Massey-Ferguson, Inc.

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Massey-Ferguson, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7-CA-7418 July 28, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On January 16, 1970, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 affir- mative action, as set forth in the attached Trial Ex- aminer's Decision . Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, the Charging Party and the General Counsel filed cross-exceptions to the Trial Examiner's Decision and briefs in support thereof, and the Respondent filed an answering brief to the cross-exceptions. 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 and the entire record in this case, including the exceptions, cross-excep- tions, and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer to the extent they are consistent herewith. As found by the Trial Examiner, on November 4, 1968, the Respondent granted certain cost-of-living wage increases to nonbargaining unit employees, and on December 9, 1968, granted those same em- ployees a 3 percent wage increase. The Union im- mediately thereafter requested the same benefits for employees within the bargaining unit and sought such benefits retroactive to their effective date for nonunit employees. The Respondent never offered such benefits to the Union and its steadfast refusal to make any wage increases granted retroactive was evidenced in its only written offer to the Union on March 27, 1969, and in its answers to specific ' During the course of the hearing, the Trial Examiner repeatedly refused to permit the Respondent to adduce evidence as to employee dissatisfac- tion and lowering morale. For the reasons set forth, infra, we find that the questions respecting retroactivity on that date. Nevertheless, on May 7, 1969, the Respondent uni- laterally granted the bargaining unit employees cost-of-living and 3 percent wage increases retroac- tive to December 9, 1968. 1. Although alleged as a violation in the com- plaint, the Trial Examiner made no finding as to whether or not Respondent's unilateral granting of wage increases on May 7, 1969, constituted a viola- tion of Section 8(a)(5) of the Act. He concluded that he did not have to resolve this issue as he otherwise found Respondent in violation of Section 8(a)(5), recommended a bargaining order requir- ing Respondent to bargain in good faith, and deemed no more was required to effectuate the pol- icies of the Act. We do not agree. It is now well settled that a unilateral change in conditions of employment is a circumvention of the duty to negotiate which frustrates the objectives of Section 8(a)(5) much as does a flat refusal. The Supreme Court, in finding that the unilateral grant- ing of more generous wage increases than offered to the union violated Section 8(a)(5), said:' Such action conclusively manifested bad faith in the negotiations and so would have violated Section 8(a)(5) ... though no additional evidence of bad faith appeared. An employer is not required to lead with his best offer; he is free to bargain. But even after an impasse is reached he has no license to grant wage in- creases greater than any he has ever offered the union at the bargaining table, for such ac- tion is necessarily inconsistent with a sincere desire to conclude an agreement with the union [citations omitted]. The Respondent here contends that the May 7 wage increases were granted because the inequity occasioned by the previously granted increases for nonunit employees was causing employee dissatisfaction and a high turnover of unit em- ployees. However, even an increase so motivated must be negotiated with the collective-bargaining representative of its employees. Respondent claims, however, that the increases granted had all been discussed with the Union, that the Union had agreed to them, and that in any event the Union acquiesced in the changes by continuing to bargain thereafter. This contention is plainly without merit. The Respondent's only wage offer to the Union was made on March 27, 1969, in which it clearly stated that any wage increases would be effective as of the date of the agreement, which in turn meant agree- Trial Examiner 's rulings were correct ' N L R.B. v Benne Katz, etc , d/b/a Williamsburg Steel Products Co., 36S U S 736, 745 184 NLRB No. 69 MASSEY-FERGUSON, INC. ment on all matters-economic and noneconomic. The record reveals that when specifically asked about retroactivity, Respondent pointed to the writ- ten offer and the language concerning the effective date of wage increases as dispositive of its position. If Respondent's position was not adamant, as it now claims, it was certainly unequivocal. It is abun- dantly clear that such a wage increase, without retroactivity, was the only proposal presented by the Respondent and it was never accepted by the Union.3 The gravity of the offense thus becomes ap- parent. The Respondent not only granted unilateral wage increases to bargaining unit employees without prior notice to, and consultation with, the Union, but also it granted such wage increases in amounts greater than any offered the Union-to wit: retroactive to December 9, 1968. The Respon- dent thus violated Section 8(a)(5) of the Act. 2. We agree with the Trial Examiner's conclu- sion that the Respondent violated Section 8(a)(5) by refusing to bargain with the Union on and after July 3, 1969.4 However, we do not adopt his ra- tionale in this respect and so find for the following reasons. It is well settled that a certified union, upon