Texas Electric Coop, Inc.

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas Electric Coop, Inc.- Treating Division and Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers, Local No. 920. Case 23-CA-4045 May 22, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 31, 1972, Trial Examiner Alvin Lieberman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions' and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Texas Electric Coop, Inc.- Treating Division, Jasper, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i In concluding that Respondent violated Section 8(a)(1) of the Act by its conduct with respect to the employee petition repudiating the Union, we do not rely, as does the Trial Examiner , on the fact that in some cases employees were solicited during working time and other employees signed the petition in a supervisor's office Except in one instance where a supervisor may have overheard a solicitation, the circumstances do not warrant a finding that Respondent knew that this was being done TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN , Trial Examiner: The trial in this proceeding, with all parties represented, was held before me in Jasper, Texas, on October 27 and 28, 1971, upon the General Counsel's complaint ' and Respondent's answer.2 In general the issues litigated were whether Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (the Act). Particularly, the principal questions for decision are as follows: 1. Did Respondent violate Section 8(a)(1) of the Act by causing its employees to repudiate Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers, Local No. 920 (hereinafter, the Union)? 2. Did Respondent violate Section 8(a)(1) or (5) of the Act in any of the following respects: (a) Bargaining directly with its employees; (b) Withdrawing recognition from the Union; (c) Unilaterally granting a wage increase to its employ- ees? Upon the entire record,3 upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the briefs submitted,4 I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Texas corporation, is engaged at Jasper, Texas, in treating wooden poles with creosote. During the i The complaint was issued pursuant to a charge filed on July 21, 1971, by Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers, Local No 920 2 During the trial the pleadings were amended in several respects and some allegations of the complaint were dismissed . Respecting the former, the complaint was amended by substituting the name "Whinery" for "Windrey" in par 6 and by adding "Joe Anthony-Shipping Clerk" to the list of names and designations appearing therein, by substituting the following for what appears after the word "selected" in par 10 "Local 988 of the Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers as their representative for the purpose of collective bargaining with Respondent, and on or about September 2, 1969, said Clifford W Potter, Regional Director , certified said Local 988 as the exclusive bargaining representative of the employees in said unit , and on January 29, 1970, said Clifford W Potter, Regional Director, Region Twenty- three, amended the certification changing the local designation from Local 988 to Local 920 as the exclusive collective bargaining representative", by substituting the following two paragraphs for par I I I1(a) At all times from September 2, 1969, through January 29, 1970, Local 988 of the Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers was the representative for the purpose of collective bargaining of the employees in the unit described above in Paragraph 9, and, by virtue of Section 9(a) of the Act, was the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment during such period 11(b) At all times since January 29, 1970, and continuing to date, Local 920 of the Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers has been the representative for the purposes of collective bargaining of the employees in the unit described above in Paragraph 9, and, by virtue of Section 9( a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. and by substituting for the last mentioned date in par 12 the date "August 5, 1971 " The answer was amended to admit all the foregoing amendments to the complaint , except par I1(b) At the conclusion of the General Counsel's case-in-chief, pars 7 and 8(a) of the complaint were dismissed and the words "management representative Joe Johnson " were stricken from par 8(b) On brief the General Counsel urges that the portions of the complaint thus dismissed and stricken be reinstated However, I am not persuaded by the General Counsel's argument that his position in this regard is well taken 3 Issued simultaneously herewith is a separate order correcting obvious inadvertent errors in the stenographic transcript of this proceeding 4 Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the trial, may not be discussed in this Decision, each has been carefully weighed and considered. 197 NLRB No. 5 TEXAS ELECTRIC COOP, INC 11 year ending on or about September 9, 1971, Respondent purchased and received goods and materials valued at more than $50,000 from suppliers located outside the State of Texas. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (the Board) is warranted. Texas Electric Cooperatives, Inc., etc., 160 NLRB 440, 441-442, enfd. in this respect 398 F.2d 722 (C.A. 5) repudiating the Union justified its withdrawal of recogni- tion from the Union; and that it was under no obligation to deal with the Union concerning the wage increase because it was granted after the Union had lost its representative status.6 IV. PRELIMINARY FINDINGS AND CONCLUSIONS? II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. INTRODUCTION Briefly, this case concerns itself with Respondent's withdrawal of recognition from the Union which had been certified as the bargaining representative of its employees and related events. These include a speech by Respon- dent's manager at a meeting of employees convened at his direction, a petition repudiating the Union signed by a majority of the Respondent's employees, and the institu- tion by Respondent of a general wage increase. The General Counsel contends5 that the speech made by Respondent's manager constituted individual bargaining with its employees, notwithstanding that the Union was their bargaining representative; that Respondent was involved with the petition to an impermissible extent; that Respondent improperly withdrew recognition from the Union; that the wage increase was effectuated unilaterally at a time when the Union was the bargaining representa- tive of Respondent's employees; and that by its foregoing conduct Respondent violated Section 8(a)(1) and (5) of the Act. Taking issue with each point raised by the General Counsel, Respondent argues in exculpation that its manager's speech was privileged by Section 8(c) and did not amount to individual bargaining with its employees; that its involvement with the petition was not so deep as to be an unfair labor practice; that its employees' petition 5 The Union submitted no brief Its lawyer stated during the trial that its "position is substantially the same as that [of] the General Counsel " 6 Set forth below are the provisions of the sections of the Act to which reference has been made in the text Sec 8 (a) It shall be an unfair labor practice for an employer- (I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) (c) The expressing of any views, argument , or opinion, or the dissemination thereof, whether in written , printed, graphic , or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act , if such expression contains no threat of reprisal or force or promise of benefit Insofar as pertinent, Secs 7 and 9(a) are as follows Sec 7 Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or A. The Union's Certification On September 2, 1969, the Union was certified8 as the exclusive collective-bargaining representative of Respon- dent's employees in a unit described in the complaint as consisting of "All production and maintenance employees employed by [Respondent ] at its Jasper, Texas, facility, exclusive of truckdnvers, truckdriver helpers, office clen- cals, watchmen, guards, and supervisors as defined in the Act." At all material times since the Union's certification, there were between 28 and 34 employees in the unit. B. The Poll Conducted by Respondent On March 25, 1971,9 Respondent conducted a secret poll among its employees to determine whether they still desired to be represented by the Union.i° Thirty-two employees participated in the election. The tally of the ballots showed that 20 employees voted in favor of, and 12 voted against, having the Union continue to act as their bargaining agent. C. The Union Meeting As will be set forth more fully below, Respondent and the Union were parties to a collective agreement which was due to expire on May 10, 1971. In preparation for negotiating with Respondent for a new contract, A. O. Joynor, the Union's business agent, met with Respondent's employees on March 31. protection, and shall also have the right to refrain from any or all of such activities Sec 9 (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes , shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment 7 The purpose of these findings is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and the conclusions to which they may give rise To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here, although they, as well as the findings, may again be considered in other contexts 8 Actually, a sister local of the Union, Local 988, was the recipient of the certificate on September 2, 1969 However, on January 29, 1970, the certificate was amended by substituting the Union for Local 988 as the certified bargaining representative of the employees concerned. 9 All dates hereinafter mentioned without stating a year fall within 1971 io The complaint does not allege, nor does the General Counsel contend, that Respondent's polling of its employees constituted an unfair labor practice 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Insofar as wages were concerned, the employees suggest- ed, as was related by Winton Morgan, the Union's steward in Respondent's employ, that Joynor "ask for [an increase of] 75 [cents] an hour and not to come . . . lower than 50 [cents]." 11 It was also determined that Joynor should press for a union dues checkoff provision in the new contract.i2 D. The Bargaining Between Respondent and the Union On May 10, 1970, Respondent and the Union entered into a collective agreement which, as already noted, was to expire a year later. Article XXII of that contract set forth the wages to be paid to Respondent's employees. Article XXVI provided that within a specified period before the contract's termination either party could give the other written notice that it desired to renegotiate the agreement. Within the time prescribed, as A. 0 Joynor, the Union's business agent, testified, the Union notified Respondent that it "wished to open the contract for negotiation." Attached to this notice was a list of "Proposed Changes" 13 including a request for a "check-off" provision. The Union's proposal further stated that article XXII, which related to wages, was "open for discussion." Respondent and the Union met to begin bargaining out the terms of a new contract on June 2, 1971. Respondent was represented by Jerry Holleman, J. S. Harper, and Paul Noel, respectively Respondent's labor relations consultant, division manager, and plant superintendent. Joynor, unaccompanied by any employee, was the Union's representative. The Union's proposed changes served as the basis for discussion. When the matter of wages was reached Joynor did not follow the employees' suggestion 'o try to obtain a 75-cent-an-hour-increase and not to accept less than 50 cents. Instead, Joynor offered "to settle for [a wage increase of] 8 percent" provided Respondent "would give him checkoff." Following a caucus, Respondent's repre- sentatives informed Joynor that, because his wage offer was tied to Respondent's consent to checkoff, the "pack- age" would have to be submitted to Respondent's board of directors for approval. On June 18, Holleman, Respondent's labor relations consultant, sent Joynor, the Union's business agent, a letter 14 to which was attached a "Memorandum of Agreement" containing a schedule of wage rates. Referring to the negotiations of June 2, Holleman reported that 11 Joynor gave a somewhat different version of what transpired at this meeting respecting wages He testified that, although a 75-cent-an-hour increase was discussed, the employees "agreed that 50 [cents] would be the wage offer " i2 The agreement then in effect did not require Respondent to deduct union dues from the wages of its employees 11 GC Exh 3 14 G C Exh 4 i5 Resp Exh I 16 As will appear below there never was "another meeting" between Respondent and the Union 17 My findings concerning the wage discussions at the June 2 meeting are based upon, and the quotations appearing in the text are taken from, Respondent's board of directors was opposed to the Union's checkoff proposal. Further, in connection with the bargaining, Holleman wrote. "The Union proposed an 8 [percent] wage increase Our proposal, as contained in the attached Memorandum Agreement, provides for increases greater than 8 [percent]. . . . We urge you to concur." On June 22, the day following his receipt of the foregoing letter, Joynor sent Holleman his answer.15 In material part Joynor stated in his letter to Holleman that he had "gone through [Respondent's contract proposal] in its entirety and [felt] that in some areas . . . we have some differences that should be discussed. Therefore, I am asking for another meeting 16 .. . for the purpose of trying to desolve [sic] these issues." 17 V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondent 's Alleged Violations of Section 8(a)(1) and (5) of the Act 1. Harper's speech On June 21, 1971, the day before Joynor, the Union's business agent, replied to Holleman's letter of June 18, Harper, Respondent's manager, addressed an employee meeting convened pursuant to his direction. Harper told the assembled employees that the purpose of his speech was not to bargain with them, but to inform them of what had occurred at the June 2 negotiating session. He was doing this, he stated, because no employee had been present and for this reason it was "possible [that] they had not been informed as to what had transpired at this meeting." Harper went on to say that the Union had asked "for an 8 percent wage increase with check-off"; that Respondent, for several reasons, was opposed to checkoff; that Respondent "felt like the employees were entitled to a more substantial increase than an 8 percent increase"; that to this end Respondent "had made a counterproposal to the Union offering a better increase than 8 percent"; and that Respondent's counterproposal was thus more advan- tageous to the employees than the Union's proposal. Finally, Harper told the employees to urge and "encourage testimony given by Harper and Noel, respectively Respondent's manager and superintendent , whose demeanor on the witness stand impressed me favorably In this respect I do not credit Joynor's testimony that the "matter of [a ] wage increase was never mentioned at the June 2nd meeting " If this were the fact, it seems to me that Joynor in some positive way would have hastened to deny the 8-percent wage proposal attributed to the Union in Holleman's letter of June 18 If for no other reason , an emphatic denial by Joynor would appear to have been dictated by the employees ' suggestion that he "ask for [an increase of) 75 [cents ] an hour and not to come . . lower than 50 [cents ] " However, not only did Joynor permit Holleman's 8- percent statement to go unchallenged in his answer , but, as also appears, he never informed Holleman or Respondent in any other manner that the Union had not suggested such a wage increase TEXAS ELECTRIC COOP, INC 13 Mr. Joynor, as their representative, to accept [Respon- dent's] proposal." 18 2. The petition Upon the conclusion of Harper's speech the employees, including Travis Kellum and John Jones who worked in Respondent's maintenance shop, returned to their work stations. Kellum and Jones were confused by what Harper had said concerning the wage proposals made by Respon- dent and the Union. They sought clarification from Noel, Respondent's superintendent, but without success. During their conversation with Noel concerning Har- per's speech Kellum requested a wage increase. Noel refused, telling Kellum, as the latter related, that to give him or any other employee a raise "would be going against the [union] contract." Kellum then asked Noel, as Kellum further testified, "how could we get [the Union ] out of the way." Noel replied that he didn't know, but would find out. Noel passed Kellum's question to Harper, Respondent's manager. Harper in turn, spoke to Holleman, Respon- dent's labor relations consultant Holleman informed Harper, as Harper recounted, that "a simple petition saying [that the employees] did not wish to be represented by the Union" would suffice. Holleman cautioned Harper, as Harper further related, that to be effective the "petition must be circulated on [the employee's] own time . . . that there must be no promises or threats . . . connected with it ... that no employee circulating the petition [should] be granted any special privileges [and that] supervisors were not to have anything to do with . . . the petition." Noel relayed this information to Kellum and Jones and, as Noel testified, told them in addition that there would have to be a "majority of signatures on the petition before it would be valid enough to remove the Union." Not only did Noel instruct Kellum and Jones as to the manner in which the petition should be circulated and how many signatures would be necessary to make it "valid enough to remove the Union," but he also told Kellum what words to use in preparing petition. Thus, as Kellum stated, Noel told him to "put in the petition ... something like we do not wish for the Union to represent us any more." Kellum then prepared the petition 19 on paper he found in the maintenance shop. At its head, in his own hand, he wrote: "We do not want the Union to represent us in a contract with Texas Electric Cooperative." 20 All of the foregoing occurred on June 21, 1971, the day of, but after, Harper's speech. During the next 2 days the petition was circulated among Respondent's employees by Kellum, Jones, and Raymond Fountain, also an employee. Some employees signed, or were asked to sign, the petition during their working time; one was asked to sign 18 My findings concerning Harper's speech are based on testimony given by Harper and Noel, Respondent's superintendent The quotations appearing in the text are taken from Noel's account of the speech 19 Resp Exh 3 20 The similarity between the wording of the petition and Noel's suggestion as to its text is apparent 21 Preston Smith, Woodrow Rollins, and 0 K Wysmger 22 My findings concerning Kellum's solicitation of Morgan's signature are based on testimony given by Morgan Kellum's testimony was not to the in the presence of a supervisor; and some signed the petition in a supervisor's office. Thus, Morgan, the Union's steward in Respondent's employ, and three other employ- ees21 were asked to sign while they were working. In Morgan's case the request was made by Kellum in the presence of Marvin Whinery, Morgan's supervisor. Al- though Whinery witnessed the transaction, he made no objection to Kellum's soliciting a signature to the petition from an employee who was actually on duty.22 Finally, in this regard, several employees were asked by Fountain, the petition's third circulator, to come to the office of Joe Johnson, a supervisor, where they were presented with, and asked to sign, the petition which was on Johnson's desk.23 On June 23, after a substantial number of employees had signed the petition, Kellum and Jones brought it to Noel, Respondent's superintendent. Noel asked Kellum and Jones, as Noel testified, if they "had given every employee in the plant an opportunity to voice their opinion in regard to the withdrawal of the employees from the Union." Upon being told by Kellum and Jones that they had not done so Noel directed them to "contact these that they had not contacted and give them an opportunity to sign or not to sign." Later that day, after 23 employees, more than a majority,24 had signed the petition Kellum and Jones returned to Noel and gave it to him. 3. The withdrawal of recognition from the Union As has already been noted, on June 22, 1971, Joynor, the Union's business agent, wrote to Holleman, Respondent's labor relations consultant, asking for another bargaining meeting. On June 25, after Respondent had been presented with the petition (hereinafter sometimes called the decerti- fication petition) signed by a majority of its employees, Holleman sent Joynor his reply. In his letter25 Holleman wrote: On June 24, a petition was presented to Jess Harper [Respondent's manager ] which states in effect that they do not wish to be represented by the . . . Union any more. The petition is signed by 23 out of the 30 .. . employees [in the unit]. Under the circumstances, we feel we must suspend any further negotiations regarding the . . . Unit. . . . We feel we are compelled by law to, no longer, recognize [the Union] as the Bargaining Agent for the employees in the . . . Unit. On the same day Holleman's letter to Joynor was read to Respondent's employees by their supervisors. Respondent never thereafter bargained with the Union, although the Union on several occasions requested it to do so. contrary He stated that he did not remember whether Whinery was present when he asked Morgan to sign the petition 23 Among the employees who signed the petition in Johnson's office were 0 K Wysinger, Wilma Little, and J L Seastrunk The names of the other employees who did so do not appear in the record 24 It will be remembered, in this connection, that there were between 28 and 34 employees in the unit 25 G C Exh 6 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 The wage increase Without further consultation with the Union , Respon- dent, on June 27, 1971, placed into effect a general wage increase in accordance with the schedule contained in the counterproposal it submitted to the Union on June 18. B. Contentions and Concluding Findings Concerning Respondent's Alleged Unfair Labor Practices The complaint alleges that Respondent violated Section 8(a)(1) and (5) of the Act by negotiating directly with its employees; by inducing its employees to repudiate the Union; by withdrawing recognition from, and refusing to bargain further with, the Union; and by instituting a wage increase unilaterally. The foregoing alleged violations of the Act will be considered in the order stated. 1. Respondent's direct bargaining with its employees To support the complaint's direct bargaining allegation the General Counsel relies on the speech made to Respondent's employees on June 21, 1971, by Harper, Respondent's manager. In opposition Respondent claims that when Harper spoke to the employees he was not bargaining with them, nor was he bypassing the Union. Instead, Respondent asserts, Harper was giving the employees information concerning the status of the bargaining between Respondent and the Union as was his privilege under Section 8(c) of the Act. "Good-faith bargaining .. . requires at a minimum recognition [by the employer] that the statutory representa- tive is the one with whom it must deal in conducting bargaining negotiations, and that it can no longer bargain directly or indirectly with the employees. It is inconsistent with this obligation for an employer . . . to seek to persuade the employees to exert pressure on the represent- ative to submit to the will of the employer, and to create the impression that the employer rather than the union is the true protector of the employees' interests. As the Trial Examiner phrased it, `the employer's statutory obligation is to deal with the employees through the union, and not with the union through the employees.' " General Electric Company, 150 NLRB 192, 194-195, enfd. 418 F.2d 736 (C.A. 2). As I see it, the speech by Harper, Respondent's manager, fell within the pattern of conduct condemned by the Board in General Electric. By telling the employees that they were entitled to "a more substantial increase" than that suggested by the Union and that Respondent had made a counterproposal to the Union more advantageous to them than the Union's proposal because it provided for a "better [wage] increase," Harper was creating "the impression that [Respondent] rather than the [Union was] the true protector of the employees' interests." Further, in this regard, by urging the employees to prevail upon Joynor, the Union's business agent, to accept its counterproposal making no provision for checkoff, to obtain which Joynor was obviously willing to forego the larger increase the employees had suggested that he seek, Harper was dealing "with the [Union] through the employees" instead of dealing "with the employees through the [Union]" as was Respondent's statutory obligation. I find, therefore, notwithstanding Harper's statement at, the outset of his address that he was not bargaining with " Respondent's employees, that through the medium of Harper's speech Respondent bypassed the Union and negotiated directly with its employees in violation of Section 8(a)(5) of the Act. In this connection, as the Board did in General Electric, supra, at 281, I, also, reject Respondent's argument based on Section 8(c). Procter & Gamble Manufacturing Company, 160 NLRB 334, 340, cited by Respondent in support of its position, does not dictate a contrary result. There the Board held that Section 8(a)(5) of the Act does not, per se, preclude an employer from informing its employees in "noncoercive terms . . . of the status of negotiations, or of proposals previously made to the Union." In the circumstances of this case whether the information given by Respondent to its employees concerning the wage proposal it had made to the Union was couched in "noncoercive terms" is not material. What is important is that it was placed in a context of offering the employees a benefit described as being more advantageous to them than that sought by the Union. By emphasizing that Respondent, not the Union, was the source of this benefit Respondent was undermining the Union. This was coercive upon the employees in the exercise of their right, guaranteed in Section 7 of the Act, "to bargain collectively through representatives of their own choosing." Cf. N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 409. 2. Respondent's inducement of the Union's repudiation Contending that it was insufficiently involved with the decertification petition to be charged with responsibility for it, Respondent denies liability for its employees' defection from the Union. Putting aside for the moment Respondent's involvement with the petition, its liability for its employees' repudiation of the Union can be assessed on a broader ground. "[I ]n the field of labor management relations law no less than in other areas of jurisprudence `a man is held to intend the foreseeable consequences of his conduct' [Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17, 45], here, the repudiation of the Union by the employees ." 26 Respon- dent's conduct which resulted in the "foreseeable [conse- quence]" of the Union's repudiation by its employees started with the speech made by Harper, Respondent's manager, on June 21, 1971, in which the employees were told that Respondent was of the opinion that they were entitled to a greater wage increase than that sought by the Union. Further impetus for them to repudiate the Union was furnished some hours later by the refusal of Noel, Respondent's superintendent, to give the employees an 26 Pembek Oil Corporation, 165 NLRB 367, 374, enfd in this respect 404 F2d 105 (CA 2) TEXAS ELECTRIC COOP, INC. 15 immediate raise in pay because to do so, he said, would be contrary to Respondent's contract with the Union.27 It needs no great imagination to foresee that Respon- dent's conduct concerning wage increases for its employ- ees, set forth above, would have the effect of causing them to deprive the Union of authority to act as their bargaining representative. This they did in short order. Within days following Harper's speech and Noel's statement the decertification petition was prepared, its circulation among Respondent's employees was completed, and it was signed by a majority of the employees. By instilling in its employees the hope that they could obtain directly from Respondent a greater wage increase than the Union was seeking for them Respondent started a chain of events which culminated in their foreseeable repudiation of the Union. Cf. Tower Enterprises, Inc., etc., 182 NLRB No. 56. It follows, therefore, as was held under similar circumstances in Pembek, supra at 375, that Respondent "must .. . be held responsible for this predictable consequence of its conduct." Insofar as the petition, itself, is concerned, Respondent contends that its involvement with it was not deep enough to have been violative of the Act. In this connection, Respondent claims, citing Vaughan-Hicks Buick Company, 163 NLRB 663, as authority, that it should not be faulted for having advised its employees that their withdrawal from the Union could be accomplished by a decertification petition. To support this claim Respondent relies on a summary of the Board's decision in Vaughan-Hicks issued by Commerce Clearing House, Inc. (1967 CCH NLRB 1121,189) in which the following sentence, quoted in Respondent's brief, is found' "Although it may be true that it is legal for an employer to give his employees advice as to how to withdraw from union representation, this advice generally must be requested." This sentence does not appear in the Board's decision in Vaughan-Hicks However, assuming it to be a correct statement of the law, it has no applicability here, for Respondent did more than merely "give [its] employees [requested] advice as to how to withdraw from union representation." Thus, in addition to informing employees that their withdrawal from the Union could be accomplished by means of a decertification petition, Noel, Respondent's superintendent, told Kellum and Jones, employees of Respondent, what words to use in preparing the petition 28 and how many signatures to obtain. Also, in this regard, 27 It should be borne in mind that at this time Respondent's contract with the Union, which had a termination date of May 10, 1971, had already expired 28 For the vice entailed in this factor, see C W F Corporation, 188 NLRB No 94 29 The evidence does not disclose that Respondent had actual knowledge that the office of a supervisor was being used for this purpose However, in view of the small number of employees in Respondent's plant, Respondent, as is well settled, is chargeable with such knowledge 30 The Court of Appeals for the Second Circuit refused to enforce the Board's decision in this respect (382 F 2d 198) This was occasioned, however, not because the court was of the opinion that the principle enunciated by the Board was wrong, but because it thought that the evidence did not support the Board's conclusion 3i Respondent's position in this regard is set forth in the letter written by its labor relations consultant to the Union's business agent (G C Exh 6) 32 It will be remembered that the Union was certified on September 2, when Kellum and Jones first brought the petition to him Noel directed them to resume its circulation and give employees to whom the petition had not been presented an opportunity to sign it if they desired to do so. Furthermore, the petition was circulated during working time with the knowledge of at least one supervisor and several employees signed the petition in the office of another supervisor.29 Accordingly, whether or not Respondent was privileged in advising employees, pursuant to their request, of the manner in which they could withdraw from the Union, such a privilege avails it nothing here. As the Board stated in River Togs, Inc, 160 NLRB 58, 60-61, "by assisting in the preparation of the petition and by permitting its circulation in part on working time, in the presence of and with the knowledge of supervisors, Respondent gave employees the impression that the petition was being circulated with its approval and thus restrained and coerced employees in the exercise of their rights under Section 7, in violation of Section 8(a)(l)."30 Hence, I reject Respondent's contention concerning the minimal extent to which it was involved with the petition. In my opinion its involvement was sufficient to bnng it within the proscription of the Act. I find, therefore, that by inducing its employees to repudiate the Union and by assisting them to an impermis- sible extent in doing so Respondent violated Section 8(a)(1) of the Act. 3. Respondent's withdrawal of recognition from the Union As has been found, on June 25, 1971, Respondent withdrew recognition from, and refused to bargain further with, the Union To justify its having done so Respondent relies on the decertification petition signed by a majority of its employees.31 "Once a union has established its majority through certification, as here, its majority is presumed to continue [beyond the certification year] unless rebutted. 32 But, an employer may without violating the Act withhold further bargaining and insist that a union reestablish its majonty if it can establish a good-faith doubt of continued majority. ... This showing must, of course, be made in an atmosphere free of employer conduct aimed at causing disaffection." Firestone Synthetic Rubber & Latex Company, etc, 173 NLRB 1179, 1180.33 Here, as I have found, the repudiation of the Union by 1969 The Union's continued majority beyond September 2, 1970, the expiration of its certification year is, in this case, not dependent on a mere rebuttable presumption The Union's majonty status on March 25, 1971, was made known to Respondent by the hard evidence of the secret election Respondent conducted on that day in which 20 out of 32 employees voted in favor of having the Union continue to act as their bargaining representative Thus, regardless of presumption , the Union was actually the majonty representative of Respondent's employees as late as 3 months before Respondent withdrew recognition from the Union 33 Firestone, as well as other cases, talks in terms of an employer's permissible withdrawal of recognition from a certified union after the expiration of the certification year upon his establishment of "a good-faith doubt of [the union's] continued majority" See, for example, Southern Wipers, Inc, 192 NLRB No 135,. Viking Lithographers, Inc, 184 NLRB No 16, and Celanese Corporation of America, 95 NLRB 664, 671-675 Analytically, however, there appears to be no difference between the withdrawal of recognition on such a basis and the withdrawal of recognition (Continued) 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's employees, as evidenced by the decertifica- tion petition, was the immediate result, and the foreseeable consequence of, Respondent's direct bargaining with its employees and its superintendent's statement as to the reasons why Respondent could not grant immediate pay raises. In addition, as I have further found, Respondent was involved with the petition to an impermissible degree. It cannot be said, therefore, that the employees' rejection of the Union came about "in an atmosphere free of employer conduct aimed at causing disaffection." Accordingly, the decertification petition was insufficient justification for Respondent's withdrawal of recognition from, and its refusal to bargain further with, the Union. By doing so Respondent violated Section 8(a)(5) of the Act. 4. The unilateral wage increase granted by Respondent On June 27, 1971, Respondent unilaterally granted a wage increase to its employees. Respondent argues that it was not obliged to bargain with the Union concerning this pay raise because it was given at a time when the Union no longer represented its employees. Respondent's argument lacks merit. It overlooks the fact that the repudiation of the Union was induced by Respondent's unfair labor practice of bargaining directly with its employees. Furthermore, and also to be taken into account in this connection, is the fact of Respondent's involvement in the decertification petition, which I have found also constituted an unfair labor practice. An employer "cannot, as justification for its refusal to bargain with [a] union, set up the defection of union members which it had induced by unfair labor practices, even though the result [is] that the union no longer [has] the support of a majority. It cannot thus, by its own action, disestablish the union as the bargaining representative of the employees, previously designated as such of their own free will." Medo Photo Supply Corporation v. N.L.R B., 321 U.S. 678, 687. Accordingly, the defection of Respondent's employees from the Union, caused by Respondent's unfair labor practices, did not operate to "disestablish" it as their bargaining representative It follows that at the time Respondent placed the wage increase into effect the Union was, and still is, the representative of Respondent's employees for collective bargaining. This being the case, Respondent was under an obligation to consult with the Union respecting the wage increase. By not doing so Respondent further violated Section 8(a)(5) of the Act. N.L.R.B v. Katz, et al, 369 U.S. 736, 743, 747. 5. Recapitulation Summarizing all of the foregoing and by way of recapitulation I conclude that Respondent violated Section, 8(a)(1) of the Act by inducing its employees to repudiate the Union and by assisting them in doing so. I further conclude that Respondent violated Section 8(a)(5) by bargaining directly with its employees ; by withdrawing on any other ground relating to the failure of a certified union to maintain its majority status What Firestone and other decisions in this area make plain is that the employer must be free of any complicity in his employees' recognition from, and refusing to bargain further with, the Union; and by unilaterally raising the wages of its employees. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices, as found above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, my recommended order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act, including the resumption of bargaining with the Union. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing its employees to repudiate the Umon and by assisting them in doing so Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. All production and maintenance employees at Respondent's Jasper, Texas, facility, excluding truckdri- vers, truckdriver helpers, office clerical employees, watch- men, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining. 5. The Union is, and has been at all times since January 29, 1970, the collective-bargaining representative of Re- spondent's employees in the unit set forth in Conclusion of Law 4, above. 