "objective consider- ations" justifying a good-faith doubt of the UFW's continuing majority status. In the Board's original Decision and Order 6 we found the failure of the UAW or the employees' committee to show Clark either the cards or the signed petition was not de- terminative in the light of other events. However, as the majority makes clear, the full record reveals that some of the events as established in the Gener- al Counsel's prima facie case did not occur. The Administrative Law Judge did find that be- tween December 17 and 20, 1976, 119 unit employ- 5 219 NLRB 569 (1975). o 234 NLRB 935 (1978) CLARK EQUIPMENT COMPANY 661 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, a majority, signed UAW authorization cards. On December 20, UAW International Representa- tive Schultze mailed a formal demand letter to Clark Plant Manager Henderson offering to prove the UAW's majority status by means of the cards. The demand was rejected by Clark. On January 7, 1977, Telder and his assistant chief steward pre- sented Henderson with a letter signed by Telder, as chief steward, stating that all 126 unit members present at a December 16 union meeting had voted to "disaffiliate" from the UFW at the expiration of the then current contract on January 31. The letter also stated that the employees wished Clark to begin negotiations with their new representative, the UAW. The Administrative Law Judge, in characterizing these claims as "naked," found them insufficient to provide Clark an objective basis for a good-faith doubt of the UFW's majority status necessary to compel a refusal to bargain. However, the Admin- istrative Law Judge's sole reliance on Cornell of California, Inc., 222 NLRB 303 (1976), is mis- placed. The Board found that the respondent there violated Section 8(a)(5) and rejected the defense of a good-faith doubt of the union's majority status. Four or five rank-and-file employees, less than a third of the unit, had expressed directly to manage- ment their disenchantment with the union. Some of these employees also informed management that a majority of the unit felt the same way about the union. The Board found that these assertions, con- veyed in an essentially secondhand manner, pro- vided the respondent with only supposition and rumor upon which to base a reasonable conviction that in fact the employees wished to be rid of the union. The Board specifically noted that the re- spondent had adduced no evidence establishing an overt effort of employees to withdraw from the union. In the instant case, however, the letters of Schultze and Telder, sent in their capacities as offi- cials of their respective Unions, provide precisely that evidence of the employees' union sympathies which the Board failed to find in Cornell of Califor- nia. Therefore, in my view, Clark was provided with the requisite objective considerations requir- ing it to withdraw from negotiations with the UFW. Further, and contrary to the majority's find- ings, Clark was, under my reading of the record, also in possession of the typed list of UAW card signers at some point soon after January 7, the date the list was posted on the UFW's plant bulletin board. I would so find even though I would accept the Administrative Law Judge's finding, based on his credibility resolutions, that the list was not among those presented by management officials at the January 18 negotiating session. The six-page list posted on January 7 in the pressroom was captioned "SIGNED UAW AU- THORIZATION CARDS, CLARK EQUIP- MENT COMPANY, PRESS AND METAL FABRICATION DIVISION, GRAND RAPIDS, MICHIGAN." Pressroom Supervisor Smith testi- fied that he removed, copied, and replaced four single-page documents, 7 each at the specific direc- tion of Plant Superintendent Stebleton. Smith fur- ther testified that he did not recall seeing the UAW card list and that, even though he had looked at the bulletin board on at least several occasions, he did not particularly take any interest in union busi- ness. Stebleton, who according to Smith also in- spected the bulletin board, did not testify. Howev- er, Henderson did testify that Stebleton had in- formed him in January that there were documents on the bulletin board that Stebleton felt he should be aware of. Henderson then instructed Stebleton to have the offending documents removed and copied. At the January 18 negotiating session Clark rep- resentatives complained that the UFW has been abusing its bulletin board privileges and presented four examples of what it considered to be improper postings. Given Clark's deep concern resulting from the surveillance of the board by two supervi- sors, including the plant superintendent, it is ex- tremely difficult for me to imagine how Clark could not also have been in possession of, or at least aware of, the prominently captioned UAW card list. Thus, though the facts are not precisely as pre- sented by the General Counsel in his case-in-chief, I am convinced that, as of the January 30 contract date, Clark had at least a reasonable doubt as to the UFW's majority status. The objective consider- ations upon