S & M Manufacturing Co.

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S & M Manufacturing Company and Miscellaneous & Allied Division of Union Local 80-A, Distillery, Rectifying , Wine and Allied Workers Inter- national Union of America , CLC, AFL-CIO. Case 30-CA-247 July 5, 1968 SUPPLEMENTAL DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS On June 20, 1967, the National Labor Relations Board issued its Decision and Order' in the above- entitled proceeding finding in agreement with the Trial Examiner that the Respondent violated Sec- tion 8(a)(1) of the Act when Foreman Papp made the coercive statement to employee Kescenovitz that the Respondent would not enter into a con- ,tract with the Union. However, the Board found, contrary to the Trial Examiner, that the Respon- dent refused to bargain in good faith in violation of Section 8(a)(5) of the Act. Thereafter, a petition for review of the Board's decision was filed by the Respondent without opposition from the General Counsel. Acting on the petition for review the Board2 has reexamined its Decision and Order herein, as well as the entire record and, for reasons stated hereafter, we now find that the General Counsel has not sustained his burden of proving majority status as of the critical date, June 16, 1965.3 How- ever, we adhere to our original decision's finding of a violation of Section 8(a)(1) of the Act. The Trial Examiner l.ad found that as of March 23, 1965, the Union no longer represented a majority of the employees and therefore the Respondent had no obligation to recognize the Union or bargain collectively with the Union. He based this finding on the fact that as of March 23, 1965, 15 striking union members had been replaced by the Respondent; that as of this same date 10 union members had voluntarily resigned from the Company, and 4 other strikers had returned to work and had notified the Union in writing of their withdrawal from the Union; and that since the union membership at the time the strike started did not exceed 47, a loss of 29 mem- bers as of March 23 would leave the Union without a majority. In the original decision it was found that the 10 employee " resignations" were necessary for them to get employment elsewnc.c and that it did not constitute unequivocal evidence of intent to per- manently sever their employment, and they were entitled to an offer of reinstatement when the strike was over if they had not been permanently replaced. Therefore, the Board found that the Union had not lost its majority status as of March 23. It was further concluded that the Respondent's 1-day contract offer on June 16, 1965, was not made in good faith and found that the Respondent unlawfully refused to bargain as of that date, thereby converting the economic strike to an unfair labor practice strike. In its petition, Respondent contends, inter alia, that the Union did not represent a majority of the employees on June 16 because as of that date it had hired 21 permanent replacements and had in- creased its operation so that it had 65 full-time em- ployees compared to 47 at the time of the strike. While not discussed in the initial decision, the Board noted that the Trial Examiner specifically discredited Respondent's claim that as of June 18 or 19, it entertained a good-faith doubt that the Union represented a majority of the employees. As the Trial Examiner noted, the record discloses that in an exchange of correspondence between the parties in July and August, the question of the Union's majority status was never raised. Moreover, on or about August 8, the Company sent another contract proposal to the Union by mail. As a con- sequence, the majority concluded that since the question of the Union's majority status had not been timely raised, the Union's presumption of majority status continued until the strike was con- verted into an unfair labor practice strike (by its refusal to bargain) on June 16 and thereafter. In- asmuch as Respondent had not questioned the Union's majority status as of June 16, the majority found it unnecessary to inquire into that issue as of that date. Upon review of the record and consideration of the arguments advanced by Respondent, it is recog- nized that the validity of any refusal-to-bargain finding is dependent upon the Union's majority status as of June 16, 1965, the date when Respon- dent refused to bargain. The record shows that the Respondent had 65 employees at work on that date. As the only employees then working were returning strikers who had resigned from the Union or newly hired employees who had crossed the picket line to go to work and who are not shown to have manifested their support of the Union, it can- 165 NLRB 663 'Member Brown , who dissented in the original decision from the Pursuant to the provisions of Section 3(b) of the National Labor Rela- 8 ( a)( 5) finding therein, joins in this Decision to dismiss the 8 ( a)(5) allega- tions Act, as amended, the National Labor Relations Board has delegated eons of the complaint its powers in connection with this case to a three -member panel 172 NLRB No. 104 S & M MFG. CO. 1009 not be found that there were any union adherents among the employees working on June 16. In these circumstances, whether the total number of per- manent employees at work on