Kentucky News, Inc.

KENTUCKY NEWS Kentucky News, Incorporated and General Drivers, Warehousemen and Helpers Local No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-4105 June 22, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On April 5, 1967, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Kentucky News, Incorporated, Louisville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein. 1. Substitute the following for paragraph 1(b) of the Recommended Order: "(b) In any manner interfering with the efforts of the Union to bargain collectively with the Respondent." 2. Substitute the following for the last indented paragraph of the Appendix: WE WILL NOT in any manner interfere with the efforts of the Union to bargain collectively with us. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 777 JOSEPH I. NACHMAN, Trial Examiner: This proceeding heard at Louisville, Kentucky, on February 6, 1967, is predicated on a complaint' pursuant to Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, which alleges that at all times after October 27, Kentucky News, Incorporated (herein called Respondent or the Company), refused, on demand, to bargain with General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union or Local 89), the certified bargaining representative of the employees involved, in violation of Section 8(a)(5) and (1) of the Act. No independent 8(a)(1) violations are alleged. Respondent by answer admitted certain allegations of the complaint, including the demand for, and its refusal to bargain with, the Union, but denied the commission of any unfair labor practices. Basically, the issue is whether on the facts, which are in the main stipulated, Respondent when it refused to bargain had a good-faith doubt that the Union, which had been certified by the Board October 6, 1965, enjoyed majority status. For reasons hereafter stated, I find and conclude that Respondent did not have a good-faith doubt of the Union's continued majority, and that its admitted refusal to bargain was violative of Section 8(a)(5) and (1) of the Act. At the hearing, all parties were represented by counsel, and were permitted to introduce testimony, to examine and cross-examine witnesses, and to argue orally on the record. Oral argument by Respondent is included in the transcript. Briefs submitted by the parties, as well as the oral argument, have been duly considered. Upon the entire record, I make the following: FINDINGS OF FACT2 An election pursuant to consent agreement having been conducted on September 28, 1965, and a majority of the employees having voted in favor of the Union,3 the Board on October 6, 1965, certified the Union as the representative of Respondent's employees. Between the issuance of the certification and following March 3, the parties met in eight bargaining sessions but no agreement was reached. There is no contention that any unlawful refusal to bargain occurred to this point. In fact it is conceded that the negotiations resulted in a good-faith impasse. At the final meeting on March 3, the Union stated that the inability to reach agreement would require it to take strike action. Admittedly, no strike occurred." Ap- ' Issued December 29, on a charge filed November 16. This and all dates hereafter mentioned are 1966, unless otherwise stated. 2 No issue of commerce, labor organization, or appropriate unit is presented The facts bearing thereon are alleged in the complaint and admitted by the answer. I find these facts to be as pleaded 3 The tally of ballots show that of approximately 29 eligible voters, 17 votes were cast for the Union, 5 against, and 7 ballots were challenged. The basis for such challenges are not shown by the record. Union Agent Riggs testified that the employees voted to strike, but such action was not taken because the character of Respondent's business was such that a strike against it would be ineffective. 165 NLRB No. 119 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proximately a week after the March 3 bargaining session, the Union telephoned Respondent's counsel and chief negotiator, suggesting further meetings. Counsel replied that further meetings would serve no purpose because on the economic issues Respondent had gone as far as it could. Following this telephone conversation, the Union did not again communicate with Respondent until October 27, when it wrote the Company requesting that the latter bargain further with the Union as the certified representative of the employees involved. On November 7, counsel for Respondent replied to the Union's letter, stating in part: Please be advised that the Company will not meet with you as requested. In view of the events which have transpired since your Union's certification, we do not believe that Kentucky News Company has any further obligation to engage in collective bargaining with your Union. Before discussing what Respondent relies on as the "events which have transpired since your Union's certification," it is necessary to discuss a prior Board proceeding against Respondent. On June 20, 1966, the Board issued its Decision and Order in Kentucky News, Incorporated, 159 NLRB 707, adopting, with exceptions not here material, the findings, conclusions, and recommendations of Trial Examiner Martin, finding that Respondent, while the Union was engaged in its organizational campaign, interfered with, restrained, and coerced its employees by various acts there more fully detailed, discharged five employees because of their activities on behalf of the Union, and on September 28, within minutes after the results of the consent election held that day became known, "locked out the employees for a couple of hours." The Board ordered Respondent to offer reinstatement to four of the five discriminatees,5 make whole each of the discriminatees, and post appropriate notices. Counsel stipulated that in September or October, Respondent complied with said Order .6 The past certification "events" relied on by Respond- ent to support its asserted doubt of the Union's continued majority, are the following: 1. Of the 34 persons employed by Respondent on October 27, only 15 of these were in Respondent's employ at the time of the election on September 28, 1965, which the Union won by a vote of 17 to 2; the remaining 19 being 14 replacements for employees who had quit, and 5 new hires. The replacements and new hires, Respondent argues, must be regarded as opposed to the Union because if they were prounion, the latter could have made good on its strike threat. 2. That some employees had told Company President Murphy that "the union had done nothing for them"; or that they were not "deriving any benefits from it."7 Mrs. 5 The fifth discriminatee (Moore), had been reinstated or rehired by Respondent prior to the hearing in that case b Just how compliance was effected does not appear Respondent states in its brief that the right of six union adherents to vote in the election was challenged (presumably by Respondent), because they had been discharged, and that these six employees subsequently (presumably at the compliance stage) refused reemployment when offered by Respondent There is no testimony in the record to support this assertion. ' Mrs Murphy first stated that such statements had been made to her by 3 employees, later she stated that it was 10 Although I am inclined to believe that Mrs Murphy's estimate of 10 was somewhat "puffed," I find it unnecessary, for reasons hereafter stated, to decide which, if either, figure is correct Murphy admitted that no employee had discussed with her the possibility of "getting rid of the Union]." 3. The fact that the Union made no demands on Respondent from about March 10 until the current demand on October 27, a period of almost 8 months. 4. At the final bargaining session on March 3, and in the telephone conversation about a week later , the Union threatened strike action, but never called such a strike. From this fact Respondent infers that the Union lacked the employee support necessary to effectuate the strike threat. Concluding Findings To determine whether the Union had the status of majority representative when it made its bargaining demand on October 27, one must start with the premise that having been certified by the Board on October 6, 1965, such status, absent unusual circumstances, is conclusive presumed to continue for the period of 1 year. N.L.R.B. v. Ray Brooks, 348 U.S. 96. After expiration of the certification year, continued majority status of the certified union is presumed, but an employer may rebut the presumption "by an affirmative showing that the union no longer commands a majority ..." Quaker Tool & Die, Inc., 162 NLRB 1307, 1308. However, such "an affirmative showing" is made only if the employer presents "objective facts that it has a reasonable basis for believing that the Union has lost its majority status since its certification." United States Gypsum Company, 157 NLRB 652, 655. See also J. C. Penney Company, 162 NLRB 1553, and the cases there cited. Applying the foregoing principles to the facts disclosed by this record, I must and do find and conclude that Respondent has failed to establish that on October 27, it had, within the meaning of the Board's holding announced in United States Gypsum Company, supra, and reaffirmed in J. C. Penney Company, supra, "a reasonable basis for believing that the Union lost its majority status since its certification." The factors stressed by Respondent, neither individually nor collectively add up to the showing Respondent is required to make. Respondent's principal reliance is on what it calls the "high turnover" of employment after the certification. However, employee turnover, while a factor to be considered along with the remaining circumstances of the case, does not itself establish that the Union lost its majority after the September 1965 election. As the Board said in Laystrom Manufacturing Co., 151 NLRB 1482, 1484: ". . . new employees will be presumed to support a union in the same ratio as those whom they have replaced." The fact that some employees told Mrs. Murphy that the Union had done nothing for them, or that they were " I am aware that the Board's decision in Laystrom, supra, was denied enforcement by the court N L R B. v Laystrom Manufacturing Co , 359 F 2d 799 (C.A 7) The court stressed the absence of a prior history of union difficulties, the 4 -year period of harmonious bargaining relationship prior to the events there involved , and the fact that nothing in the record supported an inference that the employer was motivated by bad faith The contrast between the facts in Laystrom and the instant case is obvious However, assuming , arguendo, that the cases are indistinguishable, it is my duty to follow the pronouncement of the Board until such times as they are overruled by the Board, or the Supreme Court holds to the contrary Insurance Agents' International Union, 119 NLRB 768, 773, Iowa Beef Packers, Inc, 144 NLRB 615,616 KENTUCKY NEWS deriving no benefits from it, does not indicate that they no longer supported the Union, or that they did not wish the Union to represent them. Conceivably these could have been mere statements of fact, but that the employees were hopeful and still waiting for the Union to produce the benefits they sought. It should be noted also that at most only 10 employees made such statements. As the unit never had less than 29 employees, this was plainly insufficient to show a reasonable basis for believing that the Union no longer enjoyed majority support. Finally, assuming that the statements did constitute expressions of intention not be represented by the Union, and that such statements were made by as many as 10 employees, the record does not show whether such statements were made before or after the employee turnover, or whether they were made by employees who had theretofore supported or opposed the Union. If the 10 who spoke to Mrs. Murphy were composed of 5 who had voted against the Union and 5 who voted for the Union in the election, the Union still had a majority of 12 to 10 among the employees whose votes were counted. Under the facts of this case, I must, and do, find and conclude that the employee statements to management were insufficient to show a reasonable basis for a good-faith doubt of the Union's continued majority. Vanette Hosiery Mills, 114 NLRB 1107; M.F.A. Oil Company, etc., 162 NLRB 1071. The fact that Respondent did not hear from the Union between the final bargaining session on March 3, when the impasse in bargaining was reached, and the current demand on October 27, did not, under the facts, relieve Respondent of its duty to honor the last-mentioned bargaining demand. As stated above, even after the end of the certification year, the continued majority of the Union is presumed, and the Employer's duty to bargain on request continues until such time as the requisite showing is made of a good-faith doubt that the Union's majority status continues to exist. However long an interval between the Union's demands (and here the new demand was only about 8 months after the impasse, and only 22 days after the expiration of the certification year), the Employer's duty to bargain remains unless and until it demonstrates the existence of a basis for a good-faith doubt of the Union's continued majority status. The Union's reasons for not demanding bargaining during the approximately 8-month period, may have been varied and many; its reasons are not disclosed by the