which it could have based that doubt were the claims of Telder and Schultze, officials of the two Unions involved, reinforced by knowledge of the UAW card list, and from the inference of loss of support easily drawn from the UFW's last- minute exclusion of the employees' committee from the final agreement on the new contract. As to the allegation that the UFW violated Sec- tion 8(b)(l)(A) by executing the new contract when it knew it had been repudiated by an over- whelming majority of the unit members, I would find the violation and in so doing reject the UFW's General Fibre Box defense that the employees' com- I These documents were Telder's January 6 letter to Henderson, Schultze's December 20 demand letter and his January 7 letter to Hen- derson, and the representation petition filed by the UAW. The petition was withdrawn on January 17 as having been untimely filed during the 60-day insulated period preceding the termination of the contract. CLARK EQUIPMENT COMPANY 663 mittee's actions were "patently inconsistent" with the anti-UFW sentiment known to the UFW lead- ership ever since mid-December. It is undisputed that on December 7 Telder sent UFW President Scarbrough a petition repudiating the UFW signed by 128 of the 176 unit employees. On December 16, at a membership meeting attend- ed by 126 employees as well as the UFW local business agent and 2 International officials, the em- ployees voted unanimously to disaffiliate from the UFW. Thus, as found by the Administrative Law Judge and my colleagues, with 6 weeks remaining under the old contract, the UFW was effectively advised that it no longer represented a majority of the employees. Telder and his fellow committee members did, however, continue to participate in negotiations after the critical disaffiliation vote. The majority agrees with the Administrative Law Judge's reliance on General Fibre Box in holding that such participation nullified the prior clear statements of employee disaffection with the UFW. However, the UFW's actions during the final days of January more than suffice to convince me that it knew without doubt when it executed the new collective-bargaining agreement on January 30 that it no longer represented a majority8 of the em- ployees in the unit. First, the exclusion of the em- ployees' committee from the crucial final stage of negotiations, triggered by the committee's last- minute resubmission of the previously resolved va- cation proposal, suggests that the UFW viewed that tactic as an attempt to prevent any UFW-Clark contract. The UFW, rather than finding itself in a position of reasonable uncertainty as to employee preference as to a bargaining agent, saw clearly that the committee's behavior in late January was reflective of the widespread disaffiliation sentiment and thus "unambiguously" hostile to the UFW. Further, there was an even stronger indication of the state of the UFW's knowledge of its members' wishes. Prior to executing the new contract Clark asked Lowell Daily, the UFW's International sec- retary-treasurer, to do so without ratification by the Local's membership. Daily agreed and even told Clark that ratification would not have been necessary in any event. However, the Local's bylaws required such ratification and the past prac- tice of the parties, at least with respect to the then expiring 1974-77 contract, had been to submit con- tracts for bargaining unit approval. Thus, without informing the elected employees' committee of the final negotiating session on Janu- ary 30 and instead of submitting the agreement a I note that the issue was not even close. The specific expressions of employee sentiment of which both Clark and the UFW were aware (the UAW card list of 119 names and the December 16 vote of 126 employ- ees) indicated that over 70 percent of the unit had repudiated the UFW. reached to the membership for ratification, the UFW called a meeting for January 31 to explain the contract to the employees. As found by the Administrative Law Judge, not only did the em- ployees not ratify the contract, but they passed a motion to restore the employees' committee and to reject the contract. Immediately after the meeting 116 employees, two-thirds of the unit, signed a pe- tition delivered the next day to both the UFW and Clark objecting to the contract and requesting the parties to "either withdraw from this agreement or refuse to execute it." As I have indicated, January 30 was the critical date for determining when the UFW and Clark possessed knowledge of the UFW's loss of majority support sufficient to require them to refrain from concluding a new contract. The signed petition of February 1 is, of course, not evidence of the con- tracting parties' knowledge on January 30. Howev- er, in my view, such near instantaneous feedback as to employee sentiment could only have confirmed for the UFW and Clark what they already perfect- ly well understood. An overwhelming majority of Clark employees had maintained from mid-Decem- ber until the end of January a clearly expressed and unwavering desire to replace the UFW with the UAW as their