ex- piration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues.5 That rebuttable presumption is sufficient to establish prima facie a continuing obligation to bargain ." That prima facie showing, however, is overcome if the employer either rebuts the presumption by affirmatively establishing that the union has in fact lost its majority status or is able to demonstrate that at the time of its refusal to bargain it had a good faith and reasonably grounded doubt of the union continued majority status. In order to sustain the defense of a good-faith doubt an employer must show that the asserted doubt was based on objective considera- tions, and that it was not advanced for the purpose of gaining time in which to undermine the Union.' The Respondent predicates its refusal to bargain ' We also consider without merit Respondent's contention that the Union acquiesced in the change by continuing to bargain only about other matters after May 7 , 1969 See J. H Bonck Company, Inc., 170 NLRB 1471, 1477. ° The Trial Examiner 's finding, in the last paragraph of his section enti- tled "Conclusions," that the Respondent 's refusal to bargain dated from July 23 is obviously an inadvertent typographical error , as his Conclusion of Law I clearly dates such refusal from July 3. ' Celanese Corporation ofAmerica, 95 NLRB 664 ,671-672 6 N.L R B v Rish Equipment Company, 407 F 2d 1098 (C A 4), enfg 169 NLRB 847, Terrell Machine Company, 173 NLRB 1480, enfd 427 F 2d 1088 (C A 4), cert denied 398 U S 929 r N L R.B v Gulfmont Hotel Company, 362 F 2d 588 (C A 5), enfg. 147 N LRB 997, Terrell Machine Company, 173 N LRB 1480, 1484 ° Industrial Motor Sales, Inc., 177 NLRB 270, 273, and cases cited in fn 16. ° Cf Industrial Motor Sales , Inc., supra 641 since July 3, 1969, on its purported good-faith doubt as to the Union's continued majority status. The alleged good-faith doubt in turn is rested upon the Union's narrow victory which led to its certifi- cation; the decertification petition filed on June 24, 1969; high turnover and reduced size of the unit; and supervisors' reports of discontent among unit employees. However, it is patent that none of these assertions, either separately or collectively, sup- ports the showing that the Respondent is required to make. The "close vote" in the election is not in itself significant," the critical question being whether Respondent in good faith believed that a majority of the employees, of their own volition, had decided since the election to discontinue representation by the Union." The decertification petition filed shortly before the end of the certifica- tion year does not serve as a basis for questioning continued majority status absent evidence (not proffered herein) that the petition was supported by a majority of the employees.10 High employee turnover within the unit and reduced size thereof are equally of no significance," unless it is shown that a substantial number of employees have de- fected from the Union.12 And, finally, supervisory reports of employee discontent do not support the Respondent's assertion; to be of any significance, the evidence of dissatisfaction13 with a validly recognized incumbent union must come from the employees themselves, not from the employer on their behalf. 14 We conclude that the Respondent has not met its burden of establishing that it possessed a good-faith doubt of the Union's continued majority status. Furthermore, any loss of majority would have been attributable to the Respondent's unfair labor prac- tices and may not be relied on as a defense.'5 Ac- cordingly, we find that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union on and after July 3, 1969.16 ORDER Pursuant to Section 10(c) of the National Labor '0 Wabana, Inc., 146 NLRB 1162, 1 171 " Printers Service, Inc, Photo-Composition Service, Inc, 175 NLRB 809, 812, Quaker Tool & Die, Inc, 162 NLRB 1307, affd 403 F 2d 1021 (C A 6) " The Little Rock Downtowner, Inc , 168 NLRB 107, affd 414 F 2d 1084 (C.A 8) " As noted in fn I above, the Trial Examiner refused to permit certain evidence on the record concerning alleged employee dissatisfaction It is clear from the evidence received , from the rejected exhibits duly reevalu- ated, from the Respondent 's offers of proof, and from the Trial Examiner's rulings themselves that the evidence which the Respondent was attempting to adduce and which the Trial Examiner rejected was evidence of em- ployee dissatisfaction with wages and not their dissatisfaction with their bargaining representative " Terrell Machine Company, supra, 1485 " Franks Bros. Company v NLRB , 321 U S 702 1° Beghnger-Massie Oldsmobile-Cadillac, Inc , 177 NLRB 161, 165-166. 642 DECISIONS OF NATIONAL Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein , and orders that the Respondent, Massey-Ferguson, Inc., Detroit , Michigan , its of- ficers, agents , successors , and assigns , shall take the action set forth in the Trial Examiner's Recom- mended Order, as modified herein: 1. Add the following paragraph entitled 1(a): "Unilaterally announcing and granting unilateral wage increases and other benefits , without prior notice to, and consultation with , the labor organiza- tion representing its employees." 2. Renumber present paragraph 1(a) as para- graph 1(b). 3. Substitute the attached notice for the Trial Examiner 's notice. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, meet with and bar- gain collectively in good faith with the Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica (UAW ), as the exclusive collective-bar- gaining representative of all our employees in the appropriate unit and, if understanding is reached, embody such understanding in a writ- ten agreement. The appropriate unit is: All employees in the Engineering De- partment including technical and clerical employees , employed at the Employer's Engineering Department located at 12601 Southfield, Detroit, Michigan, BUT EXCLUDING all engineering trainees for professional, supervisory and managerial positions , chauffeurs and truckdrivers, confidential employees, professional em- ployees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally announce or grant wage increases or other benefits without prior notice to and consultation with the labor or- ganization representing our employees. MASSEY-FERGUSON, INC. (Employer) LABOR RELATIONS BOARD Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board 's Office, 500 Book Building , 1249 Washing- ton Boulevard , Detroit, Michigan 48226, Telephone 313-226-3200. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE , Trial Examiner : Upon a charge and an amended charge filed July 9 and July 16, 1969, respectively , by International Union, United Automobile , Aerospace and Agricultural Imple- ment Workers of America (UAW), herein the UAW, against Massey-Ferguson , Inc., herein the Respondent, the General Counsel issued complaint alleging Respondent violated Section 8(a)(5) and (1) of the Act. The answer of Respondent denied the commis- sion of any unfair labor practices. This proceeding, with all parties represented, was heard by me at Detroit , Michigan , on October 8 and 9, 1969 , and at the conclusion of the hearing the parties were granted leave to file briefs . Briefs were received on December 10. Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a Maryland corporation main- taining an office and place of business in Detroit, Michigan, where it is engaged in the manufacture, sale and distribution of farm machinery and equip- ment. The Detroit plant is the only one involved in this proceeding. During a representative 12-month period Respondent purchases and causes to be delivered to its Detroit plant goods and materials valued in excess of $50,000, which goods and materials are delivered from points outside the State of Michigan. Respondent is engaged in commerce within the meaning of the Act. MASSEY-FERGUSON, INC. 643 II. LABOR ORGANIZATION INVOLVED The UAW is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues On June 28, 1968, the Regional Director for Re- gion 7 certified , following a Board-conducted elec- tion, the UAW as the exclusive bargaining agent for the employees of Respondent at its Detroit plant in a unit described as: All employees of the Engineering Department, including technical and clerical employees, employed at the Employer 's Engineering De- partment located at 12601 Southfield , Detroit, Michigan 48228, BUT EXCLUDING all engineer- ing trainees for professional , supervisory and managerial positions, field test technical and professional employees, chauffeurs and truck- drivers, confidential employees, professional employees, guards and supervisors as defined by the Act and all other employees.' On or about May 7, 1969, Respondent instituted a group of economic changes affecting employees in the unit found appropriate herein.2 The complaint further alleges that on or about June 24 , 1969, and July 3, 1969, Respondent refused to meet and bargain with the UAW. The issues presented are whether Respondent, by effecting unilateral changes in working conditions on May 7 and by refusing to bargain on June 24 and July 3, violated Section 8(a)(5) and (1) of the Act. B. The Evidence The testimony and the documentary evidence which I consider generally relevant to the issues are not substantially in dispute. The first formal bargaining meeting between the parties following the certification of the UAW took place on September 5, 1968 . The chief negotiators for the UAW were Elmer W. Silaghi, senior design engineer and chairman of the negotiating commit- tee, Alex McIntyre, international representative of the UAW, and Donald Swenson, personnel industri- al relations manager for the Detroit operations of Respondent, succeeded on April 1, 1969, by Willard Russell in that position . At this first meeting the UAW submitted its general ' economic and noneconomic proposals (General Counsel's Exh. 2). The economic proposals included a 4 percent wage increase rejected by Respondent as un- realistic . On December 9 Respondent put into ef- fect a 3 percent increase for all nonbargaining unit employees . It had previously , on November 4, granted a 8-cent-an-hour cost-of-living adjustment for nonunit salaried employees earning less than $10,000 per year and on December 9 a cost-of-liv- ing adjustment of $6.40 was given nonunit em- ployees earning in excess of $10,000 per year. (The distinction between salaried employees followed past practice.) On March 27, 1969 , Respondent submitted its first economic proposal (General Counsel's Exh. 4), and on April 1 the UAW submitted a counter- proposal (General Counsel 's Exh. 5).3 Respondent 's proposal was for a 3 percent in- crease contingent upon a satisfactory resolution of all noneconomic matters and to become effective on the date of signing of the contract." No complete agreement was reached on this proposal nor on the UAW proposal of April 1 , although the UAW did agree to certain of Respondent 's proposals , includ- ing the 3 percent wage increase (Appendix C). On April 1 Willard Russell replaced Swenson as Respondent 's chief negotiator and the April meetings were generally concerned