record. Assuming, as Respondent apparently does, that such inaction indicates that the Union had lost interest in the matter, or that it was not properly representing the employees, such facts constitute no defense to Respondent's admitted refusal to bargain with the Union pursuant to the latter's October 27 demand, absent a showing of good-faith doubt of the Union's majority. Cf. Ken's Building Supplies, 142 NLRB 235, 236, 238. Likewise, under the facts of this case, the Union's failure to implement its strike threat affords no basis for the conclusion, which Respondent draws, that such failure ' The General Counsel argues that Respondent's conduct in this proceeding must be viewed in the light of its extensive and grievous unfair labor practices found in the prior case (159 NLRB 707) all of which occurred prior to the certification, but which remained unremedied until shortly before the current bargaining demand, and remained fresh in the minds of all concerned during the entire period. Such facts, the General Counsel argues, demonstrate Respondent 's bad faith and rejection of the principles of collective bargaining Although not so explicated, presumably the General Counsel is arguing that under the circumstances, this is an appropriate case for "extension" of the certification year for 779 was occasioned by lack of employee support. Although the Union's stated reason for withholding strike action is somewhat unclear (supra fn. 4), the evidence is uncontradicted that the employees authorized strike action, but that a strike was not in fact called for what the Union, correctly or incorrectly, regarded as a valid reason. Upon consideration of the entire record, I find and conclude that the Respondent has failed to establish by a showing of objective facts that it had a reasonable basis for believing that the Union had lost it majority status following the certification. Accordingly, its admitted failure to bargain with the Union pursuant to the latter's October 27 demand was violative of Section 8(a)(5) and (1) of the Act. I so find and conclude.` Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and 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. All routemen and laborers employed by Respondent at its place of business located at 1034 East Oak Street, Louisville, Kentucky, but excluding all office clerical employees, guards, and all professional employees and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since October 6, 1965, the Union has been the duly certified and exclusive collective-bargaining representative of the employees in the aforesaid appropriate unit, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union as the exclusive bargaining representative of the employees in the aforesaid unit, pursuant to the Union's request of April 27, Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 6. By its aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed to them by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices proscribed by Section 8(a)(5) and (1) of the the period that Respondent 's unfair labor practices remained unremedied On the authority of Dixie Gas, Inc , 151 NLRB 1257, 1259, I must reject the General Counsel's argument In that case the Board held that its "extension " rule is applied only when the unfair labor practices " occurred during the certification year and have directly served to deprive the union of the fruits of its certification [emphasis supplied] " Here, not only did all the unfair labor practices occur prior to the certification , but there is no showing that they played any part in the bargaining negotiations which followed, and which admittedly resulted in a good-faith impasse 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, it will be recommended that it be required to cease (c) Notify said Regional Director, in writing, within 20 and desist therefrom and take certain affirmative action days from the receipt of this Decision, what steps have designed and found necessary to effectuate the policies of been taken to comply herewith." the Act. Having found that Respondent unlawfully refused to bargain with the Union, it will be recommended that it do, upon request, and if agreement is reached, embody same in a signed contract. Because of the nature and character of the violations found, it will be recommended that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Kentucky News, Incorporated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing or refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other terms and conditions of employment with General Drivers, Warehousemen and Helpers Local No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of its employees in the following appropriate unit: All routemen and laborers employed by Respondent at its place of business located at 1034 East Oak Street, Louisville, Kentucky, but excluding all office clerical employees, guards, and all professional employees and supervisors as defined in the Act. (b) In any manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent permitted by Section 8(a)(3) of said Act. 2. Take the following affirmative action found necessary to effecutate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement. (b) Post at its plant in Louisville, Kentucky, copies of the attached notice marked "Appendix."10 Copies of said notice to be furnished by the Regional Director for Region 9, after being duly signed by its authorized 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 it to insure that said notices are not altered, defaced, or covered by any other material. iU In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 'i In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, on request, recognize and bargain with General Drivers, Warehousemen and Helpers, Local 89, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which has been certified by the Board as the exclusive bargaining representative of our employees in an appropriate unit composed of: All routemen and laborers employed by us at our place of business located 1034 East Oak Street, Louisville, Kentucky, but excluding all office clerical employees, guards, and all professional employees and supervisors as defined in the Act; and, if an understanding is reached, embody such understanding in a written signed agreement. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist General Drivers, Warehousemen and Helpers, Local 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union, to bargain through representatives of their own choice and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities except to the extent permitted by Section 8(a)(3) of the Act. KENTUCKY NEWS, INCORPORATED (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone 684-3686.