Grace and Hornbrook Manufacturing Co.

GRACE AND HORNBROOK MANUFACTURING 15 Grace and Hornbrook Manufacturing Company and Hanlo Gage and Engineering Company and Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and its Local 157. Case 7-CA-12282 FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts June 24, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On March 5, 1976, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This pro- ceeding was initiated by a charge filed by the above-cap- tioned Union on September 2, 1975) Pursuant thereto, complaint issued on October 30 alleging that the above- captioned Respondent had violated Section 8(a)(1) and (5) of the Act by imposing unlawful conditions on bargaining and by withdrawing recognition for the asserted reason that the Union no longer represented a majority of its em- ployees. On December 8, hearing was held in Detroit, Michigan. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by the parties, I hereby issue the following- Unless otherwise indicated, all dates hereinafter are in 1975 Grace and Hornbrook Manufacturing Company and Hanlo Gage and Engineering Company (hereinafter collec- tively called Respondent) are separate corporations en- gaged in the manufacture and sale of gages, gage compo- nents, large fixtures, and special machinery at a plant facility located in Southfield, Michigan. The complaint al- leges, the answer admits, and I find that Grace and Horn- brook and Hanlo Gage constitute a single employer within the definition of Section 2(2) of the Act. The complaint alleges, the answer admits, and I find that the Respondent meets the Board's direct outflow standard for the assertion of jurisdiction and constitutes an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. On September 9, 1974, the Union was certified as the representative of Respondent's employees in a production and maintenance unit. Thereafter the parties entered into negotiations. On November 19, 1974, the employees went out on strike and continued on strike until February 12, 1975. At the time of the strike the employee complement consisted of between 30 and 35 employees, 26 or 27 of whom went out on strike. At the time the strike ended 19 or 20 employees were still on strike. The plant operated during the strike and negotiations were continued without reaching agreement. Substantial progress had been made by April 24, but the parties were still apart on several issues. On June 20, a decertification petition was filed. On July 7, it was dismissed for untimeliness. In early July, a charge was filed by the same employee who had filed the RD petition alleging, in essence, collu- sion between Respondent and the Union to reach a certain type of agreement, including a fixed vote on the matter. The charge was dismissed. During the pendency of the charge, officials of Respon- dent met with Attorney Katz, Respondent's representative in bargaining, to discuss the matters raised by the charge, and, as a result, on July 18, Katz advised the Union by letter that it was Respondent's position that any agreement reached was subject to ratification by a vote of all unit employees. On July 22, a negotiating meeting was held. Respondent asked the Union for its position on a ratification vote by all employees and the Union replied that only union members would vote. Thereupon, Respondent's officials left the meeting to discuss the matter They returned to inquire again about the Union's position, and when the Union reit- erated its position, according to Joseph Mazzola, vice pres- ident of the Union, Bob Hornbrook, Respondent's vice president and treasurer, stated that they were not negotiat- ing any more, that there would be no more meetings and he left. Katz confirmed that Hornbrook stated he was not going to meet because of the voting issue, but he asserted that Hornbrook did not use the word "future, or future meetings or anything." When Mazzola remarked that 225 NLRB No. 4 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hornbrook was refusing to meet, Katz cautioned him not to twist the facts, that Hornbrook "is relating to the single issue only." Mazzola testified on direct examination that on July 25 he had a telephone conversation with Katz in which Katz stated Respondent had not changed its position on the vot- ing issue. Katz denied this and pointed out at the hearing that on cross-examination Mazzola had admitted to a tele- phone conversation with Katz before August 1 wherein Katz had suggested further negotiations and that the vot- ing question would not be an issue any more. On August 1, Katz notified Mazzola by letter that Respondent was not refusing to meet to negotiate a contract. The ratification issue was never raised again except that at the meeting of August 21, in reply to Mazzola's inquiry, Katz confirmed that the issue was off the table. Prior to July 22, the parties had been keeping notes of agreements reached on separate sheets of paper and at the July 22 meeting Katz offered or agreed to prepare a docu- ment incorporating all the provisions agreed upon and to transmit it to Mazzola. On or about August 12, Mazzola received the