J. H. Rutter-Rex Manufacturing Co., Inc.

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. H. Rutter-Rex Manufacturing Company, Inc. and Southwest Regional Joint Board , Amalgamated Clothing Workers of America, AFL-CIO. Cases 15-CA-4854 and 15-CA-4894 February 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 30, 1973, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed answering 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. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant of 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 Administrative Law Judge and hereby orders that Respondent, J. H. Rutter-Rex Manufacturing Company, Inc., New Orleans, Louisi- ana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Nothing in this Decision shall be construed to require or authorize Respondent to withdraw the wage increases and vacation benefits found herein to have been granted unlawfully DECISION SIATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: This case involves consolidated complaints, respectively dated July 11 and August 8, 1973, issued by the General Counsel alleging violations of Section 8(a)(5) and (1) of the Act. Respondent filed answers denying the violations alleged, and a hearing thereon was held in New Orleans on August 21, 1973, with all parties represented. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs.' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT J. H. Rutter-Rex Manufacturing Company, Inc., Res- pondent herein, is a Louisiana corporation engaged in manufacturing clothing in New Orleans, Louisiana. Res- pondent's out-of-State sales and purchases exceed $50,000 yearly and I find, as all parties agree, that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union won a Board-conducted election on February 12, 1969, by a vote of 334-105, and it was accordingly certified as statutory representative of a production and maintenance unit at Respondent's Dauphine Street plant in New Orleans. The parties then held 39 bargaining sessions beginning on March 18, 1969; by the end of the last such meeting on October 13, 1972, only three contract issues remained open-duration of the contract, a checkoff provision, and the Union's proposal that New Orleans Joint Board of Amalgamated Clothing Workers of Ameri- ca (ACWA) be substituted for the Union as bargaining representative. On January 16, 1973, the Union requested another bargaining session; Respondent's counsel agreed, but said that the date for such meeting would have to await the availability of Respondent's president, Eugene J. Rutter. Two days later (January 18, 1973), Respondent informed the Union that Respondent "no longer accords you the status of the bargaining representative" and that there is "no purpose to be served in resuming the negotiations." The following day (January 19, 1973), Respondent advised its employees that it was putting into effect a wage increase on January 22, and 6 months later it announced an increase in vacation benefits. The principal issue is whether Respondent unlawfully withdrew recognition from the Union. Asserting that the record does not establish that the Union in fact represent- ed a majority of the unit employees on January 18, 1973, Respondent claims that it had a "reasonably based doubt" respecting the Union's continued majority status on such date. Respondent's defense must be considered in light of the following established law governing this case: Absent unusual circumstances, there is an irrebuttable presumption that the majority status of a certified union continues for one year from the date of certification. After the first year the certificate still creates a presumption of majority status, but the presumption is normally rebuttable by an affirmative showing that the union no longer commands a ' I desire to acknowledge the very helpful briefs of the General Counsel and the Respondent 209 NLRB No. 5 J. H. RUTTER-REX CO. majority. Moreover, where the certificate is a year or more old, an employer may withhold further bargain- ing without violating the Act and insist that the union reestablish its statutory representative status if, but only if, he in good faith has a reasonable doubt of the union's continuing majority. A showing of such doubt, however, requires more than an employer's mere assertion of it and more than proof of employer's subjective state of mind. The applicable test, as defined in the Celanese case, is whether or not the objective facts furnish a "reasonable basis" for the asserted doubt, or put another way, whether or not there are "some reasonable grounds for believing the Union has lost its majority status since its certifica- tion." Laystrom Mfg. Co., 151 NLRB 1482, 1483-1484, enforce- ment denied on other grounds 359 F.2d 799 (C.A. 7, 1966). Also see Emerson Manufacturing Company, Inc., 200 NLRB No. 33; Automated Business Systems, 205 NLRB No. 35; Terrell Machine Co. v. N.L.R.B., 427 F.2d 1088, 1090 (C.A. 4, 1970), cert. denied 398 U.S. 929; N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 589 (C.A. 5, 1966); N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1090-1091 (C.A. 8, 1969); N.L.R.B. v. Frick Co., 423 F.2d 1327, 1330-1334 (C.A. 3. 