Redmond Plastics, Inc.

REDMOND PLASTICS, INC. 487 Redmond Plastics, Inc., and Textile Workers' Union of America, AFL-CIO. Case 3-CA-3480 December 28, 1970 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On May 22, 1969, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding,' finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, and ordering the Respondent to cease and desist therefrom and to bargain with the Union. On August 5, 1969, the Board advised the parties that it intended to reconsider its earlier decision in light of the Supreme Court's opinion in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, and invited all parties, including the General Counsel, to file state- ments of position. Such statements have been received from the Respondent and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board, having again reviewed the entire record, including the statements of position submitted by the Respondent and the Charging Party, has decided to adhere to its original decision. Thus, for the reasons substantially set forth therein, we find that the Respondent's refusal to bargain with the Union and its insistence upon an election violated Section 8(a)(5) of the Act, and that a bargaining order is warranted. However, in view of the Supreme Court's intervening opinion in Gissel Packing Co., supra, and our own decision in Arthur F. Derse, President and Wilder Mfg. Co., Inc ,2 we believe that some additional comments are in order. THE FACTS Based on the credited evidence, and as more fully set forth in the Trial Examiner's Decision, it appears that the Union began its organizational drive on March 27, 1968, and by March 29 had obtained signed authorization cards from a majority of the Respondent's production and maintenance employees.3 At 7:30 a .m. on April 1 , Lamb and Sherman, the two union representatives , and a committee of three employees met with Respondent's president, Red- mond . At the same time, a group of 12 employees, as instructed by the Union, remained outside the plant and did not go to work. At the meeting, Lamb and Sherman introduced themselves as representatives of the Union and stated they represented a majority and were ready to establish it by card proof . They asked whether Redmond would like to check the cards and he said he would . Lamb handed about 16 cards to Redmond who looked through them and commented that 1 was a part-time employee . Lamb asked whether Redmond found the signatures to be authentic and Redmond replied he thought they were . Lamb stated that if Redmond needed further proof he could see that no one was in the plant . On Lamb's further inquiries Redmond agreed he believed the Union represented a majority and agreed he would recognize the Union. They agreed on April 4 as a time to meet for negotiations . Redmond again looked through the cards and commented on his assumption that the committee present would be sitting with the Union in the negotiations. Lamb suggested that there should be an interim agreement to cover the understanding as reached and Redmond agreed . Sherman left to procure a writing tablet from Lamb 's car and thereafter the employee members of the committee and the other employees clocked in for work. When Sherman returned , Lamb composed in longhand a draft of a recognition agreement, reading it to Redmond as he went along . Redmond found the language acceptable but stated that the negotiations would work both ways, that there would be no more free coffee for employees and no more short days or paid time on inventory days . Redmond then agreed to have his secretary type the draft but told the two union representatives that he would have to talk with the Chicago officers of the Company (Western Felt, majority stockholder in Respondent) before he signed it. They agreed to meet later that same day at 10 a.m. and the draft was handed to Redmond's secretary to be typed. The agreement read: I do hereby recognize the Textile Workers Union of America, AFL-CIO as the bargaining agent of the employees of Redmond Plastics, Incorporated. Proof has been shown me of a signed majority of my employees on this day April 1, 1968. I agree to negotiate with the Textile [sic ] Workers Union of America A.F.L.-C.I.O. All conditions concerning the employees employment will remain status-quo 1 176 NLRB No 10 Union held valid authorization cards from a majority of the employees in 2 185 NLRB No 76 an appropriate unit at the time of its request for recognition and 3 We hereby reaffirm our earlier findings and conclusions that the bargaining 187 NLRB No. 60 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until an agreement is reached between the two parties. April 4, 1968 is the first day of negotiations between the Textile Workers and Redmond Plastics, Incorporated. At the 10 a.m. meeting on April 1, the interim agreement was produced. Redmond informed Lamb and Sherman that because of the time differential he had been unable to contact the Chicago office, and that he desired to discuss the matter with that office before signing the recognition agreement. At 4 p.m. on April 1, as agreed, Lamb and Sherman returned to Redmond's office. Redmond told them he had talked with his attorney in Chicago and had been advised to seek a consent-election agreement. Upon the union inquiry, Redmond repeated that he did not doubt the Union's majority. Redmond also stated that he had informed his attorney of everything that had taken place that morning, including looking at the cards and agreeing to recognize the Union. Indeed, Redmond admitted informing the attorney that the employees had not come to work that morning and that his doubt was really an inability to understand how his employees could get involved in such a matter. It appears that on the evening of April 1 Redmond was approached by employee Irene Hermanent who claimed to speak for some of the girls. Hermanent informed Redmond they did not want the Union and wanted to know how they could get their cards back. Redmond replied that the only solution he knew was by secret ballot election to be held by the NLRB. It also appears that the following morning employees Mander and the Hotel brothers also asked Redmond about the possibility of getting their cards back and further informed Redmond that some of the employ- ees were not quite sure they wanted the Union. Redmond again indicated the solution to the dilemma would be to vote in an election. CONCLUSION The issue thus presented is: Whether the Employer, having satisfied himself that the Union represented a majority of its employees in an appropriate unit (after checking the signatures on the Union's authorization cards and noting the employees' concerted refusal to clock in at their regular time) and having agreed to recognize and bargain with the Union, violated Section 8(a)(5) of the Act by refusing thereafter to bargain with the Union, and, on advice of counsel, insisting upon an election on the ground that it doubted the Union's majority, without, however, committing unfair labor practices (except the unlaw- ful refusal to bargain) which would impede the Board's election processes? This question was long ago answered affirmatively in Snow & Sons4 and other Board and court decisions. In Snow & Sons, supra, the employer, when first confronted by the union's recognition demand based on authorization cards allegedly signed by a majority of his employees in the appropriate unit, refused the union's demand on the grounds that it doubted the union's asserted majority status and requested a Board election. Subsequently, however, the employer agreed to have an independent check made of the employee signatures on the union authorization cards, which check established that a majority of the employees indeed desired to be represented by the union. Therefore, since the employer no longer entertained a reasonable doubt as to the union's majority support, the Board held that the employer's continued refusal to recognize the union and insist- ence upon an election, without a valid ground therefor, violated Section 8(a)(5). The facts in the instant case are even stronger than those in Snow & Sons, supra, for finding that the Respondent's refusal to bargain with the Union violated Section 8(a)(5). For here the Employer's president, after checking the authenticity of signed authorization cards presented by the Union and noting the absence from the plant of virtually all unit employees, not only acknowledged as fact that the Union represented a clear majority of its employees, but actually recognized the Union and agreed on a date on which to commence bargaining. Later that day, after discussing the situation with Respondent's majority stockholder and counsel, the Respondent's president reneged on its earlier recognition of, and agreement to bargain with, the Union and insisted upon a Board election on the grounds that it doubted the Union's majority status. On the foregoing facts, the Respondent's assertion of "good faith doubt" was clearly contrived and wholly specious and should, therefore, be given no credence. To hold otherwise would be to make a mockery of the Board's orderly election processes-whose essential function is to resolve legitimate disputes concerning the desires of a majority of the employer's employees to be represent- ed by a union. However, where, as here, a large majority of the employees have convincingly demon- strated to their employer their desire to be represented by the union, and the employer's chief executive officer has acknowledged this to be so and agreed on a date to commence bargaining, it appears that no issues remain which would warrant postponing the employer's duty to bargain pending the outcome of an election. In these circumstances, the Board should not 4 134 NLRB 709, enfd 308 F 2d 687 (C A 9), cited with approval in Gissel Packing Co, Inc, 395 U S 575 at 593, 594 REDMOND PLASTICS, INC. 489 permit its election processes to be used as a loophole in the law through which an employer may lawfully delay his bargaining obligation and thereby deny his employees their statutory right under Section 7 to bargain collectively. This conclusion is consistent with the Supreme Court's views in Gissel, supra, and the Board's recent decision in Wilder Mfg. Co., Inc., supra. In Gissel the Supreme Court approved our holding in Snow & Sons, supra, that Section 8(a)(5) is violated where , as here, the employer, having recognized and agreed to bargain with the union after satisfying himself concerning the union's majority status, reneges on his agreement and requests an election on the asserted ground that he doubts the union's majority. In Wilder, supra, the Board found an 8(a)(5) violation because the employer, having independent knowledge of the union's majority support, nevertheless refused recog- nition and evidenced no ". . . genuine willingness . . . to resolve any lingering doubts which might have remained as to majority status by resort to the Board's election procedures." In the instant case, it is difficult to see that the Respondent's request for an election indicated such genuine willingness to resolve "any lingering doubts" concerning the Union's majority when, in fact, no such doubts lingered . For, according to the credited evidence , Respondent's president, Redmond , even after requesting an election , repeated that he had no doubt as to the Union's majority strength. Accordingly, we reaffirm the findings and remedy provided in the original Decision and Order herein. SUPPLEMENTAL ORDER In view of the foregoing, and on the basis of the record as a whole, the National Labor Relations Board reaffirms its Order of May 22, 1969, in this proceeding. CHAIRMAN MILLER , dissenting: My colleagues deny that dismissal of the complaint herein would be consistent with Gissel5 and Wilder,s and assert instead that this case should be controlled by Snow & Sons, 134 NLRB 709, enfd . 308 F.2d 687 (C.A. 9). I am persuaded to the contrary and would hold that the facts here do not fit the decisional law of Snow & Sons. While a representative of Respondent here indicated an initial willingness to accept the cards as proof of majority status , it is perfectly clear that he advised the Union that he could not grant the requested recognition without further consultation by telephone with others.? The draft recognition agree- ment was not signed , in the first instance for precisely this reason, and there was no misunderstanding between the parties on this point. It is equally clear that Respondent 's representative, after such consultation, did not cause the draft to be signed, and instead sought a consent -election agree- ment . Thus the final commitment for recognition did not materialize , and Snow & Sons does not apply. As the Court held in Gissel, an employer may, but need not, accept cards as proof of majority status. And as we said in Wilder, we will respect an employer's willingness to resolve majority status questions by resort to our procedures even when confronted with evidence in addition to cards, in the absence of independent unfair labor practices. Since there was no Snow & Sons commitment, this case fits squarely within these principles, and I would dismiss. 5 N L R B v Gissel Packing Company, 395 U S 575 seek legal advice. It is perfectly clear, however, that some further 6 Wilder Mfg Co, 185 NLRB No 76 consultation was required and that the parties were to meet later to receive 7 The testimony is in some conflict as to whether he advised the Union Respondent's final position (which the Union doubtless hoped, but did not that he had to consult other officers of the Company or whether he had to know, would be the signed written recognition agreement)