with familiariz- ing him with the state of negotiations . On May 6 Russell notified the UAW representatives that it was putting into effect certain economic changes for unit employees as set forth in Appendix D. No prior notice had been given the UAW of this docu- ment and when the union representatives asked for time to study the "proposal " they were told it was not a proposal , it was what Respondent intended to do. McIntyre 's reply was that he thought Respon- dent was violating the law . The next day Respon- dent put into effect the changes , retroactive to December 9. Meetings continued on the noneconomic issues during May and June. On June 24 Russell notified McIntyre that Respondent had received a copy of decertification petition filed by the employees and wished to check with Respondent 's attorney before any further meetings would be held. On July 3 McIntyre called Russell , told him the petition had been dismissed and asked for a meeting . Russell told him Respondent doubted that the UAW represented a majority and that Respondent was fil- ing its own petition . Respondent has refused to meet with the UAW since that date. Respondent offered testimony that there were compelling business reasons for granting the uni- lateral benefits conferred on May 7 . Thus Swenson testified that on March 11 a meeting was called by the head of Respondent 's engineering in Detroit, Mr. King, and that he and King were informed by managerial personnel of employee dissatisfaction with the failure of Respondent to provide the same economic adjustmeit for unit employees as had ' Respondent admits and I find that the unit described is appropriate for respectively the purposes of collective bargaining ' Throughout negotiations Respondent was adamant in its stand that ' General Counsel 's Exh . 8, attached hereto and hereafter referred to as retroactivity would not be applied to economic matters It was equally ada- Appendix D mant that agreement must be reached on all issues and could not be ' These proposals have been attached hereto as Appendixes B and C , reached piecemeal. 427-835 0 - 74 - 42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been granted nonunit employees on December 9. On March 25 Swenson went to Des Moines to con- sult with Mr . Jaeger, director of technical services for machinery operations in North America, to ex- plain the turnover and morale problem at Detroit in the engineering department . Jaeger was informed that the only way to correct the problem was to grant the nonunit benefits of December 9 to the unit employees . Receiving Jaeger 's approval, the same benefits were offered the UAW on March 27, but as part of an entire package, including noneconomic issues . This was rejected in part, and prompted the UAW proposal of April 1 . On May 5 Respondent 's managers at Detroit held another meeting to discuss increased turnover ( eight unit employees in two months ) and decided that the only way to correct a pejorative situation was to grant the December benefits to the unit employees. This testimony5 constituted the chief grounds of defense asserted by Respondent to the complaint. Respondent also contended that the UAW acquiesced in the unilateral action by continuing bargaining negotiations after May 7. As previously stated, Respondent refused to meet with the UAW on June 24, on the ground that a decertification petition had been filed, and on July 3, on the ground that it doubted the UAW 's majori- ty and was filing its own petition for an election. C. Conclusions Because I believe Respondent's refusal to con- tinue bargaining negotiations after July 3 con- stituted a violation of Section 8(a)(5)6 I find it un- necessary to resolve this issue with respect to the unilateral changes effected by Respondent in unit working conditions on May 7 . The remedial order recommended requires Respondent to bargain in good faith and no more need be required of Respondent to effectuate the policies of the Act.7 Before passing to the second issue it should be noted that the "unilateral" issue has been well and exhaustively briefed by the parties and if the Board desires to make abundantly clear its position on this issue, particularly with respect to the consultation and negotiation required before such action is taken, this case provides an appropriate vehicle. The lead case, as all parties seem to recognize, is - N.L.R.B . v. Katz, 369 U.S. 736.8 The only difficulty presented by Katz is that the Court, in footnote 12, stated that the case bore no resemblance to one wherein an employer, after notice and consultation, unilaterally instituted a wage increase which the As Respondent 's counsel stated in his brief, the Trial Examiner ex- cluded a great amount of testimony and documentary evidence offered by Respondent in support of its "economic necessity" theory on the grounds of irrelevancy . This ruling will be discussed further under "Conclusions." 