6. By the following conduct, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act: (a) Bargaining directly with employees in the unit set forth in Conclusion of Law 4, above. (b) Withdrawing recognition from the Union as the collective-bargaining representative of the employees in the unit set forth in Conclusion of Law 4, above. (c) Failing and refusing since June 25, 1971, to bargain collectively with the Union as the representative of the employees in the unit set forth in Conclusion of Law 4, above. (d) Increasing the wages of the employees in the unit set repudiation of the union before he can, with impunity, withdraw recognition from it after the expiration of the certification year TEXAS ELECTRIC COOP, INC 17 forth in Conclusion of Law 4, above, without bargaining thereon with the Union. 7. The unfair labor practices engaged in by Respondent as set forth in Conclusions of Law 3 and 6, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 34 ORDER Respondent, Texas Electric Coop, Inc.-Treating Divi- sion, Jasper, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) In any manner or by any means, including orders, directions, instructions, requests, suggestions, or appeals or by permitting any such to remain in existence or effect, causing, inducing, urging, encouraging, or assisting em- ployees to repudiate Teamsters, Chauffeurs, Warehouse- men & Allied Workers & Helpers, Local No. 920, or any other labor organization, or to rescind the authority of the foregoing named labor organization, or any other labor organization, to represent them for purposes of collective bargaining (b) Bargaining directly with employees who are repre- sented for purposes of collective bargaining by Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers, Local 920, or any other labor organization. (c) Failing or refusing to recognize, or withdrawing recognition from Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers, Local No. 920, as the exclusive collective-bargaining representative of its employees in the following appropriate unit: All production and maintenance employees at its Jasper, Texas, facility, excluding truckdrivers, truckdri- ver helpers, office clerical employees, watchmen, guards, and supervisors as defined in the National Labor Relations Act, as amended, or failing or refusing to bargain with Teamsters, Chauf- feurs, Warehousemen & Allied Workers & Helpers, Local No. 920, respecting rates of pay, wages, hours, or other terms or conditions of employment of its employees in the aforesaid appropriate unit. (d) Unilaterally increasing the wages, or unilaterally changing any other term or condition of employment, of employees in the aforesaid appropriate unit, or in any other manner failing or refusing to bargain with Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers, Local No. 920, or any other labor organization designated, or selected by its employees, as the exclusive collective- bargaining representative of its employees in any appropri- ate unit. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended. (a) Upon request, recognize and bargain with Teamsters, Chauffeurs, Warehousemen & Allied Workers & Helpers, Local No. 920, as the exclusive collective-bargaining representative of the employees in the aforesaid appropn- ate unit respecting rates of pay, wages, hours, or other terms or conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its premises in Jasper, Texas, copies of the attached notice marked "Appendix."35 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by its authorized representative, shall be posted by it 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 it 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 date of the receipt of this Decision, what steps Respondent has taken to comply herewith.36 34 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 35 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 36 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the order of the Board, and abide by the following: WE WILL NOT do or say anything to persuade you to get out of or resign from the Teamsters Union, Local 920. WE WILL NOT help you in any way to get out of or resign from the Teamsters Union, Local 920. WE WILL NOT do or say anything to persuade you to stop the Teamsters Union, Local 920, from being your 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative in dealing with us about your wages and about the conditions under which you work. WE WILL NOT deal directly with anyone working for us about anything having to do with your wages or with the conditions under which you work. Instead WE WILL talk to the Teamsters Union, Local 920, about these things. WE WILL NOT again raise your pay or make any changes in any condition under which you work without first talking about it with the Teamsters Union, Local 920. WE WILL recognize the Teamsters Union, Local 920, as your representative in dealing with us about your wages and about the conditions under which you work. WE WILL, if we are asked to do so, bargain and deal with the Teamsters Union, Local 920, about your wages, working hours, and any other condition under which you work. If we come to an agreement about any of these things with the Teamsters Union, Local 920, WE WILL put that agreement in writing and sign it. WE WILL respect your right to deal with us through the Teamsters Union, Local 920. Dated By TEXAS ELECTRIC COOP, INC.-TREATING DIVISION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, Fourth Floor, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296.