Dy-Dee Wash, Inc.

DY-DEE WASH, INC. 389 Dy-Dee Wash, Inc. and Teamsters Local 344, Sales and Service Industry, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 30- CA-3623 February 22, 1977 DECISION AND ORDER BY MEMBERS JENKINS , PENELLO, AND WALTHER t On November 26, 1976, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent both filed exceptions and a supporting brief. The General Counsel also filed an answering brief to Respondent's exceptions. 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, as modified herein.2 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 as modified below and hereby orders that the Respon- dent, Dy-Dee Wash, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: Add the following as paragraph 1(b): "(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act " I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge found it to be undisputed that Respondent refused to recognize and bargain with the Union on or after April 1, 1976. Respondent, however, in its brief to the Board, argues for the first time in these proceedings that the critical date was not April 1, but April 14, the day a union representative called Respondent's president and was informed that there was no further need to negotiate as the contract had expired on March 31. The extension of the date of withdrawal of recognition by 2 weeks would enable Respondent to rely on additional conversations with its employees about their antiunion feelings so that arguably there would have been sufficient objective considerations for a reasonably based doubt as to the 228 NLRB No. 46 Union's majority status and therefore justification for Respondent's with- drawal of recognition. However, we find no merit in Respondent's argument that such an extension of the critical date is warranted. Respondent president's testimony at the hearing clearly shows that the withdrawal of recognition occurred upon the expiration of the contract on March 31 . Further, Respondent argued in its brief to the Administrative Law Judge that April 1 was the date that recognition was withdrawn and it would stretch the imagination too far to accept Respondent's explanation that its position before the Administra- tive Law Judge was the result of typographical errors in setting down the proper date in its brief. Finally, Respondent in its answer denied that paragraph of the complaint which alleged that recognition was withdrawn on or about April 14. We also find it necessary to clarify the Administrative Law Judge's holding regarding Charles Wildrick who, at the time he started working on March 24, 1976, or shortly thereafter, had a conversation with his supervisor, Todd Mainville, indicating his desire not to be affiliated with the Union. The Administrative Law Judge did not resolve the question of whether Wildrick's views came to Respondent's attention prior to the critical date. We note, however, that it is unlikely that they did considering that the record reveals that Mainville did not become a supervisor until April 1, 1976, which would place the conversation sometime after Respondent withdrew recognition from the Union. 2 The Administrative Law Judge inadvertently omitted from his recom- mended Order the language used in 8 (axl) and (5) unfair labor practice cases DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on May 4, 1976, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30 (Milwaukee, Wisconsin), issued a complaint on July 13, 1976, against Dy-Dee Wash, Inc., herein called Respondent or the Company, alleging that it had engaged in certain unfair labor practices violative of Section 8(a)(1) and (5) of the Act. Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before me on September 9, 1976, in Milwaukee, Wisconsin . Briefs were received from the General Counsel and Respondent on October 12, 1976, and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Wisconsin corporation with its principal place of business and facilities in Milwaukee, Wisconsin, where it is engaged in providing diaper service. Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local 344, Sales and Service Industry, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The issue in this case is whether Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recogni- 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the Union as the employees' bargaining agent and by allegedly engaging in certain other unilateral action. A. The Withdrawal of Recognition For approximately 30 years Respondent has recognized the Union as the collective-bargaining agent for its employ- ees in a bargaining unit consisting of all route salesmen and regular relief drivers, excluding sales supervisors and the sales manager. Having also maintained a contractual relationship throughout this period, the latest collective- bargaining agreement was effective from April 1, 1973, to March 31, 1976. Although two collective-bargaining meet- ings were held prior to the expiration date, it is undisputed that Respondent refused to recognize and bargain with the Union on and after April 1, 1976.1 Respondent defends its refusal to recognize the Union on the aforesaid date on the ground that it had a reasonable basis for believing that the Union no longer represented a majority of the employees. In support of this contention, Respondent states in its brief that "Four employees, out of seven in the bargaining unit, independently came to management on or before March 31, 1976, and said they didn't want to join the union or they were dissatisfied with the union." (Emphasis supplied.) Unfortunately for Re- spondent, the evidence does not sustain this allegation of fact. That there were a total of seven employees in the unit at the times