Bally Case and Cooler, Inc.

BALLY CASE AND COOLER, INC. Bally Case and Cooler, Inc. and Local 2130, Inter- national Brotherhood of Electrical Workers, AFL-CIO. Case 4-CA-4054 July 10, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 19, 1967, Trial Examiner Robert E. Mullin issued his Decision in the above -entitled proceeding, finding that the Respondent had not engaged in the 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 Charging Party filed excep- tions to the Trial Examiner's Decision and support- ing briefs. The Respondent filed a brief in support of the Trial Examiner's Decision and an answering brief. 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 , the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent herewith. As more fully set forth by the Trial Examiner, the Union was certified on February 11, 1963, after an election, and on August 9, 1963, following an economic strike, the parties executed a 3-year con- tract effective until August 8, 1966. On May 11, 1966, the Union gave timely notice of its desire to modify the contract; on May 18, 1966, the Respon- dent replied stating it questioned the Union's majority status and wished to terminate the agree- ment . The Union thereafter strongly asserted its continued status as majority representative. Despite the Respondent's asserted good-faith doubt as to the Union's majority status and the Respondent's statement that it would file a petition for an election, it did not do so until August 9, ' The factors relied on by the Respondent are The Union 's narrow elec- tion victory in 1963, lack of widespread employee support for the 1963 strike , union bulletins circulated to the employees in 1966 urging more em- 1127 1966, the day after the contract's termination date. Nevertheless, and while it continued to repeat its claim of doubt concerning the Union's majority, the Respondent met with the Union on June 17, July 1, 28, and 29, and August 8 for the stated purpose of engaging in collective-bargaining negotiations to modify and renew the existing bargaining agree- ment. In the course of those sessions the Respon- dent presented proposals which included, inter alia, a general raise of 5 cents an hour, paid vacations of 2 weeks after 8 instead of 10 years, an increase in sick leave payments from $20 to $25 per week, and payment of a 20-cent night-shift differential. How- ever, on and after July 29, the Respondent would not agree to a contract for longer than 1 week after August 8. The Union subsequently was willing to accept the Respondent's offer of the above in- creases for a 1-year contract, but the Respondent declined on the ground that this would prevent an election and offered instead a day-to-day agree- ment. As noted above, the original contract expired on August 8 and the Respondent filed a petition for an election on August 9. On August 12, the Respon- dent, in a speech to the employees , announced that the increases offered during the negotiations would become effective as of August 9, including the added 5 cents an hour for all employees and in- creased sick benefits of $25 per week. On August 23, the Respondent posted a notice informing its employees that all would get an additional increase of 20 cents per hour effective as of August 19. And on September 1, another notice announced that all employees with 15 years of service would receive an additional 1-week paid vacation , making the maximum vacation 3 weeks instead of 2 weeks as previously. The complaint alleges that by the above course of conduct, i.e., by refusing to offer the Union a contract of longer duration and by unilaterally granting the increased wages and benefits in August and September, the Respondent violated Section 8(a)(5) and (1) of the Act. The Trial Examiner recommended that the complaint be dismissed because he concluded that although none of the considerations' cited by the Respondent was alone sufficient to afford a reasonable basis for the as- serted doubt as to the Union's continued majority status, the "whole congeries of facts" provided suf- ficient grounds therefor. Accordingly, as he also concluded that, "[a]ll the while it insistently preserved this position, Respondent met with the ployee support of the Union , and the fact that checkoff authorizations never exceeded 30 percent of the unit 172 NLRB No. 106 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and bargained in good faith [,]" the Trial Examiner recommended that the complaint be dismissed. We conclude that the Trial Examiner's finding that the Respondent bargained in good faith is clearly erroneous. In our judgment, even if it were to be found that the "whole congeries of facts ... provided Respondent with sufficient grounds to conclude that the Union's majority by the spring of 1966 was very dubious indeed [,]" the record nevertheless supports a finding that the Respondent did not assert such doubt in good faith. It is, of course, well settled that after the first year of a certification there is a presumption of continued majority status, which is, however, rebuttable by an affirmative showing to the contra- ry.' "A direct corollary of this proposition is that after the certificate is a year old ... the employer can, without violating the Act, refuse to bargain with a union on the ground that it doubts the union's majority, provided that the doubt is in good faith." (Celanese Corporation of America, supra.) Clearly, the Respondent's evidence herein did not affirmatively rebut the continuing presumption of majority status flowing from the certification. At most, it may have furnished a basis for doubt that the Union had retained its majority status since the cer- tification issued. But this alone would not justify a refusal to bargain under the Celanese rule, for the question would still remain whether the assertion of doubt was in good or bad faith. The answer to that question does not, however, turn solely on whether there existed a reasonable ground for such doubt, although that is a crucial element. It turns also on whether or not the em- ployer raised the majority issue for the purpose of causing employee disaffection from the union or seeking to gain time in which to undermine the Union.3 On the basis of the entire record in this case, we are satisfied that the Respondent did not question the Union's majority in good faith. In the first place, had the Respondent believed the grounds which it asserts caused it to doubt the Union's majority were reasonable grounds for such doubt, and desired. for that reason an expression of the em- ployees' untrammelled choice before extending its bargaining relationship with the Union, its more natural course of action would have been to file its RM