Central Ohio Warehouse Co., Inc.

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Ohio Warehouse Co , Inc and Cletus E Cline and United Rubber , Cork, Linoleum and Plastic Work ers of America , AFL-CIO-CLC, Party of Interest United Rubber , Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC (Central Ohio Warehouse Co , Inc and Central Ohio Industrial Park, Inc) and Cletus E Cline Cases 8-CA-5514 and 8-CB-1397 May 18, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 30, 1970, Trial Examiner George A Down- ing issued his Decision in the above-entitled proceeding, finding that Respondent Union, with respect to the employees of Central Ohio Industrial Park, Inc , had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision No exceptions to this aspect of the case were filed With regard to the employees of Respondent Central Ohio Warehouse Co , Inc , the Trial Examiner further found that said Respondent and Respondent Union did not engage in certain other unfair labor practices alleged in the complaints and recommended dismissal as to them The General Counsel, thereafter, filed exceptions to this part of the Trial Examiner's Decision and a supporting brief, and Respondent Employer filed an answering 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 con- nection with these cases to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner 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, the briefs, and the entire record in these cases, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations i TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGF A DOWNING, Trial Examiner These pro- ceedings under Section 10(b) of the National Labor Relations Act as amended were heard at Mansfield, Ohio, on November 13, 1969 i Separate complaints were issued based on charges filed on June 24 and September 29 in Case 8-CA-5514 and on June 24 in Case 8-CB-1397 and were consolidated for hearing by order of the Region- al Director on October 8 The complaint in Case 8-CA-5514 alleged in brief that Respondent Company engaged in unfair labor practices proscribed by Section 8(a)(1), (2), and (3) of the Act by recognizing the Union on April 14 and by executing and thereafter maintaining in effect a collective-bargaining agreement with it on May 13, at times when the Union did not represent an uncoerced majority in the recognized bargaining unit The complaint in Case 8-CB-1397 alleged in brief that Respondent Union engaged in unfair labor practices proscribed by Section 8(b)(1)(A) and (2) of the Act by executing and maintaining the aforesaid contract, by threatening employees of Respondent Company (Cen- tral Warehouse herein) and of Central Ohio Industrial Park, Inc (Industrial Park herein) with loss of employ- ment because they were not members of Respondent Union in good standing, by requesting payment of dues and initiation fees from employees of said Companies and by attempting to cause Central Warehouse to termi- nate employees who were not members of Respondent Union in good standing Respondents filed separate answers in which they denied the unfair labor practices as alleged Upon the entire record in the case and from my observation of the witnesses, I make the following FINDINGS OF FACT I JURISDICTIONAL FINDINGS, THE LABOR ORGANIZATION INVOLVED ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended , the National Labor Relations Board hereby adopts at its Order the Recommended Order of the Trial Examiner, and orders that the Respondent Union, United Rubber , Cork, Linoleum and Plastic Workers of America , AFL-CIO-CLC, its officers, agents, and representatives , shall take the action set forth in the Trial Examiner 's Recommended Order ' As no exceptions were filed to the Trial Examiner s findings relative to the employees of Central Ohio Industrial Park Inc we adopt his Decision in this regard I find on admitted allegations of the complaints that Central Warehouse and Industrial Park are both engaged in commerce within the meaning of Section 2(6) and (7)2 of the Act and that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act All events herein occurred in 1969 ' Central Warehouse an Ohio corporation receives annually revenues in excess of $50 000 for warehouse services performed for corporations which ship to extrastate points products valued in excess of $50 000 Industrial Park an Ohio corporation receives gross rentals in excess of $100 000 annually from leasing buildings which it owns in Shelby Ohio $25 000 or more of which it received from concerns who are engaged in interstate commerce 182 NLRB No 70 CENTRAL OHIO WAREHOUSE 483 II THE UNFAIR LABOR PRACTICES A Introduction and Issues The central issue in these cases is whether Respondent Union represented a majority of the employees of Central Warehouse at the time it was recognized by that company and at the time of the execution on May 13 of a collective-bargaining agreement which contained a Union security provision requiring membership in the Union as a condition of employment The time of recognition is also in issue , with the General Counsel contending it occurred on April 14 and with Respondents contending it occurred on April 8 The case against the Union also involves its conduct vis-a-vis employees of