material hereto is not in dispute. It is also undisputed that three of them; namely, employees Ken Kosmatka, Bernie Rendfleisch and Robert Ellicson, were members of the Union at all times material hereto. Respondent deducted their dues until March 31, 1976, and it is clear that none of these employees ever indicated to Respondent any dissatisfaction with the Union. On the other hand, it is clear that at least two of the remaining employees were known by Respondent, prior to the critical date, not to be in favor of the Union. Lawrence Keis was hired as a route salesman in the latter part of February 1976. The record reflects that, shortly after being hired, Keis informed Hellerman that he had been previously affiliated with Local 344, the Charging Union , that he was dissatisfied with it, and that he did not wish to become a member. Notwithstanding that the then current collective- bargaining agreement contained a valid union-security clause, the fact is that Keis never became a member of the Union and union dues were never deducted on his behalf. The second employee, Lowell Peters, was employed by Respondent for 5 years. He also never became a member of the Union. Dues were never deducted on his behalf and he never was covered by the Union's health and welfare plan. On at least one occasion during this period, Peters let it be known to Karl Hellerman , Respondent's president, that he did not wish to join the Union. ' The complaint alleges, and the answer admits, that negotiations between the parties were held on March I I and 26, 1976. However, no evidence was adduced concerning the substance of these negotiations. 2 Although the record does not reflect whether the Union was initially recognized by Respondent on the basis of a Board certification, it may be presumed that it enjoyed a majority status at that time. Accordingly, the same legal principles are applicable. 3 Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801 (1973); Ray Charles Wildrick, the sixth unit employee under discus- sion, was hired by Respondent on March 24, 1976. Although the record reflects that Wildrick, during a conversation with Hellerman at the end of the first week in April 1967, told Hellerman that he was not for the Union, there is a question as to whether Respondent was in fact apprised of Wildrick's union views prior to the withdrawal of recognition on May 1. Thus, Wildrick testified that "at the time [he] started or shortly thereafter" he told Todd Mainville, the route supervisor, that he had previously been affiliated with Local 344 but that he would prefer to avoid joining it. Hellerman testified that the foregoing was conveyed to him by Mainville, but he did not relate just when this occurred. Departing for the moment from Wildrick, I turn now to the seventh employee, Arthur Tracy. Tracy began his employment with Respondent on March 25, 1976. Concerning this employee, although he testified that he ultimately told Hellerman that he did not want to join the Union, the fact of the matter is that by his own testimony this did not occur until 2 or 3 weeks after he was hired. Accordingly, this obviously occurred after Respondent had declined recognition. Turning to my conclusions, the legal principles relating to withdrawal of recognition of a bargaining representative are well settled. Absent special circumstances , a union enjoys an irrebuttable presumption of majority status for 1 year after certification.2 Thereafter the presumption contin- ues, but becomes rebuttable upon a sufficient showing to cast serious doubt on the union's continued majority status. At that point, the burden shifts to the General Counsel to prove that, on the critical date, the union in fact represented a majority of the employees.3 To recapitulate, in the instant case the evidence reflects that, of the seven employees in the unit, only two (Keis and Peters) may be said to have definitely apprised Respondent of their dissatisfaction with the Union prior to the critical date. With respect to Wildrick, in view of the uncertainty of his testimony as to just when he advised his supervisor concerning his unwill- ingness to join the Union, the fact of whether Respondent was apprised of this expression prior to the critical date is at least open to question. In any event, and assuming arguendo that Wildrick's views did come to Respondent's attention prior to the critical date, this would still provide a showing that only three of the seven employees expressed their dissatisfaction of the Union prior to the critical date. This expression of a minority group of Respondent's employees does not, under established Board principles, constitute a sufficient basis for supporting any alleged good -faith doubt of the Union's majority status.4 Moreover, and although there is absent the type of union animus usually found in these cases, the unrefuted testimony of Robert Ellicson establishes that in early March 1976 Respondent Vice President Lorraine Hellerman told this employee that "she would like to work a year without the Union, to see how it Brooks v. N.LR.B., 348 U.S. 96 (1954); Celanese Corporation ofAmerua, 95 NLRB 664 (1951). 