Hayworth Roll and Panel Co.

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hayworth Roll and Panel Company and United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Veneer and Panel Workers Local Union No. 2566. Case No. 11-CA-1596. February 21, 1961 DECISION AND ORDER On August 11, 1960, Trial Examiner Fannie M. Boyls issued her Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Veneer and Panel Workers Local Union No. 2566, against Hayworth Roll and Panel Company, the General Counsel of the National Labor Relations Board caused a complaint to issue on March 25, 1960, alleging that the Respondent had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (61 Stat. 136). In its answer, Respondent denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before the duly designated Trial Examiner in High Point, North Carolina, on May 9, 1960. The General Counsel and Re- spondent were represented by counsel and the Union was represented by an Inter- national representative. The parties were afforded full opportunity to be heard, to introduce evidence, to present oral argument, and to file briefs. Counsel for the General Counsel and for Respondent argued orally at the conclusion of the hearing and counsel for Respondent thereafter filed a "Memorandum of Authorities." Upon a consideration of the entire record, and from the "Memorandum of Au- thorities," I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a North Carolina corporation maintaining a plant at High Point, North Carolina, where it is engaged in the manufacture of veneer and plywood. During 1959, which is a representative period, Respondent produced and shipped products valued in excess of $100,000 to points outside the State of North Carolina. 130 NLRB No. 60. HAYWORTH ROLL AND PANEL COMPANY 605 Respondent admits, and I find, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Veneer and Panel Workers Local Union No. 2566, is a labor organization within the mean- ing of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Preliminary statement The question presented in this case is whether Respondent, after approximately 15 years of contractual relationships with the Union, which had been certified by the Board as the employees' bargaining representative, was warranted in breaking off the bargaining relationship for the alleged reason that it doubted the Union's continuing majority status. In determining this question certain well-established principles must be borne in mind. It has been generally recognized that a certified union's majority status during the certification year is irrebuttable, in the absence of unusual circumstances, but that after the first year of the certification has lapsed, although the presumption of majority continues, this presumption is rebuttable even in the absence of unusual circumstances.' The employer, of course, may rebut this presumption by calling upon the Board to conduct another election and by refraining, pending such election, from any action which might tend to interfere with a free choice by the employees. He is not, however, necessarily required to file a repre- sentation petition? If motivated by a good-faith doubt of the union's continuing majority status, he may, without breaching his statutory bargaining obligations, cease recognizing the union. Whether he is motivated by such a good-faith doubt is a question of fact to be determined by the circumstances in each case.3 The evidence will be examined in the light of these principles. B. Circumstances under which Respondent discontinued its bargaining relationship with the Union The Union was certified by the Board in December 1944 as the exclusive bargain- ing representative of Respondent's maintenance and production employees and has maintained contractual relations with Respondent from approximately that time to the expiration of its last contract in March 1960. When the Union, in January 1960, requested a meeting with Respondent for the purpose of negotiating a new collective- bargaining agreement, Respondent replied, on January 26, that all the circumstances which had come to its attention indicated that a majority of the employees no longer desired the Union to represent them and that Respondent was therefore refusing the Union's request for a bargaining conference. At the time it mailed this reply to the Union, Respondent had in its possession checkoff authorization cards from 36 of the employees in the appropriate bargaining unit.4 During the afternoon of January 26 after Respondent's reply had been mailed, the Union's president brought to Respondent 32 additional signed checkoff authorization cards-4 of them from employees who had either quit Respondent's employ or signed a checkoff revocation form before January 26.5 Thus, Respondent by the end of the day had in its pos- session a total of only 64 valid cards. On January 28, Respondent wrote the Union that the additional cards brought to its office on the afternoon of January 26 had not caused it to alter the position which it had previously taken. The Union replied on February 1, stating that Respondent knew "beyond any shadow of doubt" that the Union represented a majority of the employees and reciting that "The list of employees having their monthly dues checked off proves a majority does want representation by our Local Union #2566. In addition to the check-off list there may be others who are mem- 1 Celanese Corporation of America, 95 NLRB 664 , 672, cited with approval by the Supreme Court in Ray Brooks v. N L R.B., 348 U.S. 06, 104. 