Aero Engineering Corp.

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aero Engineering Corporation and Lodge 1303, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 23-CA-3096 June 30, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On December 20, 1968, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting 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 considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as detailed hereinafter. As noted in the Trial Examiner's Decision, evidence was adduced that on August 8 or 9, 1967, the Union exhibited to the Company a number of authorization cards it claimed were signed by a majority of employees in an appropriate unit. Thereafter, on September 11, 1967, the Company signed a recognition agreement according the Union recognition as the sole collective-bargaining agent for the employees of this unit and the Union requested bargaining. The record facts, which were largely stipulated, does not disclose what transpired immediately after the demand for bargaining but presumably no bargaining of consequence transpired, and thereafter on January 23, 1968, the Union filed a charge in Case 23-CA-2940 alleging a refusal to bargain. Pursuant to a settlement agreement approved by the Regional Director on February 21, 1968, the Company and the Union met in collective-bargaining sessions on March 6, 21, and 27, May 29, and July 8, 1968. On August 1, 1968, the Company questioned the appropriateness of the unit claiming that its merger with the American Power Stage Company made a single plant unit inappropriate, and on August 5 it refused to bargain. Thereafter, the Company also questioned whether the Union represented a majority of employees. Relying on the Board's decision in Josephine Furniture Company, 172 NLRB No. 22, Respondent contends that the Union never affirmatively established that it represented a majority of employees in an appropriate unit when it recognized the Union on September 11, 1967, and that the Union, through the auspices of the General Counsel, must now establish that fact as a prerequisite to any finding of a refusal to bargain here. The Trial Examiner rejected Respondent's contention, concluding that the facts here were distinguishable, and that therefore the principle expressed in Josephine Furniture is not applicable here. We agree. Like the Trial Examiner, we conclude that the single plant unit originally recognized and bargained for is an appropriate unit. The only remaining issue concerns the Union's majority status, and whether the General Counsel must now affirmatively demonstrate the Union's majority either at the time of the original recognition on September 11, 1967, or as of the refusal to bargain on August 5, 1968. We conclude that in these circumstances such demonstration is not required. While we recognize that invoking a doctrine of waiver or laches is not normally applicable to the question of majority status, we are persuaded from a legal as well as a policy standpoint, that to permit an Employer to raise a belated challenge to the Union's majority some 11 months after granting recognition and subsequent to a settlement agreement, would be an unstabilizing factor in bargaining, would unnecessarily undermine the settlement agreement previously reached, and would constitute an inducement to "gamesmanship" which would not effectuate the policies of the Act. In sum, therefore, we find that by Respondent's recognition of the Union, its execution of a settlement agreement in which it agreed to bargain with the Union, and its subsequent actual bargaining with the Union, that the Union has established a presumption of majority.' Respondent did not rebut that presumption. In fact, Respondent candidly conceded at the hearing that, apart from the reasons previously stated, it had no `reason or evidence for now challenging the Union's majority. We conclude, therefore, that having failed to rebut the Union's presumption of majority, the Respondent's refusal to bargain is violative of Section 8(a)(5) and (1) of the Act.' This did not foreclose the Respondent from proving that the Union did not in fact represent a majority at the time of its original recognition on September 11, 1967. Here the Respondent is contending that some 11 months after Its original recognition , the Union must now affirmatively demonstrate its majority For the reasons previously stated , we find that the burden of proceeding has shifted to the Respondent 'Member Brown agrees that Respondent violated Sec . 8(a) (5) of the Act Respondent, by executing a settlement agreement, which acknowledged an obligation to bargain with the Union , assumed an obligation to bargain for a reasonable period of time thereafter within which to conclude a contract; and, in the circumstances herein, Respondent did not fulfill this bargaining obligation 177 NLRB No. 31 AERO ENGINEERING CORP. 177 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 Respondent, Aero Engineering Corporation, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION BUCHANAN, Trial Examiner: The complaint herein (issued October 10, 1968; charge filed August 8, 1968), as amended, alleges that the Company has violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 73 Stat. 519, by refusing since August 5, 1968, to bargain with the Union as collective-bargaining representative. The answer, as amended, denies the appropriateness of the unit, alleges that the Company's recognition was of a minority union, and denies the allegations of violation. The case was tried before me in Houston, Texas, on October 28 and 29, 1968, no witnesses being heard, as indicated below. Counsel were heard in oral argument at the close of the trial. Upon the entire record in the case, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Texas corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted. I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. If. THE ALLEGED VIOLATION OF SECTION 8(AX5) AND (1) As the issues were defined at the opening of the trial, it became clear that there was no dispute concerning certain facts.' Thus it was agreed that: 1. On August 8 or 9, 1967, the Union exhibited to the Company, but not singly, a batch of cards which it claimed were signed by a majority of the employees in the unit alleged. 