petition at the time the Union demanded bar- gaining for a new agreement.' That it did not do; rather, it entered into negotiations with the Union during the initial stages of which it gave no indica- tion that a successfully negotiated contract would not govern their relations for a normal period. In this respect its conduct, despite its pronounce- ment, was contrary to the existence of the alleged doubt. It was not until relatively late in the negotia- tions, and after the Union gave indication that it was moving closer to acceptance of the Respon- dent's contract proposals, that the Respondent in- jected the "one week" and "day-to-day" limitation on any contract's duration, limitations obviously not calculated to gain acceptance. Though the Respondent contends that the pur- pose of these severe limitations on the duration of any agreement that might be reached was to permit the holding of an election to resolve the alleged question concerning representation, the Respon- dent's subsequent course of conduct reveals that the Respondent's negotiating stand was part of a calculated plan designed to impress upon the unit employees that they could gain more through voluntary action of the Respondent than through representation by the Union. Thus, shortly after fil- ing its representation petition and while it was still pending, the Respondent, acting unilaterally, not only put into effect without restriction the 5-cent wage increase and added sickness and accident benefits that had been offered the Union for a 1- week contract, but also gave an additional 20-cent wage increase, four times that which it had offered the Union, and an improved vacation plan as well. The unilateral granting of these added wages and benefits, apart from being entirely inconsistent with its responsibility to continue to bargain in good faith until the Board determined whether to process the petition,' was, we find, clearly coercive in pur- pose and effect,' precluding the conduct of a fair election at which employees could express their un- trammelled choice. It is the antithesis of good faith to insist upon the right to test a union's majority in an election and then to obstruct the election processes by unilaterally granting increases in benefits which can only foreclose the possibility of a fair election being held. 2 Celanese Corporation ofAinertca, 95 NLRB 664,672 ' Celanese Corporation of America, supra at 673, C & C PI 3 a ood Corpora- tion and Veneers, Inc , 163 NLRB 1022 ' Contrary to the Trial Examiner's statement in his fn 14, the Respon- dent would not have been precluded from filing a petition which was timely with respect to the 60-day insulated period , subject to the usual require- ments for an otherwise timely employer petition The cases cited by him preclude an employer 's petition during that portion of a contract term which would be unreasonably long and hence would not bar a rival peti- tion RavBroolsv NLRB.348US 96, 103 That such conduct constituted independent violations of Section 8(a)( I) of the Act whatever the merits of the Respondent's claim that it had a bona fide doubt of the Union's majority, is not open to question NLRB v Exchange Parts Co , 375 U S 405 BALLY CASE AND COOLER, INC. 1129 On the basis of the foregoing , we find that the Respondent did not question the Union 's majority in good faith , and that by withdrawing recognition from the Union , and by unilaterally granting wage increases and improved sick benefits and vacations, the Respondent bargained in bad faith with the Union in violation of Section 8(a)(5) and ( 1) of the Act.7 THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affir- mative action to effectuate the policies of the Na- tional Labor Relations Act. We have found that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by refusing to bar- gain in good faith with the duly certified bargaining agent of its employees at its plant in Bally, Pennsyl- vania. Consequently, we shall order the Respondent to bargain upon request with the Union and to cease and desist from any like or related unfair labor practices in the future. CONCLUSIONS OF LAW 1. Local 2130, International Brotherhood of Electrical Workers, AFL-CIO, has been, and now is, the exclusive bargaining representative of Respondent's employees in the certified ap- propriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 2. The Respondent has engaged in and is engag- ing in conduct violative of Section 8(a)(5) and (1) of the Act on and after May 18, 1966, by ( a) uni- laterally granting substantial improvements in wages and other conditions of employment; and (b) withdrawing recognition from Local 2130 as the ex- clusive representative of its employees in the ap- propriate bargaining unit on and after August 8, 1966. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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, Bally Case and Cooler, Inc., Bally, Pennsyl- vania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Upon request, refusing to bargain collective- ly with Local 2130, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other terms or conditions of em- ployment. (b) Making any changes with respect to rates of pay, wages, or other conditions of employment of its employees in the appropriate bargaining unit described below without prior consultation or bar- gaining with Local 2130; failing to recognize and bargain with the Union; provided, however, that nothing herein shall be construed to require the Respondent to rescind or discontinue new wage rates or other benefits previously granted. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above- named labor organization or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, ex- cept 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 in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 2130, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and, if any understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is: All production and maintenance employees of the Employer at its Bally, Pennsylvania, facto- ry, including shop clerical employees, but ex- cluding office clerical employees, guards, professional employees, and supervisors, as defined in the Act. Member Brown concurs because , in the circumstances of this case, the Respondent has not demonstrated adequate basis for rebutting the Union's representative status 1130 DECISIONS OF NATIONAL (b) Post at its plant in Bally, Pennsylvania, co- pies of the attached notice marked "Appendix."' Copies of said notice , on forms provided by the Re- gional Director for Region 4, after being duly signed by Respondent 's representative , shall be posted by the Respondent immediately upon receipt thereof, and be 'maintained by it for 60 con- secutive days thereafter , in conspicuous places, in- cluding all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 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 refuse , upon request, to bar- gain collectively with Local 2130, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. WE WILL NOT make any changes with respect to rates of pay, wages, hours of employment, or other conditions of employment of our em- ployees in the appropriate bargaining unit described below without prior consultation or bargaining with Local 2130, International Brotherhood of Electrical Workers, AFL-CIO; provided, however, that nothing herein shall be construed to prevent , or is intended to prevent, our continuing in effect new rates of pay, wages , or other benefits previously given to you. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self-or- ganization, to form labor organizations, to join or assist the above-named labor organization or any other labor organization, to bargain col- lectively through representatives of their choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor or- LABOR RELATIONS BOARD ganization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL bargain collectively upon request with the above-named labor organization as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay , wages , hours of em- ployment, and other terms and conditions 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 Employer at its Bally, Pennsylvania, facto- ry, including shop clerical employees , but ex- cluding office clerical employees , guards, professional employees, and supervisors, as defined in the Act. BALLY CASE AND COOLER, INC. (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, 1700 Bankers Securities Building , Walnut & Juniper Streets , Philadelphia, Pennsylvania 19107, Telephone 597-7601. " 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 " TRIAL EXAMINER'S DECISION ROBERT E. MULLIN , Trial Examiner: This case' was heard in Allentown , Pennsylvania, on January 23 and 24, 1967, pursuant to charges duly filed and At the outset of the hearing , appearances on behalf of the Respondent were also entered by Irving W Coleman, Esq , and Clayton T Hyman, Esq , of the firm of Coleman & Hyman, Allentown , Pennsylvania Prior to the taking of any testimony , however, Attorney Coleman moved that his firm be permitted to withdraw from the case since it would be necessary for both him and his partner, Clayton T Hyman , to appear as witnesses for the Respondent This motion was granted BALLY CASE AND COOLER, INC. , 1131 served at various times in 1966 ,2 and a complaint issued on November 17, 1966. The complaint presents questions as to whether the Respondent refused to bargain collectively with the Charging Party (herein called the Union, or IBEW), and whether it engaged in various other acts of inter- ference, restraint, and coercion in violation of Sec- tion 8(a)(1) of the Act. In its answer , the Respon- dent conceded certain facts as to its business opera- tions, but it denied all allegations that it had com- mitted any unfair labor practices. All parties appeared at the hearing with counsel and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence , to argue orally at the close of the hearing, and to file briefs . The parties waived oral argument. At the conclusion of the hearing, a motion to dismiss the complaint, made by the Respondent, was taken under advisement by the Trial Examiner. It is disposed of as appears hereinafter in this Deci- sion . On March 7, 1967, the General Counsel and the Respondent submitted thorough and com- prehensive briefs on the issues . No brief was received from the Union.:' Upon the entire record in the case , including the briefs of counsel , and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Pennsylvania corporation, with its principal office and plant at Bally, Pennsyl- vania, is engaged in the manufacture and distribu- tion of refrigerated cases for the food industry. During the year preceding the issuance of the com- plaint, the Respondent shipped manufactured products valued in excess of $50,000 to customers located outside the Commonwealth of Pennsyl- vania. Upon these facts, the Respondent concedes, and the Trial Examiner finds, that Bally Case and Cooler, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and the Trial Ex- aminer finds, that the Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and Sequence of Events On February 11, 1963, the Union was certified by the Board as the bargaining agent for a unit made up of the Respondent 's production and main- tenance employees . At the election which preceded this certification ,4 out of some 221 valid votes cast, 113 were for and 108 were against the Union. Thereafter, while negotiations for a contract were in progress , the Union called a strike which began on June 24 and lasted until about August 8, 1963. During the first week of the strike the Respondent petitioned a state court for a restraining order and, as a result of this petition and the hearing held thereon, the court set a limit on the number of pickets which could patrol the plant entrances and established various other rules with respect to the picketing practices of the Union.' Irving W. Coleman, attorney for the Respondent and its director of industrial relations , testified, and his testimony in this respect was in no way con- tradicted or denied , that immediately after the court restricted the number of pickets , approxi- mately 190 of the employees crossed the picket line and returned to work.' He further testified that dur- ing the strike, approximately 16 of the strikers were replaced permanently and after the conclusion of the strike about 20 strikers never sought reemploy- ment. Subsequent to the termination of the strike, the parties executed a collective-bargaining con- tract which, by its terms, was to be effective through August 8, 1966 , and from year to year thereafter unless either party gave written notice of a desire to terminate , amend, or alter at least 60 days prior to the original expiration date.' During January and February 1966 the Union distributed circulars to the employees at the plant wherein it outlined the employee benefits it had sponsored and solicited the support of all the em- ployees in the bargaining unit. In these appeals, the Union frankly conceded that many employees in the unit, although sharing in the benefits of or- ganization , had failed to join the IBEW. In one cir- cular that was sent- out from the union headquarters in February, after recounting the gains for which Local 2130 gave itself credit , there appears the sug- gestion that these gains could have been much ,greater "if all of us were together supporting the Y The Union filed an original charge on August 3, a first amended charge on August 22, a second amended charge on October 7, and a third amended charge on November 10 ' The Respondent's brief was accompanied by a motion to correct the transcript in certain minor particulars Since opposing counsel have filed no objections, the aforesaid motion is hereby granted ' The election was held on August 29, 1962 ' The state court did not grant an injunction, but after securing a com- mitment from the Union that it would comply with the rules described above , the court retained jurisdiction of the matter for the balance of the labor dispute ' Mr Coleman testified that at the time of the strike there were about 250 employees in the appropriate unit ' There is no dispute , and the Trial Examiner finds , that at all times material herein all production and maintenance employees at the Respon- dent's plant, including shop clerical employees, but excluding office cleri- cals, guards , professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD common cause." This same letter concludes an ap- peal that more employees join the IBEW with the declaration "It has been too long a time for so few to be carrying the burden for so many." In another letter distributed to the Bally employees that same month, the officers of Local 2130 reiterated the need for more support from the employees in the bargaining unit. Thus, after recounting some of the benefits which had been won during the past 2-1/2 years, the letter states: Our job would have been a good deal easier and we could have accomplished much more if more of you had supported us. Our grievance committee was told at one of their meetings with the Company that they [the company] felt that as long as so many of you did not join the Union they [the company] assumed that you were satisfied with things as they were .... In a short time we will be negotiating for a new contract. Our chances of getting the things you want will be a great deal better if we can be speaking for all of you at that time ... to be successful let those that can give you these things know how you feel. By signing those cards and joining our organization you will be letting management know what you expect .... Have a voice in your future at the plant. Give us your support. Help us get a good contract. Join now. The collective-bargaining agreement required all employees who were members of the Union on Au- gust 20, 1963, and all employees who thereafter became members during the term of the contract, to maintain that membership. Another provision required the Respondent to deduct union dues from the wages of those employees who signed a conven- tional checkoff authorization. The extent to which these contractual terms were utilized did not in- dicate any widespread support for the Union among the employees. Throughout the 3 years that the contract was in effect, there was never a time when as many as 30 percent of the employees authorized dues deductions from their wages and at one point this percentage dropped to as low as 20. Thus, Mr. Coleman testified that, whereas the unit had from 230 to 250 employees, the highest number of checkoff authorizations on file in the payroll office was 73, a figure that was reached in April 1964. He further testified that the lowest number was 48, the total in June 1965, and that in August 1966, the month that the contract expired, there were only 59 checkoff authorizations on file with the Respon- dent.8 By letter dated May 11, 1966, the Union notified the Respondent of its desire to amend the 1963 agreement. In its response, dated May 18, 1966, the Company asserted that it had a good-faith doubt that the Union represented a majority of the em- ployees in the unit; gave notice of its desire to ter- minate the agreement as of the anniversary date; announced that it would file a petition for deter- mination of the representation question "at the ap- propriate time"; and asked that the Union expedite the resolution of the latter issue by agreeing to a consent election. The letter concluded with the statement: In the meantime, subject to the limitations of this technical situation, we will meet with you and discuss in good faith any subjects that you deem to be relevant. But at no time, in doing so, do we waive the position which we have taken in the face of the evidence of your lack of representation that is before us. B. The Bargaining Conferences The Respondent and the Union met for collec- tive-bargaining sessions on June 17, July 1, 28, and 29, and August 8, 1966. No meetings were held after the latter date. It is undisputed that from the outset of the negotiations the Company's represent- atives stated that they had a good-faith doubt that the Union represented a majority of the employees. Both at the first session and at numerous times thereafter the Company sought, without success, to secure the Union's agreement to a consent election. Mr. Coleman testified, credibly and without con- tradiction, that at no time during the negotiations did the union representatives offer to prove that the IBEW represented a majority of the employees in the unit. On June 17, when the parties met for their first session , the Union was represented by Peter Mc- Cue, International representative for the IBEW, and Irvin Becker and Ralph Boyer, president and financial secretary, respectively, of Local 2130. The Company was represented by Mr. Coleman who appeared by himself. At this meeting, two sets of proposed contract demands were presented to the Company, one from the representatives of Local 2130 and the other from Mr. McCue on behalf of the International. Mr. McCue testified that, at the opening of the meeting, Mr. Coleman restated the Company's doubts as to the Union's majority in the unit and requested a consent election. In response, accord- ing to McCue, the Union representatives declared that they were the certified representatives and that they desired to commence negotiations for a 1-year contract. McCue testified that the Union's demands " Mr Coleman's testimony was credible , undenied , and uncontradicted When he testified at the hearing he had the original checkoff authorizations at hand These were offered to opposing counsel for use in his cross-ex- amination During the latter, counsel for the Union intimated that the per- centage of checkoff authorizations at any given time was not a fair index of union strength because some of the employees paid their dues in cash Although this avenue might have provided an effective rebuttal point, had the supporting evidence been available , counsel for the Union thereafter made no effort to produce any evidence