1 do not find that Respondent 's refusal on June 24 constituted a viola- tion. At this time Respondent had been informed that a decertification petition had been filed and asked for time to consult with its attorney as to the effect of such a petition upon its obligation to bargain This request for delay I find reasonable. I In B,erl Supply Company, 179 NLRB 741, the Board found the uni- union had rejected as too low and also cited with approval N.L.R.B. v. Bradley Washfountain Co., 192 F.2d 144 (C.A. 7), reversing the Board on its finding that an impasse had not been reached, an averment not alleged in the complaint . The Court went further and held that the Board had not established that the employer acted in bad faith (an issue now immaterial under Katz ) and that the ac- tion taken was not unilateral . This digression is only for the purpose of showing that the issue, at least to this Examiner, does not appear crystal clear. The language used by the Board in Bierl, supra, 741, 742, might make it seem that the Board does not share any such doubt. As to the Respondent 's refusal to bargain on July 3, 1 share no doubt that this refusal , under present Board law , violated Section 8(a)(5) of the Act. In Laystrom Manufacturing Co., 151 NLRB 1482, enforcement denied 359 F.2d 799 (C.A. 7), the Board stated the principles which apply with equal force to the instant case , pages 1484-85: Measuring Respondent 's claimed doubt of majority status by the standards set out above, however , we must disagree with the Trial Ex- aminer 's ultimate conclusion . The Respondent in our opinion did not show reasonable grounds for believing that the Union had lost its majority prior to March 16, 1964. It showed only that the tally in the prior election was 17 to 13 and that of the employees eligible to vote 16 had terminated their employment and 8 were newly hired since the last election. As proof of its good faith in entertaining such doubt Respondent points to the fact that it had filed a petition for and was willing to abide by a Board election ; that there was no history of union animosity on its part; and that on May 22, 1964, more than 2 months after the refusal to bargain , it offered to negotiate a contract which would be subject to new proof of the Union 's majority. Employee turnover standing alone does not provide a reasonable basis for believing that the Union had lost its majority since the prior election . The Board has long held that new em- ployees will be presumed to support a union in the same ratio as those whom they have replaced . There is no rebuttal of that presump- tion here , and no independent evidence from which the inference may be drawn that the new group of employees replaced union ad- herents or that they supported the Union less strongly than the old group. Indeed, the lateral actions of the employer constituted a violation of Section 8(a)(5) but confined its order to the usual bargaining directive without specifically issuing a cease-and-desist order against further unilateral action. The Board 's restraint will be followed here s At least two of the contentions advanced by Respondent were rejected in Katz; ( I) that Respondent acted in good faith and did not seek to un- dermine the union and (2) unrest on the part of the employees and the quitting of valued employees impaired the efficiency of the employer's operations, thereby justifying the action MASSEY-FERGUSON, INC. Respondent educed no competent and proba- tive evidence to establish that any employees, new or old, no longer wished to be represented by the Union . Nor do the other factors presented by Respondent aid its case on this point. The absence of union animosity or of in- dependent unfair labor practices , although consistent with a subjective good-faith belief that the Union had lost its majority , does not establish that the Respondent had a "reasona- ble basis" or "reasonable grounds" for so be- lieving . As for Respondent 's actions in filing a petition for an election, and its willingness- first expressed 2 months after its refusal to bargain-to meet with the Union for the limited purpose of trying to seek a conditional contract contingent on the outcome of the election, it need only be noted that these are self-serving assertions which do not provide any objective basis for doubting the Union's continuing majority. The present circumstances differ `substan- tially from the situation in the recent Frito- Lay, Inc., case (151 NLRB 28), and we find, in sum, that Respondent has not met the test for establishing a good-faith doubt which is suffi- cient to override its statutory bargaining obligation . We therefore conclude, contrary to the Trial Examiner, that : The certified Union continued to represent a majority of the em- ployees in the appropriate unit; Respondent, in March 1964 , had no reasonable basis for be- lieving otherwise ; and Respondent therefore violated Section 8 (a)(5) and ( 1) by refusing to bargain with the Union . [Footnotes omitted.] In United States Gypsum Company, 157 NLRB 652, the Board reversed its policy of granting an employer an election based on an expressed doubt of the incumbent union's majority status alone. It stated, pages 656-657: The earliest statements interpreting Section 9(c)(1)(B) rested on the view that the legisla- tive history did not support any qualification on the absolute right of an employer to question the majority status of an incumbent union . However, although the statute does not specifically grant the Board discretion to dismiss a petition where continued majority status is not validly challenged , neither does it prohibit the Board from doing so. Further, the legislative history states clearly that Section 9(c)(1 )(B) was designed to give relief to those employers who have "reasonable grounds for believing" that a union making a claim is not really the choice of the majority . There is no indication that Congress in enacting that sec- tion contemplated the creation of a device by which an employer acting without a good-faith 'Cf. McCulloch Corporation, 132 NLRB 201, 211, where the Board found that an employer confronted with decertification cards , signed by a majority of its employees and