Pennco, Inc.

PENNCO, INC. Pennco, Inc. and Communications Workers of Amer- ica, AFL-CIO. Case 9-CA-12040 May 23, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon a charge duly filed on December 19, 1977, by Communications Workers of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 9, on May 5, 1978, issued and served on the parties a complaint and notice of hear- ing. In substance, the complaint alleges that Pennco, Inc., herein called Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to supply the Union with a copy of one of its two health insurance plans and by refusing to recognize or meet and bargain with the Union concerning a collective-bargaining agreement with the Union. On May 8, 1978, Respondent filed an answer admitting in part, and denying in part, the allegations in the complaint. Thereafter, a hearing was conducted on October 18, 1978, before Administrative Law Judge James M. Fitzpatrick. At the hearing all parties entered into a stipulation in which they petitioned the Board to ap- prove the transfer of this proceeding to the Board and waived the making of findings of fact and conclusions of law by an administrative law judge and the issu- ance of an administrative law judge's Decision. The parties further stipulated that the entire record in this proceeding shall consist of the charge, the complaint, the answer, the stipulation with exhibits attached thereto, and the transcript of the proceeding. There- after, the parties filed a Motion to Transfer the Pro- ceeding to the Board, Stipulation and Agreed State- ment of Facts. On December 8, 1978, the Board granted the motion, approved the stipulation, and transferred the proceeding to the Board advising the parties to file briefs with the Board in Washington, D.C. 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. Upon the basis of the stipulation, the briefs, and the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Kentucky corporation, is engaged in the manufacture of aluminum doors and windows at its facility in Ashland, Kentucky. During the 12 months preceding the issuance of the complaint herein, a representative period, Respondent pur- chased and received goods and materials valued in excess of $50,000 which were shipped directly to its Ashland, Kentucky, facility from points outside the Commonwealth of Kentucky. The parties stipulated, and we find, that Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts On August 23, 1976, the Union filed a petition with the National Labor Relations Board seeking certifica- tion as the exclusive representative of Respondent's production and maintenance employees. An election was held on October 21, 1976,' and on November 1, 1976, the Union was certified by the National Labor Relations Board as the exclusive representative of Re- spondent's production and maintenance employees in a unit appropriate for the purposes of collective bar- gaining with respect to wages, hours of employment, and other terms and conditions of employment. 2 Prior to November 1976, there had been no collec- tive-bargaining history between Respondent and the Union. Throughout that month, Respondent fur- nished the Union with preliminary bargaining infor- mation with respect to wage scales, pension plans, insurance plans, names of employees, and other re- quested information. The parties held negotiating meetings on December 8, 1976, and January 13, Feb- ruary I and 10, March 4 and 16, and April 4, 1977. Subsequently, five more bargaining sessions were held in the presence of the Federal Mediation and Concili- ation Service on April 25, May 17, June 3, August 22, and September 21, 1977. ' The tally was 114 votes for, and 62 votes against, the Union with 5 challenged ballots, a number insufficient to affect the results. 2 That unit was: All production and maintenance employees employed by the Em- ployer at its Ashland. Kentucky, plant, including truck dnivers, and lead people; but excluding all office clerical employees, confidential employ- ees, technical employees, and all professional employees, guards and supervisors as defined in the Act. 242 NLRB No. 73 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 18, 1977, the Union began an economic strike against Respondent's Ashland plant and estab- lished a picket line. Picketing continued throughout the summer, fall, and winter of 1977. Incidents on the picket line occasioned the issuance of a restraining order by the Boyd Circuit Court of Boyd County, Kentucky. After the strike began Respondent advised the em- ployees that permanent replacements would be hired for those who did not return to work. During the last pay period prior to the strike, Respondent employed 173 bargaining unit members. By November 3, 1977, the pay period after the expiration of the one year certification period---and while the strike was still in progress there were 257 employees in the bargaining unit on the payroll of whome 47 had been on the payroll prior to the commencement of' the strike. Of these 47 employees, 28 employees were employed on the October 21, 1976, election date. All of the em- ployees working in