Industrial Park as to whom oral agreement was reached by the Respondents herein that the terms of the aforesaid agreement would also apply B The Evidence On March 14 , Respondent Union filed with the Region- al Director a representation petition under Case 8-RC-7442 specifying a unit of Central Warehouse employees and on April 8 representatives of the parties met with Board Agent Nora Friel and entered into a stipulation for certification upon consent election in the unit sought by the Union An election was scheduled for May 16 and the payroll period for eligibility was specified as the one ending April 5 Respondent Union had filed with the Regional Office on March 14 some 40 signed cards , and Central Ware- house submitted at the conference on April 8 a list of employees numbering 77 on its payroll as of March 18, including five leadmen whose status as supervisors was in issue After some checking of the cards it was found that at least four of them were signed by employees of Industrial Park and the Hearing Officer separated them from the others However, the Union was in possession as of April 8 of 12 additional cards signed by employees of Central Warehouse , all bearing dates prior to March 18 except for one undated card Thus as of the time of the conference the Union held a total of 48 cards signed by Central Warehouse employees in a (maximum) unit of 77 employees or of 72 if the 5 leadmen (noncard signers) were eliminated as supervi sors The fact of actual majority was assumed by all parties at the April 8 conference and the General Counsel concedes that majority status actually existed at that time The General Counsel contends , however, that the majority was lost prior to April 14 when contract negotiations began and had not been regained by May 13 when a contract was reached which contained among other things provisions for union security as a condition of employment Though the parties assumed that majority status con- tinued throughout the negotiations , the evidence estab- lished that a turnover of employees resulted , through natural attrition , in a loss of majority prior to April 14 Thus as of the latter date Central Ohio 's payroll records showed that the unit had increased to 80 (again including 5 disputed leadmen), and that there were only 34 card signers in the unit The spread was even wider on May 13 for by then further hirings had increased the unit to 92 (or 97) employees The evidence is somewhat equivocal concerning the date on which recognition was first accorded to the Union Thus Charles D Newkirk , field representative of the Union , called by the General Counsel , testified that there was discussion during the hearing on April 8 of recognizing the Union as the bargaining agent and that on the 14th when negotiations actually began the parties agreed that the negotiations would cover employees of both Central Ohio and Industrial Park Recalled by the Union , Newkirk testified further that as the hearing broke up on April 8 , Jack Berger , president of Central Warehouse , suggested that they "get together and work out a contract ," that he in turn agreed to enter into negotiations , and that they agreed to meet on April 14 for that purpose On cross-examination Newkirk stated that in his opinion recognition was actual ly extended on April 8 , because , "[W]e agreed to sit down and bargain " Berger , also called as a General Counsel 's witness, testified that on April 14 , the Company "agreed to negotiate with the Union if this is recognition," but his further testimony reflected an understanding on his part that recognition occurred when the contract "was finalized and signed " on May 13 Berger was not questioned about the posthearing discussion on April 8, to which Newkirk testified Following several bargaining sessions a contract was reached on May 13, containing , as previously noted, union security provisions of a conventional type requiring union membership as a condition of employment It was also orally agreed that the contract would be applied to employees of Industrial Park though the latter corpora- tion , a separate entity, was not a party to the negotiations and did not sign the contract 3 The evidence showed further that the Union sought to require compliance by employees of both companies with the Union security provisions of the contract Thus, Newkirk admitted that he prepared a letter dated June 23, later sent out by the Union to all employees of both companies (including Cletus Cline , an employee of Industrial Park) who had not paid their union dues The letter quoted the union security provisions of the contract with Central Warehouse and stated that employ- ees would not be retained in the Company ' s employ upon notice from the Union that the employee was in default in meeting the requirements of the contract The employees were directed to submit their signed membership applications and a checkoff for union dues On July 5, Kirk Saville , temporary president of Local 876, wrote Central Warehouse reminding it of the Union security provisions of the contract and stating that all employees who were eligible for in the Union and had 3 Though the Union s organizational attempts extended to Industrial Park no showing was made of the extent of