document. On August 7, Respondent received a petition signed by 19 of the employees in the unit expressing a desire for a vote on the question of union representation 2 Attorney Katz recognized the names of 5 employees who had never joined the strike and 3 employees who had abandoned it; at the time, 23 employees were employed and 4 were on layoff status. Sometime thereafter, Katz telephoned Mazzola to tell him of the petition and that the Respondent entertained a doubt of the Union's majority status and it would propose at the next negotiating meeting that the expiration date of any contract agreed to be coextensive with the end of the certification year. On August 21, the parties met and Re- spondent took the position outlined above. The Union re- jected any suggestion of a contract of such brief duration and relied on the fact that all prior negotiations had oc- curred in the context of a 3-year agreement. Mazzola then purported to accept the 3-year contract proposed by Re- spondent in earlier negotiations . Nothing was accom- plished. On September 8, Mazzola hand delivered a letter to Katz again purporting to accept a 3-year agreement. There is no showing of any response On September 12, the parties met with a mediator, but Respondent asserted its doubt of the Union's majority status and refused to negotiate. B. Analysis and Conclusions The principal issue presented herein is the legality of Respondent's proposal for a contract with a duration clause coextensive with the expiration of the certification year and its postcertification year refusal to bargain. All other issues are subsidiary. The first such issue involves testimony by Vytout Petrul, a tool operator and chairman of the negotiating committee about statements made to him by General Manager Lee 2 The petition contains 20 signatures, but apparently 1 is that of a nonunrt employee Chenowith on the day Petrul returned to work. Petrul was placed on layoff status when the strike ended and did not return to work until May 27. He testified that on that day Chenowith told him to get back to work, no fooling around and let's get the plant going back again. (These remarks are not alleged to have been violative of the Act.) Shortly thereafter, Petrul received a call from Mazzola informing him of a meeting and Petrul went to inform another com- mittee member of the meeting at his place of work just outside the office. Later, Chenowith came to Petrul and told him he should not do any talking on union activities in the plant, that if he had anything to talk about to anybody he should do it outside the building. The conduct attributed to Chenowith by Petrul forms the basis for a complaint allegation that Respondent pro- mulgated an unlawful no-solicitation rule in violation of Section 8(a)(1) of the Act. If Petrul were credited, the alle- gation would be sustained. However, Chenowith, who ad- mitted to the first conversation with Petrul, denied the sec- ond conversation ever took place. I am disposed to credit Chenowith. Petrul's testimony on this matter was very brief and sketchy and there is very little in the record to rely upon to lend credence to it. However, there are circumstances which militate against giving his testimony credence. For one thing, the fact of his conversation with another com- mitteeman was not corroborated. For another, according to Petrul's own testimony, the incident came about as a result of a call from Mazzola which was apparently re- ceived at the plant, and Respondent's cooperation in such a call would be inconsistent with any edict such as Petrul attributed to Chenowith. It would be consistent, however, with Chenowith's uncontradicted testimony that Respon- dent permitted such calls despite a rule against nonwork related activity during working time. Moreover, it is note- worthy that neither Petrul nor Mazzola protested any such unlawful restriction on Petrul's union activities at any of the meetings held after May. For the foregoing reasons, I credit Chenowith and I shall dismiss the complaint allega- tion predicated on Petrul's testimony. The second subsidiary issue relates to Respondent's re- fusal to continue the meeting of July 22, because of the Union's refusal to agree to permit all unit employees to vote on ratification of any contract proposal. First there is the question: Did Bob Hornbrook state that there would be no more meetings because of the Union's position on the ratification vote? I find he did. Both Mazzola and Pe- trul testified to that effect and while neither was an impres- sive witness (Mazzola gave very disjointed testimony) their testimony was not contradicted. Hornbrook did not testify, Chenowith was not examined about the matter; and Katz did not specifically contradict Mazzola's testimony. As noted earlier, Katz stated Hornbrook had not used the word "future," but Mazzola did not accuse him of doing so; he testified that Hornbrook said there would be no more meetings. The second question is the significance of that remark and Respondent's conduct in leaving the meeting and aborting any discussion of contract issues. The complaint alleges that such conduct was violative