checked against his payroll , did not violate the statute by requiring that any contract signed be confined to the certifi- 645 doubt of the union's status could disrupt col- lective bargaining and frustrate the policy of the Act favoring stable relations. In light of the above , we are of the view that we should no longer adhere to the former in- terpretation of Section 9(c)(1)(B). We there- fore now hold that in petitioning the Board for an election to question the continued majority of a previously certified incumbent union, an employer , in addition to showing the union's claim for continued recognition , must demon- strate by objective considerations that it has some reasonable ground for believing that the union has lost its majority status since its cer- tification. To the extent that Whitney's and similar cases conflict with this holding , they are hereby overruled [footnotes omitted]. In H. P. Wasson & Company, 170 NLRB 293, Respondent, having received reports from its super- visors that some of its employees were dissatisfied with the union , retained an independent research firm to poll the employees . The poll showed that 7 employees were for the union , 27 against and 5 un- decided. Reversing the Trial Examiner , the Board held that the poll was conducted in a manner which would necessarily produce a coercive impact upon employees . While the Board 's statement is to some extent conclusionary it is dispositive of the issue. If an, employer is at a loss to understand what evidence he may educe to support a good-faith doubt of an incumbent union's majority status, and which will support a testing of that status , his per- plexity is understandable . Neither expressions of discontent nor a turnover in employment following a close election will justify a refusal to bargain or support a petition for an election .9 And it would ap- pear that if he actively seeks "objective " evidence to support his doubt , his actions must be attended by all the safeguards and secrecy of a papel elec- tion . The decision of the Seventh Circuit in Lays- trom , supra, may indicate that resort to the courts is his best redress.10 Under the state of Board law as I find it Respon- dent violated Section 8(a)(5) of the Act by its refusal to bargain with the UAW on July 23 and thereafter. IV. THE REMEDY Having found the Respondent engaged in and is engaging in certain unfair labor practices it shall be recommended that it cease and desist therefrom and take certain affirmative action necessary to ef- fectuate the policies of the Act. Counsel for the Charging Party has asked that the Respondent be directed to bargain with the UAW for a reasonable time after compliance with this Recommended Order. Since this requirement is cation year 10 H P Wasson, supra, pending before the Seventh Circuit [set aside 422 F 2d 558]. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD implied in all bargaining orders the Recommended Order will contain no such express direction. Upon the foregoing finding I make the following: I CONCLUSIONS OF LAW 1. By refusing , on July 3 and thereafter to bar- gain with the UAW, Respondent violated Section 8(a)(5) and (1) of the Act. 2. The appropriate unit is: All employees in the Engineering Department, including technical and clerical employees, employed at the Employer's Engineering De- partment located at 12601 Southfield , Detroit, Michigan , BUT EXCLUDING all engineering trainees for professional , supervisory and managerial positions, field test technical and professional employees, chauffeurs and truckdrivers, confidential employees , profes- sional employees, guards and supervisors as defined in the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER It is hereby recommended that Respondent, Mas- sey-Ferguson, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain col- lectively concerning wages, hours, and other terms and conditions of employment with the UAW as the exclusive representative of its employees in the appropriate unit. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act: (a) Upon request, bargain collectively with the UAW as the exclusive bargaining representative of all employees in the appropriate unit with respect to rates of pay, wages , hours, and other terms and conditions of employment, and, if an understanding is reached , embody such understanding in a signed agreement . The appropriate bargaining unit is: All employees of the Engineering Department, including technical and clerical employees, employed at the Employer 's Engineering De- partment located at 12601 Southfield, Detroit, Michigan , BUT EXCLUDING all engineering trainees for professional, supervisory and managerial positions, field test technical and professional employees, chauffeurs and truckdrivers, confidential employees , profes- sional employees , guards and supervisors as defined in the Act. (b) Post at its plant at 12601 Southfield, Detroit Michigan , copies of the attached notice marked Appendix A.11 Copies of said notice , on forms pro- vided by the Regional Director for Region 7, after being signed by a duly authorized representa- tive of the Respondent , shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.12 11 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." " 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 B DETROIT ENGINEERING DEPARTMENT CLERICAL/TECHNICAL BARGAINING UNIT The company makes the following proposals con- tingent upon satisfactory resolution of all outstand- ing non-economic contractual matters: WAGES AND COST OF LIVING 1. An economic adjustment of 3 percent will be added to the current rate for each employee. 