bargaining agent. The actions of both the UFW and Clark during the critical final days of January convince me that neither party viewed the employees' committee as acting incon- sistently with the employees' intention to avoid a new Clark-UFW contract. The exclusion of the committee from the final negotiations and the pre- cedent-shattering avoidance of a ratification vote certainly indicate that neither Clark nor the UFW perceived any ambiguity as to employee sentiment. Thus, since both contracting parties knew as of January 30 that the UFW no longer commanded the allegiance of the unit majority, I would find that the UFW violated Section 8(b)(l)(A) and Clark violated Section 8(a)(2) when they executed the new contract. SUPPLEMENTAL DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge: Upon charges filed February 17, 1977, by International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), herein also referred to as the UAW, against Clark Equiqment Company, herein also called Respondent-Employer, and upon charges filed June 20, 1977, by Mark Telder, an individu- al, against United Furniture Workers of America, AFL- CIO, and its Local 415, herein collectively called Re- spondent-Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued complaints dated March 31, 1977, and CLARK EQUIPMENT COMPANY 663 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 27, 1977, alleging violations by the Respondents of Section 8(a)(l) and (2), Section 8(b)(1)(A) and (b)(2), and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondents, by their answers, denied the commission of any unfair labor prac- tices. On June 30, 1977, the Regional Director ordered that the cases be consolidated. Pursuant to notice, a hearing was held before me in Grand Rapids, Michigan, on July 13, 14, and 15, 1977, at which all parties were represented by counsel. At the conclusion of the General Counsel's case in chief, Re- spondents moved to dismiss the complaints in their en- tirety on the ground that the General Counsel had failed to establish a prima facie case of unfair labor practice conduct. At that point in the proceedings, I recessed the hearing pending disposition of the motions. On August 18, 1977, I issued my Decision, finding, in agreement with Respondents, that the facts adduced by the General Counsel were insufficient to show activity violative of the Act. However, on February 16, 1978, the Board, having reached a contrary conclusion, issued its Decision and Order Remanding Proceeding To Administrative Law Judge (234 NLRB 935) for the purpose of comple- tion of the hearing. Accordingly, further hearing was conducted on April 18, 19, and 20, 1978. Thereafter, the General Counsel and Respondent filed briefs which have been duly considered. Upon the entire record in this case,' and from my ob- servation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent-Employer is a Michigan corporation en- gaged in the manufacture, sale, and distribution of metal parts for heavy machines, forklift trucks, and related products. During the year ending December 31, 1976, a representative period, Respondent received gross rev- enues in excess of $500,000 which were derived from the operation of its plants located in various States in the United States. In that same time period, Respondent re- ceived, at its Grand Rapids, Michigan, plant, goods valued in excess of $50,000 which were shipped from points located outside the State of Michigan. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATIONS International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and United Furniture Workers of America, AFL-CIO, and its Local 415, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent-Union has been the certified collective- bargaining representative of the production, maintenance. I Respondent-Employer's Exhs. 26 and 27 are hereby received in evi- dence. and shipping employees at Respondent-Employer's Grand Rapids, Michigan, plant for some 25 years. Prior to execution of the current collective-bargaining agree- ment, effective February 1, 1977, through January the parties were signatories to an agreement effective Febru- ary 1, 1974, through January 31, 1977. During the final 60 days of the life of that agreement, the so-called "insu- lated period," certain of the bargaining unit employees made efforts to dislodge the incumbent Union in favor of the UAW. The General Counsel contends that, by Janu- ary 31, 1977, when the new contract was signed, an overwhelming majority of the unit employees had repu- diated Respondent-Union as their collective-bargaining representative, and both the Employer and the Union knew it. Thus, the General Counsel maintains that the negotiation and execution of that contract was in viola- tion of the Act. Respondents contend that they arrived at a new contract in conformity with their statutory obli- gations. B. Facts2 In August 1976, Mark Telder was elected chief ste- ward of the Clark plant employees. Thereafter, on No- vember 8, 1976, Telder met with Plant Manager Gordon Henderson and asked if Henderson would object should the employees leave Respondent-Union, UFW, and select the UAW as their bargaining representative. Hen- derson responded that he, personally, had no objection but he would have to check the matter with officials at Respondent-Employer's corporate headquarters in Buc- canin, Michigan. 