Viking Lithographers, Inc.

VIKING LITHOGRAPHERS, INC. 139 Viking Lithographers, Inc. and Miami Printing Pressmen & Assistants' Union, Local 207, subor- dinate to International Printing Pressmen & Assistants' Union of North America, AFL-CIO. Case 12-CA-4533 June 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On October 17, 1969, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. On January 19, 1968, the Union won an election among the Respondent's employees, 13 to 8, and was certified on March 11. The parties engaged in a number of bargaining sessions until the middle of January 1969 and between January 14 and Februa- ry 3, 1969, exchanged letters relating to bargaining matters. Between February 3 and May 5, 1969, there was no communication between Respondent and the Union regarding negotiations. Between May 5 and May 14, the Union and the Respondent exchanged the communication described below. Thereafter, on May 14, 1969, some 14 months after the Union's certification, the Respondent notified the Union that it doubted the Union continued to represent a majority of the employees and stated it declined to negotiate further for a bargaining agree- ment. The complaint alleges that, by so refusing to con- tinue to recognize the Union, the Respondent vio- lated Section 8(a)(5) and (I) of the Act. The Trial Examiner , concluding that the Respondent had no reasonable basis for questioning the Union's majori- ty status, found the violation as alleged. We do not agree with this result. The principle applicable in the present situation has long been established. After the certification year has run, an employer may lawfully withdraw recognition from an incumbent union because of an asserted doubt of the union's continued majority if its assertion of doubt is raised in a context free of unfair labor practices and is supported by a show- ing of objective considerations providing reasona- ble grounds for a belief that a majority of the em- ployees no longer desire union representation.' Here the Respondent engaged in no independent unfair labor practices, and the withdrawal of recog- nition occurred more than a year after the certifica- tion. Consequently, as the Trial Examiner quite properly viewed the problem, the issue to be resolved is whether or not those "objective con- siderations" existed, justifying the asserted doubt concerning the Union's majority status. Here, as noted, the Respondent and the Union engaged in a number of bargaining sessions between April 1968 and January 1969. But between mid-January, when it received certain proposals from the Union, and May 5, when it received a telegram, the Respondent heard nothing from the Union concerning formal negotiations. In fact it appears that during that January-May period the Union was wholly inactive in the plant and several employees expressed to management dissatisfaction with the Union.2 However, the Union did hold a meeting of the Respondent's employees on the evening of May 4,3 and the following day the Respondent received a telegram from the Union in which it accepted the Company's "final offer" and requested that the Respondent reduce it to writing for signatures. The Union made no attempt at that time to secure any bargaining advantage what- soever, but simply capitulated completely. No final offer comprising a complete contract had in fact ' Nu-Southern Dyeing & Finishing , Inc , and Henderson Combining Co , 179 NLRB 573 2On cross-examination the Union's International representative who handled negotiations with the Company testified that he asked for no meetings after January 10 because "we had the unfair labor practice charge " and "were waiting for it to be processed against the Com- pany " However, the charge included no allegation that Respondent in negotiations had failed to bargain in good faith Moreover , there is nothing in the record to suggest that the Respondent was informed of this asserted reason , not does the record suggest that the Respondent should have in- ferred that such asserted reason existed Consequently , this testimony does not in our opinion detract from the objective facts concerning the Union's inactivity ' Only about eight employees attended However, there is no evidence that the Respondent , prior to the hearing in this case , was aware of the number at that meeting 184 NLRB No. 16 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been made, there being limited matters necessarily a part of an agreement not covered by any com- pany offer, and other areas in which the parties could not even agree on what the Company's final offer had been. Finally, at that time only four of the unit employees employed at the time of the election remained in the plant with two of those four having announced their intent to quit-doing so in 2 or 3 weeks. In these circumstances we believe that the Respondent was not unreasonable or unrealistic in construing the Union's contractual surrender and haste to enter into a contract, the terms of which were at best ambiguous, as an attempt to secure its bargaining status in the face of declining employee support. The foregoing factors relied on by the Respon- dent may not by themselves show that the Union had in fact lost its majority as of May 14, 1969, when the Respondent withdrew recognition. How- ever, here in a context free of unfair labor practices or even of manifest union animus on the part of the Respondent, those factors noted above do provide, in our opinion, an objective basis which could properly furnish reasonable grounds for the Respondent to believe that the Union had lost its majority status.' Consequently, we find that the Respondent did not violate Section 8(a)(5) or (1) of the Act when on May 14, 1969, it withdrew recognition from the Union. Accordingly, we shall dismiss the complaint. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed. ' See Lloyd McKee Motors, Inc , 170 NLRB 1278 184 NLRB No 16T-7 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: This case was tried before me at Miami, Florida, on August 20 and 21, 1969. It was initiated by a charge filed on May 26, 1969, and a complaint issued on July 17, 1969, against the Respondent, Viking Lithog- raphers, Inc., alleging that the Respondent had vio- lated Section 8(a)(5) and (I) of the Act by refus- ing to continue to recognize Miami Printing Press- men & Assistants' Union, Local 207, subordinate to International Printing Pressmen & Assistants' Union of North America, AFL-CIO, herein called the Union. In its answer duly filed, the Respondent admitted certain jurisdictional allegations of the complaint but, with respect to the alleged unlawful refusal to bargain, affirmatively alleged that when it declined to continue recognizing the Union it did so on the ground that it had a good-faith doubt that the Union then represented a majority of its em- ployees in the appropriate unit. At the hearing, all parties were represented and were afforded full opportunity to adduce evidence bearing upon the issues. Subsequent to the hearing, counsel for the Respondent filed a brief which has been carefully considered. Upon the entire record in the case , and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Florida corporation with its place of business in Miami, Florida, where it is en- gaged in the business of printing, binding, and mail- ing brochures. During the Respondent's last fiscal year its gross volume of business exceeded $500,000 and it purchased and received goods and materials valued in excess of $50,000 directly from points outside the State of Florida. Although the Respondent admitted the foregoing facts relating to its volume of business, it denied that it was engaged in commerce within the meaning of the Act. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Miami Printing Pressmen & Assistants ' Union, Local 207, subordinate to International Printing Pressmen & Assistants ' Union of North America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On March 11, 1968, following a Board-con- ducted election held on January 19, the Board cer- tified the Union as the exclusive representative of the Respondent's employees in an appropriate unit.' The first bargaining meeting was held on April 11, and thereafter there were 1 1 further meetings, the last one occurring on January 10, 1968. No contention is made that the Respondent engaged in any unlawful conduct during the course of the bargaining meetings. At the outset the Union had submitted a proposal and thereafter the Respondent had submitted a counterproposal; it was on the latter that most of the discussion at the ' The unit admittedly appropriate consists of "All offset pressmen and apprentices, feeder operators and helpers, cameramen, assistant cameramen, platemakers , and stripper-opaquers ," excluding all other em- ployees, office clerical employees, guards, and supervisors as defined in the Act The vote in the election was 13 to 8 in favor of the Union, with I chal- lenged ballot VIKING LITHOGRAPHERS, INC. 141 bargaining sessions occurred. As of January 10, the parties had reached agreement on a number of mat- ters but wages, health and welfare, and certain other provisions of the contract were still in dispute. By letter dated January 14, Larry Smith, International representative of the Union who had participated in the negotiations along with an em- ployee committee, wrote to the Respondent proposing as a basis for "a final settlement" that the Respondent pay the entire cost of the health and welfare program, grant stated increases for specific job classifications, and agree to a proposal regarding manning on the four-color press. This letter was acknowledged by Jesse Hogg, counsel for the Respondent, on January 15, and on February 3 he wrote to International Representative Smith stat- ing that, after having conferred with the Respon- dent, the Union's proposal was not acceptable. From February 3 until May 5 there was no com- munication between the Respondent and the Union. Under date of May 5, following a meeting with employees on May 4, the Union sent to coun- sel for the Respondent, who had been the principal representative of the Respondent in the negotia- tions, the following telegram: This is to advise that the Union accepted the last Company offer, Sunday, May 4, 1969. Please prepare the Contract for proper signa- tures. Will call you next Tuesday or Monday, when I am in Miami. Regards, Larry J. Smith, Representative, IPP&AU of NA. Counsel for the Respondent acknowledged receipt of the telegram by letter dated May 7, stating that the president of the Respondent was out of the city and that he would talk to him the following week. Counsel added that "it has been so long since we met that I cannot remember what we agreed to and what was still open." On May 14, counsel wrote to the Union, stating that he had conferred that day with the president of the Company who "informs me that he is of the opinion that your organization does not now represent a majority of unit em- ployees at Viking and that this has been true for several months past." Accordingly, he advised that the Respondent "entertained a good-faith doubt of your majority status, and the company therefore declines to negotiate for a collective bargaining agreement with your union." The General Counsel contends that the Respon- dent was not motivated by a good-faith doubt of the Union's majority status on May 14 when it withdrew recognition of the Union as the exclusive representative of the Company's employees