2. On August 10 and September 11, 1967, respectively, the Company signed agreements with Lodge 15 of this International Union and with Lodge 1303, the Charging Union, in which it accorded recognition as "sole collective bargaining agent" for the Company' s unit employees. 3. On September 11 the Union requested that the Company bargain with it. 4. About February 1, 1968, the Company by merger became associated with American Power Stage Company, which has employees who perform functions similar to We shall note below the exclusion of testimony by which the Company hoped by exploratory questioning to adduce evidence which I ruled would be inadequate and improperly offered to overcome the effect of the established facts. those of the employees in the unit theretofore recognized, and the relationship between the two companies was formalized on May 28. 5. Pursuant to a settlement agreement in Case 23-CA-2940, approved by the Regional Director on February 21, 1968, the Company and the Union met in collective-bargaining sessions on March 6, 21, and 27, May 29, and July 8. 6. On August 1 the Company questioned the appropriateness of the unit as recognized. 7. Since August 5 the Company has refused to bargain. Agreed upon at the hearing as being in dispute was: 8. Whether, as it claimed, the Company about August 8 or 9 questioned the Union's majority. 9. Whether, as it claimed, the Company at that time asked to see the cards, which had been displayed or exhibited as noted above. 10. Whether, as it claimed, the Union at that time offered to submit the cards for examination by an impartial third party. 11. Whether the Union had a majority of cards at that time. It was further agreed that to be determined as issues of law were: 12. Whether the recognition agreement of September 11, 1967, was valid, the Company here claiming that there was no majority when recognition was accorded on either August 10 or September 11. 13. Whether the unit alleged is inappropriate because it does not include employees of both the Company and American Power Stage. As I informed counsel at the trial, I was not inclined to receive testimony concerning the Union's majority and requests to see and offers to submit the cards for inspection since it appeared that any such questions merged in and were superseded by the recognition agreements. Also, such an issue at this time would go behind the settlement agreement entered into between the parties and approved by the Regional Director on February 21. Even if the Company asked to see the cards on August 8 or 9, 1967, and was refused, it could be argued with equal persuasiveness or lack thereof, as with equal vigor, that the Company at that time doubted the majority or conversely that it did not in good faith question the majority since it thereafter granted recognition . There is no basis for now preferring either position over the other; and this is reason for relying on the superseding recognition accorded in writing. But in the light of the Board's opinion in the Josephine Furniture case,' cited to me by the Company and on which the Board may here conceivably rely, I stated that I would receive' testimony on the facts in dispute, leaving it to the Board to distinguish the cases further should it so desire. I ruled further, with respect to the question whether the Union actually had a majority in 1967, that if any testimony were properly to be received on that point the burden of going forward with the evidence was on the Company in view of its various acts which indicated recognition of the Union.' 'Josephine Furniture Company, Inc, 172 NLRB No 22 I would point out, as the Board noted, that Keller Plastics Eastern Inc , 157 NLRB 583, involved a subsequent loss of majority (not here claimed) and a claim by a rival labor organization (not here claimed). 'The General Counsel's objection to the Company calling his witnesses lacked merit called by the Company, they would not be his witnesses 'Cf. N L R B v. Sehon Stevenson & Company, Inc.. 386 F 2d 551 (C.A. 4), where the court declared : "Where the employer has conducted his own investigation, the results of which confirm the union's claim, we think it 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With the General Counsel resting at this point, counsel for the Company stated as he had earlier that he wanted to call several union representatives as witnesses. He declared however that he could only assume that the Board's Field Examiner on investigation had found that the Union represented a majority, and that he did not know what the union witnesses whom he now intended to call would testify: he assumed that they would claim majority for the