John Oster Service Co.

JOHN OSTER SERVICE CO John Oster Service Company and Warehouse, Pro- cessing and Allied Workers, Local 6 , International Longshoremen 's and Warehousemen 's Union. Case 20-CA-4699 November 8, 1968 DECISION AND ORDER BY CHAIRMAN MC CULLOCH AND MEMBERS FANNING AND BROWN On August 6, 1968, Trial Examiner David Karasick issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint, and recommending that the complaint herein be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Decison together with supporting briefs, and each filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID KARASICK, Trial Examiner This proceeding under Section 10(c) of the National Labor Relations Act, herein called the Act, was heard at San Francisco, California, on March 19 and 20, 1968, pursuant to due notice. The complaint, dated November 28, 1967, as amended without objection at the hearing, was based upon a charge filed on September 26, 1967, by Warehouse, Processing and Allied Workers, Local 6, International Longshoremen's and Ware- housemen's Union, herein called the Union, and alleged that the Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 673 On the entire record' in the case, including briefs filed by the General Counsel and the Respondent and from my observation of the demeanor of the witnesses , I make the following FINDINGS OF FACT I THE BUSINESS OPERATIONS OF THE RESPONDENT John Oster Service Company, a subsidiary of Sunbeam Corporation, is a Delaware corporation which maintains a place of business in Chicago, Illinois, and branch offices in various cities throughout the United States, including San Francisco, California, where it is engaged in the wholesale sale, servicing and repair of electrical appliances. Only the branch office located in San Francisco, California, is involved in this proceeding. During the past year, the Respondent purchased and received goods valued in excess of $50,000 which were shipped across State lines directly to the Respondent at its various locations. It is conceded, and I find, that the Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES ALLEGED A The Issue The basic issue in this case is whether the Respondent unlawfully refused to recognize and bargain with the Union on and after September 15,1967. B. The Facts The San Francisco branch of the Respondent, which is engaged in the sale and repair of electrical appliances, employs eight persons in addition to Walter Bishop, the manager Of the eight persons so employed, five are engaged in repair work, shipping or receiving. Of the remaining three employees, one is a sales and service clerk, one is a bookkeeper, and one is a part-time office clerk. On Thursday and Friday, September 14 and 15, 1967,2 four of the five employees engaged in shipping, receiving, or repair work signed union authorization cards. At approximately 2 p in. on September 15, Albert Lannon, Jr , an International representative of the Union, and Keith Eickman, business agent of the Union, met with Walter Bishop, branch manager of the Respondent, and William Anderson, regional service manager of the Respondent, in Bishop's office. The two union representatives introduced themselves and handed Bishop their business cards which set forth their names, union titles, telephone number and addresses . Lannon stated that the Union represented a majority of the warehouse I An obvious error in the transcript which appears at page 161, lines 14 and 15, as "expressing our position to the union " is hereby corrected to read "expressing opposition to the union." 2 All dates hereafter refer to 1967 unless otherwise indicated 173 NLRB No. 106 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and service employees of the Respondent, that four out of five such employees had signed union authorization cards, that the Union was asking for recognition, and that it was interested in proceeding with negotiations at the earliest possible time Lannon handed Bishop the four union authorization cards. Bishop examined them and then gave them to Anderson who also examined them and then passed them back to Lannon. Lannon asked if there was any question about the fact that the Union had signed up a majority of the Respondent's em- ployees and Bishop said that there was no dispute over that fact and Anderson replied that there was no question that the Respondent had signed them up Lannon asked Bishop to sign a recognition agreement3 but Bishop replied that he would have to consult his home office in Milwaukee and asked that the Union give him until September 20 or 21 for an answer 4 After Lannon and Eickman departed, Bishop mailed the following memorandum, dated September 15, to Ralph Egan, Respondent's vice president in Milwaukee. Today we had two representatives of the ILWU, local Six visiting with us. They held the signatures of four (4) employees John Veloz Bill Aragon Stan Smilee Earl Brown They ask [sic] that I sign a Memorandum of Understanding which I did not. Attached is Memorandum mentioned above and the cards of the two men who called on us I await your advise [sic] on this matter Best