representation and it was not a party to the representation proceedings 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to become members by July 3 "must terminate their employment with the Company until membership is validated." Though Respondent Union denied responsibility for Newkirk's conduct the evidence showed that he repre- sented it at the Board hearing on April 8, that he signed the stipulation for consent election on its behalf, that he was its representative in the contract negotiations and that he signed the contract on its behalf. The Union is therefore plainly to be held accountable for Newkirk's conduct in seeking to enforce the contract.4 C. Concluding Findings The issues in this case turn chiefly on the question whether it is controlled by the Supreme Court's decision in International Ladies' Garment Workers' Union v. N.L.R.B. (Bernhard-Altmann Texas Corp.), 366 U.S. 731. The General Counsel contends that the facts herein parallel the circumstances of that case, whereas Respondents contend that Bernhard-Altmann is distin- guishable on the same basis as in Keller Plastics Eastern, Inc., 157 NLRB 583. The gist of Bernhard-Altmann is that the extension of recognition to, and the execution of a contract with, a union by an employer in the bona fide belief that the union represented a majority of the employees when the union did not represent a majority is violative of Sections 8(a)(2) and 8(b)(1)(A) of the Act by the employer and union, respectively. Conceding here the goodfaith intentions of the parties, the General Counsel urges that such intentions are irrelevant, as held by the Supreme Court in the following languages: To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act-that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives. We find nothing in the statutory language prescribing scienter as an element of the unfair labor practice here involved. The act made unlawful by Section 8(a)(2) is employer support of a minority union. Here that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees' rights have been invaded. It follows that prohibited conduct cannot be excused by show- ing of good faith. supra, p. 738-739 The critical date for determining majority status is, of course, the date of recognition, for as the Board held when Bernhard-Altmann was before it, 122 NLRB 1289, 1291, "The vice of such action is the extension of recognition." The parties are at odds, however, concerning the date on which recognition was actually extended, the General Counsel contending it occurred on April 14, " I find it unnecessary to resolve a similar issue concerning Saville's authority to bind the Union because of my conclusions reached infra concerning the validity of the contract vis-a-vis employees of Central Warehouse when negotiations actually began, and Respondents con- tending it occurred on April 8, when under- Newkirk's testimony the Company broached the subject of meeting "to work out a contract"and agreed to begin'negotiations on April 14. As Berger made no denial of Newkirk's testimony and as his own testimony concerning "recogni- tion" was based on his layman's interpretation of the term, I find that on April 8 the Company extended recognition to the Union by agreeing to meet with it for the purpose of negotiating a contract: On that date the Union represented a clear majority of 48 employees in a unit which did not exceed 77, and the continuing existence of a majority was assumed at all times there- after. Indeed, the General Counsel takes no issue with asserted good-faith beliefs of the parties that the majority continued. On these facts the case is distinguishable in no material respect from Keller Plastics, supra, where recognition was extended at a time when the union represented a majority of the company's employees but where the majority was lost at the time a contract was reached after some 3 weeks of negotiations. There as here the parties were unaware of the loss of majority and the company did nothing to cause it. The Board distinguished Bernhard-Altmann on the ground that recognition was invalidly granted whereas in Keller recognition was validly granted. It found con- trolling instead the principles established in such familiar precedents as Ray Brooks v. N.L.R.B., 348 U.S. 96, 98; Franks Brothers Co. v. N.L.R.B., 321 U.S. 702, 705-706; and Poole Foundry and Machine Co., 95 NLRB 34, 36, enfd. 192 F.2d 740 (C.A. 4), 'cert. denied 342 U.S. 954. The Board stated in Keller Plastics, supra, p. 587: With respect to the present dispute which involves a bargaining status established as the result of voluntary recognition of a majority representa- tive, we conclude that, like situations involving certification, Board orders, and settlement agree- ments, the parties must be afforded a reasonable time to bargain and to execute the contract resulting from such bargaining. Such negotiations can suc- ceed, however, and the policies of the Act can thereby be effectuated, only if the parties can nor- mally rely on the continuing representative status of the lawfully recognized union for a reasonable period of time. Finding further that the 3-week period of negotiations was reasonable, the Board held that the Union remain the statutory bargaining representative