1970). Cf. Brooks v. N.L.R.B., 348 U.S. 96, 98-104, fn. 18. Respondent did not establish or adduce evidence to establish as a fact that the Union, a certified bargaining representative, was not a majority representative on January 18, 1973. Therefore, and as the foregoing cases make pellucidly clear, to sustain its defense Respondent must establish objective considerations, rather than subjec- tive speculation, upon which it founded a purported good- faith belief that the Union had lost its majority representa- tive status by January 18, 1973. Respondent's Claimed Bases for Believing the Union Had Lost its Majority Respondent's president, Eugene J. Rutter, participated in negotiations following the Union's certification and he admittedly caused the letter of January 18, 1973, to be sent to the Union, in which Respondent withdrew recognition from the Union and cut off further negotiations. Mr. Rutter testified, in part, as follows in explanation of his action: Q. sir? Now, why did you cause that letter to be sent. A. We had, for quite some months, had a feeling that this union did not represent the employees in our plant for various reasons. And through, I guess, about the last year and a half or two years of negotiations I asked my company attorney if we had to meet with this union because each request was quite some length apart or seemed so to me and the fact that we had a sizable amount of turnover since the date of the election in '69. We had made request offering wage increases to the employees and had been turned down, and attempted to have the wage increases stopped in our branch factories with charges to the labor board which were subsequently dismissed, and quite a large 7 delay, I think of about a year after this request, waiting for an answer on this wage increase because of union engineering time studies that we permitted to be made in the plant at their request. The whole tenure of this bargaining over the period of four years had changed. What they had in 1970 was-seemed to me-'69 and '70-was quite different from '71 and '72. In 1970 they had an election in one of the branch factories that they lost by about six to one. JUDGE WINKLER : Was that the same bargaining unit involved in this case? THE WITNESS : Same Southwest Region. JUDGE WINKLER : Is that the same bargaining unit? I said unit. THE WITNESS: No, sir, it wouldn't be. It would be another unit. JUDGE WINKLER : Another unit. THE WITNESS: Yes, sir. And for that reason it finally came to a head on January of this year and we felt that it was pointless to have another meeting and then withdraw recognition of this union. So we withdrew at that time. Passage of Time Between Negotiations There were, as indicated, 39 bargaining sessions and 36 of these meetings were held between March 1969 and July 15, 1971. The 37th meeting was held on July 25, 1972, about a year after the preceding meeting, and the last two meetings occurred on September 28 and October 13, 1972. Meanwhile, the Union had filed charges against Respon- dent on September 29, 1970, and June 25, 1971, alleging refusal-to-bargain violations under Section 8(a)(5) of the Act. Final administrative action was not taken on those charges until March 6, 1972, at which time the General Counsel sustained the Regional Director's determination not to issue complaints on those matters . Thus, 8(a)(5) charges were pending for approximately 8 months of the period between the 36th and 37th meetings. Also during this period between the 36th and 37th meetings, and after disposition of the other aforementioned 8(a)(5) charges, the parties exchanged position papers respecting substantive contract terms, the Union on May 1, 1972, and Respon- dent on May 31, 1972. The parties again met on September 28 and October 13, 1972, as indicated above, and by letter on November 20, 1972, the Respondent rejected one of the few unresolved bargaining issues. Two months later, Respondent withdrew recognition from the Union. Turnover in Personnel At the time of the Board election in February 1969 there were 482 unit employees on the payroll; when Respondent withdrew recognition from the Union in January 1973 approximately 475 unit employees were on the payroll. Of this latter number, 255 had been on the February 1969 payroll and 227 were newly hired since February 1969. Respondent offered no evidence that any employees on the January 1973 payroll (including newly hired employees since February 1969) had expressed opposition to the Union as a statutory bargaining representative; and "new employees," as the Board reaffirmed in Emerson Manufac- 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turing Company Inc., supra, "will be presumed to support a union in the same ratio as those whom they replaced." Employee turnover alone-and here it was less than 50 percent-"does not provide a reasonable basis for conclud- ing that a union has lost its majority status" (N.L.R.B. v. Little Rock Downtowner, supra )2 and, as in Little Rock Downtowner, "there was no independent evidence from which it may be inferred that respondent's new employees did not support the union." Purported Lack of Communication between the Union and Unit Employees. The Union had its last general meeting in April 1970, and Rutter testified that "there wasn't any communica- tions between the bargaining group employees and the people in our plant that we were aware of .... " In addition to counsel and other bargaining representatives, a union bargaining committee of employees attended all negotiating meetings. The complement of this employee committee was substantially constant, and these employee committee members kept the unit employees informed of negotiations after each bargaining session and the record further shows that over the course of negotiations employee committee members also continued their organi- zational efforts by signing up new members for New Orleans Joint Board and by having older union members execute current cards. Respondent mentions in this connection the Union's reaction to Respondent's offer to put a wage increase and improved