Turbodyne Corp.

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turbodyne Corporation,,Gas_Turbine=Division and In ternational Brotherhood of, Boilermakers, Iron Shipbuilders, Blacksmiths, , Forgers and Helpers, AFL-CIO, and Local 705 Turbodyne Corporation, `Gas Turbine Division and In- ternational Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Petitioner,' and Local Union No. 970, Metal Shop,' Warehousemen & Helpers, affiliated with In-` ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and - Helpers of America, Peti- tioner.' Cases 18-CA-4915,18-RC-10756, and 18- RC-10762 October 19, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On July 15, 1976, Administrative Law Judge Rob- ert Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in support of the Administrative Law Judge's Decision. 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, rec- ommendations,' and conclusions of the Administra- tive Law Judge and to adopt his recommended Or- der. 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 'International Brotherhood of Boilermakers , Iron Shipbuilders, Black- smiths, Forgers, and Helpers, Local 705 , AFL-CIO, intervened in Cases 18- RC-10756 and 18-RC-10762 , respectively 2 In the absence of exceptions thereto , we adopt pro forma the findings and recommendations of the Administrative Law Judge with respect to Cases 18-RC-10756 and 18-RC-10762. orders that the Respondent, Turbodyne Corporation, Gas Turbine Division, St. Cloud, Minnesota, its offi- cers, agents, successors, and-_ assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election held on March 4, 1976, -in' Cases 18-RC-10756 and 18-RC- 10762a be, and it hereby is, set aside. IT IS FURTHER ORDERED that Cases 18-RC-10756 and 18-RC-10762 be, and they hereby are, remand- ed to the Regional Director for Region 18 for further proceedings consistent with the recommended Order of the Administrative Law Judge. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This consoli- dated proceeding was heard at Minneapolis, Minnesota, on May 13, 1976,1 pursuant to due notice. The complaint, is- sued on April 26, alleges, in substance, that Turbodyne Corporation, Gas Turbine Division (herein the Employer, Respondent, or Company) violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (herein the Act), by, on or about March 1, withdrawing recogni- tion from Boilermakers 2 and by further engaging in cer- tain unilateral conduct without notice to or bargaining with that Union. By its duly filed answer, Respondent admitted the juris- dictional allegations of the complaint, but denied that it had withdrawn recognition from the Boilermakers. Re- spondent further admitted that it took certain unilateral action as alleged in the complaint, but denied that it took this action without notice to the Boilermakers. By order of the Acting Regional Director for Region 18 of the Board, on April 28, the foregoing complaint pro- ceeding was consolidated with two representation proceed- ings (Cases 18-RC-10756 and 18-RC-10762) for purposes of hearing. Such consolidation was based on a finding by the said Acting Regional Director that the aforesaid unfair labor practices of Respondent constituted the same con- duct which the Boilermakers had contended should pro- vide a basis for setting aside an election conducted by the Region on March 4, on which more anon. Subsequent to the hearing, and within the time allowed, helpful posthearing briefs have been received from the General Counsel, Respondent, and the Boilermakers. Upon the entire record in the case, I make the following: t All dates hereinafter refer to the calendar year 1976, unless otherwise indicated 2 International Brotherhood of Boilermakers , Iron Shipbuilders, Black- smiths, Forgers and Helpers, AFL-CIO, Local 705 226 NLRB No. 81 TURBODYNE CORP. 523 FINDINGS AND CONCLUSIONS 1. THE ALLEGED UNFAIR LAIJOR_PRACTICES 3 A. Background and Setting of the Issues The facts giving rise to the issues in this proceeding were stipulated at the hearing, and may be set forth, in pertinent part, as follows: On April 22, 1973, a collective-bargaining agreement with a termination-date of February 29, 1976, was entered into by the Respondent and Boilermakers Union, covering the employees in the unit 4 Article I, section I, of said agreement provides for recognition by the Company of the Boilermakers Union as the sole and exclusive collective- bargaining agent for employees in the aforesaid unit. Arti- cle IX of said agreement provides for the establishment of a noncontributory pension plan and trust along with the dates and amount of payment to be made to fund the pen- sion benefits.5 Article 19 of the aforesaid agreement sets forth the grievance procedure which, as is the usual case, involves the participation of union representatives in the several steps thereof. On December 15, 1975, and on-December 18, 1975, peti- tions were filed by the UAW and Teamsters, Local 970, respectively (Cases 18-RC-10756 and 18-RC-10762). All parties, including the aforesaid Petitioners, Respondent and Boilermakers, executed a, Stipulation For Certification Upon Consent Election which was approved by the Re- gional Director on January 2. Pursuant to said stipulation, an election was conducted by the Regional Director on January 22. The results of said election, as set forth in the tally of ballots served on the parties, were as follows: Ap- proximate number of eligible voters, 210; void ballots, 0; votes cast for UAW, 78; votes cast for Teamsters Local Union No. 970, 87; votes cast for Boilermakers Local 647, 3 There is no issue as to the Board's jurisdiction or of the status of the Unions involved as labor organizations The complaint alleges `sufficient facts which are admitted by Respondent's answer, upon which I may, and do hereby, find that the Respondent is engaged in commerce within the