Naylor, Type & Mats

NAYLOR, TYPE & MATS Houston Shopping News Co., d/b/a Naylor, Type & Mats and Houston Typographical Union No. 87, a/w International Typographical Union, AFL- CIO. Case 23-CA-6146 October 26, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On April 12, 1977, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting 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, find- ings,' and conclusions2 of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I In his Decision, the Administrative Law Judge states that employee Marilyn Joiner told Elizabeth Nalle, Respondent's president, that she and other employees had taken a head count and their figures showed "16 employees who were members of the Union and II who were not." The Administrative Law Judge, however, reversed the relevant figures. as record evidence establishes Joiner told Nalle that the head count revealed that 11 employees were members of the Union and 16 were not. 2 In her dissent in Houston Shopping News Co., d/b/a Naylor, Type & Mats, 223 NLRB 1133. 1135-36(1976). Member Murphy disagreed with the majority's finding therein that Respondent violated Sec. 8(aXS) and (I) by failing to notify the Union of its intent to lease its hot type department to its employees. Accordingly, in her view there is no unfair labor practice, unremedied or otherwise, which would preclude Respondent in this proceeding from raising the issue of the Union's lack of majority status. But even assuming, arguendo, that Respondent violated Sec. 8(aXS) and (I) as found in the prior proceeding involving Respondent, Member Murphy agrees with the Administrative Law Judge that Respondent is not precluded under the facts in this case from questioning the Union's majority status. The obvious reason for this is that the Board's unremedied Order in the prior proceeding is extremely narrow in scope and "would not be apt to have detrimental or lasting effects upon employees in the unit." Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801 (1973). DECISION STATEMENT OF THE CASE HENRY L. JALETrE, Administrative Law Judge: This case involves a withdrawal of recognition from an incumbent union because of an asserted good-faith doubt of majority. The proceeding was initiated by a charge filed by the above-named Union on July 23, 1976,1 pursuant to which complaint issued on August 18, alleging that the above- named Respondent had violated Section 8(aX)(l) and (5) of the Act. On October 12, hearing was held in Houston, Texas. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by the parties, I hereby make the following: FINDINGS OF FACT I. THE FACTS Respondent has its place of business in Houston, Texas, where it is engaged in custom typesetting and camera work, using both a hot type and coldtype method of production.2 Since the fifties Respondent and the Union have been parties to successive collective-bargaining agreements, the last of which expired August 31, 1974. At the time of expiration the Union and Respondent were engaged in negotiations for a new contract. In the fall of 1974, work began to fall off in the hot type department and by February 1975, the problem of lack of work in that department had become acute. On or about February 27, 1975, Respondent offered to lease the hot type department to its employees. The employees rejected the offer. Respondent had not given the Union prior notification of its offer to the employees and, on March 3, 1975, it did so. On March 4, 1975, the hot type employees were notified that effective March 5, 1975, their depart- ment would be reduced to three individuals. As a result, five employees were laid off. Respondent's conduct was made the subject of an unfair labor practice charge filed by the Union on March 5, 1975, pursuant to which complaint issued alleging that Respon- dent had violated Section 8(a)(1), (3), and (5) of the Act. Hearing was held on July 23, 1975, before Administrative Law Judge Benjamin K. Blackburn. On September 23, 1975, Administrative Law Judge Blackburn issued his decision in which he found that Respondent had not violated the Act and he dismissed the complaint. On April 29, 1976, the Board issued its Decision and Order in which t Unless otherwise indicated all dates are in 1976. 2 Jurisdiction is not in issue. Respondent admits it meets the Board's indirect outflow standard for the assertion ofjurisdiction. 233 NLRB No. 24 105 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it agreed with his finding that the layoff of five employees was motivated by purely economic considerations and was therefore not violative of Section 8(a)(3) and (1) of the Act. However, the Board disagreed with Administrative Law Judge Blackburn's finding that Respondent had not violated Section 8 (a)(5) and (1) of the Act. The Board found that Respondent's failure to notify the Union of its offer to lease the hot type department to employees was conduct violative of Section 8(a)(5) and (1) of the Act.3 Until on or about July 23, 1975, the parties had been engaged in negotiations. On or about September 25, 1975, the Union requested a meeting for the purpose of negotiating. On September 26, Respondent declined to meet on the ground that it entertained a good-faith doubt as to the Union's majority status. For reasons not indicated in the record, but one might assume because of the pendency of exceptions to Adminis- trative Law Judge Blackburn's decision in the above- described case, the Union did nothing about Respondent's refusal to meet until April 7, 