Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc.

ARTHUR DERSE AND WILDER MFG CO Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc. and Textile Workers Union of America, AFL-CIO. Case 2-CA-10823 August 27, 1970 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, MCCULLOCH, AND BROWN On October 21, 1968, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding, finding that Respondent had not engaged in and was not engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, and ordered that the complaint be dismissed.' On November 14, 1969, the Court of Appeals for the District of Columbia Circuit remanded the case to the Board for further consideration "in the f i r s t instance in the light of G i s s e l , but without limita- tions. . . ."Z Thereafter, on February 27, 1969, counsel for the Union requested leave to file a supplemental brief, and the Board granted all parties leave to file supple- mental briefs. The Union timely filed its brief on April 10, 1970. Pursuant to the remand, the Board has again reviewed the entire record in this case and, having duly reconsidered the matter, has concluded for the reasons set forth below that Respondent's course of conduct herein constituted a violation of Section 8(a)(5) and (1) of the Act. Accordingly, we hereby reinstate the complaint in this proceeding, and affirm our previous decision and Order only to the extent consistent herewith. As found by the Board in its previous Decision, on the morning of October 12, 1965, representatives of the Union presented Walter Derse, secretary and general manager of Respondent Company, with 11 signed and 2 unsigned union membership cards, and requested recognition as bargaining agent of the Com- pany's production and maintenance employees. There were then 30 employees on the Company's payroll, 18 of whom were found to be in the production and maintenance unit for which the Union claimed representation rights, and which the Board found to be appropriate for purposes of collective bargaining. Derse, after examining the cards, disclaimed authority ' 173 NLRB 30 'Sub nom Textile Workers Union of America v N.L.R B, 420 F 2d 635 The court's reference to Gissel is to the Supreme Court' s opinion in NL.R B v Gissel Packing Co, 395 U S 575 1969 175 to grant the request, but promised to give the Union an answer the following day. The union representatives insisted, however, on an immediate answer. Failing to receive it, the employees who had signed the author- ization cards left the plant and established a picket line. They were joined the next day by two other employees who had signed the 2 blank cards which were among the 13 presented to Derse. During the evening of the next day, October 13, the Company's officers met. Upon Walter Derse's report that there were 10 or 11 employees on the picket line and as "we are about 30 (not including the officers of the Company) it appears that they do not represent a majority," the officers decided not to recognize the Union. They then decided to retain labor counsel. On October 25, a union represent- ative encountered Derse in the parking lot, and asked him if he had made a decision. (Derse had not informed the Union of the decision reached at the October 13 meeting.) Derse replied that he had no comment to make and handed him a slip with the name of a law firm on it. The union representative contacted the named law firm and was told that the firm had received no instructions from its client. The Union subsequently renewed its bargaining requests but at no time was it ever informed of Respondent Company's decision not to recognize or bargain with it or the reasons therefor. The Board, reversing its Trial Examiner in its original Decision, ruled that Respondent did not vio- late Section 8(a)(5) by its refusal to recognize the Union. The court of appeals, noting that the opposing arguments of both Board and union counsel, though based on language from the Gissel decision, raised issues not definitively dealt with by the Supreme Court,' remanded the case for reconsideration. The purposes of the remand are succinctly summarized in the following sentence appearing at the conclusion of the court's opinion: Thus is would appear useful for the Board to look at this case again not only in the light of what the Court decided in Gissel but also by reference to what the Court said it understood the Board's practice to be in situations not involv- ing independent unfair labor practices but where the employer stands upon a doubt as to the appropriateness of the unit. ' In Gissel, the Supreme Court noted that because the cases before it each involved independent unfair labor practices, it did not need to decide whether a bargaining order is ever appropriate in cases where there is no interference with the election processes Supra, 595, see also p 601, fn 18 185 NLRB No. 76 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The reference to the Supreme Court's opinion in Gissel is to that portion of the Supreme Court opinion in which it was said: The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majori- ty of his employees supported the union, and (2) that an employer could not refuse recognition initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union's strength. As to the narrow question of a possible violation of Section 8(a)(5) when an employer refuses to bargain and "stands upon his doubt as to the appropriateness of the unit," we do not believe the facts of this case put this question squarely in issue. The Respond- ents' response-or lack of response-to the Union demand did not assert this as the ground of the refusal, so that the record here does not, we have concluded upon review, pose this question.' We are left, however, with another issue suggested by the court's reference to the Gissel opinion, and have found it necessary to pursue upon this remand the further question of whether, recognizing that there are no independent unfair labor practices involved, the facts here require a conclusion that the Employer knew that a majority of his employees supported the Union and nevertheless refused to bargain. A finding of such knowledge