4 As I read the Board's decision in Automated Business Systems, a Division of Litton Business Systems, Inc., 205 NLRB 532 (1973), the decisive test in determining the issue in this case is whether Respondent in fact held a good- faith doubt as to the Union's majority status at the time it declined recognition, not whether the Union in fact held a majority status at that time. DY-DEE WASH, INC. 391 would work out." Clearly, an expression of this nature in advance of Respondent's subsequent action is further reason to question the objectivity of Respondent's motiva- tion in withdrawing recognition. Accordingly, and in view of all the foregoing, I find that Respondent's withdrawal of recognition from the Union on or about April 1, 1976, violated Section 8(a)(5) and (1) of the Act. B. Alleged Unilateral Action The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by, on March 25, 1976, "starting an employee at a wage rate contrary to the collective- bargaining agreement, without first giving the Union notice of an opportunity to bargain about the matter." With reference to the starting rate, article XIV, section 4, of the contract provides simply that "Inexperienced route salesmen shall receive a salary of at least seventy-five dollars ($75) per week during their probationary period of employment ...." It is undisputed that on March 25, 1976, as well as on several preceding occasions, Respondent hired employees at salaries in excess of $75 per week. In disposing of this matter summarily, suffice it to note that the proviso of "at least" $75 per week obviously does not restrict the beginning salary to a minimum of $75. Beyond the foregoing, the General Counsel's brief also alludes to the fact that the beginning salary paid to one of the drivers appears also to be above the basic weekly salary set forth in section 1 of article XIV. This, however, is not the theory alleged in the complaint. I might add, moreover, that it is not a function of the Board to police every alleged violation of a collective-bargaining agreement. In the instant case, one of Respondent's employees served as a union steward at the plant and undoubtedly a business agent also was assigned to handle the affairs of the Local. In situations such as this, it would appear that the purported violation in question should have been discovered by the Union, at which time appropriate action could have been initiated under the grievance and arbitration procedures of the contract. In any event, for the reason stated earlier, it is recommended that this allegation be dismissed. The complaint further alleges that about early April 1976 Respondent unilaterally offered employees Blue Cross- Blue Shield insurance in order to influence them to reject the Union as their bargaining representative in violation of Section 8(a)(1) and (5) of the Act. Preliminarily, it is noted that the collective-bargaining agreement provides that unit employees are to be covered by the Union's own health and welfare plan and that the employer is obligated to contribute the employees' premi- um therefor.5 As to the unrepresented employees, these are covered by a Blue Cross plan which has been in effect at Respondent's plant for many years prior to the collective- bargaining agreement. One witness, Arthur Tracy, was called by the General Counsel in support of the allegation in question. Tracy, who was hired in latter March or early April 1976, testified that 2 or 3 weeks later he broached Hellerman to see about insurance. According to Tracy, Hellerman replied that he [Tracy ] had the option of either taking the Union plan if he joined the Union, or Blue Cross if he did not. In a context that is not entirely clear from Tracy's brief testimony, Tracy testified that he advised Hellerman that he did not want to join the Union, that he preferred the Blue Cross plan. Further, according to Tracy, Hellerman thereupon stated that he would send for some brochures.6 In view of the fact that it was Tracy who initiated this conversation, and further in view of the vagueness and what I regard as the unreliability of Tracy's entire testimony on the subject,? I find that Tracy's testimony does not prove the allegation set forth above.8 Accordingly, it is recommended that this allegation be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in the conduct described in section III, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: 5 The plan is tied in with the union-security clause, i.e., that premium contributions be made for employees who have been employed for 30 days. 6 Tracy testified that he received the brochures 2 or 3 weeks later. 7 Not satisfied with Tracy's testimony, the General Counsel produced Tracy's prehearing statement and submitted it to him for the stated purpose of impeaching Tracy, his own witness. 8 Charles Wildnck, called as Respondent's witness, also testified that he spoke to Hellerman about insurance. However, Wildnck's testimony concerning this subject is also too confusing and unreliable to support a finding of the violation alleged. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDERS Dy-Dee Wash, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain, upon request, with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All route salesmen, regular relief drivers, excluding all route foremen, sales supervisors, and the sales manager. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. (b) Post at its facility in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix." 10 Copies of said notice on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's authorized representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations not specifically found herein. B 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. 10 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively with Teamsters Local 344, Sales and Service Industry, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive representative of all employees in the appropriate bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All of our route salesmen, regular relief drivers, excluding our route foremen, sales supervisors, and the sales manager. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their organizational rights guaranteed under the Na- tional Labor Relations Act, as amended. DY-DEE WASH, INC.