1976, when it filed an 8(a)(1) and (5) charge in Case 23-CA-6016. Thereafter, on April 28, the Regional Director for Region 23 advised Respon- dent that the charge had been withdrawn and nothing further transpired until June 4, when the Union again requested negotiations. Respondent did not reply to the Union's request and the instant proceeding was initiated shortly thereafter. II. ANALYSIS AND CONCLUSIONS The complaint alleges that from on or about June 4, Respondent has refused to meet and bargain with the Union. It is clear that Respondent has refused to meet and negotiate (its failure to reply to the Union's June 4 request is, in effect, a refusal) and the only question is whether it was legally justified in doing so. Respondent asserts that it was justified in refusing to bargain because it entertained a good-faith doubt of the Union's majority status. There is no evidence in this case that the Union enjoyed majority status at the time of Respondent's refusal to bargain, but that is not dispositive of the case, because the Union enjoyed a presumption of majority by virtue of its incumbent status, including its having been party to a collective-bargaining agreement until August 31, 1974. This proceeding was initiated by a charge filed on July 23, 1976, almost 2 years after the expiration of the contract, and one might well ask how long after its expiration did the presumption continue. The question requires answer because Respondent asserts that the complaint is barred by Section 10(b) of the Act.4 As noted above, Respondent first refused to bargain with the Union on September 26, 1975, and no timely charge was filed with respect thereto; rather, a charge was filed on July 23, 1976, predicated on a demand to bargain on June 4, 1976. Despite this chronology, and whatever might be dictated under other circumstances, it is clear in the circumstances 3 Houston Shopping News Co., d/b/a Naylor Type & Mats, 223 NLRB 1133 (1976). 4 Sec. 10(b) provides, in pertinent part. That no complaint shall issue based upon any unfair labor herein that the Union at all times relevant, including June 4, 1976, enjoyed a presumption of majority status and that unless Respondent could overcome that presumption it was required to bargain with the Union, on request, in June 1976. Accordingly, the complaint is not time barred. The circumstances which dictate this conclusion is the fact that at all the times in question, since March 5, 1975, there has been pending before the Board an allegation that Respon- dent had violated Section 8(a)(5) and (I) of the Act in February 1975, an issue not resolved until April 29, 1976, and then resolved in the Union's favor. Respondent's refusal to bargain poses two issues: (1) could Respondent raise the issue of the Union's majority status in the face of an unremedied unfair labor practice, and (2) were there objective considerations to support its assertion of good-faith doubt. As to the first issue, General Counsel asserts that "Prior unremedied unfair labor practices preclude an employer from questioning the majority status of the union." This quoted language taken from King Radio Corporation, 208 NLRB 578, 583 (1974), is only partly correct. It is modified by the sentence following it that "As stated in Taft, however, the nature of the unremedied violation is a factor to be considered." The reference made was to Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801 (1973), wherein the Board agreed with the Administrative Law Judge that Respondent was not foreclosed from challeng- ing the majority status of the Union solely on the basis of Respondent's unremedied unfair labor practice. As the Administrative Law Judge there noted and the Board agreed, the Board's unremedied Order was extremely narrow in scope and "would not be apt to have detrimental or lasting effects upon employees in the unit." In my judgment, the same observation can be made with regard to Respondent's unremedied unfair labor practice in this case. The record indicates the existence of a long history of collective bargaining and contains not one scintilla of evidence that Respondent entertained any animus against the Union. The unremedied unfair labor practice was not motivated by unlawful considerations (the Board dismissed an allegation that the layoff of employees was violative of Section 8(aX3) of the Act) and consisted of a failure to notify an incumbent bargaining representative about a proposed change in a condition of employment. Moreover, as noted earlier, Respondent operates both a hot type and coldtype department, and the prior unfair labor practice affected the hot type department only. (It appears from the Board's decision in the earlier case that at the time of its occurrence that department numbered only eight employ- ees and a foreman. The major part of the unit consisted of the photocomposition department which numbered 23 employees in September 1975). In the circumstances, it is difficult to conceive how the unfair labor practice had any detrimental or lasting effects on unit employees. While the record indicates that some of the employee disaffection for the Union was expressed to Respondent contemporaneous- practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made .... 