Union. This is not a case where the Company maintains, correctly or not, that it is entitled to put the Union to proof of its majority in a Board-conducted election. The Company did in fact recognize the Union as majority representative, and it negotiated with the Union. The admission that the Company has no proof of the Union's lack of majority itself supports a finding that it did not act in good faith when on August 1, 1968, it questioned that majority. Although as noted above I had declared that, despite my doubts on that point, I would, because of conceivable interpretation of the Board's opinion in Josephine Furniture requiring proof of majority where such proof was not earlier produced, receive evidence concerning the Union's majority, I did not now permit the Company to call union representatives in that connection and with respect to the 1967 cards. I advised counsel that I would not permit him to engage in a fishing expedition. To receive proof after the burden has shifted is one thing; it is quite another to permit counsel to explore for possibilities at the trial. Beyond that, it is clear that, when the Company recognized the Union in 1967 and thereafter on August 8, 1968, when it refused to bargain, it did not in good-faith doubt and it had no knowledge or basis for doubting the majority concerning which it now sought to explore. The recognition and concession of majority in September 1967 and February 1968 and in the bargaining sessions between March and July were not readily to be questioned in August 1968; and I therefore rejected the Company's subjectively uncertain attempt to adduce evidence concerning the 1967 majority. After this ruling, no testimony was offered to support either the Company's claim that it had on August 8 or 9, 1967, asked to see the cards or the Union's that it had offered to submit them to an impartial third party. I find and conclude that the Company did not act in good faith when 10-1/2 months after it recognized the Union, it questioned the majority and its own recognition. As for extension of the unit because the Company merged with another, it would too conveniently set aside its own agreements. Beyond this, we must bear in mind that it here raises the question although it continued after the merger to bargain with respect to unit employees alone. The Company may not lawfully claim that the unit was enlarged by the merger. Nor could it refuse unilaterally to reliably establishes the union's majority and the employer's lack of any good faith doubt of it Resurrection of that doubt , after the investigation, requires much more than a very general, unspecific and unelaborated suggestion.. ." In the instant case, the employer did not conduct an investigation But recognition without further investigation is no less compatible with acceptance of the Union's majonty. Here we can in the quoted statement substitute recognition of the Union for conduct of an investigation and, paraphrasing Sehon Stevenson, declare- "Resurrection of that doubt after the long-standing recognition requires much more .. . - And to say that much more is required is another way of saying that the burden of going forward with evidence has shifted to the party of whom it is thus required . As for "a very general , unspecific and unelaborated suggestion," the nature and quality of the Company's suggested proof are noted below bargain with respect to the employees in the unit which it had defined. I find and conclude that the following is an appropriate unit within the meaning of Section 9(b) of the Act: All of the Company's production and maintenance employees, including plant clerical employees, excluding all administrative personnel, watchmen, guards and supervisors as defined by the Act. In the Bernhard-Altmann case,' correctly cited by the Company as authority for setting aside a collective-bargaining agreement, it was found that there had in fact been no majority when the agreement was executed and that a later change in that circumstance was irrelevant to the issue. We have the converse in the instant case: For the reasons noted, the early majority is not now adequately put in issue; and majority, or lack of it, on August 1, 1968, when appropriateness of the unit was questioned, or on August 5, 1968, when bargaining was refused, is irrelevant to the present issue. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, I recommend that the Company, Aero Engineering Corporation, Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Lodge 1303, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its place of business in Houston, Texas, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 23, shall be posted by the Company, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicious places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' 'I L.G. W. U v. N L R. B. [Bernhard-Altmann Texas Corporation], 366 U.S. 731. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for AERO ENGINEERING CORP. Region 23, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain, upon request with Lodge 1303, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment , and embody in a signed agreement any understanding reached. The bargaining unit is: 179 All production and maintenance employees, including plant clerical employees, excluding all administrative personnel, watchmen, guards and supervisors as defined by the Act. Dated By AERO ENGINEERING CORPORATION (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-228-4296.