Regards, Walt At approximately 6 o'clock that evening, Bishop tele- phoned Egan in Milwaukee and informed him in substance what he had stated in the memorandum which he had mailed. Egan informed Bishop that the latter had no authority to sign anything and instructed him to do nothing about the matter until he heard further from the Respondent. On Saturday, September 16, William Aragon, one of the employees who had signed a union authorization card, told Bishop that Aragon did not think that the Union could represent him in his capacity as a repairman and that he was going to tell the Union to "forget it" as far as he was concerned On Monday morning, September 18, Bishop was told by Charles Tumelty, one of Respondent's repairmen who had not signed a union designation card, that employee Earl Brown had said that the Union did not mean anything to him, that he was planning to go to school and was going to get another job and 3 The agreement provided that the Respondent would recognize the Union "as the bargaining agent for employees of the firm employed as warehousemen covered by the classifications under the jurisdiction of said union " 4 The foregoing findings are based upon the testimony of Lannon and Eickman Bishop and Anderson denied that Lannon had requested recognition for the "warehouse and service " employees and further denied that either of them had acknowledged that the Union held signed cards for a majority of the employees in such a unit According to Bishop , Lannon had stated that the Union represented a majority of "your people here " while Anderson testified that Lannon had stated that he represented a majority of "the people " Thus , the Respondent contends, the Union 's request for recognition at this time was ambiguous and an uncertainty existed as to whether it was claiming recognition for all eight of the employees rather than the five to whom Lannon testified he had referred as warehouse and service employees. If the Respondent entertained a doubt as to the unit , neither Bishop nor Anderson expressed it at the time nor did they question the fact that the four union authorization cards displayed to them would not have constituted a majority of the total employment complement of eight Moreover, as noted hereafter , Lannon again called on Bishop on September 21 to inquire whether Bishop had heard from his home office and was prepared to sign the recognition agreement On that occasion Bishop stated that he did not think that a majority of the employees were interested in the Union and suggested that Lannon seek a Board election. Lannon declined the suggestion , Bishop testified, on the ground that "he didn't have to do that because I acknowledged the cards." Bishop further testified that, on the following day , he again told Lannon that he was not sure that the Union represented a majority and suggested to Lannon that an election be held, but that Lannon replied "he didn't have to have an election, that I had acknowledged the cards" and that the Union had a standard unit If Bishop had not acknowl- edged the Union's majority on September 15, I cannot believe that he would not have disputed Lannon's statements on September 20 and 21 that he had done so I am convinced and find that , on September 15, Lannon did request recognition in a unit comprising the service and warehouse employees of the Respondent , that he stated at that time that the Union represented four out of five such employees , and that Bishop and Anderson , after examining the four signed authorization cards submitted to them , acknowledged the authenticity of such cards. In the latter regard, the Respondent concedes in its brief the validity of the cards signed by the four employees in question 5 Aragon testified that he did not recall telling Bishop on Saturday, September 16, that he was going to get his card back He admitted that he had talked to Bishop about many things but denied that they had discussed the Union He further admitted that, about a week after he had signed the card , he had asked Lannon to withdraw it bacause he did not feel that the Union , which represented warehousemen , could also represent Aragon since the latter was an electrician and repairman. John Veloz, one of the employees who had also signed a union card, testified that he had been told by Aragon during the week after September 15 that Aragon was not interested in the Union because he felt that it could not represent him in his capacity as a repairman and that Aragon had further told Veloz that Aragon had mentioned to Bishop that he did not want to have anything to do with the Union The General Counsel contends that the Respondent had no knowledge of Aragon's doubts about the Union until a week or two after he had signed the union card . However, Lannon admitted that , on September 21, he was told by Bishop that one employee had expressed his opposition to the Union and that he had heard that another was having second thoughts. It is clear from the record that one of these employees to whom Bishop referred was Aragon . The evidence shows that Bishop left San Francisco and went