along that line BALLY CASE AND COOLER, INC. 1133 included a request for a "substantial wage in- crease,"9 an increase in vacation benefits, and im- provements in the health and welfare provisions of the current agreement. McCue further testified that he also requested that the Respondent supply the Union with statistical data on the current wages, total cost of holiday pay, the cost of all fringe benefits being paid the unit employees, and a seniority list of the employees.10 McCue conceded that subsequent to this particular meeting all of the data requested, was, in fact, supplied by the Com- pany. In his testimony, Mr. McCue stated that there followed a substantial discussion of the various items in the Union's demands. This latter testimony was contradicted by Mr. Coleman. According to Coleman, after he had stated the Company's belief that the Union did not represent a majority and solicited the Union to join with it in requesting an election, the Union representatives thereafter handed him their con- tract proposals and demands. Coleman testified that the meeting ended shortly thereafter and without any discussion of the various proposals. Ac- cording to Coleman, the conference terminated abruptly when McCue took offense at something which the Respondent's attorney said, alleged that it was tantamount to calling McCue a liar and declared that if the remark was repeated he [Mc- Cue] would "give [Coleman] a damn good licking." Coleman testified that he thereupon left the meeting, after having told the union representatives that as a result of McCue's remarks he would discuss nothing further with them that day. Coleman's testimony as to this incident was credible and it was neither denied nor contradicted by any testimony offered by the General Counsel. It is the conclusion of the Trial Examiner that the meeting was concluded in substantially the manner that Coleman testified. On July 1, the parties met again. The Union was represented by McCue, Becker, Boyer, and Eugene Findlay, the latter being an officer of Local 2130. The Respondent was represented by Attorneys Kothe and Hyman. At the outset of the meeting the Respondent had a court reporter present for the purpose of transcribing the negotiations. When McCue strongly objected to this procedure, how- ever, the company representatives withdrew the re- porter. Thereafter the parties proceeded to discuss the Union's demands. Earlier, and at the outset of negotiations, Attorney Kothe restated the Com- pany's desire for an election and its request that the Union join in an agreement for a consent election because of the Respondent's doubt that the Union represented a majority of the employees. Mr. Hyman testified that at the end of the meeting, McCue told the company representatives that the Union would agree to an election provided that the Company would stipulate that if it lost the election, it would agree to a union-shop provision in a new contract. To this proposal, Kothe replied that he would have to discuss the matter" with the company officials, but that, in any event, he did not believe that the National Labor Relations Act permitted such an arrangement as to an election. On July 28, the parties met for their conference. McCue, Becker, and Boyer were present for the Union. Attorneys Kothe and Coleman, along with Harry Margolis, accountant for the Company, represented the Respondent. In addition. to the foregoing, Walter Mosier, a mediator from the Federal Mediation and Conciliation Service, was present, along with Edward Feehan, a representa- tive of the Pennsylvania State Mediation Service. Once again, Kothe stated at the opening of the meeting that the Company had a good-faith belief that the Union did not represent a majority of the employees and that it wanted an election to deter- mine the issue. The parties then went to a discus- sion of the Union's contract proposals. After discussing these for some time, McCue announced that in order to get a contract the Union would agree to withdraw all of its demands on noneconomic issues, other than its request for a union shop and an improved management rights clause, if the Company would bargain about the economic issues immediately. The Respondent's representatives thereupon asked for an opportunity to consider this proposal and the meeting was ad- journed until the following day. On July 29, the parties resumed their negotia- tions, with the parties represented by the same in- dividuals as had been present the day before, in- cluding the Federal and state mediators. At the opening of the meeting the company representa- tives presented a written proposal which set forth the increased economic benefits which the Respon- dent was prepared to offer in a new contract. These included: (1) a general wage raise of 5 cents an hour; (2) a full holiday before Christmas and a half holiday on Good Friday; (3) increased vacation privileges to be effected by reducing from 10 to 8 years the eligibility for 2 weeks' paid vacation; (4) an increase in the amount of sick leave payments from $20 to $25 per week; (5) payment of a 20- cent night-shift differential; and new provisions on (6) jury pay and (7) severance pay. Immediately after the Respondent submitted its counterproposal to the union representatives, McCue inquired as to the proposed duration of any new agreement. Kothe responded that because the Company did not believe that the Union represented a majority and for that reason had con- sistently sought an election, the Respondent would not agree to a contract that would be effective for more than 1 week after August 8 in order that the "Throughout the negotiations the Union's request for a "substantial" wage raise was never translated into a specific figure. 10 Mr. McCue was not certain whether the latter information was requested at the meeting on June 17 or at the next session. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new agreement would not act as a bar to such an election . McCue characterized the Company's proposal on the term of the new agreement as ridiculous and predicted that it would be impossible to secure its ratification by the union membership. However, he promised that the Company's proposals would be brought before the union mem- bers shortly. With that, the meeting adjourned. Hyman testified that on August 2, McCue telephoned him at his law office to tell him that the union membership had met the night before and had rejected the company offer of July 29. He also told Hyman that the membership had authorized the Union to call a strike and that he wanted another meeting with Respondent. Thereafter, through an exchange of telegrams, the parties agreed upon August 8 as the date for their next bar- gaining session . Coleman testified that, in the meantime, and shortly before the parties met again, the Respondent received a petition which read "I do not feel I should have to belong to the IBEW to work at the Bally plant" and underneath that cap- tion there were 75 to 80 signatures of individuals employed at the Company." The bargaining conference of August 8 was also the last which the parties held. McCue, Becker, Boyer, and Findlay were present for the Union, and Coleman and Hyman represented the Company. State Mediator Feehan was also present. McCue opened the meeting with the statement that the Union would not accept a contract of 1 week's du- ration, but that it would accept the Company's offer of July 29 if the latter would agree to a 1-year contract. Coleman rejected the proposal for a 1- year agreement. After reiterating the Respondent's doubts as to the Union's majority standing, he stated that since the Company planned to file an RM petition for an election on the following day, at that point, it would only offer the Union an agree- ment on a day-to-day basis. Shortly before this conference, the Union had filed an unfair labor practice charge against the Respondent, alleging that it was refusing to bargain in good faith. McCue testified that at their last bar- gaining session, when Coleman rejected the Union's request for a 1-year contract, he told the company representatives that the Union would withdraw the unfair labor practice charge if the Company would incorporate the offer of July 29 in a 1-year agree- ment. The Respondent remained steadfast, how- ever, in its insistence that because of its doubt as to the Union's majority, an election was necessary, and that it could not agree to any contract of 1 year's duration on the ground that such action would forestall a balloting of the employees. On this note, the meeting ended. There were no sub- " Coleman 's testimony as to this petition was elicited on cross-examina- tion . The petition itself was never offered in evidence. In his brief, the General Counsel suggests that some of the names on the petition were those of supervisors . This inference, however, is without the support of any affirmative evidence . Significantly, at the hearing no amendment to incor- porate such an allegation in the complaint was ever offered. Sequent bargaining sessions , nor any requests for meetings , and the Union never called a strike. As a result of the Respondent's termination letter, written in May, the original 3-year contract between the IBEW and the Company expired on August 8 . On August 9, the Respondent filed an RM petition with the Regional Office. ( Bally Case and Cooler, Inc., Case 4-RM-577.)'2 In a speech to the employees on August 12, 1966, Coleman reviewed the course of the Com- pany's negotiations with the Union , the fact that the original contract expired on August 8 and that the following day the Company filed a petition for an election with the Board. He further stated that, since the Union had filed an unfair labor practice charge, no election could be held until that charge was disposed of. He also told the employees that the reason that the Company had been unwilling to offer the Union a contract with a duration of more than 1 week was because of its doubts as to the union majority. Thereafter he told them that the items which the Company offered during the negotiations would become effective as of August 9, and that, among other things, this included a 5- cent-an-hour increase for each employee and an in- crease in sick benefits from $20 to $25 a week. He concluded by suggesting that in the event any of the employees had any questions as to the present status of affairs that they bring them to the Re- gional Office of the Board. On August 23, 1966, the Respondent posted a notice in the plant that all employees would get an additional increase of 20 cents per hour effective as of August 19. On September 1, 1966, in another notice, the Respondent announced that all em- ployees with 25 years' service would receive a 3- week paid vacation.13 C. Contentions of the Parties; Findings and Conclusions in Connection Therewith The General Counsel contends that the Respon- dent was lacking any reasonable ground for believ- ing that the Union no longer had a majority at the plant, that its course of conduct constituted bad- faith bargaining and that , as a consequence, it vio- lated Section 8(a)(5) by refusing to offer the Union a contract of more than 1 week's duration. The complaint further alleges that by withdrawing recognition from the Union upon the expiration of the old contract on August 8, 1966, and by its grant of wage increases and vacation benefits on August 12 and 19 and September 1, the Company also vio- lated Section 8(a)(5) and (1). All of these allega- tions are denied in their entirety by the Respon- dent. 12 On November 17, 1966, the Regional Director wrote the Respondent that its petition in the RM case was being dismissed and that on that same date a complaint was being issued alleging that the Company had refused to bargain in good faith. ':4 Prior to this announcement , 2 weeks had been the maximum vacation which any employee could earn. BALLY CASE AND COOLER, INC. 1135 The Board has held that, although a certified union 's majority status is unrebuttable during the certification year, absent unusual circumstances, after the end of the certification year, the presump- tion of majority, though continuing, is rebuttable even without the unusual circumstances. Celanese Corporation of America, 95 NLRB 664, 672, cited with approval by the Supreme Court in Ray Brooks v. N.L.R.B., 348 U.S. 96, 104; U.S. Gypsum Com- pany, 157 NLRB 652. The General Counsel has re- lied, at the hearing and in his brief, on Deluxe Metal Furniture Co., 121 NLRB 995, for the proposition that if the Respondent desired an election it was bound to file a representation petition prior to June 9, 1966, which was the last day prior to the so- called 60-day insulated period. According to the General Counsel, since the Respondent filed no such petition until much later , it could not assert thereafter the defense that it had a good-faith doubt as to the Union's majority. Deluxe Metal, however, compels no such impera- tive as that set forth in the General Counsel's argu- ment. The Board doctrine embodied in that case had reference to the situation where a rival union is attempting to upset an established bargaining rela- tionship between an employer and an incumbent union . During the 60-day insulation period established by that decision, the employer and the incumbent are free to bargain without the "threat of overhanging rivalry and uncertainty." (Deluxe Metal, at 1001.) Apart