8 His failure to do so may be one factor to be considered by the Board in determining whether the employer is acting in good faith. Celanese Corporation, supra, at 674 8 Celanese Corporation, supra, at 673 ; Stoner Rubber Company, Inc., 123 NLRB 1440. * At the hearing Respondent contended that there were 142 employees in the unit 5 Thomas F. Melton had quit on January 5. The cards of Ray Armstrong , Charles Ray Wagner, and Walter G. Tyson were signed on their face, which authorized the checkoff of dues, and, on the same date , were signed on the reverse side in a space provided for a revocation of the checkoff authorizations . The signatures appeared on both sides of the cards when Respondent received them. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bens but are not on check-off." In reply, Respondent reaffirmed its original posi- tion. The Union thereafter, on February 9, riled refusal-to-bargain charges with the Board. Neither Respondent, the Union, nor anyone else has sought a redeter- mination of the Union's representative status through a Board-conducted election. Respondent's plant manager, James H. Burnley III, testified that Respondent based its doubt as to the Union's continuing majority status upon the following circumstances: (1) there had been a gradual decrease in 1959 in the number of employees who authorized their dues to be checked off for the Union and by January 26, when Respondent first declined to bargain, it had checkoff authorizations from only 36 of the approximately 140 employees in the unit; 6 (2) it had come to Re- spondent's attention that the Union was having only sporadic and poorly attended meetings, and Respondent had heard little from the Union other than a request for a wage increase in September 1959; (3) during the summer of 1959, a union bar- beque, to which Burnley was invited as a guest, was attended by only 12 to 15 per- sons; and (4) in early January 1960, when Respondent's office manager, Linger- felt, was interviewing employees with respect to deductions for dependents under the new North Carolina income tax withholding law, a number of them expressed dis- satisfaction to him over having deductions from their pay for union dues. Burnley testified further that the 32 additional checkoff authorization cards (1 of an ex-employee and 3 others of employees whose signatures appeared on the rev- ocation form on the reverse side of the card), did not remove the doubt which Respondent entertained as to the Union's majority status, for the total of these cards still amounted to less than a majority of the employees which Respondent believed to be in the bargaining unit. The Union, on the other hand, contends that there were only about 129 em- ployees, rather than 142, as claimed by Respondent, in the appropriate unit and that Respondent could not in good faith have doubted the Union's majority status. In view of these conflicting contentions, it is necessary to examine the record for the purpose of ascertaining whether Respondent could reasonably have believed, on the basis of the checkoff cards and other facts within its knowledge, that a ma- jority of the employees in the unit no longer desired the Union to represent them. C. Employees in the appropriate bargaining unit on January 26, 1960 The unit found by the Board in 1944 to be appropriate consists of Respondent's production and maintenance employees, including watchmen, firemen, and truck- drivers, but excluding clerical employees, the superintendent-foreman, and all other supervisory employees. The parties do not dispute that the unit substantially as described in the certification has remained the appropriate bargaining unit. The General Counsel, however, contends that firemen are guards within the meaning of Section 9(b)(3) of the Act, and that since 1947, when the Act was amended to exclude guards from units embracing other employees, Respondent's firemen have not been within the appropriate unit. Respondent denies that its firemen are guards. A dispute also exists as to whether certain other personnel properly fall within the unit heretofore found by the Board to be appropriate. These questions will now be considered for the purpose of determining the reasonableness of Re- spondent's asserted belief. Firemen: Respondent employs five firemen.? Their primary duty is to attend the boilers, watch the water levels, and see that the flow of fuel to the boilers is uninter- rupted. They also make an hourly round of the plant to check for fire hazards, as required by fire