106 NAYLOR, TYPE & MATS ly with the hearing of the earlier unfair labor practice, nothing in such expressions carried any indication that the employees were reacting to unfair labor practice conduct. Finally, it should be noted that here, as in Taft, the Board's remedial order was very narrow and, apart from the cease- and-desist provisions and notice posting, provided as affirmative action only that Respondent offer to bargain with the Union about any plan to lease any portion of Respondent's operation to employees. For all the foregoing reasons, I conclude Respondent was not precluded from asserting a good-faith doubt of majority status. Respondent predicates its assertion of good-faith doubt on judicial admissions by counsel for the General Counsel and the Charging Party admitting lack of majority, extensive discussions wherein a majority of the employees told management that the Union did not represent a majority of the employees, and the lengthy hiatus in bargaining. The judicial admissions relied on by Respondent are statements of counsel for General Counsel and counsel for the Union in colloquy with Administrative Law Judge Blackburn in the prior proceeding relative to the allegation in that case that the layoff of hot type department employees was motivated by considerations of union membership. JUDGE BLACKBURN: Let me say it to you another way. In effect, you're conceding that the practical effect of this termination, if it's not undone in the course of this litigation, would be to make this a minority union in that plant? COUNSEL FOR GENERAL COUNSEL, Mr. Helms: Yes, sir. JUDGE BLACKBURN: Are you conceding that? MR. HELMS: Yes, sir. That's exactly the position we take, that the company wants to - JUDGE BLACKBURN: And that's your motive theory? MR. HELMS: Yes, sir. JUDGE BLACKBURN: You take the same position, Mr. Tucker? (Counsel for the Union) MR. TUCKER: Yes, we do. JUDGE BLACKBURN: Go ahead with Mr. Samuel, Mr. Helms. MR. TUCKER: Let me add to that. We don't necessarily concede that if what has been done with this termination or layoff is not undone by this litigation, that the union will be a minority in the plant. JUDGE BLACKBURN: You're taking a different posi- tion from Mr. Helms? MR. TUCKER: I'm saying that this is not necessarily the case because of the fact of the fluctuation of union members in the photocomposition room. We would say that this is a possibility. And we would say that we'd certainly agree with the General Counsel that it is part of our theory that the motivation here would be to eliminate union members and, thereby to eliminate union influence regarding representation or alternative method that we contended was used, not only eliminat- ed members, but splitting up the units so as to eliminate union influence in the photocomposition room. In my judgment, that colloquy is insufficient to support an assertion of good-faith doubt, because counsel for General Counsel was not an agent or representative of the Union whose statements could be binding on the Union, and counsel for the Union, although subscribing to General Counsel's theory, did not concede that the Union's majority status was dependent on the outcome of the litigation. He conceded the possibility that the Union would be a minority Union if it did not prevail in that proceeding, but maintained that "this is not necessarily the case because of the fact of the fluctuation of union members in the photocomposition [coldtype] room." Accordingly, I find no merit to this aspect of Respondent's defense. The only remaining issue is the sufficiency of the evidence that employees communicated to Respondent their desire not to be represented by the Union. To support its burden on this issue, Respondent adduced testimony from its president, vice president, and two employees. There is a significant amount of duplication in the testimony of these several witnesses. In the main, the testimony of Respondent's president, Elizabeth Nalle. is the key to a determination of the case. On direct examination, Nalle testified to conversations she had with 23 employees. By implication, all 23 employees conveyed to her their desire not to be represent- ed by the Union. However, upon examination into details of these conversations, it developed that reliance could not be placed on the conversations with II of the 23 employees. In the cases of Joe Janca and Albert Sralla, Nalle never testified as to what they told her. Robert Campbell was a new employee and the conversation described by Nalle did not indicate he did not want union representation. Henry Kuntz did not say one way or the other. The remarks of Carlos De La Fuente were ambiguous. In the cases of Howard Heerwagen, Dave Godwin, and John Doran, they were not unit employees at the times relevant. In Stanley Napierkowski's case, it is unclear whether he was a unit employee at the times relevant. In the cases of Tom Reed and Albert Broussard, Nalle's information was only what Vice President W. K. Hoppas had told her. Hoppas' testimony was that Broussard, an old employee and known union member, came to him to ask about the Union's pension plan. Hoppas told him to check with the Union. Later, he heard that Broussard dropped out of the Union. In Tom Reed's case, Hoppas testified Reed came to him in mid-May to ask about his job security. Hoppas asked him why he wanted to know and Reed said he was thinking of dropping his union card. Hoppas told him that there was no such thing as security unless a person did his job and he could not advise him. Hoppas learned later that Reed had dropped out of the Union. In short, all that really can be said of Broussard and Reed is that they dropped their union membership. The Board has clearly stated: "There is no necessary correlation between membership and