3 Henderson replied similarly to Telder when, in late November or early December, Telder stated that the employees were contemplating the forma- tion of an independent union.4 In early November 1976, the elected employee griev- ance and bargaining committee, consisting of Telder, As- sistant Chief Steward Daniel Sargeant and Committee- men Peter Hall, James Ferriera and Paul Duncan, dis- tributed questionnaires to the plant employees seeking their views with respect to prospective contract propos- als. A substantial number of the employees responded. Thereafter, on November 12, UFW Business Manager Raymond Yeager sent notice to the Employer that the Union desired to negotiate modifications of the then ex- isting agreement. Also on November 12, at a UFW mem- 2 Unless otherwise indicated, the fact findings contained herein are based upon a composite of the testimony of UAW International Repre- sentative Walter C. Schultz, employees Mark Telder, James Ferriera, and Daniel Sargeant, Respondent-Employer's labor relations manager, Floyd Green, its plant manager, C. Gordon Henderson, and that of UFW Local 415's business manager, Raymond Yeager, Jr., all of whom impressed me as truthful witnesses. I have placed little reliance upon the testimony of UFW Secretary-Treasurer Lowell Daily, who was an evasive witness. In resolving conflicts among the testimonial accounts of the credited wit- nesses, I have been mindful of the difficulties of recollection of events which occurred in a series of long and arduous bargaining sessions, as well as the tendency of all of those witnesses to recount events in a light most favorable to their respective cases. For those reasons, I have viewed with particular suspicion, uncorroborated testimony concerning occur- rences at collective-bargaining meetings. a' One day later, on November 9, 1976, Telder sought a full-time paid position with the UFW. His application was rejected in early December. 4 Henderson, in his testimony, denied the occurrence of the first meet- ing, but confirmed the fact of the later meeting. Telder insistently testi- fied that both meetings took place. I credit Telder on that point. CLARK EQUIPMENT COMPANY 665 bership meeting called by Telder, that bargaining unit employees discussed various contract proposals, reduced them to writing, 5 and voted unanimously to strike at the end of the contract term unless their employer's bargain- ing positions proved fair and equitable. Employee activity on behalf of the UAW began in December 1976. On December , Telder met with Walter Schultz, an international representative of that union. Thereafter, Telder circulated a petition among the unit employees seeking severance of the relationship with the UFW, and representation by the UAW. By Decem- ber 7, that petition had been signed by some 128 employ- ees 6 and, on that date, Telder mailed the petition, and a letter, to UFW International President Carl Scarbrough. 7 However, also on December 7, Schultz advised Telder that the UAW had no interest in representing the unit employees. Schultz similarly informed the UFW. On De- cember 17, the employees received a letter from Scar- brough stating that he saw no justification for a change in bargaining representative. Contract negotiations between the Employer and the UFW commenced on December 13, with the Union rep- resented by its five-member employee bargaining com- mittee as well as Business Manager Yeager.8 At that ini- tial meeting, Telder informed the Employer representa- tives that the committeemen had selected Ferriera as its spokesman. Yeager then served the Employer with the contract proposals prepared by the employees, and Telder stated that, if a contract were not concluded by January 31, 1977, there would be a strike.9 Also, at that meeting, Yeager stated that he desired to conduct a membership meeting on December 16, in order to re- solve certain internal union problems, and he requested that appropriate changes in work-shifts be made in order to facilitate employee attendance. ° Thereafter, contract negotiations ensued, on that and the following day, and were then recessed until January 6, 1977. At no time during those initial bargaining sessions, or at any subse- quent sessions, did the employee negotiators object to the presence of UFW representatives, or claim that bar- gaining with those representatives was purposeless.' Rather, the committeemen participated in substantive ne- gotiations. ' Those proposals were later tendered to the Employer at the first bar- gaining session. At that time, the bargaining unit consisted of 143 working employees, plus 24 individuals on temporary layoff status, for a total of 167. · The petition was never shown to a representative of Respondent Em- ployer. 