meaning of Sec 2(6) and (7) of the Act, and that the Boilermakers Union is a labor organization within the meaning of Sec. 2(5) of the Act I take official notice of the records in the aforesaid representation cases to the effect that the petitioners in those cases (International Union, United Auto- mobile, Aerospace and Agricultural, Implement Workers of America, UAW, and Local Union No 970, Metal Shop, Warehousemen and Helpers, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, are'labor organizations within the meaning of Sec. 2(5) of the Act. 4 The appropriate unit consists of all production and maintenance em- ployees employed in the St. Cloud plant, 711 Anderson Avenue, N, St Cloud, Minnesota, including inspectors, stores and shipping clerks, exclud- ing office :clerical employees, professionals, technicals, quality control tech- nicians, guards and supervisors as defined in the National Labor Relations Act, as amended. 5 By memorandum dated March 14, 1975, this article was amended to state It is agreed that effective March-4, 1974. contributions will be paid by the Company to the Boilermaker-Blacksmith National Pension Trust in the amount of five cents (5 cents) per hour and effective March 3, 1975, an additional fifteen cents (15 cents) per hour (total contribution 20 cents 20(cents) ) per hour 26; votes cast against participating labor organizations, 13; challenged ballots, 0; valid votes counted plus challenged ballots, 204. -On January 27, the Boilermakers Union filed timely ob- jections to conduct affecting the election and, on February 24, all parties entered into a stipulation which provided for a rerun election to be conducted on March 46, - On February 29, the current agreement between Re- spondent and the Boilermakers Union expired. On March 1, Respondent distributed to all employees in the unit a copy of a shop manual which purported to govern the wag- es, hours, and working 'conditions of the employees. In a covering letter to the employees, the manual was described as "an attempt to carry forward for the time being our existing wages, hours, and working conditions." -However, with respect to the grievance procedure, the involvement of a union representative was deleted. Also the covering letter announced that "all contributions -to the Boilermakers' pension fund have been discontinued. The Company will, however, continue to set aside money at'the previous rate to fund any subsequent arrangement which may be arrived at." 7 - Also on March 1, by letter, the International vice presi- dent of the Boilermakers Union confirmed a telephone conversation which he assertedly had with an officer of Respondent in which the Boilermakers' Union was notified that the Company, was "officially terminating our collec- tive-bargaining agreement and unilaterally replacing it with a operating manual designed solely by the Company as a replacement to said agreement." The writer of the letter accused the Company of engaging in an unfair labor practice by such conduct, and requested that the Company continue to deal with the Boilermakers Union "as bargain- ing agent in all' matters relating to grievances and other matters relating to terms and conditions of employment of bargaining unit employees inasmuch as the Boilermakers Union is still the certified bargaining agent," However, it was stipulated that at all times since March 1 Respondent has refused to accept and process any grievances presented by agents- of the Boilermakers Union and, more specifical- ly, on March 22 and on April 2, grievances presented by the Boilermakers grievance committee were rejected by Re- spondent's representatives. On March 4, a` rerun election was conducted pursuant-to the aforesaid order, of the Regional Director dated Febru- ary 27. The results of the rerun election, as set forth in the tally of ballots served on the parties, were as follows: Ap- proximate number of eligible voters, 203; void ballots, 0; votes cast for UAW; 86; votes cast for Boilermakers, 46; votes cast for Teamsters, 62; votes cast against participat- ing labor organizations, 3; challenged ballots,- 0; valid votes counted plus challenged ballots, 197. On March 9, the Boilmakers Union filed timely objec- tions to conduct affecting the results of the rerun election which, as previously set forth, alleged conduct substantially similar to that contained in the instant complaint case. 6 On February 24, Boilermakers Union Local No 647 became Boilermak- ers Union 705, which accounts for the discrepancy in ,the name of that Union before and after said date 7SeeGC Exh 4 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Analysis and Concluding Findings There can be no question but that following the filing of the petitions by the UAW and Teamsters in December 1975, and the procedures subsequent thereto, a question concerning representation (QCR) arose with respect to the employees of Respondent in the appropriate unit. It is fur- ther apparent that such QCR had not been resolved, by February 29 when the, current agreement between-Respon- dent and Boilermakers Union terminated. The question be- comes, then, what the legal duties and obligations of Re- spondent were vis-a-vis the Boilermakers Union as exclusive collective-bargaining representative of its- em- ployees, pending resolution of the QCR. It is well established that an employer, faced with claims for representation of his employees by two or more com- peting labor organizations, must remain neutral.8 The issue becomes somewhat more complex, however, where, as in the instant case, one of the competing labor organizations is an incumbent and the QCR has not been resolved by the time its collective-bargaining agreement with the employer expires. What constitutes "remaining neutral" for an em- ployer under these circumstances? Counsel for the General Counsel,,relying.principally