would, of course, have to be predicated upon more than the mere presentation of authorization cards in a number sufficient to indi- cate a majority inasmuch as the Supreme Court has given tacit approval to the principle that an employer may reject a card showing and insist upon an election. We do not believe, however, that it has yet been made clear whether a 8(a)(5) violation will be found if the record contains (1) evidence in addition to mere cards sufficient to communicate to the employer convincing knowledge of majority status, and (2) insuf- ficient evidence that the employer's refusal to grant recognition was based on a genuine willingness to resolve any doubts concerning majority status through the Board's election processes. In the instant case, the record demonstrates not only that 11 out of the 18 production and maintenance ' The Respondents did later contend before this Board that certain additional employees should be added to the Union's proposed unit We have, however, in other cases been required to resolve such unit questions in 8(a)(5 ) cases and , upon making a finding of appropriate unit, then proceeded to direct the respondent to bargain in the unit ultimately found appropriate UnitedAircraft Corp, 144 NLRB 492, enfd 333 F 2d 819 (C A 2) Generally, of course, any such doubts are best resolved in the course of representation case procedures which any party is free to invoke As we note infra, the Respondents here made no attempt to resolve any doubts as to appropriateness of unit by this method employees had signed authorization cards, but also that all of the card signers dramatically evidenced their support for the Union by actively participating in a picket line and in a strike, and, furthermore, that an officer of the Respondent conceded in his testimony that he told his fellow officers that the Union "had 10 or 11" of the employees. Upon this record we are compelled to find that the Employer did have knowledge that a majority of his employees supported the Union. We also do not find any facts in the record which evidence a genuine willingness , on the part of the Respondent, to resolve any lingering doubts which might have remained as to majority status by resort to the Board's election procedures. The Employer 'did not itself file an election petiton or urge or even suggest to the employees or the Union the use of such procedures, nor did it at any time indicate a willingness to partici- pate in a representation proceeding, wherein any unit question, as well as any issue of majority status could have been resolved in an orderly manner. In the interest of encouraging all parties to avail themselves of our election procedures, we would not be inclined to enter a bargaining order if, absent independent unfair labor practices, the record supported a finding that the Respondent had in good faith indicated a willingness to utilize those procedures, since, as the Supreme Court has said, a Board-conducted election is indeed the "preferred route" for determining employee desires. On this record, however, where there is substantial evidence to demonstrate employer's knowledge of majority status and no evidence demonstrating a will- ingness or desire on the part of the Employer to resolve any doubt which it may have entertained through the election process, we must conclude that the refusal to bargain constituted a violation of Section 8(a)(5) of the Act and that a bargaining order is, here, an appropriate remedy. Finally, we reject Respondent's contention that our finding that it violated Section 8(a)(5) by refusing to recognize and bargain with the Union in the circum- stances of this case "will completely abrogate the provisions of Section 8(b)(7)(C) of the Act," and that those provisions support its position that is has an absolute right to an election before being compelled to bargain with the Union. Section 8(b)(7) places restrictions on recognitional and organizational picketing by noncertified unions. Under Section 8(b)(7)(C), picketing for recognition is unlawful if "conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commence- ment of such picketing." Thus, a timely filed petition operates as a defense to a charge and complaint ARTHUR DERSE AND WILDER MFG CO that a union's recognitional picketing violates 8(b)(7)(C). A proviso to the section directs the Board to conduct an expedited election whenever a timely petition is filed by the employer or the union.' In Blinne Construction Company,' the Board held that the restrictions placed on recognitional picketing by 8(b)(7)(C) were applicable to majority unions; i.e., that the fact of majority status does not excuse a union from the necessity of timely filing a petition- pursuant to which the underlying question concerning representation could be resolved-as a defense to a charge that its recognitional picketing violated Sec- tion 8(b)(7)(C). It is this holding that Respondent contends precludes a finding that its refusal to recog- nize the Union violates Section 8(a)(5) where an election has not been held. We reject the contention for the following reasons. Our decision in Blinne expressly rejects such a con- struction of the statute where a union strikes and pickets against an employer's unlawful refusal to rec- ognize it and meritorious 8(a)(5) charges have been filed.' The provisions of Section 8(a)(5) have since been applied by the Board in a manner consistent with such construction of 8(b)(7).5 At the time Respondent made its decision to refuse to recognize the Union, it was confronted by convincing evidence of the Union's majority status,' and as we have shown before, it never demonstrated a willingness to invoke the election processes; nor did it file a charge that the Union's strike and accompanying picketing consti- tuted violations of Section 8(b)(7)(C). We find, accordingly, that, by refusing on and after October 12, 1965, to recognize and bargain collectively with the Union Respondent violated Sec- tion 8(a)(5) and (1) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In this latter respect, we shall order Respondent, upon request of the Union, to recognize and bargain collectively with the Union as the representative of ' To invoke this procedure , an 8(b)(7)(C) charge must be filed Board's Rules and Regulations , Sec 102 76 International Hod Carriers' Building and Common Laborers' Union of America, Local 840, AFL-CIO (Charles A 8lme d/b/a Blume Construction Cumpanl ). 