from the fact that the rival union situation considered by the Board in Deluxe Metal has no relevance here , the latter case does not stand for the proposition that an employer must petition for an election before the 60-day period, or be held to have waived his right to file a petition later, as the General Counsel appears to argue. Even Deluxe provides that if "the parties have forstalled automatic renewal and no new or amended agreement has been executed within the 60-day period, a petition will be timely if filed after the terminal date of the old contract. . . ." (Ibid. at 1000.) Here the Company forestalled automatic renewal of its contract with the IBEW by its notice of termination on May 18, 1966. No new or amended agreement was executed thereafter and by its terms the old contract expired on August 8, 1966. In these circumstances , it would appear that Deluxe Metal would support the filing of the representation petition which the Company did, in fact, file on August 9, 1966. See Electric Boat Divi- sion , General Dynamics Corporation, 158 NLRB 956.14 Earlier herein it was found that the Union's original election victory in 1962 had been won by a narrow margin, that there was widespread lack of employee support for the strike in 1963, and that this was followed by the replacement of strikers and by some degree of turnover. During January and February 1966, in bulletins to the employees which came to the attention of the plant management, the Union conceded that its support from the personnel in the unit left much to be desired, and that it greatly needed additional members to strengthen its position at the forthcoming bargaining sessions. Throughout the 3 years that the contract was in ef- fect the employees demonstrated a patent lack of enthusiasm for the checkoff, and the number of personnel who authorized the deduction of their dues never exceeded 30 percent. In the year preceding the expiration of the contract, the number dropped as low as 20 percent and, in Au- gust 1966, when there were about 250 employees in the unit, the Respondent had only 59 checkoff authorizations on file. As the General Counsel ar- gues in his brief, none of these items, when viewed separately, might be considered substantial evidence on which the Employer could assume that the Union had lost its majority. The foregoing fac- tors, however, cannot be viewed separately or in isolation. When taken together this whole congeries of facts certainly provided the Respondent with suf- ficient grounds to conclude that the Union's majori- ty by the spring of 1966 was very dubious indeed. For this reason, it is the conclusion of the Trial Ex- aminer that at all times material herein the Respon- dent had a good-faith doubt as to the Union's majority in the appropriate unit.[' Moreover, this doubt was set forth in the Respondent's letter to the Union on May 18, 1966, when it notified the latter of its desire to terminate the contract. At all sub- sequent bargaining sessions, the company represent- atives reiterated this doubt as to the Union's stand- ing and the Respondent's desire for an election to resolve the question. All the while it insistently preserved this position, the Respondent met with the Union and bargained in good faith. On July 29, the Company made a substantial offer as to economic items including wages and vacations, which the Union stated that it would accept only if it could have a 1-year con- tract. Since it is the conclusion of the Trial Ex- aminer that under the circumstances of this case the Respondent was entitled to insist upon an elec- tion,'6 the company representatives were not obligated to waive that right and accede to the " Although the General Counsel assumes that the Respondent's RM, petition would have been timely if filed prior to June 9 , 1966, the beginning of the 60-day insulated period, this position does not find support in certain decisions issued subsequent to Delure Metal Thus, the Board has held that where there is no rival, as in the present instance , an employer 's petition is barred by a current agreement to which it is a party throughout the entire term and until the expiration of such a contract Absorbent Calton Corn- pany, 137 NLRB 908, 909, Montgomery Ward & Co, 137 NLRB 346, 347-348, cf Budding & Constriction Trades Council (Alfred A Wesiman), 147 NLRB 1464, 1484 " It is also the conclusion of the Trial Examiner that the Respondent here involved demonstrated "by objective considerations that it ha(dJ some reasonable grounds for believing that the union ha(d) lost its majority since its certification " U S Gypsuni Co , 157 NLRB 652, 656 " See Frito-Las, Inc , 151 NLRB 28, 31-33, Hammond & Irving, Inc , 154 NLRB 1071, 1073, Cameo Lingerie, Inc, 148 NLRB 535, 538-539 1136 ',DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's demand for a yearlong contract that would eliminate the prospects of an election for at least another 12 months. The term of a contract is a mandatory subject for bargaining, but subsequent to the end of the certifi- cation year there is no requirement in the Act fix- ing any minimum requirement as to the length of such term. The Hinde & Dauch Paper Company, 104 NLRB 847, 848.17 Here the Respondent, in an ef- fort to preserve its request for an election upon the expiration of the old contract, first offered the Union a contract for 1 week's duration and then, on August 8, when the old agreement was expiring, it offered a day-to-day term. Unable to secure a 1- year contract from the Respondent, and thus avoid the confrontation with the employees which an election would necessitate, the Union rejected this offer and did not ask for any further meetings after August 8.18 Apart from its attack on the Respondent's good faith during the negotiations, the complaint did not allege any independent acts of interference, restraint, or coercion during the bargaining period that would support an allegation that the Respon- dent's insistence on an election was motivated by a design to gain time during which to destroy the Union's majority. Nor is there any basis in the record for such a contention. The record supports the Respondent's argument that at their last meeting on August 8, the parties were at an impasse , and that the Respondent stood ready to `continue the negotiations, but that the Union, unwilling to accept the challenge of an elec- tion, did not seek any further meetings. Since, as has been found above, the Respondent in this in- stance had good-faith grounds on which it could in- -sist upon an election, the Union here must bear the burden for the breakdown of negotiations. Ac- cordingly, the Trial Examiner concludes and finds that the Respondent did not violate Section 