Pick-Mt. Laurel Corporation

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pick-Mt. Laurel Corporation and Local 170, Bar- and dues-checkoff authorization cards at the time tenders, Hotel, Motel & Restaurant Employees they were hired. In February 1977, the facility was Union, AFL-CIO. Case 4-CA-8533 acquired by P-B Associates, of which Respondent November 17, 1981 was the general partner. On February 9, 1977, Respondent, as successor SUPPLEMENTAL DECISION AND to MLH, began operating the hotel and restaurant ORDER facilities. It retained all of MLH's employees. On February 24, 1977, Respondent withdrew recogni- BY MEMBERS FANNING, JENKINS, AND tion from the Union. The following day, the Union called a strike and Respondent filed a representa- On January 12, 1979, the National Labor Rela- tion petition with the Board. The charge herein tions Board issued its Decision and Order in this was filed on March 4, 1977, alleging Respondent's proceeding,' in which it adopted the Administra- refusal to bargain with the Union as a violation of tive Law Judge's finding that Respondent had vio- Section 8(a)(5) and (1) of the Act. lated Section 8(a)(5) and (1) of the Act, for reasons In the earlier proceeding, the Administrative noted below. Upon a petition for review and a Law Judge found that Respondent had violated cross-application for enforcement of the Board's Section 8(a)(5) and (1) of the Act by withdrawing Order, the United States Court of Appeals for the recognition from the Union, and refusing to bar- Third Circuit denied enforcement of the Board's gain with it, on and after February 24, 1977. In so Order and remanded the case to the Board for fur- concluding, the Administrative Law Judge found ther consideration consistent with its opinion.2 The that Respondent was a successor to MLH; that the Board thereafter accepted the court's remand and contract between MLH and the Union established notified the parties that they could file statements the Union's presumptive majority status; and that of position with the Board upon remand. The Gen- Respondent had not shown either that the Union in eral Counsel has filed a statement of position and fact no longer represented a majority of the unit Respondent has filed a statement of position and a employees or that Respondent had a reasonably motion to reopen the record.3 grounded doubt based on objective considerations Pursuant to the provisions of Section 3(b) of the of that majority status. In his decision, the Admin- National Labor Relations Act, as amended, the Na- istrative Law Judge rejected Respondent's conten- tional Labor Relations Board has delegated its au- tion that its withdrawal of recognition was justified thority in this proceeding to a three-member panel. because its predecessor had unlawfully recognized In order to place the substance of the court's the Union. The Administrative Law Judge found remand in proper perspective, we note the follow- that this unlawful recognition occurred 2 years ing facts: Respondent's predecessor, the MLH De- before the charge herein was filed, was outside the velopment Company (MLH), began operation of limitations period set forth in Section 10(b) of the the hotel and restaurant involved herein on June 5, Act, and could not be considered in determining 1975. In February 1975, months before the facility the legality of Respondent's withdrawal of recogni- opened, MLH recognized the Union as the exclu- tion. He also rejected Respondent's attempt to rely sive collective-bargaining representative of a unit on the subsequent unlawful acts of MLH in requir- of the facility's employees. In April 1975, before ing new employees to sign applications for mem- any employees were hired, MLH and the Union bership and dues-checkoff authorizations on their reached agreement on a collective-bargaining con- first day of employment as he found "no showing tract. This contract, executed on June 1, 1975, was that specific incidents" of such misconduct had oc- effective until December 4, 1977. The agreement curred within the 6-month 10(b) period preceding contained a valid union-security clause. Neverthe- the filing of the unfair labor practice charge in this less, MLH unlawfully and regularly required new case. 4 employees to sign union membership applications Upon exception to the Administrative Law '239 NLRB 1257. Judge's Decision, the Board agreed with the Ad- 2 Pick-Mt. Laurel Corporation v. N.LR.B., 625 F.2d 476 (3d Cir. 1980). ministrative Law Judge's conclusion that Respond- ' Respondent submitted a motion to reopen the record so that it might ent had unlawfully withdrawn recognition from the present evidence regarding the appropriateness of issuing a bargaining Union. With regard to Respondent's reliance on its order at the present time in light of certain alleged changed circum- stances at Respondent's facility. In light of our decision herein, we find it unnecessary to reopen the record to take such evidence and Respondent's ' See 239 NLRB at 1261. Respondent had also offered other evidence motion is thus denied. clearly occurring in the 10(b) period, which it claimed supported its We also deny Respondent's later filed request for oral argument as the withdrawal of recognition from the Union. The Administrative Law record, briefs, and various submissions are adequate to dispose of the Judge independently analyzed this evidence and found that it did not es- issues presented for consideration. tablish loss of majority or a reasonably based doubt of that majority. 