insurance regulations, and punch watch clocks. Although it would be their duty to close a door or window which had inadvertently been left open and to advise the plant manager or police of any trespassers at the plant, they are un- armed and have no authority to arrest or deal directly with intruders. The Union in the past has bargained for them and they are covered by the bargaining agree- ment which was terminated in March 1960. I find that Respondent reasonably believed that the firemen do not "enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises" (Section 9(b)(3) of the Act) and that they are not guards within the meaning of the Act. Respondent therefore properly considered them as appropriately included in the bargaining unit .8 Leadmen: Respondent employs six leadmen whom the General Counsel contends are supervisors within the meaning of the Act and therefore not included within the 6 These checkoff authorizations had decreased from a high of 55 In April 1959, just after the last contract was signed , to a low of 36 in January 1960. Lawrence Ashworth, John Graham , Calvin Jackson, F. M. Ferrell, and Elmer Femister. s The Woodman Company, Inc., 119 NLRB 1784, 1789. HAYWORTH ROLL AND PANEL COMPANY - 607 appropriate bargaining unit. Respondent denies that they are supervisors. In sup- port of Respondent's position, Plant Manager James H. Burnley III testified as follows with respect to the duties and responsibilities of this leadman. Four of the leadmen, Carson Cox, Walter Dunbar, Joe J. Turner, and C. F. Workman, are salaried and the other two, Henry Jones and Fred C. Smith, are hourly paid. Each has from 8 to 18 employees in his room or department to whom he transmits direc- tions received from the superintendent. Each spends most of his time at manual work. He also obtains supplies for the other workmen and sees that the work flows through his room. None has power to hire, fire, promote, demote, discipline, or determine job or pay status of employees. He may report inefficient employees to the superintendent, but so may any other old-time top-grade skilled employee. Most of these leadmen, at one time or another while employed as leadmen, have been members of the Union and have had Respondent check off dues for the Union. Indeed, a former leadman, Porterfield, was president of the Union from 1955 to 1956. None of the leadmen, as of January 26, were on the dues checkoff list, but Burnley could not recall any instructions by management to the leadmen that they withdraw from the Union .9 This testimony, which stands uncontradicted and which I credit, tends to support Respondent's position that the leadmen are employees rather than supervisors. On the other hand, there is other evidence in the record tending to support the General Counsel's contention. Thus, the leadmen, along with concededly supervisory per- sonnel, and clerical employees, were not included in a list of employees furnished by Respondent to the Union in September 1959, at contract reopening time, in re- sponse to the Union's request for a list of the employees and their job classifications and rates. Leadmen, moreover, were included with foremen in regular semiweekly meetings with management. Nevertheless, in view of the record as a whole-includ- ing the fact that the Union itself, by accepting them as members and electing one of them as its president, must have regarded them as employees-I am convinced that Respondent reasonably regarded them, not as supervisors, but as highly skilled, responsible employees, occupying the position of supervisor trainees, as Burnley at one point described them. In any event, as demonstrated infra, regardless of whether Respondent reasonably considered its leadmen employees on January 26, the Union's claim that its checkoff authorizations proved its majority status is not established. Expediter: A. H. Sechrest, Jr., is employed by Respondent as a expediter. He is a salaried employee, with headquarters in an office adjoining the superintendent's office. It is his duty to move about the plant, checking with the leadmen and follow- ing up the orders to see that work is done in the proper order and that products reach a common place at the same time. He is a coordinator and liaison man be- tween management, the leadmen and other employees. It is clear that he is himself a management representative and that he responsibly directs employees. He is therefore a supervisor within the meaning of Section 2(11) of the Act. I find that Respondent could not reasonably have believed that he was included as an employee in the bargaining unit Shipping clerk: The General Counsel contends that James Davis, the shipping clerk, who was listed by Respondent as being in the bargaining unit, is a clerical em- ployee and, as such, not in the unit found by the Board to be appropriate. Davis, an hourly paid employee, loads Respondent's trucks and, in connection with that work, keeps a record of what he loads, which he transmits to the office. The clerical work which he thus performs is