and declined to negotiate further with the Union, and that therefore the Respondent violated Section 8(a)(5) and (1) of the Act. The Respondent, on the other hand, argues that it was fully justified in questioning the Union's majority status. The principles governing an employer's continu- ing duty to recognize and deal with a union which had previously been duly certified by the Board as the exclusive bargaining representative of his em- ployees, were reviewed and restated in Laystrom Manufacturing Co.2 as follows Absent unusual circumstances, there is an ir- rebuttable presumption that the majority status of a certified union continues for 1 year from the date of certification.3 After the first year the certificate still creates a presumption of majority status, but the presumption is nor- mally rebuttable by an affirmative showing that the union no longer commands a majority.4 Moreover, where the certificate is a year or more old and employer may withhold further bargaining without violating the Act and insist that the union reestablish its statutory representative status if, but only if, he in good faith has a reasonable doubt of the union's continuing majority.' A showing of such doubt, however, requires more than an employer's mere assertion of it and more than proof of the employer's subjec- tive frame of mind. The assertion must be sup- ported by objective considerations. The ap- plicable test, as defined in the Celanese case, is whether or not the objective facts furnish a "reasonable basis" for the asserted doubt, or, put another way, whether or not there are "some reasonable _grounds for believing the Union has lost its majority status since its cer- tification. "6 ' Celanese Corporation of America, 95 NLRB 664, 673 ' Frito-Lay, Inc , 151 NLRB 28, Cf Celanese Corporation of Amer- ic a, supra ' See, e g, The Richard W Kase Company, 141 NLRB 245, Mitchell Standard Corporation, 140 NLRB 496, The Randall Company, et al, 133 NLRB 289, Celanese Corporation of America, supra, footnote 4, at 672 " Celanese Corporation of America, supra, footnote 4, at 673 Whether or not an employer's doubt is grounded on an honest and reasonable belief that the union had lost its majority status "cannot be resolved by resort to any simple formula" but "can only be an- swered in the light of the totality of all the circum- stances involved in a particular case. "3 In support of its claim that it did entertain a good-faith doubt of the Union's majority status when it withdrew recognition on May 14, which was 14 months after the Union had been certified as exclusive bargaining representative, the Respon- dent relies on several considerations. Hogg, counsel for the Respondent and its principal negotiator, met with Robert Birenbaum, Respondent's president, on May 14 to determine what reply to make to the 2 151 NLRB 1482, 1483-84, enforcement denied on other grounds 359 F 2d 799 (C A 7) 3 See, e g, Ray Brooks v N L R B, 348 U S 96, Celanese Corpora- tion of America, 95 NLRB 664, 672 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's May 5 telegram accepting "the last Com- pany offer" and requesting that the contract be prepared for signature. Hogg testified that at the outset of the meeting he expressed the view to Birenbaum that in his opinion the Union did not represent a majority and had not for some time. Birenbaum agreed with this view. They then discussed the factors which they felt buttressed this opinion. At Hogg's request Birenbaum had prepared a list of unit employees as of March 11, 1968, when the Union was certified, and as of May 5, 1969, when the Union sent its telegram. This showed that of the 21 unit employees on March 11, 1968, only 4 were in the Respondent's employ on March 5, 1969, in a unit then consisting of 25 em- ployees. Of these four, one, Gerald Konidare, who had been a member of the employee committee, had before May 5 given notice that he was quitting and he did terminate his employment on May 9. Another member of the negotiating committee, Ralph Martinucci, had expressed an intention to give notice; he in fact quit on May 23. Aside from Konidare and Martinucci, Birenbaum testified that "just about every other man who I knew to be vitally interested" in the Union "had left in most cases months previous" to May. New employees, so Birenbaum testified, had expressed no interest in the status of negotiations, and the fact that from January to May there were no problems between management and the employees led Birenbaum to believe that there was little interest in the Union. A further factor relied on by the Respondent was the Union's behavior during and after the negotia- tions, which Hogg characterized as "lackadaisical." The Union did not press for more frequent meetings and on several occasions left a meeting without seeking to arrange another. Thus at the conclusion of the fourth meeting on July 2, Smith for the Union refused to commit himself as to further meetings. Late in that month he telephoned Hogg and inquired if the Respondent was prepared to make any further concessions ; when Hogg replied in the negative and suggested that the Union should make some concessions , which Smith declined to do, Smith concluded by stating, "Well, if you change your mind , give me a call." Thereafter, no meeting occurred until October 6. The October 29 meeting ended with no provision for a future negotiation session. About mid- November Smith called Hogg and indicated that he did not wish to meet further; however, Hogg per- suaded him to meet on November 29. At the November 29 meeting the Union indicated that it might engage in a strike , but Smith was persuaded by Hogg to arrange for a further meeting on December 16. At the December 16 meeting the Respondent improved