Telautograph Corp.

892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Telautograph Corporation and Local Union No. 3, In- ternational Brotherhood of Electrical Workers, AFL-CIO. Case 29-CA-2180 October 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On December 16, 1971, Trial Examiner Samuel M. Singer issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and the Respondent filed an answering brief to the General Counsel's excep- tions. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. We would, however, note that the decertification petition, supported by an adequate showing of inter- est, as the Regional Director here properly found in the representation case, raised a question concerning representation. In Shea Chemical Corporation, 121 NLRB 1027, the Board established the rule that when a real question concerning representation has been raised by the filing of a petition by a rival union that "an employer may not go so far as to bargain collec- tively with incumbent (or any other) union until the question concerning representation has been settled by the Board." The same rule should be applied where a real question concerning representation has been raised by the timely filing of a decertification petition. As in the case of a petition filed by a rival union, the incumbent union may still continue to administer its contract and process grievances, and the rule does not apply in situations where, because of contract bar, certification year, inadequate showing of interest, or any other established reason, the decertification peti- tion does not raise a real representation question. We wish to clarify this matter, since a clear state- ment of that principle may obviate the necessity for lengthy delays in the processing of properly supported decertification petitions under like circumstances in the future. Such processing need not be delayed by an • 8(a)(5) charge, since such charge could be promptly dismissed as nonmeritorious unless, of course, the charge contains allegations that the Respondent has committed some act (other than its mere refusal to bargain) which may be a proper basis for finding a violation `of our Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBERS FANNING AND JENKINS, concurring: For the reasons stated by the Trial Examiner, we would dismiss the complaint in this case. TRIAL EXAMINER'S DECISION SAMUEL M. SINGER, Trial Examiner: This proceeding, heard at Brooklyn, New York, on October 27, 1971, pur- suant to a charge filed on November 9 and complaint issued on May 28, 1971, concerns allegations that Respondent (herein sometimes called the Company) violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to meet and bargain with the Charging Party as exclusive representative of its employees, on and after No- vember 4, 1970, subsequent to expiration of their collective agreement. All parties appeared and were afforded full op- portunity to be heard and to examine and cross- examine witnesses. General Counsel and Respondent presented their positions in oral argument at the conclusion of the trial. Only Respondent filed a brief. Upon the entire record I and from my observation of the testimonial demeanor of the witnesses, I make the fol- lowing: FINDINGS AND CONCLUSIONS I RESPONDENTS BUSINESS THE LABOR ORGANIZATION INVOLVED Respondent, a Virginia corporation with its principal office and place of business in Los Angeles , California, manufactures and leases graphic communications equip- ment in several States , including at its branch office in Elmhurst, New York, the facility here involved. Its annual interstate sales exceed $500,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party (the Union) has at all material times been a labor organization within the meaning of Sec- tion 2(5) of the Act. II THE UNFAIR LABOR PRACTICES A. The Facts 2 Respondent and the Union have had contractual rela- tions for many years, their last contract covering the period November 3, 1969-November 2, 1970. It is stipulated that the bargaining unit consisted of Respondent's district Transcript corrected by my order on notice dated November 30, 1971. Z Findings are based almost entirely on documentary evidence , stipula- tions, and uncontradicted testimony 199 NLRB No. 117 TELAUTOGRAPH CORPORATION service representatives employed at its Elmhurst facility, of whom there were 11 during the period here involved. On August 4, 1970,3 Union Business Representative Doughty wrote Respondent that "in accordance with the [subsisting] collective bargaining agreement . . . Local Union No. 3 desires to terminate its agreement ... on its termination date November 2, 1970" and requested a meeting to discuss a new agreement. Company Vice President Sweat testified credibly that on August 18 he wrote back, suggesting that the parties meet during the week of September 14. On September 3, one of the employees in the bargain- ing unit (Golowach), filed a petition for an election to decer- tify the Union. After a hearing on the petition held on October 9, the Regional Director on October 23 issued his Decision and Direction of Election: (a) overruling the Union's objection to the election on the asserted ground that