of Section 8(a)(1) and (5) of the Act. The theory of the violation is that the GRACE AND HORNBROOK MANUFACTURING 17 question of ratification is an internal union matter and a nonmandatory subject of bargaining, and that an employer may not insist to impasse on a nonmandatory subject. This is clearly the rule of law .3 But, did Respondent insist to the point of impasse? While I have found that Respondent walked out of the July 22 meeting because of this issue with the statement there would be no more meetings, the fact of the matter is that within a few days Respondent , by coun- sel, retracted from that position and removed the issue from the bargaining table . General Counsel has cited no authority for a finding that such conduct constituted a bar- gaining to impasse . I find that Respondent did not insist to impasse on a ratification vote on any agreement arrived at and did not violate Section 8(a)(l) and (5) of the Act as alleged in the complaint. Next to be considered is the Respondent's conduct at the meeting of August 21. There is no dispute about the facts. At the meeting Respondent admittedly proposed a con- tract to expire on September 9, 1975, the date of the expira- tion of the certification year. In other words, Respondent proposed a contract for a 2-1 /2-week period. Respondent argues that its proposal did not exclude a contract retroac- tive to the beginning of the certification year, thereby sug- gesting that the proposal was not a frivolous one, nor one from which an inference of bad faith could be drawn. Giv- en the background of the negotiations and the consider- ations that Respondent relied on in making such proposal, I am persuaded that the possibility of such retroactivity was so remote as to make it a meaningless consideration. In my judgment, the proposal cannot be disguised as any- thing other than a proposal for a 2-1 /2-week contract. Fur- thermore, in my judgment, it was a proposal no union could be expected to accept. It does not follow from the foregoing that Respondent's proposal was necessarily violative of Section 8(a)(5) of the Act. Although it is a firmly established rule that, about unusual circumstances , a union's majority status is conclu- sively presumed for a year following a Board certification,4 it has nevertheless been held that an employer who has reason to doubt a union 's continued majority support may insist upon a contract duration coextensive with the certifi- cation year. The Hinde & Dauche Paper Company, 104 NLRB 847 ( 1953); Vulcan Steel Tank Corporation, 106 NLRB 1278 (1953); Lloyd A Fry Roofing Company, 123 NLRB 647 (1959). Such holdings appear to be inconsistent with the certification year rule. Yet, as Administrative Law Judge Louis Penfield pointed out in F. Strauss and Son, Inc., 216 NLRB 95, 100, ". . . the limited duration concept seeks to recognize that circumstances may arise which could result in forcing an unwanted representative on the employees for an extended period of time." Where an employer proposes a contract of such limited duration, it must appear that the proposal is not in bad faith or to achieve an illegal purpose (Lloyd A. Fry, supra at 650) and it must be based on a doubt of majority status supported by objective considerations. As to the first point, there is no allegation in the com- plaint that Respondent did not bargain in good faith, nor is there any evidence to warrant such a finding . While the Respondent could not honestly have expected the Union to accept a contract of such brief duration as it proposed, and in that sense could be said to have made its proposal in bad faith, I do not understand that the Board would infer bad faith on the basis of the proposal alone where the proposal was predicated on objective proof of loss of majority sup- port. If bad faith were to be inferred from the mere fact of the proposal, the entire concept of a contract of limited duration in circumstances showing a loss of majority status would be destroyed. Nor do I understand the General Counsel's position to be otherwise ; rather, I understand his position to be two- fold: that the asserted good-faith doubt was not supported by objective considerations and that it occurred in the con- text of unfair labor practices or conduct aimed at causing dissatisfaction from the Union. On the issue of objective considerations , Respondent as- sertedly relied on six factors: 1. Effective April 24, 1975, a committeeman ceased at- tending negotiation meetings and was not replaced thereaf- ter on the Union's negotiating team. In support of its reliance on this fact, Respondent cites Lloyd McKee Motors, Inc., 170 NLRB 1278 (1968). I agree with General Counsel that this fact afforded Respondent no reason to doubt the Union's majority status. In Lloyd McKee, there were several changes in the union negotiating committee and the unfilled post was that of a steward. Here, all that appears is that one member of the committee ceased attending negotiating meetings. The mere fact that he was not replaced is insufficient to warrant an inference that the Union could not do so. 2. At the July 22 bargaining session, Mazzola made strong comments