June 16 was 47, as at the beginning of the strike, or 65, as Respondent claims, it is clear that the General Counsel has failed to satisfy his burden of establishing that the Union enjoyed majority status on June 16, 1965, the critical date herein.4 Accordingly, we shall dismiss the 8(a)(5) allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respon- dent , S & M Manufacturing Company , Milwaukee, Wisconsin , its officers, agents , successors , and as- signs, shall: 1. Cease and desist from: (a) Telling employees that they will not enter into a collective -bargaining agreement with Miscel- laneous & Allied Division of Union Local 80-A, Distillery , Rectifying , Wine and Allied Workers In- ternational Union of America , CLC, AFL-CIO, or any other union. (b) In any like or related manner interfering with , restraining , or coercing our employees in the exercise of the right to self-organization , to form, join, or assist the aforesaid Union or any other labor organization, to bargain collectively through representatives of their own choosing , and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion , and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant at Milwaukee , Wisconsin, copies of the attached notice marked "Appendix."5 Copies of said notice , on forms provided by the Re- gional Director for Region 30 , after being duly signed by an authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 30, in writing , within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed as to the 8(a)(5) allegations. MEMBER FANNING , dissenting: I remain of the opinion that this Respondent vio- lated Section 8(a)(5). This is hardly a case of initial organization where the General Counsel has the af- firmative burden of proving the union's majority status to support an 8(a)(5) allegation. Here the Union had represented the Company's employees for many years. Apparently, the bargaining rela- tionship became strained in January 1965 when the Union changed its status from an independent union carrying the Company's name to an affiliate of the AFL-CIO. At that time the Union represented virtually all of the Company's 47 em- ployees. Unable to secure their economic demands, the employees struck on January 20, 1965. The, strike was 100 percent effective. Thereafter, some replacements were hired, some employees took other jobs, others crossed the picket line, and the Company's normal complement of employees was swollen to almost twice its size. From this the Com- pany argues, and the majority now agrees, that the Union did not, in fact, represent a majority of the employees in the appropriate unit as of June 16, 1965. As the majority points out, the Company did not question the Union's majority on June 16 or at any pertinent time thereafter.6 Indeed, as late as August 8 the Company still sought to bargain with the Union as the majority representative of its em- ployees. In these circumstances, I would not require the General Counsel to establish affirmatively that the Union at all times had a continuing majority. Nor would I infer that a union long established as a bargaining representative has lost its majority mere- ly because the company hired replacements and, as in all strikes, some employees sought and found other employment while the strike was in progress. Obviously, in the chaotic conditions of a severe strike the fortunes of the striking union go up and down and with it the allegiance of the employees. In my opinion, however, an established oargaining representative which, as here, goes on strike with The Trial Examiner did not find nor does the record establish that the loss of majority status was attributable to any unfair labor practices of the Employer 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order - ' I am not satisfied that a defense of good-faith doubt, even if timely raised by Respondent, would have helped it, in view of the 8(a)( I) conduct of about April 1, found by the Trial Examiner and adopted by my col- leagues A flat statement to strikers that the employer will not sign with their representative cannot but have affected the actions of the employees 354-126 O-LT - 73 - pt 1 - 65 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the support of all employees should be entitled to a presumption of continuing majority status, at least until it is challenged by the Company or put to the test in a Board election.' See also my dissent in Stoner Rubber Co , 123 NLRB 1440. 1447 et seq APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that. WE WILL NOT tell our employees that we will not sign a collective-bargaining contract with Miscellaneous & Allied Division of Union, Local 80-A, Distillery, Rectifying, Wine and Allied Workers, International Union of Amer- ica, CLC, AFL-CIO, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-or- ganization, to form, join, or assist the aforesaid Union or any other organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of em- ployment , as authorized by the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the aforesaid Union or any other labor organiza- tion. S & M MANUFACTURING COMPANY (Employer) Dated By (Representative ) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Second Floor Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-272-3861.