Respondent's plant during the strike had to cross the Union's picket line. Sometime in early November 1977, Respondent advised the mediator of the Federal Mediation and Conciliation Service that it had a good-faith doubt of the Union's current majority status in the unit based on the factual circumstances outlined above and that it would not negotiate further with the Union. The mediator relayed this information to the Union shortly thereafter. Respondent declined to attend a negotiating session scheduled for November 16, 1977, and has at all times since then refused to meet with the Union for the purpose of collective bargaining. Respondent further declined to accept, reject, or meet with the Union regarding a proposed contract sent to Respondent by the Union on November 29, 1977. The strike continued until September 15, 1978, at which time the Union removed its pickets, and 42 employees unconditionally offered to return to work. At no time between November 1, 1976, and the time of the hearing in this case did the Union abandon the bargaining unit or relinquish its interest in negotiat- ing a collective-bargaining agreement on their behalf. B. Contentions of the Parties The General Counsel contends that the high turn- over among Respondent's employees and the failure of some employees to observe the Union's picket line were not sufficient objective evidence to support Re- spondent's asserted good-faith doubt of the Union's majority at the time of its refusal to bargain. In sup- port thereof, the General Counsel relies, inter alia, on James W. Whitfield, d/b/a Cutten Supermarket, 220 NLRB 507 (1975), and Windham Community Memo- rial Hospital and Hatch Hospital Corporation, 230 NLRB 1070 (1977), enfd. 577 F.2d 805 (2d Cir. 1978). The General Counsel further contends that, inas- much as Respondent has not established a sufficient basis for its asserted good-faith doubt, its refusal to recognize or meet and bargain with the Union con- cerning a collective-bargaining agreement constituted a violation of Section 8(a)(5) and (1) of the Act. Addi- tionally, the General Counsel urges the Board to find, as alleged in the complaint, a second violation of Sec- tion 8(a)(5) and (1). In this regard, he relies on Re- spondent's stipulation at the hearing that if the Board should find that it did not have sufficient objective evidence supportive of its asserted good-faith doubt, Respondent would admit that it refused to bargain with the Union by failing to furnish the Union a copy of one of its two health insurance plans, as requested by the Union, on or about July 8, 1977. Finally, the General Counsel argues, based on Cavalier Division of Seeburg Corporation, and Cavalier Corporation, 192 NLRB 290 (1971), Cantor Bros., Inc., 203 NLRB 774 (1973), Cutten Supermarket, supra, and Windham Community Memorial Hospital, supra, that Respon- dent alleged unfair labor practices converted the ex- isting ecomonic strike into an unfair labor practice strike as of November 5, 1977. Respondent, on the other hand, contends that the employee turnover, coupled with the fact that re- placement employees had to cross a picket line which had been the scene of violence, not only constitutes a sufficient basis for its asserted good-faith doubt of the Union's majority status, but also imposes on Respon- dent an obligation on behalf of its nonstriking em- ployees to refuse to continue to recognize the Union. In this regard, Respondent argues that the evidence presented rebuts the presumption of the Union's ma- jority status. Accordingly, the General Counsel has a burden, which Respondent asserts he had not met, to show that the union represents a majority of Respon- dent's employees. Respondent notes that 16 months after the commencement of the strike herein only 42 striking employees unconditionally offered to return to work while the total number of Respondent's em- ployees had increased by 76 employees. Finally rely- ing on Beacon Upholstery Company, Inc., 226 NLRB 1360, 1367-68 (1976), Respondent contends that the interests of those employees who crossed the picket lines are diametrically opposed to those of the em- ployees who remained on strike and were perma- nently replaced, and thus the nonstriking employees should not be presumed to support the Union. C. Discussion and Conclusions We agree with the General Counsel that Respon- dent violated Section 8(a)(5) and () of the Act by refusing to recognize and bargain collectively with the Union as of November 5, 1977, and by refusing to 468 PENNCO. INC. furnish the Union with a copy of one of its health insurance plans as requested by the Union on or about July 8, 1977. We do so for the following rea- sons. It is a well settled principle that a certified union enjoys an irrebuttable presumption of majority status for at least I year after certification.3 After the expira- tion of the certification year, the presumption of a union's majority status continues but becomes rebut- table. An employer may rebut this presumption by affirmatively establishing that the union has, in fact, lost its majority status, or that it had sufficient