to Milwaukee at midnight on September 19 and did not return to San Francisco until the evening of September 20. Despite Aragon's failure of recollection, I believe and find that he made the statements to Bishop on September 16 in accordance with the latter's testimony as above set forth I further find that Aragon, who likewise did not recall this conversation , told Bishop on the morning of September 19 that on the preceding day Aragon had advised the Union to "forget it " JOHN OSTER SERVICE CO. that he had signed a union designation card just to go along with the other employees 6 Later in the morning on the same day, Bishop spoke to Arthur Hopkins, the Respondent's vice president for industrial relations. Bishop reported to Hopkins the events which had occurred since the prior Friday regarding the Union, including the information he had with respect to Aragon and Brown Hopkins told Bishop that the latter had no authority to negotiate or sign anything with the Union and instructed him that, if the Union called upon him again, Bishop was to inform the union representatives that the Respondent did not believe that the Union represented a majority of the employees Hopkins also instructed Bishop not to look at anything which the Union might present to him. At approximately noon on September 19, Bishop received another call from the Respondent's home office in which he was instructed to appear in Milwaukee the following morning for a meeting. Bishop left San Francisco late that evening and met with various officials of the Respondent in Milwaukee on Wednesday, September 20. The matter of the union demand for recognition was discussed, together with the possibility that picketing might be instituted. Bishop was again instructed that, if the union representatives returned, he was to inform them that he had contacted his home office, that he did not believe that the Union represented a majority of the em- ployees, that he could not sign anything, that he was not authorized to negotiate with the Union and that the Union could seek a Board election That evening Bishop returned to San Francisco. On the following day, Hopkins telephoned Bishop and told him that Gordon Nichol, a representative of Sunbeam,' was due to arrive in San Francisco that evening and instructed Bishop to inform Nichol of anything that happened that afternoon. At approximately 3.15 p m. on September 21, Lannon and Eickman returned to Bishop's office. Lannon asked Bishop if he had received an answer from Milwaukee. Bishop replied by stating that he doubted that the Union now represented a majority of the employees, that one employee had talked to him and expressed his opposition to the Union and that he had heard that another was having second thoughts; and that he was not willing to enter into any further discussions with the Union at that time. At the suggestion of Nichol, with whom he had meanwhile conferred following the visit of Lannon and Eickman, Bishop telephoned Lannon on September 22. Bishop asked Lannon what the Union considered to be the unit. Lannon replied that the Union was interested only in the servicemen and the shipping clerk. Bishop again stated that he did not think that the Union represented a majority, that one employee had told 6 Brown, in effect, denied having made such a statement to Tumelty , although when asked if he had not told the latter employee that Brown had just gone along with the others in signing the cards but was going to leave anyway answered that "this wasn't at the time of signing the cards, no." This response would indicate that he had made such a statement but not at the time in question. Here, as in the case of Aragon's statement which has previously been considered, it is undisputed that the Respondent had been informed by September 21 that there was some question as to Brown's allegiance to the Union. At the time of the hearing and again in its brief, the General Counsel objected to the foregoing testimony of Bishop on the ground that it was hearsay. I do not believe that it may be appropriately characterized as such since it is my understanding that it was introduced, not for the purpose of proving the truth of Tumel-y 's statements to Bishop, but merely for the purpose of showing that the Respondent received 675 him that he was not interested and that he had heard that another employee had made a similar statement; and he again suggested that the Union seek a Board election. Lannon answered that he did not have to have an election; that Bishop had acknowledged the cards; and that the Union was seeking a standard unit. C. Concluding Findings The Respondent contends that the Union did not clearly delineate the unit for which it was demanding recognition on September 15 and further contends that only a unit including all eight of the employees at its San Francisco branch is appropriate, rather than that comprising the five employees sought by the Union. I am unable to agree with either of these contentions I find that the five employees engaged in repair work, shipping and receiving constitute an appropriate unit within the meaning