8 According to the uncorroborated testimony of Telder, he stated at that time that the committeemen were at the negotiating table to "protect the people" rather than to represent the Furniture Workers. Telder's tes- timony in that regard was denied by all other witnesses, present at the December 13 meeting, who testified about the events of that day I find that Telder did not make such a statement. 9 This threat was repeated by Telder at each subsequent negotiating session. i' Contrary to Telder's uncorroborated testimony, and in reliance upon the testimony of the other participants at the meeting who testified at the hearing, I find that Yeager did not pass to the Employer negolia- tors a notice of membership meeting. I Telder credibly testified that on December 16. 1976, and again on January 5, 1977, he was told by UFW International Secretary Treasurer Daily that, if the employee committeemen did not participate in negotia- tions Daily would negotiate and sign a contract himself On December 16, 1976, Schultz advised Telder that the UAW had changed its position and would seek that right to represent the unit employees. On that same day, at a membership meeting attended by some 126 bargain- ing unit employees, as well as Yeager and UFW Interna- tional officers, Lowell Daily and Robert Sebera, Daily addressed the membership concerning the advantages of UFW representation as opposed to representation by the UAW. Thereafter, without prior notice and in the pres- ence of those UFW officials the employees by a show of hands, voted unanimously to "disaffiliate" and form the UFW.'2 Between December 17 and 20, 1976, 119 employees signed cards designating the UAW as their collective- bargaining representative.t 3 On December 20, Schultz mailed a letter to Henderson demanding recognition of the UAW and advising that a majority of the unit em- ployees had designated that Union as their collective-bar- gaining representative. On the same day, by letter signed by Telder and the other committeemen, UFW President Scarbrough was advised that the employees had commit- ted themselves to the UAW and desired that the UFW "peaceably withdraw." Henderson responded to the UAW demand by letter dated January 7, 1977, advising the Union that the Em- ployer and the UFW were in the process of negotiating a renewal of their contract. Henderson further stated that those parties were in the "60 day insulated period" during which time they were required by law to bargain in good faith. On that same day, Schultz sent a second letter to Henderson stating that the UAW would file an election petition with the NLRB and that the employees "have decertified themselves from the Furniture Workers by a unanimous vote at a meeting which was attended by officers of the Furniture Workers International Union." On January 10, Schultz filed a representation case petition with the Board which, inter alia, was ac- companied by a typed list of 129 purported UAW card signers. t 4 On January 17, the Regional Director for Region 7 advised all parties, by letter, that he was ap- proving the withdrawal of the petition. During the entire period between December 20, 1976, and January 31, 1977, Schultz and Telder remained in constant contact and Schultz advised Telder to attend the Employer- UFW bargaining sessions rather than expressly disavow the UFW. According to Schultz, it was part of the em- ployee strategy "to see what turned out in negotia- tions. " ' 5 Within the UAW, Schultz received continuing legal counsel with respect to this matter. 12 Daily and Yeager testified that the vote was taken in the midst (of hollering, screaming, and general chaos and, therefore, the results could not be accurately gauged. According to Telder, the meeting room was "perfectly quiet" when the vote occurred. I find that, at the December 16 meeting, the employees effectively voted to dismiss the UFW as their bargaining agent. '3 Respondents do not contest the authenticity of those cards and have not placed their validity in question. 14 A copy of that list was supplied to Telder, but was never tendered to the Employer. On January 7, Telder posted the list on a plant bulletin board designated for use by the Union. is About 3 years earlier, the employees had engaged in organizational activity on behalf of the Teamsters Union and a representation case peti- tion was filed during the 60 to 90 period preceding expiration of the then Continued CLARK EQUIPMENT COMPANY 665 --- -- 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 7, 1977, Telder and Assistant Chief Ste- ward Sargeant met with Henderson in the latter's office. Telder presented Henderson with a letter, signed by Telder as Chief Steward, advising that the unit employ- ees had voted 126 to 0 "to disaffiliate with the UFWA at the expiration date of our contract which is January 31." The letter further stated that the employees recognized the UAW as their representative for purposes of a new contract and in order "to avoid a strike after the 31 Jan- uary deadline we urge you to start negotiations with our new representative of the UAW." Henderson replied that, while there was not much that he could do, the letter would be relayed to the Employer's corporate headquarters. He further stated that he doubted the le- gality of recognizing and bargaining with the UAW. Telder told Henderson that he should not be negotiating with the UFW. Contract negotiations were resumed on January 6, 1977, and sessions also took place on January 11 and 12, all attended for the UFW by the employee committee, Yeager and Daily. At those sessions, Secretary-Treasurer Daily acted as the principal UFW spokesman. At a bar- gaining meeting on January 18, the parties discussed use of the union bulletin board and Clark complained that the UFW had affixed materials to the board which were improper for posting. When Daily asked to see examples of such materials, Clark's labor relations director, Floyd Green, instructed a plant official to remove papers then posted on the bulletin board and deliver them to the ne- gotiating room. Upon arrival, Green handed to Daily a packet of documents including copies of Telder's Janu- ary 7 letter to Henderson; Schultz' December 20 demand letter; the UAW filed representation case petition; Schultz' January 7 letter to Henderson; and a memoran- dum by Telder to the plant employees concerning cer- tain actions by Henderson."' Negotiations were then halted for a brief period while Daily took notes on the documents and, then, returned them to Green. '7 There- existing contract, an occurrence which caused Clark to suspend contract negotiations with the UFW. Upon withdrawal of that petition, the Em- ployer and the UFW resumed negotiation of their next contract. In light of Clark's action in 1973 Yeager advised the committeemen prior to the December 13, 1976, negotiating session not to mention the UAW or, Yeager predicted, Clark would again refuse to bargain with the UFW. '1 Contrary to the finding of the Board, upon its initial consideration of this matter, the record is devoid of evidence that among the docu- ments passed was a typed listing of employees who had signed UAW au- thorization cards. All of the witnesses in this case agreed that that list was not among the documents present at the December 18 meeting. While Telder initially testified that the typed list of names was produced at the meeting, he amended that portion of his testimony during his cross- examination Telder further testified, on cross-examination, that he did not show a copy of the typed list "to any company representative at any- time." Indeed, counsel for the General Counsel has not contended, at any stage of this proceeding, that the typed list was among the documents passed on December 18. I deem it necessary to point this matter out, in some detail, because the Board decision finding a prima facie case of unfair labor practice conduct relied "particularly" upon its factual finding in this regard. Thus, the Board concluded that, ill the context of this case, "Clark was not warranted in ignoring the import of a specific listing of employees who had purportedly signed authorization cards for the rival union." t? Telder and Sargeant credibly testified that on January 18 after pas- sage to Daily of the aforementioned documents, Telder told Henderson that Henderson. "knew all along and they just continued to go on with negotiations." Telder further testified that, despite participation by the committeemen throughout negotiations, his statement of January 18 was after, contract discussions continued on that night as well as January 19. Later sessions on January 27, 28, and 29 were attended by a Federal Mediator and on January 29 negotiations were interrupted when the Employer an- nounced that it was withdrawing all proposals, assertedly because the Union had not been negotiating in good faith.'8 At a membership meeting held later that same day, Telder so advised the employees and told them that they had not been getting anywhere in negotiations and, as far as the committee was concerned, they would let the old contract expire and then have the UAW negoti- ate a new one. On the evening of January 29 all five employee com- mitteemen, including Telder, received telegrams from Scarbrough suspending them as members of the negotiat- ing committee "because of your refusal to bargain in good faith." On January 30, Telder called Green, in- formed him of the suspensions, and asked if Green would meet with the committee "as employees." Telder stated that he thought that those employees and the Employer representatives meeting outside the presence of the UFW could reach an agreement. Green declined and stated that the matter of the suspensions was an internal union matter. Green replied similarly when, on January 30, Ferriera called to inform him of the suspensions. On January 30, the Employer and the UFW met with- out the presence of the suspended committee members and concluded an agreement. On January 31, an "An- nouncement" by Alfred May, representative of the UFW International president, appeared on the plant bulletin boards informing the unit employees of a meeting that day to review the new contract reached with the Em- ployer. At the ensuing meeting, May passed out summar- ies of the signed agreement and stated that the committee members had been suspended for having sabotaged nego- tiations. By voice vote the members passed a motion to restore the committee and reject the contract. A formal ratification vote was not conducted.' 9 Immediately thereafter some 116 employees signed petitions, which were sent to Respondent-Employer and Respondent- Union on February 1, objecting to the contract and di- recting the parties to "either withdraw from this agree- ment or refuse to execute it." C. Conclusions Under the Board's contract bar rules, as set forth in Deluxe Metal Furniture Company,20 the parties to a col- lective-bargaining agreement are generally entitled to a "60 day insulated period immediately preceding and in- cluding the expiration date of an existing contract . .. during which [they] may negotiate and execute a new and amended agreement without the intrusion of a rival petition." In City Cab. Inc. Checker White Cab, Inc., Sky- the only comment ever made by a committeeman concerning the UFW presence at the negotiating table 18 Respondent-Employer's action in that regard was precipitated by the introduction of a new vacation proposal by Committeeman Duncan, at a time when the parties had already resolved that issue. 19 When the preceding contract was adopted in 1974 ratification votes were conducted as required by the UFW Local 415 bylaws. o2 121 NLRB 995 (1958). - CLARK EQUIPMENT COMPANY 667 line Cab, Inc., Town Tops Taxi, Inc.,21 the Board con- cluded that a contract executed by an employer and an incumbent union during the insulated period was valid despite the concurrent claim of a rival union that it rep- resented the affected employees. Inasmuch as the rival union had failed to file a petition prior to the onset of the insulated period the Board found that the employer had not violated the Act. In so concluding that its Midwest Piping2 2 doctrine was inapplicable to conduct occurring during an insulated period, absent a prior and timely pe- tition, the Board sought to establish an appropriate ac- commodation between "employee freedom to change bargaining representatives and bargaining stability." It held that, under its rules, "a rival union is clearly ap- prised of both the time and manner in which it can pro- ceed in an attempt to unseat an incumbent union, while parties to a contract, valid for bar purposes, have been afforded in the 60-day insulated period the necessary op- portunity to carry out their bargaining responsibilities 'free from the threat of overhanging rivalry and uncer- tainty."' The foregoing rules have not been applied so as to permit execution of a contract during an insulated period regardless of the majority status of the incumbent union. Rather, in its Kenrich,23 Hart,24 Pepsi Cola,25 and Pres- byterian,2 6 decisions, the Board held that execution of a contract during an insulated period is nonetheless unlaw- ful if, at the time the parties enter into the agreement, the incumbent union no longer represents a majority of the employees in the bargaining unit, and the employer and the union know it. 2 7 In the instant case, between December 17 and Decem- ber 20, 1976, some 75 percent of the unit employees, by their signatures on UAW authorization cards, repudiated the UFW as their collective-bargaining representative. In addition, the record evidence shows that, by mid-De- cember of that year, Respondent-Union knew that it had been shorn of authority to negotiate a new contract. Thus, between December 7 and 17, the UFW's Interna- tional president received a petition, signed by 128 unit employees, repudiating that Union. On December 16, of- ficers of the UFW were present when the unit employ- ees voted, 126-0, to "disaffiliate" from the UFW. Based on that evidence, I find that, by mid-December 1976, some 6 weeks before execution of a new collective-bar- gaining agreement, Respondent-Union had been effec- 21 128 NLRB 493 (1460). 22 63 NLRB 1060 (1945). 12 Kenrich Petrochemicals. Inc., 149 NLRB 910 (1964). 24 Harl Motor Express, Inc.. 164 NLRB 382 (1967). 25 Pepsi Cola Bottling Company, 187 NLRB 15 (1970). affd. 454 F.2d 5 (6th Cir. 1972) 26 Presbyterian Community Hospital, 230 NLRB 599 (1977). 27 As noted by Judge Roth in his decision in Presbyterian, those cases involve an application of the principles enunciated by the Supreme Court in International Ladies Garment Workers' Union (Bernhard-Altmann v. N.L.R.B., 366 US. 731 (1961). There, the Court held that an employer violates Sec. 8(a)(2), and a union is in violation of Sec. 8(b)())(A), if the employer grants, and the union accepts, exclusive recognition despite the union's minority status. While the Court further held that scienter was not an element of the unfair labor practices found therein, occurring as they did in an initial recognition situation, scienter is clearly vital to the viola- tions found by the Board in the insulated period cases discussed above. See, in particular, the Board's decision in Kenrich. tively advised that it no longer represented a majority of the employees in the appropriate unit. With respect