259 NLRB No. 34 PICK-MT. LAUREL CORPORATION 303 predecessor's earlier illegal recognition of the ment with, Respondent's predecessor without prior Union, the Board added that, as the circumstances choice or designation by any member of the bar- surrounding the Union's initial recognition and ex- gaining unit, though occurring outside the 10(b) ecution of a contract with the predecessor oc- period, may be used as background evidence lend- curred outside the 10(b) limitations period, they ing credence to Respondent's assertion that its own could not constitute an objective basis for a reason- observations within the 10(b) period were sufficient ably based doubt of majority status.5 The Board ac- to prompt a reasonably based doubt of the Union's cordingly adopted the Administrative Law Judge's majority status. Such observations included expres- recommended Order as modified. sion of dissatisfaction with the Union made to Re- On review, the Third Circuit held that the Board spondent's supervisors by at least 29 of the 103 em- had erred in refusing to consider pre-10(b) evi- ployees employed by Respondent at the time Re- dence offered by Respondent concerning its pred- spondent withdrew recognition, an expression ecessor's relationship with the Union. The court in- which under terms of the remand we must regard dicated that even if Respondent could not use pre- as substantial. Additionally, consistent with the 10(b) evidence to nullify the contract upon which court's direction to the Board, we note that the the General Counsel relied to establish the pre- predecessor's conduct in unlawfully requiring new sumption of the Union's majority status, there was employees at the time of their hire to execute union no reason why Respondent could not rely on the membership and dues-checkoff cards also supports evidence "surrounding the . . . contract's inception Respondent's claim that it doubted that the Union to shed light upon its refusal to bargain as back- represented an uncoerced majority of its employees ground evidence buttressing Respondent's analysis when it withdrew recognition and that its doubt of the various timely events which allegedly gave rise to its good-faith doubt of majority status." 6 was grounded on objective considerations.' Thus, rise to its good-faith doubt of majority status. pursuant to the remand of the court, we find that Also, the court referred to the predecessor's il Respondent has presented evidence of objective legal practice of requiring employees to join the considerations supporting its good-faith doubt of Union and to sign dues checkoffs on their first day the Union's majority status sufficient to rebut the of work. The court noted Respondent's argument Unions presumption of majority status We shall that this practice, constituting an independent Union's presumption of majority status. We shall that this practice, constituting an independent accordingly revoke our prior Decision and Order unfair labor practice as to each new employee hired including those hired within the 10(b) period, ' With regard to this unlawful assistance offered to the Union by Re- might serve as the "relevant temporal anchor" to spondent's predecessor, the Administrative Law Judge found that there which consideration of pre-10(b) events could be was no showing that specific incidents of such unlawful assistance had tied. However, the court remanded on this issue occurred in the 10(b) period; which he deemed to commence on Septem- tied. However, the court remanded on this issue ber 4, 1976; i.e., 6 months before the charge was filed on March 4, 1977. also since it concluded that neither Respondent's He stated that Respondent had only established that, on February 9, brief to the court nor the Board's decision ad- 1977, when it took over the facility, 50 of the then 80-employee unit complement had been working less than 6 months, or since August 9, dressed the relationship between this unlawful as- 1976. He then noted that on the refusal to bargain date of February 24, sistance during the 10(b) period and Respondent's the unit had expanded to 103 employees but that there was no evidence ~~claim of good-faith doubt. ~of which or how many of these employees had been hired within the claim of good-faith dIO(b) period, i.e., since September 4, 1976. He found this a critical point. Lastly, in light of Respondent's desire to use pre- Viewing this issue within the confines of the court's remand, however, 10(b) evidence here to defend against, rather than we consider it unimportant that Respondent was unable to state with pre- unfair labor practice the court di- cision how many employees were hired within the 6-month o10(b) period to establish, an unfair labor practice the court di- utilized by the Administrative Law Judge. We note that at fn. 7 of its rected the Board to explain, on remand, its reasons decision, the court recognized that Respondent had not produced specific for using the date of the filing of the charge evidence of the number of employees who were affected by the unlawful assistance from 6 months before the date Respondent itself wished to use (March 4, 1977), as the benchmark for tolling the as the tolling date for the 10(b) period, i.e., the refusal-to-bargain date. 10(b) period. Still, the court questioned whether "evidence of a tainted majority" was Having accepted the remand, the Board also ac- necessary when Respondent only wanted to consider this evidence in conjunction with other evidence to establish-not proof of actual loss of cepts the court's opinion as the law of the case. majority-but only a reasonably based doubt of majority. In any event, Thus, we are compelled to consider evidence of the record contains uncontradicted testimony to the effect that the proce- prior to the advent of the 0 dure requiring cards to be signed at the time of employment continued events occurring prior to the advent of the 10(b) through February 9, 1977, and that there was constant turnover among limitations period insofar as they shed light on ob- Respondent's employees. Moreover, the record also contains a stipulation jective considerations supporting Respondent's as- by the parties setting forth when various employees in the housekeeping department were hired which states that one housekeeping employee was serted reasonably based doubt of majority status. In hired by Respondent's predecessor on February 2, 1977, and another on this regard, the fact that the Union was recognized February 6, 1977, clearly within the 10(b) period regardless of whether by, and negotiated a collective-bargaining agree- the filing of the charge or the withdrawal of recognition tolled the limita- by, and negotiated a collective-bargaining agree- tions period. In light of this evidence and our disposition herein, we find it unnecessary to pass on the issue of which date (the date the charge was 'See 239 NLRB 1257, at fn. 2. filed, or the date recognition was withdrawn) should toll the 10(b) period '104 LRRM at 2708, quoting 436 F.Supp. at 1355. in this case. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case and dismiss the complaint in its entire- lations Board hereby orders that its prior Decision ty. and Order in this case be, and it hereby is, revoked and the complaint herein be, and it hereby is, dis- ORDER missed in its entirety. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re-