its wage offer on several classifications. When Birenbaum complained to Smith that the drawnout negotiations caused low ' Laystrom Manufacturing Co , supra, Printers Service Inc , 175 NLRB 809 morale among the employees and high turnover, Smith rejoined that this condition was attributable to the Company and stated that there were only a few "die hards" left. Hogg and Birenbaum in- terpreted the latter remark to mean there were only a few union supporters remaining. The last meeting occurred on January 10 and ended with no arrangements being made for further negotiations. Thereafter, on January 14, the Union wrote the Respondent making certain proposals as a basis for "final settlement." These were rejected by the Respondent in a letter dated February 3. On February 5, the Union filed unfair labor practice charges, including an allegation that the Respon- dent had violated Section 8(a)(5) by instituting certain disciplinary action without bargaining with the Union. This charge was dismissed by the Re- gional Director and his action was sustained by the General Counsel on appeal. No meetings were held after January 10 between the parties and there was no communication between them after February 3 until the May 5 telegram from the Union stating it accepted the Respondent's last offer. As stated above, the Respondent on May 14 withdrew recog- nition and refused to negotiate further. Under all the circumstances, and considering as well the fact that the Respondent bargained with the Union in good faith and had engaged in no in- dependent violations of Section 8(a)(1) of the Act, I am not persuaded that the Respondent had a "reasonable basis," supported by objective con- siderations, for questioning the Union's majority status on May 14, 1969. Turnover among em- ployees in the unit, heavily relied on by the Respon- dent as supportive of its asserted good -faith doubt, in and of itself has been held not to be such an ob- jective factor as to constitute a reasonable basis for believing that a union lost its majority since certifi- cation.4 As the Board observed in Laystrom (at 1484), "new employees will be presumed to sup- port a union in the same ratio as those whom they have replaced." Nor do I find in the time lags between meetings and the Union's failure to engage in a strike which had been intimated a basis for in- ferring that the Union had lost support of a majori- ty. To the contrary, I note that the January 14 letter sent by Smith to the Respondent as a proposal for final settlement bears the handwritten names of 17 employees , thus indicating that a substantial majori- ty then supported the Union. Aside from normal turnover, there is no evidence-other than the Union's telegram of May 5 accepting the Respon- dent's terms-indicating that after the expiration of the certification year the Union lacked the ad- herence of a majority. Upon the entire record, I conclude that the Respondent did not have a good-faith doubt or a reasonable basis for believing that the Union had lost its majority status on May 14, 1969. 1 therefore 1 \ VIKING LITHOGRAPHERS, INC. 143 conclude that the Union on that date continued to be the certified representative of the employees in an appropriate unit and that the Respondent, by withdrawing and withholding recognition and refus- ing to bargain with it on and after May 14, 1969, violated Section 8(a)(5) and (1) of the Act.5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in sec- tion III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. To remedy the Respondent's unlaw- ful refusal to fulfill its statutory bargaining obliga- tion, I recommend that it bargain on request with the Union, as the exclusive representative of its em- ployees in the unit found appropriate herein, and, if an understanding is reached, embody such un- derstanding in a signed agreement. I also recom- mend that the Respondent post at its plant the notice attached to this Decision as an appendix. In oral argument, counsel for the General Coun- sel urged that the Respondent be ordered to sign a contract at the Union's option and to reimburse the employees with interest for the loss of any benefits which would have accrued to them, citing Beverage-Air Company, 164 NLRB 1127. In that case, the parties had reached oral agreement on terms, which the employer refused to execute. Here, I am convinced that a number of contractual provisions had not reached the status of concrete proposals readily susceptible of acceptance but, rather, were still in the discussion and modification stage. In view of the uncertain content of various clauses which the Union by its telegram purported to accept, I am satisfied that it would not be ap- propriate in this case to recommend execution of a particular contract and reimbursement order. 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. The 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. All offset pressmen and apprentices, feeder operators and helpers, cameramen, assistant cameramen, platemakers, and stripper-opaquers, but excluding all other employees, office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. At all times since March 11, 1968, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing on and after May 14, 1969, to recognize and bargain collectively with the Union as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order6 7 is omitted from publica- tion. ] ' Lloyd McKee Motors, Inc , 170 NLRB 1278, relied on by the Respon- dent as dispositive of the instant case, is distinguishable on its facts 6 In the event no exceptions are 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 Na- tional 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 " I In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "