Gardner Machinery Corp.

GARDNER MACHINERY CORP. Gardner Machinery Corporation and Local 28, Dis- tributive Workers of America. Case 11-CA-6869 January 16, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed by Local 28, Distributive Workers of America, hereinafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint and notice of hearing on January 31, 1977. Upon an amended charge filed by the Union, the General Counsel, by the Acting Regional Director for Region 11, issued an amendment to the complaint and notice of hearing on May 23, 1977. Copies of the charge, the amended charge, the complaint and notice of hearing, and the amendment thereto were duly served on the Respondent. The complaint alleges, in substance, that the Respondent violated Section 8(a)(l) and (5) of the National Labor Relations Act, as amended, by withholding recognition of and refusing to bargain with the Union, notwithstanding the provisions of a settle- ment agreement requiring the Respondent to do so. Thereafter, the Respondent filed a timely answer, and an amendment thereto, admitting certain factual allegations, but denying the commission of any unfair labor practices. On June 10, 1977, the Charging Party, the Respon- dent, and the General Counsel entered into a stipulation in which they agreed that certain formal papers filed in this proceeding and the stipulation, together with the exhibits attached thereto, constitute the entire record in this case. The parties waived a hearing before an Administrative Law Judge, the making of findings of fact and conclusions of law by an Administrative Law Judge, and the issuance of an Administrative Law Judge's Decision. They submit- ted this proceeding directly to the Board for findings of fact, conclusions of law, and the entry of an appropriate order by the Board, reserving to them- selves the right to file simultaneous briefs on the date set for their receipt. By order dated July 7, 1977, the Board approved the stipulation, transferred this proceeding to itself, and set a date for the filing of briefs. Thereafter, the General Counsel and the Respondent filed briefs. 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. 234 NLRB No. 53 The Board has considered the entire record herein, as stipulated by the parties, including the briefs, and makes the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYER The Respondent is a North Carolina corporation with a facility in Charlotte, North Carolina, where it is engaged in the installation of laundry equipment. During the past 12 months, which period is represen- tative of all times material herein, the Respondent purchased materials valued in excess of $50,000 directly from points outside the State of North Carolina. The parties stipulated and we find that the Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and we further find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Local 28, Distributive Workers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Stipulated Facts On October 30, 1975, a majority of the Respon- dent's employees, by a secret-ballot election in Case 1 -RC-4074, conducted under the supervision of the Regional Director for Region 11, designated the Union as their representative for the purposes of collective bargaining in the following stipulated unit: All production and maintenance employees at the Employer's Charlotte, North Carolina, manufac- turing and distribution plant, but excluding office clerical employees, guards, and supervisors as defined in the Act. On November 7, 1975, :he said Regional Director certified the Union as the exclusive collective-bar- gaining representative of the employees in the above unit. On May 20, 1976, the Union requested that the Respondent bargain, but the Respondent refused. Thereafter, on May 26, 1976, as a result of the Respondent's conduct, the Union filed an unfair labor practice charge in Case 11-CA-6592, which was amended on June 14, 1976. A complaint and notice of hearing alleging violations of Section 8(a)(1), (3), and (5) of the Act issued in that case on July 14, 1976. 281 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 23, 1976, the Respondent and the Union executed and entered into a settlement agree- ment in the aforesaid case in which the Respondent agreed to bargain in good faith with the Union. This agreement was approved by the Acting Regional Director for Region 11 on September 24. As part of the settlement agreement, the Respondent obligated itself to comply with all the terms and provisions of the notice attached thereto, which, by its terms, would be posted and maintained for a period of at least 60 consecutive days from the date of posting. The notice stated, among other things, that the Respondent would not discriminate with regard to the rehire of any of its employees as a result of their involvement in a concerted activity; that it would make employees Louis Summers and Clyde Wheeler whole for any loss of wages suffered by them during the applicable period; that it would not assist or solicit its employees to repudiate or decertify the Union as their exclusive bargaining representative in order to avoid its obligation to recognize and bargain with the Union; and that it would, upon request, bargain with the Union concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, as the exclusive represen- tative of all of the employees in the unit here in question. Immediately prior to, and in contemplation of, the execution of the aforementioned settlement agree- ment, the parties met on September 20, 1976. This meeting was the first occasion, since the Union's request to bargain on May 20, that the Respondent met and bargained with the Union. The parties next met on October 19. At the conclusion of that bargaining session, the parties had neither reached an agreement capable of being executed, nor had they reached an impasse on any issue. A subsequent bargaining session was scheduled for November 4, 1976. On November 1, the Respondent's attorney, Wil- liam Claytor, advised Union Representative Clar- ence Fetherson that he would be unavailable for the meeting on November 4 and requested that the meeting be rescheduled for November 12. Thereafter, the next direct contact between the parties occurred on or about Monday, November 24, 1976, when Fetherson telephoned Claytor, apologized for not being available on November 12, and requested that a meeting date be set. Claytor declined to meet with Fetherson. He told Fetherson that he had been directed by his client not to execute any agreement nor meet with representatives of the Union again because the Respondent had, in the meantime, received a copy of a letter sent to Fetherson by employees Summers and Wheeler, dated November 4, 1976, in which they advised Fetherson that they no longer wished the Union to represent them in collective bargaining. Summers and Wheeler were the employee-members of the Union's negotiating committee, representing the approximately nine- member unit. On December 2, 1976, S. W. Gardner, Jr., the Respondent's president, advised the Board's compli- ance officer that the Respondent had, on that date, taken down the notices which were posted for the required 60-day period pursuant to the terms of the settlement agreement. On the same date, the Region- al Director for Region 11 advised the Respondent that Case 11 -CA-6592 had been closed as adjusted, "conditioned upon continued observance of the terms of the Settlement Agreement entered into on September 24, 1976." There has been no contact between the Respondent and the Union since No- vember 24, 1976. B. The Contentions of the Parties The Respondent admits that it has refused to recognize and bargain with the Union on and after November 24, 1976, but asserts that its refusal is justified on the following grounds: more than I year has passed since the Union's certification following the Board-conducted election; the parties have bar- gained for a reasonable period subsequent to execu- tion of the settlement agreement; and, at the time of its refusal, the Respondent possessed "sufficient objective considerations" to support a reasonable doubt concerning the Union's continued majority status, as evidenced by the letter sent to the Union by employees Summers and Wheeler. The General Counsel contends, on the other hand, that the letter from employees Summers and Wheeler does not constitute objective evidence giving rise to a reasonable doubt concerning the Union's continued majority status in the nine-member unit. Moreover, the General Counsel asserts, even if the Respondent had a good-faith doubt concerning the majority status, it was not privileged to withdraw recognition until it had bargained with the Union for a reason- able period of time after execution of the settlement agreement, which the General Counsel argues it has not done. Further, citing Mar-Jac Poultry Company, Inc.,I the General Counsel contends that, even if it were arguable that a reasonable period of time had otherwise elapsed, the Union in this case is entitled to at least I year of actual bargaining from the date of the settlement agreement, as bargaining was interrupted for a 4-month period during the Union's I 136 NLRB 785 (1962). 282 GARDNER MACHINERY CORP. certification year, because of the Respondent's earli- er admitted refusal to bargain. C. Discussion and Conclusions The parties entered into the settlement agreement here in question on September 24, 1976. Pursuant thereto, the Respondent and the Union met and bargained on September 20 and October 19, without reaching agreement but without reaching impasse, on any of the outstanding issues. Presumably, some progress was made, as a third meeting was scheduled for November 4. The Respondent's attorney request- ed a postponement to November 12. However, the Union's representative was not available on that date. Thus, the parties had bargained on only two occasions, when, on November 24, the Respondent refused to bargain further and withdrew recognition from the Union, asserting as its only reason therefor that it was in possession of a letter signed by two employees in the nine-member unit, indicating that those individuals no longer wished to be represented by the Union. The letter in question falls far short of overcoming the presumption concerning the Union's continued majority status. Even if we were to view the matter otherwise, we would find, in the circumstances of this case, that the Respondent's refusal to recognize and bargain with the Union is unlawful. It is well settled that "a bargaining relationship once rightfully estab- lished must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed," without regard to changed situations which might otherwise make appropriate a change in bargaining relationships. 2 Similarly, where the bargaining relationship arises as a result of a settlement agreement, that relationship must be maintained for a reasonable period, during which the union's majority status may not be challenged. 3 It is clear on the facts of this case that the two bargaining sessions which occurred after a long hiatus hardly afforded the parties an adequate opportunity to engage in real bargaining with a fair chance of success. Accordingly, we find that the Respondent has failed and has refused "to bargain collectively" with the representative of its employees for a reasonable period as required by the Act and by such conduct has interfered with, restrained, and coerced employ- ees in the exercise of the rights guaranteed them in Section 7, thereby violating Section 8(a)(1) and (5). 2 Franks Bros. Company v. N.LR.B., 321 U.S. 702, 705 (1944). 3 Hotel Enterprises, Inc., d/b/a Royal Inn of South Ben4 224 NLRB 810, 813 (1976). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traff- ic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Gardner Machinery Corporation is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 28, Distributive Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Employer's Charlotte, North Carolina, manufac- turing and distribution plant, but excluding office clerical employees, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 7, 1975, the above-named labor organization has been and now is the certified and exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 24, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of the Respondent in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, the Re- spondent has interfered with, restrained, and 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Respondent, Gardner Machinery Corporation, Charlotte, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 28, Distribu- tive Workers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees at the Employer's Charlotte, North Carolina, manufac- turing and distribution plant, but excluding office clerical employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its facility in Charlotte, North Carolina, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 In the event that this 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 28, Distributive Workers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees at the Employer's Charlotte, North Carolina, manufacturing and distribution plant, but excluding office clerical employees, guards, and supervisors as defined in the Act. GARDNER MACHINERY CORPORATION 284