8(a)(5) and (1) by its conduct during the course of the negotiations from June 17 through August 8, 1966, or at any time prior thereto. Poray, Inc., 160 NLRB 697; Frito-Lay, Inc., 151 NLRB 28, 32, 33; Mitchell Standard Corporation, 140 NLRB 496, 499-500; Randall Company, 133 NLRB 289, 295; Diamond National Corporation, 133 NLRB 268, 269-270. Since the Respondent had a good-faith reason to doubt the Union's majority, it was not a violation of the Act for the Respondent to withdraw recognition from the Union at the expiration of the old contract on August 8, 1966,19 to file a petition for an RM election on August 9, and to put into effect those benefits which it had first offered to the Union on July 29, 1966, and which the then bargaining agent had rejected unless it could have a contract of I year's duration . Empire Terminal Warehouse Com- pany, 151 NLRB 1359, 1360-62; Taft Broadcasting Company, 163 NLRB 475.20 The General Counsel further contends that the Respondent violated the Act when, on August 23, 1966, it announced a wage increase of 20 cents an hour, and, on September 1, 1966, it announced a liberalized vacation benefit for those with over 15 years' service with the Company. These allegations should be viewed in the context of the prior bargaining relationship between the Company and the Union. On February 17, 1966, the Respondent notified the Union that it planned to effectuate a 10-cent-an-hour increase on Februa- ry 22. In its letter to the Union on the former date, the Respondent set forth the view that although it was giving this notice to the Union as a courtesy, it was not compelled to do so because the broad managerial rights clause in the collective-bargaining agreement permitted the Company to take this ac- tion without any communication with the Union. In the Union's response , Mr. McCue acknowledged that the IBEW would not challenge the course of action which the Company announced in its letter of February 17. The same management rights provision of the collective-bargaining agreement was used by the Respondent to support another decision, taken uni- laterally and about the same time as the above sequence of events, to close its porcelain plant. Once again, the Union did not challenge the Respondent's construction of the managerial rights clause in the bargaining agreement . Later, during the summer of 1966, the Union strove to secure a greatly modified management rights clause. In this, it was unsuccessful. Indeed, on August 8, the Union offered to accept all the Company's terms for a new contract, including the old management rights clause, if only the Respondent would agree to a contract of 1 year's duration.21 It is also significant, that during the course of the spring and summer of 1966, both the Union and the Company had stu- "Cf. N.L.R.B. v. Yutana Barge Lines, Inc., 315 F.2d 524, 529 (C.A.9); N.L.R.B. v. Southern Coach & Body Co., 336 F.2d 214,219-220 (C.A.5). '" "The Union's refusal, when challenged , to submit the issue to an elec- tion where each employee would be permitted in secrecy to make his cho- ice, leads to the inescapable inference that it, too, was doubtful and fearful of the result." N.L.R.B. v. Laystrom Manufacturing Co., 359 F.2d 799, 801 (C.A. 7). '" Under the circumstances present here, had the Respondent continued to recognize the Union as the exclusive bargaining agent after the expira- tion of the old contract, it would have done so at its peril and subject to the stern injunction set forth in the Act and in those cases which forbid recog- nition and bargaining with a union that does not represent a majority. See International Ladies Garment Workers [Bernhard-Alnnann Texas Corp.] v. N.L.R.B., 366 U.S. 731, 737-740 , and cases there cited. t1 The General Counsel likewise alleged , in his brief, but not in the com- plaint, that the Respondent also violated the Act when , in his speech on August 12, 1966, Attorney Coleman informed the employees that they should feel free to submit their grievances directly to the management. Since, as has already been found herein , the Respondent had a bona fide doubt that the Union any longer represented a majority of the employees in the appropriate unit , and the collective-bargaining agreement had expired, the Respondent could not require that the employees continue to channel their complaints through the union grievance machinery . It was no viola- tion of the Act for Coleman to tell them what the law permits. t' See the credible and uncontradicted testimony of Irving Coleman to this effect. BALLY CASE AND COOLER, INC 1137 died the need for substantial wage increases to meet the competitive conditions of the labor mar- ket. Since the Trial Examiner has already found that the Respondent bargained in good faith with the Union up to the point of impasse on August 8, a discriminatory motivation for the subsequent exer- cise of its business judgment is not to be imputed lightly. Drug Fair-Community Drug Co., 162 NLRB 843, 854-855. Most particularly would that appear to be true in a case such as the present where the earlier, unilateral action as to wages and other managerial decisions had gone unchallenged by the Union.22 Under the circumstances present here, it is the conclusion of the Trial Examiner that the General Counsel has not established by a preponderance of the evidence that the Respondent violated the Act by its grant of the wage increase announced on Au- gust 23, 1966, or by its announcement on Sep- tember 1, 1966, of additional vacation benefits for its senior employees. Fleming & Sons of Colorado, Inc., 147 NLRB 1271, 1274, 1284; Harvey Alu- minum, Inc., 156 NLRB 1353, 1363-64. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. The Respondent has not engaged in the unfair labor practices alleged in the complaint. On the basis of all the foregoing, therefore, the Trial Examiner will recommend that the complaint in this proceeding be dismissed in its entirety. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, the complaint heretofore issued in this proceeding is hereby dismissed. ''` In one instance the Respondent 's action had been challenged by the Union, but with no success This was an earlier matter involving the Com- pany and the Union, Bally Case and Cooler, Inc, Case 4-CA-3307, which had been resolved in a settlement agreement approved in July 1964 The case concerned , inter alga , the Respondent 's discontinuance of a Christmas bonus At the present hearing, Mr McCue testified that the Board's Re- gional Office had sustained the Company's position as to the bonus issue and, in so doing, had relied on the broad managerial rights clause in the ex- isting collective-bargaining agreement 354-126 O-LT - 73 - pt. 1 - 73