of the Act and, as previously found, that Lannon had requested recognition for such a unit on behalf of the Union on September 15. In summary, the facts in this case show that on September 15 the Union demanded recognition as the bargaining represen- tative of employees in an appropriate unit, that Bishop acknowledged that a majority of the employees in such unit had signed union authorization cards, that he stated he had no authority to sign the recognition agreement presented to him by the Union and said that he would have to refer the matter to the Milwaukee office of the Respondent and would receive an answer on September 20 or 21, that between September 15 and September 21, the Respondent was told by one of the employees that he did not believe the Union could represent him and he was, therefore, going to tell the Union to "forget" his union authorization card and in addition heard that another employee who had signed such a card had indicated he was not interested in the Union, that he planned to leave the Respondent's employment in the near future and that he had just signed the card to go along with the other employees, that, based upon this knowledge, the Respondent decided not to grant recognition to the Union, and that on September 21 the Union was informed that the Respondent would not recognize it because it doubted that it represented a majority of the employees. In essence, the issue in this case is whether the Respondent failed to act in good faith when it declined to recognize the Union under the foregoing circumstances. The General Counsel argues that Bishop had authority to grant recognition on September 15 and that his failure to do so, after acknowl- edging that the Union had authorization cards signed by a majority of the employees in the unit, was unjustified. The record shows that Bishop is in charge of the San Francisco information which it was entitled to consider in assessing the union's claim to represent a majority In this posture , I believe that the evidence was admissible . Nor do I agree with the General Counsel 's contention that Bishop's testimony in this regard is not to be credited because Tumelty was not called as a witness to corroborate it Tumelty may have been called as a witness by the General Counsel as well as by the Respondent and, while his appearance may have been desirable, I do not believe that it was essential in arriving at a conclusion that Bishop's testimony regarding the matter is to be credited On the record as a whole, I find that Tumelty made the statements to Bishop regarding Brown on September 19 in accordance with Bishop 's testimony as above set forth. 7 As previously noted, the Respondent is a subsidiary of Sunbeam Corporation. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD branch and in that capacity is empowered to hire, discharge, and discipline employees, settle grievances, represent the Respondent at State unemployment compensation hearing, and order repair parts. But these activities fall short of proving that he had the authority to grant formal recognition to a union or to negotiate a contract with it. Absent other evidence, I cannot find that the Respondent's failure to clothe him with such authority constituted a device for evading the Act by "division of corporate personnel functions,"8 as the General Counsel argues. The mere fact that Bishop acknowledged that the Union held what would appear to be valid union designation cards of four of the employees on September 15 would not preclude the Respondent from exercising its option to insist that the Union go to an election for the purpose of determining its majority rather than relying upon the cards, so long as it did not act in bad faith in taking such a position. "Absent an affirmative showing of bad faith," the Board has said, "an employer, presented with a majority card showing and a bargaining request, will not be held to have violated his bargaining obligation under the law simply because he refuses to rely upon cards, rather than an election, as the method for determining the union's majority "9 The decision to refuse recognition of the Union was made by Hopkins on September 19 on the basis of information received from Bishop that Aragon had stated that he doubted whether the Union could represent him and was going to ask the Union to withdraw his union designation card and Tumelty's statement to Bishop that Brown had said he was not interested in the Union, was planning soon to leave his job and had signed just to go along with the other employees Neither the fact that Aragon did not ultimately repudiate the Union nor the further fact that Tumelty's statement regarding Brown may have been incorrect indicate that the Respondent was acting in bad faith. There well may be circumstances where doubt of a union's majority expressed by an employer is based upon information of so questionable and tenuous a character that his reliance upon it may not be regarded as reasonable and, therefore, may warrant an inference that he was not acting in good faith. I believe, however, that in this case, the information in the possession of the Respondent provided a reasonable basis for questioning the Union's majority. While the Respondent may have been justified in interrogating its employees regarding their support of the Union, its failure to do so does not provide a basis for concluding that it was acting in bad faith, as the General Counsel contends. While the information it had might not be enough to prove affirmatively that the Union did not have a majority, it was enough to raise a doubt whether the Union's claim that it did represent a majority was correct. Under such circumstances, I cannot say that it was unjustified in suggesting that the Union go to an elec- tion in order to prove its right to represent the employees.' 