2. Current cost of living allowance for eligible employees (those earning less than $385 bi-weekly) will be increased by $6.40 bi-weekly for a new total of $10.50 by-weekly. 3. For those employees currently earning $385 bi-weekly or more, .640 will be added to the in- dividual's base rate in addition to the 3 percent ad- justment. 4. Appendix "A" (B-1] attached provides ranges for each of the proposed classifications. 5. Performance increases will be granted to em- ployees in such amounts and at such times as deter- mined proper by management. Matters related to performance increases will not be subject to the grievance procedure. GROUP INSURANCE PLAN The proposed group insurance protection is as described in the booklet attached. The plan is the one currently provided for clerical/technical em- ployees with improvements related to: MASSEY-FERGUSON, INC. 1. Reasonable and customary payment for cer- tain medical services. 2. The $6 .00 (office) and $10 .00 (home) pay- ment for doctors ' visits. 3. Change in major medical deductible to $25 ( individual ), $50 (family ) and 80 percent of excess. PENSION The company proposes continuation of the cur- rent pension plan for the clerical/technical person- nel without change. HOLIDAYS New Year's Day Good Friday Memorial Day July 4th Labor Day Thanksgiving Day Christmas Day 6 Extra at Holidays TOTAL- 13 VACATIONS Service as of December 31: 3-11 months-One day for each full month worked-up to 10 days; 1 but less than 3 yrs.-2 weeks' pay; 3 but less than 10 yrs.- 3 weeks' pay; 10 but less than 20 yrs.-4 weeks' pay; 20 and more years-5 weeks' pay. 1969-$100 Vacation Bonus Note : An employee with one or more years of seniority may use up to 5 days of his total vacation entitlement for illness or other personal business- provided the request for such consideration is ap- proved by the supervisor. This provision constitutes "salary continuance" as described on page 20 of the Group Insurance booklet. NOTICE OF LAYOFF In case of a layoff, the employee will be advised at least one week in advance or will be provided with up to a week's pay if notice is less than one week. SEPARATION PAY Separation pay provisions will be those which apply currently for employees who are terminated by the company for reasons beyond the employee's control and who have no recall rights. TRAVEL PAY Travel pay provisions will be those which apply currently to employees of the unit. TUITION PAY 647 The tuition and policy will be the one which is currently available to certain U.S. employees of the company. PERIOD OF THE CONTRACT Wage increases and all other provisions which call for additions to current working terms and con- ditions will be effective as of the date of signing of the agreement. The contract will be in effect for 12 months fol- lowing date of signing. Massey-Ferguson Inc. 3/27/69 APPENDIX B-1 WAQ RANGES Previous Classification Proposed Classification Bi-Meekly Rames Sr. Design Engineer Design Engineer Product Designer 460 515 574 Engineering Checker Product Designer I Product Designer 11 Product Layout Draftsman 350 400 450 Engrg . Change Checker Detail Designer Detail Draftsmen Draftesan 260 300 340 Trainee Draftsman 212 236 260 Engrg. Standards Spec. 399 459 519 Industrial illustrator 350 400 450 Records and Eel. Writer I 309 366 423 Records & Rel. Writer II ) Records & Rel. Writer ) Records 6 Rel. Writer II 271 311 351 III Drawing Change Coord. 309 366 423 Secretary 271 311 351 Secretary Librarian 242 275 308 Secretary-Stenographer Stenographer Secretary-Stenographer 242 275 308 Clerk Typist I Clerk Typist 226 254 282 Micro-Fila Operator I Machine Operator-Clerk I 231 262 293 Clerk Typist II Drawing File Clerk Whiteprint Mach. Oper. I ) Machine Operator-Clerk II 212 236 260 Whiteprint Mach. Oper. II) 3-27-69 APPENDIX C THE UAW AND ITS LOCAL 412 UNIT 33 April 1, 1969 In recognition of the proposal made by the Com- pany on March 27, 1969, the Union'makes the fol- lowing proposals: ARTICLE I 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Recognition. ARTICLE II 2. Union Security & Check-off. ARTICLE III 3. Unit Chairman & Stewards ' Compensation. ARTICLE V 4. Cost of Arbitration. ARTICLE VII 5. Seniority 7.09 Seniority of stewards and unit chairmen ARTICLE XI 6 (A) 11.02 Cost-of-Living. All employees presently receiving $4.00 bi- weekly cost-of-living shall receive $6 .40 cost- of-living, retroactive to December 9, 1968. Effective March 31, 1969, all employees of the Unit shall receive a cost-of-living allowance of $10.40 in addition to the base rate. 6 (B) 11 .05 Establish new classifications. 12 (A) Bereavement Pay 12 (B) Jury Duty Pay 12 (C) Short-Term Military Duty Pay. We will accept Company policy. ARTICLE XVI 13. Bulletin Boards ARTICLE XVII 14. Relocation 17.04 (A ) Transfer of Operations. 17.05 (B) Relocation Allowance. We will accept Company policy. 17.06 (C) Bargaining Unit Work and As- signment of work. 17.07 (D) Car allowance. We will accept Company policy. 17.08 (E ) Stock Savings Plan. 17.09 (F) Tuition Aid . We accept-March 27, 1969. 17.10 (G) and 17. 11 (I) Personal Leave Day and Salary Continuation. We will accept Company policy as stated 6-17-68. ARTICLE XIX 15. Group Insurance Plan. We will accept Company offer of March 27, 1969, providing bills incurred by employees since November 1, 1968 are paid as provided thereunder. 7. 