its current contract with the Employer barred the peti- tion; (b) holding that the petition was timely filed; and (c) finding that a "question affecting commerce exists concern- ing the representation" of the employees in the bargaining unit "within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act." The Regional Director directed the conduct of a secret election "among the employees in the unit found appropriate at the time and place set forth in the notice of the election to be issued subsequently." All eligible voters were to vote "whether or not they desire to be repre- sented for collective bargaining purposes by Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO." In the meantime, on October 16, Business Representa- tive Doughty requested Company Vice President Sweat to "contact [him] as to convenient time for meeting to discuss the changes and modifications in the agreement." On No- vember 4, Sweat replied: Regarding your letter of October 16, expressing your desire to meet and discuss changes and modifications in the agreement. It is my feeling, at this time, it would be inappropriate to meet, due to some question regarding representation of the unit. On November 9, the Union filed its unfair labor practice charge, alleging, inter aha, that Respondent "has refused to bargain and still refuses to bargain with [it] with respect to a new contract," thereby under Board practice "blocking" the conduct of the election previously directed by the Re- gional Director on October 23 .4 On May 28, the Regional Director issued the complaint herein.5 3 All dates are 1970 unless otherwise indicated. 4 Under its "blocking charge" rule, "the Board does not, as a general practice, direct an election during the pendency of an unfair labor practice charge affecting the unit involved " Columbia Pictures Corporation, 81 NLRB 1313, 1314. However, the rule is not a mechanical one and the Board has directed elections when it appeared that "an immediate election will effectu- ate the policies of the Act." Ibid. See also Star Union Products Company, 127 NLRB 1173, 1174, Commarto, et at. v. McLeod 78 LRRM 2741, 2743 (S D.N Y.) S The Regional Director did not, however, set aside the petition or his Decision and Direction of Election . Accordingly, the decertification pro- ceeding is still pending. B. Conclusions 893 1. The complaint alleges that on and since November 4, 1970, Respondent has failed and refused to bargain with Local 3 as exclusive bargaining representative of Respondent's employees in the appropriate unit. General Counsel relies on the doctrine of contractual presumption (i.e., the long contractual relationship between the parties) to establish the Union's continued majority status. For rea- sons stated below, I find that the record does not support the complaint allegation. 2. To be sure, the Board and courts have consistently held that a contracting union is presumed to represent a majority of the employees in the bargaining unit during the life of a collective agreement. While this presumption con- tinues of ter expiration of the agreement, it may be overcome by a, showing: (a) that the union no longer enjoys'majority support; or (b) that the employer entertains a good-faith doubt concerning its continued majority. See, e.g.;N.L.R.B. v. Master Touch Dental Laboratories, Inc., 405 F.2d 80, 82 (C.A. 2); Terrell Machine Company v. N.L.R.B., 427 F.2d 1088 (C.A. 2). As General Counsel emphasizes, the filing of a decertification petition in itself does not justify withdraw- al of recognition, since such filing may only show that 30 percent of the employees wanted determination of the rep- resentation question through a Board-conducted election (see, e.g., Wabana, Inc., 146 NLRB 1163, 1171), although the presence of other "objective" evidence may establish that the petition has the support of a majority, just as if a majority had signed it. See Firestone Synthetic Rubber & Latex Co., 173 NLRB 1179; Randall Company, 133 NLRB 289, 295-96. Be that as it may, my finding that Respondent was not legally obligated to bargain with the Union on November 4, 1970, is predicated not on any objective con- siderations of good-faith doubt concerning the Union's con- tinued majority, but rather on the doctrine that in the special circumstances of this case a question concerning representation existed, foreclosing Respondent from deal- ing with the Union on November 4.6 3. As found, subsequent to the filing of the decertifica- tion petition, the Regional Director conducted a hearing on the petition. On October 23, 1970, he issued his Decision and Direction of Election expressly finding that a "question affecting commerce exists" concerning the representative status of the Union which should be resolved by a Board- conducted election. Respondent's refusal to bargain took place on November 4, when the Regional D'irector's deter- mination to hold an election was still outstanding. It would appear that by directing the election the Regional Director in fact found that the representation question could best be resolved through a secret election-"the most satisfactory ... method of ascertaining whether a union has a majority support." (N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 602; N.L.R.B. v. Flomatic Corp., 347 F.2d 74, 78 (C.A. 2)). In my 6 In reaching this conclusion, it is unnecessary to rely on the testimony of Respondent's witness Golowach (the employee who filed the decertification petition) to the effect that poor to the Company's November 4 refusal to bargain Golowach had told company officials that a majority of the employ- ees were supporting the decertification petition and that the Union would lose the election According to Respondent, this factor (among others) sup- ports its good-faith doubt that the Union continued to represent a majority of the unit employees. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view, Respondent had the right to rely on this procedure and finding and to decline to negotiate with the Union pending outcome of the Board-directed election. As in Elec- tric Motors and Specialties, Inc., 149 NLRB 1432, 1435, the Employer's "declination [to bargain on November 4] came after the representation hearing and at a time that the mat- ter was awaiting decision on the merits." It is no answer that the election was made impossible by the Union's filing of a charge "blocking" the election and that based on that charge the Regional Director ultimately issued a complaint to test majority status in a complaint proceeding since the attempted "blocking" action was taken by the Union it- self.' The fact is that the Regional Director had already determined to test employee sentiment by way of an elec- tion. The decertification procedure established by the Act (Sec. 9(c)(1)(A)(ii)) assures employees the right to determine that a currently recognized union is no longer the majority representative through the election procedure. See Temple- ton v. Dixie Color Printing Co., 444 F.2d 1064, 1069 (C.A. 5). There is no evidence, nor even claim, that the Respon- dent here had engaged in any unfair labor practices or antiunion activity to render improper or in any way taint the atmosphere for such election. It in no way assisted or par- ticipated in the filing of the decertification petition or other- wise sought to dissipate the Union's majority status. 4. It is this critical factor-i.e., the absence of unremed- ied employer unfair labor practices-that distinguishes this case from those relied on by General Counsel (transcript p. 95). Thus, in Wabana, Inc., 146 NLRB 1162, the majority question was raised in a context of numerous unfair labor practices designed to undermine the union as bargaining representative and to cause disaffection of employees from such representative, including sponsoring and assisting em- ployees in the filing of the decertification petition. In Mas- sey-Ferguson, Inc., 184 NLRB No. 69, enfd. 9/20/71 (C.A. 7), the majority loss claim also came after commission of employer unfair labor practices (unilateral wage increases) and, as the Board found, "any loss would have been attrib- utable to the Respondent's unfair labor practices." Fur- thermore, in both cases the Regional Director dismissed the 7 As already noted, insofar as appears the Regional Director's sole theory that the Union retained its majority status is predicated on the doctrine of contractual presumption. decertification petition, unlike in the instant case where the petition is still pending. Finally, in Docorel Corporation, 163 NLRB 146 (the third case relied on by General Counsel), the Board again found that the majority issue was raised in the context of employer unfair labor practices; and, al- though a decertification election was there conducted and lost by the incumbent union, it was set aside "as a result of Respondent's misconduct preceding the election." (163 NLRB at 149.) Since it was found that there "was no proba- tive evidence that the Union [there] had in fact lost its majority" at the times material in the proceeding (ibid.), the union in Decorel was found to have retained its majority status. See N.L.R.B. v. Midtown Service Co., 425 F.2d 665, 669 (C.A. 2). Accordingly, under the special circumstances in this case-including the Regional Director's Decision and Di- rection of Election still outstanding at the time of Respondent's alleged (November 4) refusal to bargain, the complete absence of any evidence (or even claim) of Com- pany misconduct tainting the atmosphere for a Board-con- ducted election, and the continuing pendency of the Regional Director's order for an election-I find that the question of the Union's representative status can and should be determined by means of the election ordered by the Regional Director. Cf. Skaggs Drug Centers, Inc., 176 NLRB No. 102. I conclude that Respondent's refusal to bargain on November 4, pending the outcome of the Board- ordered election, was not violative of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW It has not been established that Respondent on or since November 4, 1970, has failed or refused to bargain with Local 3 as the exclusive bargaining representative of its employees in the appropriate bargaining unit , in violation of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, it is ordered that the complaint be and it is hereby dismissed in its entire- ty.