vacation benefits into effect in June 1970, and from this it argues that employees were not aware of this offer and therefore no longer supported the Union. Without exhaustively detailing this item, it is sufficient to note that Respondent had been conducting a periodic review of wage scales during negotiations, but without notification to the Union. When Respondent "sprang" this offer by mail on June 5 the Union requested that the increases be deferred until it could make its own engineer- ing time studies following which the parties could negotiate the matter. The parties had held bargaining sessions on June 1 and 2, a few days before the offer of June 5, but on neither occasion did Respondent mention the wage scale review or a contemplated offer in such connection. The Union did make its own time study and, upon completion, it advised Respondent that it concurred in Respondent's proposed increase. Respondent rejected the Union's "concurrence" with the explanation that in view of a "refining" of bargaining positions this offer was "no longer a part of the company's stated position." Election in Columbia, Mississippi In October 1970 the Union's parent International (ACWA) lost a Board-conducted election in another unit 2 Respondent cites several cases in support of its "turnover" argument. In Ingress-Plastene, Inc v. N L.RB, 430 F.2d 542, 546 (C.A 7, 1970), the union in effect conceded its lack of majority; in NLRB. v Lavstrom Manufacturing Co, 359 F 2d 799, 801 (C A 7, 1966), the parties had enjoyed a harmonious bargaining relationship and the union had won its election by a narrow margin ; in Southern Wipers, Inc, 192 NLRB 816, employees had expressed dissatisfaction with the union, and there was a turnover of approximately 400 in a unit of 100; and in Viking Lithographers, Inc„ 184 of Respondent's employees in a Mississippi plant located 120 miles away from the New Orleans plant involved here. President Rutter testified, in effect, that the results in this 1970 Mississippi election contributed to his belief that the Union had lost employee support in the New Orleans unit by January 1973.3 The Union's Purported Capitulation Rutter testified that another factor contributing to his belief that the Union had lost its majority status was that in the latter period of negotiations the Union took a weaker position on substantive contract issues than it did early on in negotiations, and that in the last three meetings it conceded practically all of Respondent's positions on economic issues. Rutter thus testified in effect that such weak bargaining position could only indicate a lack of continued employee support for the Union and Respon- dent urges that, by January 1973, the Union was merely attempting "to salvage . . . a lost cause highlighted by lack of support and employee communication and manifested by weakness." Requested Substitution of New Orleans Joint Board of ACWA for Union Herein (Southwest Regional Joint Board of ACWA) The ACWA has various Regional Joint Boards respec- tively comprised of Joint Boards which in turn are comprised of delegates of local unions. Southwest Regional Joint Board (Union herein), headed by a Regional Manager, has its main office in St. Louis, Missouri; its jurisdiction encompasses the Southwest part of the coun- try, including the New Orleans Joint Board which the parties agree is a labor organization within Section 2(5) of the Act. For reasons of internal union restructuring which the Union explained to the Respondent during negotia- tions-and it is unnecessary to explicate the details here-the Union had requested that the New Orleans Joint Board be substituted for Southwest Regional Joint Board (Union herein) as party to the contract under negotiation. Respondent was principally concerned with the financial stability of the New Orleans Joint Board as compared with Southwest Regional Joint Board, and it accordingly rejected the Union's proposed substitution on November 20, 1972. Respondent asserts that the Union's repeated requests to substitute New Orleans Joint Board for the Union lends further support for its belief that the Union no longer represented a majority of the unit employees. President Rutter claimed in his testimony that he did not understand NLRB 139, employees also has expressed their union dissatisfaction to the employer and only two employees remained out of a voting unit of 21. 1 As indicated above, the vote in the 1969 New Orleans election was 334 for the Union and 105 against Rutter testified that another basis for his belief that the Union had lost its majority status by January 1973 was the fact that 105 employees had voted against the Union even though-as Respondent offered to prove-Respondent purportedly did not engage in any antiunion campaigning in connection with that election in 1969 J. H. RUTCER-REX CO. 9 the reason for the Union's requested substitution and that he was not even "sure" of the Union's existence,4 even though he knew of the Union's certification and had himself participated in many of the contract negotiations with the Union. Concluding Findings Respondent correctly contends that the "good faith" test involved here must be made upon consideration of the entire congeries of facts and circumstances. Measuring Respondent's withdrawal-of-recognition by such standard, and by consideration of individual factors, as well, I am unable to find that the record establishes the objective support for its claim. Indeed, there is no evidence at all relating to employee disaffection with or defection from the Union; nor, apart from sheerest speculation, is there basis for believing that the Union had