objec- tive bases for reasonably doubting the union's con- tinuing majority status at the time that it withdrew recognition from the union. Assertion of such doubt, however, must be supported by objective consider- ations.4 We find, as urged by the General Counsel, that Respondent has not demonstrated sufficient ob- jective evidence to support its asserted doubt of the Union's majority status as of the time of Respon- dent's refusal to bargain with the Union. In this regard, it is well established that new em- ployees are presumed to support the Union in the same ratio as those whom they have replaced. See, e.g., Windham Community Memorial Hospital, supra, Cutten Supermarket, supra, and Surface Industries, Inc., 224 NLRB 155 (1976). Furthermore, an employ- ee's decision not to support a strike does not establish that he or she has rejected the union as his or her collective-bargaining representative. Cutten Super- market, supra; Strange and Lindsey Beverages, Inc., and Dr. Pepper Bottling Co., Inc., Joint Employers d/b/a Pepsi-Cola-Dr. Pepper Bottling Co., 219 NLRB 1200 (1975); King Radio Corp., Inc., 208 NLRB 578 (1974), enfd. 510 F.2d 1154 (10th Cir. 1975); Frick Company, 175 NLRB 233, fn. 1 (1969), enfd. 423 F.2d 1327 (3d Cir. 1970). Additionally, unlike Beacon Up- holstery, supra, cited by Respondent, here the unit composition has not been altered by the lawful dis- charge of striking employees thus undercutting the presumption of union majority support. Accordingly, we find that since Respondent has presented no other independent objective evidence supporting its as- serted belief that the Union no longer represented a majority of its employees at the time it refused to bargain, Respondent has not rebutted the presump- tion of the Union's continuing majority status. In view of the foregoing, we conclude that by refus- ing to recognize and bargain with the Union concern- ing a collective-bargaining agreement, and by refus- ing to supply the Union with a copy of one of its health insurance plans,5 Respondent has violated Sec- 3Ray Brooks v. N.LR.B., 348 U.S. 96, 98-104 (1954). 4 Laysrrom Manufacturing Co., 151 NLRB 1482 (1965). See, e.g., The Nestle Company, Inc., 238 NLRB 92 (1978) tion 8(a)(5) and ()of the Act. Further, although there can be no certitude that a collective-bargaining con- tract would have been agreed upon had Respondent not refused to bargain, such refusal to recognize or meet and bargain with the Union clearly precluded any possibility of reaching agreement on a contract and tended to impede any possible settlement of the strike. Accordingly, we agree with the General Coun- sel that Respondent's refusal to bargain converted the Union's economic strike into an unfair labor practice strike as of November 5, 1977. Therefore, on that date, the strikers assumed the status of unfair labor practice strikers. CONCLUSIONS OF LAW I. Pennco, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Communications Workers of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The appropriate unit for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act is: All production and maintenance employees em- ployed by Respondent at its Ashland, Kentucky, plant, including truck drivers, and lead people; but excluding all office clerical employees, confi- dential employees, technical employees, and all professional employees, guards and supervisors as defined in the Act. 4. At all times material herein the Union has been and is the exclusive representative of all the employ- ees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9(a) and Section 8(a)(5) of the Act. 5. Since on or about November 5, 1977, and con- tinuing to date, by refusing to recognize and bargain with the Union concerning a collective-bargaining agreement, and since on or about July 8, 1977, and continuing to date, by refusing to furnish the Union with a copy of one of its health insurance plans as requested by the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The strike which commenced on May 18, 1977, was converted to an unfair labor practice strike on November 5, 1977-the date Respondent unlawfully withdrew recognition and refused to bargain with the Union. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and () of the Act, we shall order that it cease and desist therefrom and, upon request, recognize and bargain collectively with the Union as the exclusive represent- ative of its employees in the appropriate unit. We additionally shall order Respondent to furnish the Union with a copy of one of its two health insurance plans as requested by the Union. Having found that Respondent's refusal to bargain with the Union converted the strike to an unfair labor practice strike on November 5, 1977, we shall order that all striking employees who were not permanently replaced before that date be reinstated, upon their unconditional request, to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, previously enjoyed, discharging, if necessary, any replacements hired after November 5, 1977; and that it make whole such employees for any loss of earnings resulting from its failure to