on such Board cases as Shea Chemical Corporation,' Telauto- graph Corporation,10 and G & H Towing Company," con- tends that the unilateral action taken by Respondent, in the instant case was unlawful. In Shea, the Board held that where a QCR exists: an employer may not go so far as to bargain collec- tively with the incumbent (or any other) union unless and until the question concerning representation has been settled by the Board. This, is not to say, that the employer must 'give an undue "advantage to. the rival union by refusing to permit the incumbent union to continue administering its contract or processing grievances through its stewards.'2 The foregoing holding of the Board was affirmed in Tel- autograph, which involved the filing of a decertification pe- tition. G&H Towing involved an allegation of violation of Sec tion 8(a)(2) and (1) of the Act. In that case, as in the case at bar, a QCR.existed at a time when the collective-bargain- ing agreement between the company and incumbent union expired.13 In these circumstances the respondent and in- cumbent union "extended the termination date of their ex- isting contract from time to time so as to avoid a lapse in contractual relations while awaiting resolution of the repre- sentation question. No changes were made in wages or any other contractual terms during this period. There is no evi- dence that the parties engaged in any bargaining, or even introduced preliminary proposals. Thus, 'consistent with ' Midwest Piping and Supply Co., Inc., 63 NLRB 1060 (1945) 9 121 NLRB 1027 (1958). 10 199,NLRB 892 (1972). 'i 168 NLRB 589 (1967) iz 121 NLRB at 1029 13 An NLRB election was in progress at the time inasmuch as the respon- dent, a towing company, had employees in various locations, and the voting could not be completed until several days following the expiration of the contract what we said in Shea, G&H pursued a neutral course by neither `bargaining collectively with the incumbent or any other union' nor `refusing to permit the incumbent union to continue ' administering its contract. . . .' We find no violation in the extensions of G&H's contract with the Sea- farers [incumbent union]." 11 Under the foregoing authorities, it seems clear that it would not have been a violation of the Act for Respondent and incumbent union' too' temporarily extend the provisions of the `expired contract pending resolution of the QCR. It would seem to follow that a violation of the Act does occur where, during a hiatus 'perlod;'the respondent unilaterally attempts to impose-and 'does impose-new procedures for the-resolution of grievances.15 The Respondent does' not appear to meet head on the foregoing argument. Rather, it defends its engaging in, the March I conduct, above described, on- the grounds that it had a good-faith'doubt of the Boilermakers continued ma- jority status. In its brief, Respondent'contends that such doubt resulted from the fact "that the Boilermakers Union obtained only 26 out of the 204 votes cast during the repre- sentational election conducted by the Regional Director on January 22, 1976." It follows, argues Respondent, that it was not under a duty 'to bargain with the Boilermakers, and "therefore the nondiscriminatory unilateral changes it made regarding the grievance -procedure and the pension plan which form the basis of the General Counsel's case do not constitute violations of Section 8(a)(1) or (5) of the Act." Respondent further contends that such objective evi- dence as shown by the Boilermakers relatively poor show- ing in 'the January election provided ample support, for its good-faith doubt of the Boilermakers majority status, and overcame a,ny 'such presumption of majority status that flowed from the current collective-bargaining agreement.16 I cannot agree with Respondent's position. It is clear from the facts in this case that a QCR had arisen-and still existed-at the time of Respondent's alleged unlawful con- duct. It is well settled that, where there exists a QCR, the employer is obliged under law to adopt and maintain a neutral position with respect to the competing labor orga- nization until such QCR has been resolved. The basic issue to be resolved in this case, in my view, is what constitutes "remaining neutral" in such a situation where one of the vying labor organizations is' an incumbent union whose collective-bargaining agreement with Respondent has ex- pired. Shea, Telautograph, and G&H,'Towing, supra, teach that an employer is clearly not required to abrogate the terms and conditions of employment,'which had been ex- tant in the plant during,, the currency of the last collective- bargaining contract. Indeed, in G&H Towing, as previously noted, it was specifically held-not to be a violation of Sec- "'168 NLRB at 591 15 Cf The Hilton-Davis Chemical Company, Division of Sterling Drug, Inc, 185 NLRB 241, 242-243 (1970), where in a hiatus situation (not involving a QCR), the Board stated " It seems clear, to us that an employer may not unilaterally attempt to impose new channels for resolution of disputes with- out undercutting the union's representative status " The same principle applies with respect to the unilateral discontinuance of a retirement fund See Sir James, Inc, 183 NLRB 256 (1970) is See, e g., Bartenders, Hotel Motel and Restaurant Employers Bargaining Association of Pocatello, Idaho and its Employer-Members, 213 NLRB 651 (1974) TURBODYNE CORP. 525 tion 8(a)(2) and (1) of the Act for the parties to extend the termination date of the existing contract pending resolu- tion of the QCR. The other side of this coin, it seems to me, is that a violation of Section 8(a)(5) and (1) of the Act occurs when an employer unilaterally institutes certain ba- sic changes in the coll ective agreement pending resolution of the QCR. If the foregoing legal analysis is valid, the question of