relative to posting a sergeant-at-arms to exclude nonmembers from attending any meeting where the contract would be discussed. Any remarks attributed to Mazzola on July 22 arose out of Respondent's proposal that all employees in the unit be permitted to vote on the question of contract ratification. There is some conflict regarding precisely what Mazzola said, but, assuming Mazzola made the remarks attributed to him by Respondent, this afforded no basis for doubting the Union's majority status. I understand that it is a basic tenet of any trade unionist that only union members will vote on acceptance or rejection of a contract proposal and all trade unionists will fiercely oppose the presence of any nonmember in their deliberations though he be the only nonmember in the unit . Apart from that , Mazzola's re- marks at most suggested that less than a majority of the unit employees were union members and the Board has long held, as General Counsel points out, "there is no nec- essary correlation because membership and the number of union supporters, since no one could know how many em- ployees who favor union bargaining do not become or re- main members thereof." Terrell Machine Company, 173 NLRB 1480, 1481 (1969). 3. On June 20, 1975, a unit employee filed a decertifica- 7 N L R B v Wooster Division of Borg-Warner Corporation, 356 U S 342 tion petition which was dismissed on July 7, 1975, as un- (1958) timely. 4 Ray Brooks v N L R B, 348 U S 96 (1954) 4. In July 1975, the same employee who filed the decer- 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tification petition filed unfair labor practice charges alleg- ing collusion between the Union and Respondent. The two foregoing factors relied on by Respondent are not adverted to by General Counsel. They need not have been. The unfair labor practice charges evidenced discon- tent by one employee, the decertification petition by per- haps 30 percent of the employees (the record does not indi- cate how many employees supported that petition) Accordingly, the discontent evidenced by these two inci- dents was insufficient to support a good-faith doubt of ma- jority. 5. Overt repudiation of the Union by employees to Re- spondent during all times material. This factor is based on testimony of Respondent's attor- ney and General Manager Chenowith respecting state- ments to them by employees and their observations about the number of employees who did not join the 12-week strike or who abandoned it. Thus, according to Chenowith, seven or eight employees did not go out on strike (at least five of whose names are on the petition 5 ) and they ex- pressed to him their opposition to the Union both during and after the strike. In addition, three employees aban- doned the strike and told him they were fed up with the Union and wanted nothing to do with it and had resigned from the Union. Three other employees (who apparently had supported the strike throughout) told Chenowith they were fed up with the Union and wanted nothing to do with it. According to the brief of Respondent, there were 15 oral repudiations; according to General Counsel, 14. Neither party gave record references on this point in their briefs and, taking into consideration transcript errors I count only 12 employees orally expressing dissatisfaction with the Union. It is immaterial how many employees had made oral expressions of dissatisfaction as I am not relying on the number of oral statements in upholding Respondent's position In this connection, however, I reject General Counsel's contention that I should not credit the testimony of Attorney Katz and Chenowith regarding oral statements because of the failure of Katz to mention such statements in a position paper submitted during the investigation of the instant charge and the failure of Chenowith to include them in his prehearing affidavit Apart from other consid- erations, I note that their testimony was uncontradicted. I find, therefore, that oral statements were made to Re- spondent by a number of employees expressing dissatisfac- tion with the Union. However, were such statements the only circumstance to support an asserted doubt of majori- ty, I would deem them insufficient. Some were made by employees who had never supported the Union and the others were made in the course of, or in connection with, an unsuccessful strike. In such a circumstance, employees may well be discontent over the turn of events without wanting to forego continued union representation. Accord- ingly, the only significance I attach to such oral statements is that they could rightly be regarded by Respondent as part of the evolutionary process which culminated in the petition of August 7. 