reinstate them within 5 days of their unconditional request, with interest thereon to be computed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977).6 If Respondent herein has already rejected, or hereafter rejects, unduly delays, or ignores any un- conditional offer to return to work or attaches unlaw- ful conditions to its offer of reinstatement, the 5-day period serves no useful purpose and backpay will commence as of the unconditional offer to return to work.7 Such employees for whom no employment is immediately available shall be placed on a preferen- tial hiring list for employment as positions become available and before other persons are hired for such work. Priority for placement on such list is to be de- termined by seniority or some other nondiscrimina- tory test. See, Cutten Supermarket, supra. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, 6 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). See, Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1637 (1978). Pennco, Inc., Ashland, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Communications Workers of America, AFL- CIO, as the exclusive bargaining representative of the employees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent at its Ashland, Kentucky, plant, including truck drivers, and lead people; but excluding all office clerical employees, confi- dential employees, technical employees, and all professional employees, guards and supervisors as defined in the Act. (b) Refusing to furnish the Union with a copy of one of its health insurance plans as requested by the Union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which we find necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Communications Workers of America, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate unit described above, concerning rates of pay, wages, hours or other terms and conditions of employment and, if an agree- ment is reached, embody it in a signed contract. (b) Furnish the Union with a copy of one of its health insurance plans as requested by the Union. (c) Reinstate, upon unconditional request, all strik- ers who were not permanently replaced before No- vember 5, 1977, to their former jobs or, if such posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary, any replacements hired after November 5, 1977; and make such employees whole for any loss of earnings resulting from its failure to reinstate them within 5 days of their unconditional request in the manner set forth in the section of this Decision enti- tled "The Remedy." Such employees for whom no employment is available shall be placed on a prefer- ential hiring list based upon seniority, or some other nondiscriminatory test, for employment as jobs be- come available. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 470 PENNCO. INC. (e) Post at its place in Ashland, Kentucky, copies of the attached notice marked "Appendix." 8 Copies of said notice on forms provided by the Regional Di- rector for Region 9, after being duly signed by Re- spondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including 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. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of the Order, what steps Respondent has taken to comply herewith. I In the event that this 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 NOT refuse to recognize and bargain collectively with Communications Workers of America, AFL-CIO, as the exclusive bargaining representative of the employees in the following appropriate bargaining unit: All production and maintenance employees em- ployed by us at our plant in Ashland, Kentucky, including truck drivers, and lead people; but ex- cluding all office clerical employees, confidential employees, technical employees, and all profes- sional employees, guards, and supervisors as de- fined in the Act. WE WILL NOT refuse to furnish the Union with a copy of one of our health insurance plans as requested by the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights as guaranteed by Sec- tion 7 of the Act. WE WILL, upon request, bargain collectively in good faith with Communications Workers of America, AFL-CIO, as the exclusive bargaining representative of the employees in the appropri- ate unit described above, concerning rates of pay, wages, hours, or other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. WE WILL furnish the Union with a copy of one of our two health insurance plans as requested by the Union. WE WILL reinstate, upon unconditional re- quest, all strikers who were not permanently re- placed before November 5, 1977, to their former jobs or, if such positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary, any replacements hired after November 5, 1977; and make such employees whole for any loss of earn- ings resulting from our failure to reinstate them within 5 days of their unconditional request, with interest. WE WILL place employees for whom no employment is available on a preferen- tial hiring list based upon seniority or some other nondiscriminatory test, for employment as jobs become available. PENNCO, INC. 471