135. RB 1153 Id at p 1166, in 24 See, e g , Comfort, Inc, 152 NLRB 1074, enfd in pertinent part 365 F 2d 867 (CA 8), World Carpets of New York, Inc, 163 NLRB No 74 ' See Gissel, supra, 597-598 177 employees in the bargaining unit found appropriate herein. We shall also order Respondent to offer rein- statement to each striker upon his application and reimburse these employees for any loss of earnings suffered by Respondent's refusal, if any, to so reinstate them. In this connection, we reject the Trial Examin- er's recommendation that Respondent be ordered to make whole each unfair labor practice striker for loss of earnings he has suffered during the period from the commencement of the strike until such date as he applies for reinstatement. In our judgment, there are no unusual circumstances present justifying a departure from the existing Board precedent that employees are not entitled to backpay while on strike. 10 CONCLUSIONS OF LAW 1. The Textile Workers Union of America, AFL- CIO, is a labor organization within the meaning of the Act. 2. The Respondent, Wilder Mfg. Co., Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. All production and maintenance employees of the Wilder Mfg. Co., Inc., employed at its Port Jervis, New York, plant, excluding all other employ- ees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act, as amended. 4. At all times since October 12, 1965, the above labor organization has been, and now is, the exclusive representative of all the employees in the above appropriate unit, for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union on and after October 12, 1965, said Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. The strike which commenced on October 12, 1965, was prolonged by said Respondent's unfair labor practices and hence was an unfair labor practice strike. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 10 Baldwin County Electric Membership Corporation, 145 NLRB 1316, Sea-Way Distributing, Inc, 143 NLRB 460 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent Wilder Mfg. Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with the Textile Workers Union of America, AFL- CIO, in the following appropriate unit: All production and maintenance employees of the Wilder Mfg. Co., Inc., employed at its Port Jervis, New York, plant , excluding all other employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaran- teed to them by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain with the Union as the exclusive representative of the employees in the appropriate unit and, if an understanding is reached, reduce it to writing and sign it. (b) Upon application , offer immediate and full rein- statement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions to all its employees who went on strike on October 12, 1965, or thereafter, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all persons hired on or after that day, and make such applicants whole for any loss of pay suffered by reason of the Respondent 's refusal, if any, to reinstate them by payment to each of them of a sum of money equal to that which he normally would have earned , less the net earnings, during the period from 5 days after the date on which he applied or has applied for reinstatement to the date of the Respondent 's offer of reinstatement, with backpay to be computed as set forth in F W. Woolworth Company, 90 NLRB 289, and with interest at the rate of 6 percent per annum to be added to the backpay due, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (c) Notify any employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant or necessary to the determination of backpay due and related rights pro- vided under the terms of this Recommended Order. (e) Post at its Port Jervis, New York, establishment, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by Respondent's representative, be posted by it imme- diately upon receipt thereof and maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 2, in writing, within 10 days from the date of this Order, what steps said Respondent has taken to com- ply herewith. " 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 " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT refuse to bargain collectively with the Textile Workers Union of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representa- tive of all employees in the bargaining unit described below with respect to wages , hours, and other terms and conditons of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the Wilder Mfg. Co., Inc., employed at its Port Jervis, New York, plant, excluding all other employees , guards and supervisors as defined in the Act. ARTHUR DERSE AND WILDER MFG CO WE WILL, upon application , offer immediate and full reinstatement to their former jobs, or if those jobs no longer exist , to substantially equivalent positions to all our employees who went on strike on October 12, 1965 , or thereafter, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all persons hired on or after that day, and make such appli- cants whole for any loss of pay suffered by reason of our refusal , if any, to reinstate them by payment to each of them of a sum of money equal to that which he normally would have earned, less the net earnings , during the period from 5 days after the date on which he applied or has applied for reinstatement. WE WILL notify any employees if presently serving in the Armed Forces of the United States of their right to full reinstatment upon application in accordance with the Selective Service Act and the Universal Military Training and Service 179 Act, as amended , after discharge from the Armed Forces. Dated By WILDER MFG. CO., INC. (Employer) (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, 36th Floor, Federal Building , 26 Federal Plaza, New York, New York 10007 , Telephone 212-264- 0300.