and that no viola- tion of the Act was involved in executing the contract or by including a union security provision. I find similarly here that the 5 weeks which intervened between April 8 and May 13 was a reasonable period within which to negotiate and that the parties were entitled to rely on the continuing representative status of the Union during such negotiations. Cf. Universal Gear Service Corporation, 157 NLRB 1169, 1171, where a gap of over 2 months was involved. The foregoing conclusions effectually dispose of all issues herein save those surrounding the Union's CENTRAL OHIO WAREHOUSE attempts to enforce the union security provisions against employees of Industrial Park for which the record shows no legal basis. Industrial Park, a separate entity, did not participate in the negotiations, was not mentioned in the contract, and did sign it. Furthermore no showing was made that the Union represented a majority of its employees. Even were it assumed that an oral agree- ment of the present type might be lawfully enforced under other circumstances, the evidence here does not establish that Industrial Park was itself a party to the agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Central Ohio Warehouse Co., Inc., did not engage in unfair labor practices proscribed by Section 8(a)(1), (2), and (3) of the Act as alleged in the complaint in Case 8-CA-5514. 2. By threatening Cletus E. Cline and other employees of Central Ohio Industrial Park, Inc., with discharge and by requesting the payment of dues and initiation fees by said employees as a condition of employment, Respondent Union engaged in an unfair labor practice proscribed by Section 8(b)(1)(A) of the Act. 3. Respondent Union did not engage in an unfair labor practice proscribed by Section 8(b)(2) as alleged in the complaint in Case 8-CB-1397. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Union engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirma- tive action as specified below which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Though there was no evidence that as of the time of the hearing the Union had collected dues and initiation fees from any employees of Industrial Park, it is possible, of course, that payments have since been received. My recommended order will therefore include a provision that the Union refund to employees of Industrial Park any dues or initiation fees collected or received by it from said employees since May 13, 1969. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER United Rubber, Cork, Linoleum and Plastic Workers of America , AFL-CIO-CLC, its officers, agents, and representatives, shall: 1. Cease and desist from: 485 (a) Threatening employees of Central Ohio Industrial Park, Inc., with discharge or requesting the payment of dues and initiation fees from said employees as a condition of employment. (b) In any like or related manner restraining or coerc- ing employees of Central Ohio Industrial Park, Inc., in the exercise of rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by an agreement requiring of said employees membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2 Take the following affirmative action: (a) Refund to employees of Central Ohio Industrial Park, Inc., any dues or initiation fees collected or received from said employees since May 13, 1969. (b) Post at its business office at Akron, Ohio, and at the business office of its Local Union No. 876 at Shelby and Mansfield, Ohio, copies of the attached notice marked Appendix.-' Copies of said notice to be furnished by the Regional Director for Region 8 shall, after being duly signed by Respondent Union's represent- ative, be posted immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (c) Forward signed copies of said Appendix to the Regional Director for posting, Central Ohio Industrial Park, Inc., being willing, at all locations where notices to its employees are customarily posted. (d) Notify the Regional Director for Region 8, in writing, within 20 days from receipt of this decision what steps Respondent has taken to comply herewith.' In the event no exceptions were filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " M1 If this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director for Region 8, in writing , within 10 days from the date of this Order, what steps 'Respondent has taken to comply herewith " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees of Central Ohio Industrial Park, Inc., with discharge or request 486 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD the payment of dues and initiation fees by said employees as a condition of employment WE WILL NOT in any like or related manner restrain or coerce employees of Central Ohio Indus trial Park, Inc , in the exercise of rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by an agreement requir ing membership in a labor organization as a condi- tion of employment as authorized in Section 8(a)(3) of the Act WE WILL refund to employees of Central Ohio Industrial Park, Inc , any dues or initiation fees which we have collected or received from said employees since May 13 1969 UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, AFL-CIO-CLC (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715