11.03 Rest period . We will accept present Company policy. ARTICLE XII 8. Holidays. We will accept Company offer of March 27, 1969 with letter of 4- 17-68. ARTICLE XIII 9. Vacations . We will accept offer of March 27, 1969 providing the entitlement is for the current year and letter of eligibility is accepta- ble and note : is eliminated. ARTICLE XIV 10. Separation Pay. 11. Annual Employees' Evaluation Review ARTICLE XV ARTICLE XIX 16. Pension . We will accept Company offer of March 27, 1969. ARTICLE XXII 17. Duration .-October 31, 1970. Employees who have not had a merit increase in the past 3 years , shall be granted one on signing of the Agreement. Each employee in the Bargaining Unit is to receive a minimum of three percent (3%) salary in- crease. Each employee who, when three percent (3%) is added to his present rate, falls between the steps of progression in the salary schedule, shall be placed on the next higher step of progression. APPENDIX C--1 MASSEY-FERGUSON, INC. 649 PROPOSED SALAR 6 P800âESSI08 SCSXDULZ4 lta 6 U U a M a In Prod. 0u . 460 473 486 499 512 525 538 585 Prod. Layout Draftsman 350 363 376 389 402 415 428 475 Trainee Dft.me. 212 220 228 236 244 252 260 260 Eng'r. Std. Spl 399 411 423 435 447 460 473 519 Ind. Illast. 367 378 389 400 411 422 433 472 Eec & Rel. V . 1 323 334 345 356 367 378 387 423 Bee & Ee1. V . II 291 300 309 318 327 336 345 368 Dag. Chg. Co-ord. 333 344 355 366 377 388 399 440 Secretary 271 280 289 298 307 316 325 358 Secretary Librarian 242 251 260 269 278 287 2% 314 Secretary- Steno. 242 251 260 269 278 287 296 314 Clerk Typist 242 251 260 269 278 287 296 314 Machine Opr.I 231 240 249 258 267 276 285 298 Mach. Opt. II 212 222 232 252 252 262 272 282 Effective December 9. 1969 , each employee shall receive a three percent (3Z) Annual Improvement Factor and the Annual Improvement Factor shall also be added to salary schedule and to all steps of progression. APPENDIX D May 7, 1969 TO: ENGINEERING TECHNICAL & CLERICAL BARGAINING UNIT PERSONNEL On April 9, I reported to you on the progress of the negotiations with the U.A.W. and your Bargain- ing Committee representatives. Since that time lit- tle progress has been made and there are many im- portant issues that remain unresolved. As a result of the continuing lack of an Agreement, many of you have asked about eligibility for the vacation bonus and about wage adjustments that have been granted to other salaried employees within the last six months. As you know, on March 27, 1969, we made an offer that would have provided you with wage ad- justments and benefit improvements consistent with those put into effect for other salaried Engineering employees last November and December. The Company's offer was not accepted by your representatives at the bargaining table. From the beginning of the negotiations the Com- pany has consistently maintained the position that wages, benefits, and working conditions should be related to those enjoyed by other employees of our company and by employees of other companies in the Detroit area. Because of employee concern and the status of the continuing negotiations , we have informed your bargaining representatives that the wage and benefit improvements contained in our offer of March 27, will be put into effect. This action is being taken even though an Agreement has not been reached. In addition, we are making the wage and cost-of-liv-. ing adjustments retroaction to hours worked since December 9, 1968. This was the date that the same economic adjustments were extended to other salaried employees. Because of the requirements of Federal regula- tions governing collective bargaining, it was neces- sary that this action be discussed with the union and this has been done. The effects of this decision by the Company are as follows: 1. The salaries of individual employees ef- fected will be increased by 3 percent, effective December 9, 1968. 2. The cost-of-living allowance for employees, currently earning less than $385 bi-weekly, will be increased to $10.40 bi-weekly, effective December 9, 1968. 3. For employees currently earning more than $34 weekly, $6.40 will be added to individual bi-weekly salaries, in addition to the 3 percent adjustment effective December 9, 1968. 4. For employees currently earning between $374 and $384 bi-weekly, $10.40 representing cost-of-living will be added to individual bi- weekly salaries in addition to the 3 percent ad- justment effective December 9, 1968. Salary and cost-of-living adjustments will be rounded off to the nearest dollar. 5. The group insurance protection applicable to you will be as currently provided for other clerical-technical employees, effective im- mediately. This plan provides improvements related to: -reasonable and customary payments for certain medical services; -$6.00 office and $10.00 home payments for doctor's visits; -major medical deductible changes to $25.00 for individuals and $50.00 for families, with 80 percent payment of the excess over the deductibles. 6. The $100 vacation bonus will apply with the same eligibility requirements that apply to other clerical-technical employees. 7. Vacation entitlement and eligibility for 1969 vacations will be on the same basis as ap- plies to other clerical-technical employees. The salary and cost-of-living adjustments described above will be reflected in paychecks received on May 23. The Company will endeavor to have checks prepared covering the retroactivity as soon as possible. We believe that the decision to put these adjust- ments into effect now, without waiting for an Agreement, indicates the concern of the Company that employee compensation and benefits fully reflect the current economic situation. R W K/sv R. W. King