0 8 Cf. Allegheny Pepsi-Cola Bottling Company v N L R B, 312 F.2d 529 (C.A. 3). 9 Aaron Brothers Company of California, 158 NLRB 1077, 1078 10 Cf. Snow & Sons, 134 NLRB 709, 710- 711, where the Employer entertained no reasonable doubt that the Union represented a majority and had no valid ground for insisting upon a Board -directed election. Nor can I say on the basis of this record that the Respondent was guilty of undue delay in giving its answer to the Union on September 21. Bishop's statement on September 15 that he would not receive a reply from his home office to the Union's request for recognition until September 20 or 21 was not objected to by the Union. And there was no understanding that Bishop would deliver the Respondent's answer to the Union rather than that the Union would seek the Respondent's reply. The fact that Bishop learned of Hopkins' decision on September 19 but did not notify the Union of it until September 21 does not seem significant to me in this connection particularly in view of the fact that, on September 20, Bishop spent the entire day in Milwaukee in discussion with officials of the Respondent concerning the problems raised by the Union's demands Nor do I consider the fact that Bishop admittedly was instructed to give the Union a "pat" answer that the Respondent doubted it represented a majority or the fact that Hopkins admitted that the Respondent did not take the initiative in notifying the Union of its ultimate decision to refuse recognititon because the Union might never return again or it might just fade away and disappear as proof of bad faith. It may be assumed from these admissions that the Respondent was not eager to have a union represent its employees but that assumption does not provide a basis for concluding that the Respondent engaged in undue delay in providing the Union with an answer or that it otherwise was acting in bad faith. I am unable to agree with the General Counsel's contention that the Serpa case'' is controlling here The General Counsel would regard as without significance the fact that in Serpa, unlike this case, the employer promised to telephone the Union but failed to do so. I cannot agree I believe that this is a significant basis for distinction. In that case the Employer had examined the Union's authorization cards and was convinced that they were valid and that the Union represented a majority. Although he had promised to telephone the union representative as soon as he had consulted an attorney, his failure to keep his promise in this respect, the Court held, constituted undue delay and "was apparently designed to gain time for the employees to reconsider their decision to have the Union as their bargaining representative." The Respondent in this case made no such promise, however, and there is no basis for the inference that it delayed answering the Union's request for recognition for such a purpose. Nor can I agree with the further argument of the General Counsel that the present case rests in a stronger posture than did Serpa "because here the Union did not lose its majority status, while in Serpa two employees, without assistance from the employer, effectively withdrew from the Union, thereby causing the Union to lose its majority." Neither the Board nor the Court relied upon this fact in coming to its decision. The Court expressly noted that the employer had testified that the 1 t Retail Clerks Union, etc v . N.L.R B. (John P. Serpa, Inc.), 376 F.2d i86 (C.A. 9) See also John P. Serpa, Inc, 166 NLRB No 66, where the Board , upon remand, concluded that the Employer had violated Section 8(a)(5) of the Act in accordance with the court's decision. JOHN OSTER SERVICE alleged repudiations of two of the employees were not a factor in the employer's decision not to recognize the Union's majority status and the Board, both in its original decision and its decision following the remand, found it unnecessary to pass upon that aspect of the case. For the foregoing reasons, I find that the Respondent did not unlawfully refuse to recognize and bargain with the Union on and after September 15, 1967, as alleged in the complaint. RECOMMENDED ORDER 677 Upon the basis of the foregoing findings and conclusions and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the complaint issued herein against the Respon- dent, John Oster Service Company, be, and it hereby is, dismissed.