5 It may well be that the names of all seven or eight nonstrikers appeared on the petition, but, if so, the record is far from clear on the point 6. The August 7 petition. As noted earlier, on August 7 Respondent received a petition signed by a majority of the employees in the unit which stated "The following employees of Grace and Hornbrook Mfg. Company and/or Hanlo Gage and Engi- neering Company would like a re-vote in the matter of certification of bargaining agent between the company and ourselves." General Counsel contends this petition could not be re- lied upon for a good-faith doubt for a variety of reasons. Since the signatures on the petition were dated in the week immediately following Respondent's walking out of a meeting because of the Union's refusal to permit all unit employees to vote on the question of contract ratification, General Counsel argues that it is only reasonable to as- sume that the unit employees were confused as to the im- port of the petition. Of course, we are weighing Respondent's good-faith doubt, not the employees' possi- ble confusion. But, be that as it may, the wording of the petition is clear, it speaks in terms of a certification of bargaining agent, not a ratification of contract. General Counsel next argues that the wording of the pe- tition does not indicate a repudiation of the Union. I do not agree. Where there is a certified union representing employees, and the employees sign a petition asking for a revote, the conclusion that they are repudiating the Union is inescapable. If they wanted the Union to continue to represent them, obviously, they would be opposed to any revote. As to the cases cited by General Counsel, they are clearly distinguishable. As noted earlier, General Counsel contended that Re- spondent violated Section 8(a)(5) by its conduct at the July 22 negotiation session, a contention which I rejected. Gen- eral Counsel argues alternatively that, even if Respondent is not found guilty of a refusal to bargain on July 22, Re- spondent was aware of employee concern over the ratifica- tion issue and it could reasonably infer that by taking an adamant stand on this nonmandatory subject of bargain- ing it could cause employee disaffection with the Union. In other words, General Counsel contends that Respondent was instrumental in employees signing the petition and for that reason it cannot now rely on the petition as a basis for proposing a contract expiring with the certification year. I am not persuaded that such a conclusion can be drawn from the facts. Assuming, arguendo, that the employees learned of the July 22 meeting and of the Union's position and Respondent's reaction, why would the employees' ac- tion in signing the petition be attributable to Respondent's conduct, rather than the Union's? In other words, while the Union had the legal right to exclude nonmembers from its deliberations, it had no right to be insulated from employee reaction to its exercise of that right, and the fact that a majority of the employees signed the petition in the week following the July 22 meeting is more likely to be attribut- able to employee dissatisfaction with the Union's position than to the Respondent's conduct. I would not, therefore, preclude Respondent from relying on the August 7 petition by reason of its conduct at the July 22 meeting. In short, I conclude that the August 7 petition was not shown to have been tainted by conduct of Respondent, and that on the basis of such petition signed by a majority GRACE AND HORNBROOK MANUFACTURING 19 of the unit employees, in the context of a history of 10 months of bargaining during which there had been an un- successful 12-week strike and with employees voicing dis- satisfaction with the Union , Respondent was justified in proposing to limit the duration of any contract to the certi- fication year. Lloyd A Fry Roofing Co, supra The foregoing conclusion is dispositive of the sole re- maining issue ; namely, the legality of Respondent's refusal to bargain after September 9. After the expiration of the certification year, the presumption of the Union 's contin- ued majority status was rebuttable and Respondent's as- serted doubt of majority status was justified if based on objective considerations . It would seem supererogatory to point out that the considerations which supported the Respondent's proposal of a contract with a duration date coextensive with the certification year constituted suffi- cient objective considerations to support Respondent's as- sertion of doubt after the expiration of the certification year. Accordingly, I find that Respondent did not violate Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union after September 9, 1975. employer engaged in commerce within the meaning of Sec-_ tion 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and its Local 157 are, labor organizations within the mean- ing of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(1) of the Act by promulgating an invalid no-solicitation rule, nor did it violate Section 8(a)(1) and (5) of the Act by its conduct respecting a ratification vote, by proposing a contract with the same expiration date as the certification year, and by refusing to bargain with the Union after expiration of the certification year. 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: ORDER6 The complaint is dismissed in its entirety CONCLUSIONS OF LAW 1. Grace and Hornbrook Manufacturing Company and Hanlo Gage and Engineering Company constitute a single 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 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