good-faith doubt of majority status of the incumbent union by the respondent, at some point in time during the process of resolution of the QCR, is essentially beside the point. The legal obligation of an employer, irrespective of doubt of majority status, is to await resolution of the QCR by the National Labor Relations Board or other appropriate agency, before instituting any changes in the working con- ditions of the employees. This, of course, Respondent failed to do in this case. But, even under Respondent's view, I would have ex- treme difficulty in concluding that it had met its burden of overcoming the presumption of majority status possessed by the contracting union.17 As previously noted, the Re- spondent bases its whole case on the fact that the Boiler- makers received only 26 of approximately 210 votes in the January election. However, the Boilermakers filed timely objections to conduct affecting the results of said election, and said election was set aside by agreement of the parties without further record being made of what such conduct consisted of. It would seem to be a reasonable inference to be drawn from the foregoing facts that the wrongful con- duct had some effect on the vote in the election. Based upon all of the foregoing, I conclude, and there- fore find, that the unilateral conduct, above described, en- gaged in by Respondent on March 1 constituted violations of Section 8(a)(5) and (1) of the Act, and I will recommend an appropriate remedy. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAw 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Boilermakers Union, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. By withdrawing recognition from the Boilermakers Union, by unilaterally altering the grievance procedure previously established by the terms of the recently expired collective-bargaining agreement, and by ceasing to contri- bute to the Boilermakers Union's pension plan in the man- ner above described, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 17 The Board and court have consistently held that a contracting union is presumed to represent a majority of the employees in the bargaining unit during the life of a collective-bargaming agreement, and this presumption continues after the expiration of the agreement although it may be over- come by appropriate evidence. See Essex International, Inc, 222 NLRB 121 (1976); Eastern Washington Distributing Company, Inc, 216 NLRB 1149 (1975); Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (C A. 4, 1970) 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof , and constitute unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, as aforesaid, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 Respondent, Turbodyne Corporation, Gas Turbine Di- vision, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally withdrawing recognition from the Boil- ermakers Union as the exclusive bargaining representative of its employees in the appropriate unit, unilaterally ceas- ing to make "contributions on behalf of the employees in the appropriate unit to the Boilermakers Union's pension plan, and unilaterally altering the grievance procedure pre- viously established by the terms of the collective-bargain- ing agreement between the Respondent and Boilermakers Union, which expired on February 29, 1976. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Pending resolution of the existing question concern- ing representation of the employees in the appropriate unit: (1) recognize the Boilermakers Union as the exclusive collective-bargaining representative of its employees in the appropriate unit; (2) restore the grievance procedure which existed in the collective-bargaining agreement with the Boilermakers Union, which expired on February 29, 1976; and (3) reimburse all delinquent payments to the Boiler- makers Union's pension fund since March 1, 1976. (b) Post at its St. Cloud, Minnesota, facility copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's repre- sentative, shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places 18 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 19 In the event 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director , in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that, in view of the above findings and conclusions, the Boilermakers Union's objections to the rerun election conducted by the - Board in Cases 18- RC-10756 and 18-RC-10762 be sustained, and that the results of said election be set aside, and that both cases be remanded to the Regional Director for Region 18, for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bar- gaining representative. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pending resolution of the question concerning representa- tion which presently exists among our employees in the unit described below, we hereby notify our employees as follows: WE WILL NOT refuse to recognize International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths, Forgers, and Helpers,'Local 705, AFL- CIO, as the exclusive collective-bargaining representa- tive of our employees in the appropriate unit . The ap- propriate bargaining unit is: All production and maintenance employees em- ployed in the St. Cloud plant, 711 Anderson Ave- nue, N., St. Cloud, Minnesota, including inspectors, stores and shipping clerks; excluding clerical em- ployees, professional, technical, quality control technicians, guards and supervisors as defined in the National Labor Relations Act, as amended. WE WILL NOT unilaterally change or alter the griev- ance procedure as it existed in the last collective-bar- gaining agreement between us and the aforesaid Union prior to March 1, 1976. WE WILL make up all delinquent payments to the said Union's pension fund which we have failed to make since March 1, 1976. TURBODYNE CORPORATION, GAS TURBINE DIVISION