to the issue of knowledge by Respond- ent-Employer of a loss of majority status by the UFW, the factual picture, as developed by the full record in this case, is materially different from the picture revealed by the partial record previously reviewed by the Board. Moreover, there is no evidence in the record showing that Clark, at any time, was presented with a typed list- ing of UAW card signers. In my view, the General Counsel has not shown that, prior to execution of the new contract, Respondent-Employer "knew" that the UFW no longer enjoyed majority status. During the in- sulated period, Clark received the naked claims of UAW Representative Schultz, and the assertions of employees Telder and Sargeant, of the UFW's loss of majority sup- port. That is all the Employer received. That evidence did not provide Clark with "objective considerations" justifying a good-faith doubt of the UFW's continuing majority status which, in view of the UFW's standing as the certified employee representative, was necessary in order to privilege a refusal to bargain, much less compel it. 2 s Throughout the course of contract negotiations the employee committeemen had in their possession, in the form of signed authorization cards for the UAW and a signed petition disavowing the UFW's representative status, evidence which, if presented to Clark, would have required the Employer to cease negotiations with the UFW. Indeed, those employees were warned by UFW representativies, prior to the start of negotiations, that mention of the UAW would cause Clark to refuse to bar- gain as occurred 3 years earlier during an organizational drive by the Teamsters Union. Yet the committeemen who had continuing access to UAW legal counsel chose not to confront their employer with evidence of employ- ee support for the rival union, preferring, as Shultz testi- fied, to participate in negotiations and "see what turned out." This is the very course of action which the Board sought to prevent when in Deluxe Metal, supra, at 997, it established the 60-day insulated period. Thus, the Board there observed: It will also prevent the threat of overhanging ri- valry and uncertainty during the bargaining period, and will eliminate the possibility for employees to wait and see how bargaining is proceeding and use another union as a threat to force their current rep- resentative into unreasonable demands. I conclude that prior to the execution of its current contract with the UFW Clark was not presented with evidence showing that the incumbent union had been shorn of authority to negotiate a new contract. Thus, in negotiating and executing the new agreement, Clark did not violate Section 8(a)(2) of the Act. I further conclude that Respondent-Union did not act in violation of Sec- tion 8(b)(l)(A) of the statute. While, as noted, the em- ployee committeemen had presented to the UFW by 2 See, Cornell of California. Inc., 222 NLRB 303 (1967). where the Board held that employer receipt of the unverified assertions of a minor- ity of unit employees, that the majority no longer supported the incum- bent union, was insufficient to create "a reasonably based conviction that the claimed desire of those employees to be rid of the union as factual" CLARK EQIMN COPN 667 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mid-December 1976 evidence of a loss of majority status, that position was not, thereafter, maintained by the com- mitteemen, the dissident leaders, in an unmistakable, un- alterable, and unambiguous manner.29 Rather, the com- mitteemen chose to participate in negotiations with the UFW. At each and every negotiating session those em- ployees announced that there would be a strike if a satis- factory contract were not concluded by January 31, 1977. At the same time, the employee committee, to the knowledge of the UFW, withheld from the Employer the very evidence which would have required a cessa- tion of bargaining as they first waited to see how negoti- ations would turn out. In this context, the signals re- ceived by the UFW were indeed ambiguous and did not require it during the insulated period to abandon its role as collective-bargaining representative. CONCI.USIONS OF LAW 1. The Respondent, Clark Equipment Company, is an employer engaged in commerce, and in operations affect- 29 See, General Fibre Box Company. Division of Longview Fibre Compa- ny, 219 NLRB 569 (1975). ing commerce, within the meaning of Section 2(2), (6), and () of the Act. 2. Respondent, United Furniture Workers of America, AFL-CIO, and its Local 415, are labor organizations within the meaning of Section 2(5) of the Act. 3. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 4. By negotiating and executing a collective-bargaining agreement, effective February 1, 1977, through January 31, 1980, the Respondents have not engaged in conduct violative of the Act. Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 0 The complaints are dismissed in their entirety. 30 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, 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 be deemed waived for all purposes.