lost its status as statutory representative. In view of the record herein and the recitals above, I consider it unnecessary to burden this opinion with further discussion of the factors asserted by Respondent in support of its position. Respondent finally challenges the statutory basis for the presumption of continuing majority status, set forth above in the quotation from the Laystrom Mfg. case. Not only do the other decisions of the Board and the Courts cited herein fully subscribe to this statement of law but also do the cases cited by Respondent in its very able brief. To my knowledge, the presumption is universally accepted, and Respondent submits neither contrary authority nor cogent jurisprudential argument for re-examining the presump- tion. In any event, I am obliged to follow established law on the subject, and I do so with ease for I consider it proper. Taking into account all the circumstances and considera- tions upon which the Respondent relies, I accordingly find them insufficient to demonstrate that Respondent had reasonable grounds for believing that the Union lacked majority employee support at the time of its refusal and failure to continue recognizing and to continue bargaining with the Union in behalf of the certified bargaining unit set forth below. In addition to this violation of Section 8(aX5) and (1) committed by Respondent, I find that Respondent further violated the Act by its announcement and implementation of unilateral wage increases and vacation benefits. Oneita Knitting Mills, Inc., 205 NLRB No. 76; Yellow Front Stores d/b/a Sel-low Discount, 205 NLRB No. 64. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. The following employees constitute an appropriate bargaining unit within Section 9(b) of the Act: 4 In view of Rutter's purported perplexity as to the relationship between the Union and the New Orleans Joint Board, it is interesting to note that he apparently had no such problem concerning the Union and ACWA_ In testifying about the aforementioned Mississippi election in 1970 , he said it was "the same union" as involved herein. As indicated above, the union in that Mississippi election was ACWA All production and maintenance employees at Employ- er's plant located at 3725 and 3726 Dauphine Street, New Orleans, Louisiana, including intra-plant truckdri- vers, janitors and quality control employees; excluding office clerical employees, professional employees, over- the-road drivers, guards, and supervisors as defined in the Act. 4. On and at all times since February 12, 1969, the Union has been and is the exclusive bargaining representa- tive of the employees in the aforedescribed appropriate unit, within Section 9(b) of the Act. 5. Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union at all times since January 18, 1973, and by unilaterally changing wage rates and vacation benefits on January 22 and June 20, 1973. 6. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take appropriate affirmative action to effectuate the policies of the Act, including continued recognition of and bargaining with the Union as statutory representative. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS J. H. Rutter Rex Manufacturing Company, Inc., New Orleans, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, as exclusive bargaining representative in the following bargaining unit: All production and maintenance employees at Employ- er's plant located at 3725 and 3726 Dauphine Street, New Orleans, Louisiana, including intra-plant truckdri- vers, janitors and quality control employees; excluding office clerical employees, professional employees, over- the-road drivers, guards and supervisors as defined in the Act. (b) Unilaterally granting wage increases and vacation benefits or otherwise changing any other terms or 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, recommendations, 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 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions of employment without prior consultation with the Union. (c) In any like or related manner interfering with, restraining, or coercing its employees in their exercise of rights under Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request , recognize and bargain collectively with Southwest Regional Joint Board , Amalgamated Clothing Workers of America, AFL-CIO, as exclusive representa- tive of its employees in the above -described appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant at New Orleans, Louisiana, copies of the attached notice marked "Appendix." s Copies of said notice on forms provided by the Regional Director for Region 15 of the Board, after being duly signed by Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT announce or make unilateral changes in wages, vacation benefits, or any other term or condition of employment without prior consultation with Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. WE WILL, upon request, recognize and bargain collectively with Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, in behalf of the production and maintenance bargaining unit at the Dauphine Street plant in New Orleans, Louisiana. J. H. RUTTER-FLEX MANUFACTURING COMPANY, INC. (Employer) Reasonable steps shall be taken by Respondent to insure Dated By that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 6 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " (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 concern- ing this notice or compliance with its provisions may be directed to to the Board's Office, Plaza Tower, Suite 2700, 1001 Howard Avenue, New Orleans, Louisiana 70113, Telephone 504--527-636 1.