the number of union supporters, since no one could know how many employees who favor bargaining do not become or remain members thereof." (Emphasis supplied.) Terrell Machine Company, 173 NLRB 1480, 1481 (1969). In Broussard's case, Hoppas 107 DECISIONS OF NATIONAL LABOR RELATIONS BOARD candidly admitted that he did not know whether, in the event of an election, Broussard would vote for the Union or not, because Broussard "didn't voice that opinion." Accordingly, I find that Respondent could not rely on Broussard's and Reed's dropping out of the Union as an objective consideration of loss of majority. As to the remaining 12 employees to whom Nalle adverted, I am persuaded that their remarks manifested a desire not to be represented by the Union and could be relied on by Respondent in questioning the Union's majority status. They are Dale Birran, Millie Barnes, Marilyn Joiner, Dora Espinoza, John Mueller, Kathy Long, Chris Alexander, Susan Kupper, Paula Quartararo, Patty Paiz, Louis Phillips, and Philip Sandling. In summary, Nalle's testimony indicates the wishes of only 12 of the employees in a unit stipulated to number 31 employees. However, the record contains additional sup- port for Respondent's doubt. Thus, Hoppas testified that proofreader Bill Jefferies, a member of the Union, came to him and asked if he could make his own deal, that he was unhappy about certain work restrictions in effect. Jefferies stated that the people in the front and back (a reference to the location of departments) did not recognize the Union. In my judgment, Respondent could rely on this conversa- tion as evidence that the Union did not enjoy majority status. In addition to the foregoing, there is uncontradicted testimony that although markup work is included in the unit, the Union has never represented, or contracted on behalf of, the markup employees. It can reasonably be inferred, and I find, that inasmuch as they were not being represented by the Union, the markup employees were not supporters of the Union. It was stipulated that there were 4 employees in markup and if that number were added Respondent would have adduced evidence concerning 17 employees on which it could predicate a reasonably based doubt of majority status. However, one cannot count this entire markup crew because one member, John Mueller, has already been counted. That still leaves 3 employees in markup, including Henry Kuntz, to whom Nalle had reference, who can be added to the 13 for a total of 16 employees concerning whom Respondent had evidence to support a reasonably based doubt of majority status. The foregoing analysis should suffice to establish that Respondent met its burden of showing by objective considerations that it had a reasonably based doubt of the Union's majority status, but it fails to do complete justice to the record. Thus, it overlooks the fact that the conversations Nalle had with employees had greater scope than to advise her of a single employee's desires. Thus, Dora Espinoza had told Nalle "nobody back there wants the Union" and Nalle had asked her to name people and she had enumerated 17 employees who were opposed to the I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. Union and only 8 who supported it. Employee Marilyn Joiner told Nalle that she and other employees had taken a head count and their figures showed 16 employees who were members of the Union and I I who were not. There is a suggestion in the testimony of Nalle and Joiner, as well as Millie Barnes, that the head counts may have been made on the basis of union membership, and, as noted earlier Terrell Machine, supra, teaches that there is no necessary correlation between membership and the num- ber of union supporters. If the head counts submitted to Respondent were the only evidence in support of its asserted doubt of majority status, I would be loath to find that its asserted doubt was supported by objective considerations. However, when one considers Nalle's long association with the Company, the size of the unit and her personal knowledge concerning the views of many employ- ees, coupled with the many conversations she described as adverted to earlier, the head counts, even if based on union membership, could reasonably be considered an indication of the Union's lack of majority support. Finally, there is the matter of the long hiatus in bargaining. Whether or not such hiatus was an indicium of the Union's lack of majority status is problematic in view of the fact that throughout the period of inactivity an unfair labor practice case was pending before the Board. I, therefore, give no weight to the hiatus as an indicium of the Union's lack of majority status. In summary, on the basis of the conversations described by Nalle, Hoppas, and the head counts reported to Nalle, I find that Respondent's asserted doubt of majority status was supported by objective considerations and that Respondent did not violate Section 8(aXl) and (5) of the Act by refusing to bargain with the Union. CONCLUSIONS OF LAW 1. Houston Shipping News Co., d/b/a Naylor Type & Mats, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Houston Typographical Union No. 87, a/w Interna- tional Typographical Union, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(aX)(1) and (5) of the Act by refusing to bargain with the Union. Upon the foregoing findings of fact, conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER5 The complaint is dismissed in its entirety. 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. 108