entirely plant clerical. The Board normally includes plant clericals, but not office clericals, in production and maintenance employee units.1e I find that Respondent reasonably regarded Davis as included within the appropriate unit. The evidence on the unit issue has been examined, not for the purpose of making a definitive ruling on the inclusions and exclusions, but in order to ascertain whether Respondent's expressed doubt of the Union's continuing majority status was asserted 9 After the close of the hearing, counsel for the General Counsel filed a motion to reopen the record for the purpose of adducing newly discovered evidence with respect to the status of leadmen and, in support thereof, attached an unsworn statement by Ernest Porterfield to the effect that while employed by Respondent prior to April 1959 he and the other leadmen referred to above had been foremen, with the right effectively to recom- mend the hiring and firing of employees ; and that he had resigned as president of the Union after being asked by Plant Superintendent Burnley to get out of the Union The Trial Examiner denied the motion because no sufficient reason was given why the evidence sought to be adduced could not have been timely discovered and added at the hearing. 10 See, e.g., Wm R Whittaker Co , Ltd., 117 NLRB 339 , Jones-Dabney Company, Divi- eion of Devoe & Raynolds Co., 116 NLRB 1556. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in good faith. On the basis of the evidence summarized above, I find that Respond- ent reasonably and in good faith believed that the bargaining unit on January 26 con- sisted of 141 employees. D. Concluding findings Although the failure of a majority of the employees voluntarily to sign dues checkoff authorizations which , as here, the Employer by contract has agreed to honor, will not necessarily furnish the Employer with a reasonable basis for asserting a doubt as to the certified Union's continuing majority status , it is one factor to be considered." In this case I consider it an important factor for the Union itself took the position and notified Respondent that the checkoff cards which it furnished Respondent constituted proof of its majority status . As already noted, Respondent had in its possession only 36 of such cards when it first questioned the Union's majority status on January 26 and, later in the day , after the Union delivered 32 additional authorization cards, only 28 of which I have found valid , Respondent still had before it the cards of less than a majority. This picture does not change even assuming, as General Counsel argues, that Respondent should have counted, in addition to the 64 cards in its possession , ( 1) David Doyle, whose card was rejected on January 26 for the alleged reason that he was no longer working for Respondent but whose name appears on the January 26 payroll list ; ( 2) R. G. Mc- Donald whose card had been misplaced by office personnel ; and (3 ) Frank Dillard, known by Respondent as the Union 's financial secretary, who had never signed a checkoff authorization. In concluding that Respondent was motivated by a good-faith doubt of the Union's continuing majority status when it refused on and after January 26 to bargain further with the Union, I have taken into consideration not only the circumstances enumerated by Respondent as the basis for its doubt but also the fact there is no evidence in the record that Respondent independently engaged in any unfair labor practice or other conduct which would preclude the employees from expressing a free choice in a Board -conducted election.ia CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not engage in an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act, as alleged in the complaint. [Recommendations omitted from publication.] 11 Cf. N.L.R.B. v. Darlington Veneer Co ., Inc., 236 F. 2d 85, 87-88 (C.A 4). 12 In a letter to its employees , dated February 3, Respondent assured them that state- ments which had been made to the effect that Respondent would reduce wages or deprive employees of existing benefits were untrue ; reminded the employees that Respondent in the past had granted benefits which the Union had not even requested ; and stated that Union or no Union, contract or no contract , Respondent intended to maintain the employees' pay and benefits on a high level, to improve them whenever possible , and to deal with the employees reasonably and fairly. Similar assurance were given the employees in a notice posted at the plant on February 17. I find nothing in these statements which would pre- clude the conduct of a free election. Seattle Real Estate Board, MacPherson Realty, Inc., Picture Floor Plans, Inc., Benton's Realty, Inc ., and Benton's Realty and Real Estate Salesmen's Local 154 A, Division of Trucking and Equipment Clerks, Report Clerks and Clerical Employees Local Union 154. Case No. 19-CA-1857. February 21, 1961 DECISION AND ORDER On May 20, 1960, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, recommending 130 NLRB No. 79.