Gentzler Tool & Die Corp.

GENTZLER TOOL & DIE CORP. Gentzler Tool & Die Corp. and Freight Drivers, Dock Workers and Helpers, Local Union No. 24, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 8-CA-17532 28 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 10 December 1984 Administrative Law Judge Thomas A. Ricci issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to' the extent, consistent with this Decision and'Order. At issue here is whether the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition and refusing to bargain with the Union in January 1984. The judge dismissed the complaint on the ground that any remedy he would order for such a violation would be duplicative of the remedy ordered in a 1983 Board decision which found 8(a)(5) violations by the Respondent.I We reverse the judge and shall order the Respondent to recognize and bargain with the Union. - The relevant facts are undisputed. The Union was certified by the Board 'in August 1981 as the exclusive bargaining representative of the Respond- ent's employees. The parties bargained for an initial contract between September 1981 and May 1982. On 25 November 1983 the Board affirmed the ad- ministrative law judge's findings that during the time the parties were engaged in negotiations the Respondent violated Section 8(a)(5) by bypassing the Union and dealing directly with employees and by making unilateral changes in terms and condi- tions of employment. It also violated Section 8(a)(5) by refusing to sign an agreed-upon contract in June 1982.2 The Respondent did not comply with the - Board's Order, and the Board's petition for enforcement of its Order is pending before the U.S. Court of Appeals for the Sixth Circuit. In March, April, and May 1983, the Union sent letters to the Respondent requesting that it sign the June 1982 contract-which had a 31 May 1983 -ex- In dismissing this complaint the judge stated, sec 111,3, par 10 This decision is not to be taken as a finding that the Respondent did not violate Section 8(a)(5) of the Act in January of 1984 It holds only that procedurally it was an error to have issued the complaint 2 268 NLRB 330 (1983) 881 piration date-and begin negotiations on a new contract. The Respondent did not respond to these requests. Neither did it answer the Union's 29 No- vember 1983 letter asking that it sign the contract. On 17 and 20 January 19843 the Union requested that the Respondent bargain with it on a new con- tract. At a 24 January meeting with the -Union, the Respondent again refused to sign the contract and stated that it was refusing to bargain because the Union had lost its certification by failing to contact the Respondent since May or June 1983. The Re- spondent also asserted that the Union had lost the majority support of unit employees, and announced that it would bargain only if the -Union petitioned for and won a new Board election. . The Union held a meeting for unit employees on 27 January. Of the approximately 20 employees in the unit, 15 attended and 14 of those signed new authorization cards. Four of the remaining five em- ployees signed cards within the next few days. The Union subsequently filed a petition for. a represen- tation election with the Board's - Regional Office. On 2 March the Union learned that the Region in- tended to dismiss the petition. Several days later the Regional Director approved the Union's re- quest that the , petition be withdrawn. The Re- spondent failed to reply to the Union's 2 and 26 March letters seeking bargaining, and during two 'subsequent telephone conversations with the Union's president, the Respondent adhered to its position that it would not negotiate because the Union had "lost" its certification. We find that the Respondent violated Section 8(a)(5) by its January withdrawal of recognition from the Union. At the time of the withdrawal the Union was the certified incumbent representative of the unit employees. Even after expiration of the certification year, it enjoyed at least a rebuttable presumption of continued majority status.4 Assum- ing rebuttability of the presumption, the Respond- ent must still affirmatively establish either that the Union in fact no longer enjoyed majority status at the time of the refusal to bargain or that the refusal stemmed from a good-faith and reasonably ground- ed doubt of the Union's continued majority status based on objective considerations. Further, the as- serted doubt must be advanced in a context free of unfair labor practices.5 Here, -the Respondent has offered no evidence to rebut the presumption of continued majority status. Contrary to the Respondent's contention, the Union has not been inactive with -respect to the 2 All subsequent dates are in 1984, unless otherwise indicated 4 Terrell Machine Co., 173 NLRB 1480 (1969), enfd 427 F.2d 1088 (4th Cir 1970), cert denied 398 U S 929 5 Terrell, supra. 275 NLRB No. 124 882 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD unit employees. The Union reasserted its represent- ative status in March, April, May, and November 1983, as well as several times in January-1984 prior to the Respondent's withdrawal of recognition. Any hiatus in bargaining was the result of the Re- spondent's repeated refusals to bargain, its past un- remedied unfair labor practices, and its challenge to the decisions of the judge and the Board in 1983. In addition, the Respondent's unsupported assertion of a loss of majority support occurred in the con- text of the unremedied 8(a)(5) violations, found in the earlier case. •, - The judge -erred in finding that enforcement of the Board's 25 November 1983 Order in the prior case would remedy the complaint allegations in this cases The Board's Order in that case does not expressly require recognition and bargaining, but rather requires execution of the June 1982 contract, retroactive application of that contract, and that the' Respondent cease and desist from dealing di- rectly - with - employees - and making unilateral changes in terms and conditions of employment. The Respondent's January 1984 refusal to bargain constituted a general challenge to the Union's ma- jority status; this is a clearly different matter than was involved in'the earlier case.7 Accordingly, we find that the Respondent's withdrawal of recogni- tion in January 1984- was a separate violation not contingent on the holding or outcome of the prior case.8 CONCLUSIONS,OF LAW,' ,By withdrawing recognition from- the Union on 24 January. .1984, -and, by refusing since that date to bargain . with the Union as ,the exclusive collective- bargaining representative of employees in' the. ap- propriate ' unit, • the - Respondent- has `engaged -in unfair- labor practices affecting' commerce ' within e The judge stated , sec 111, 1, par 1 Were I to find an unfair labor practice was committed in January 1984, as alleged in this complaint , and as' in fact it was committed, the parties would be in no different position than they find them' selves without , this proceeding ever) having, arisen " The remedy would remain unchanged-to bargain with the Union 7 Even if the court' does not enforce the Board's Order in the prior case,. the Respondent ', still would, be 'required , to, recognize and bargain with the Union. a We'find no'ment 'to the judge's -assertion that the 'Regional Director should have , held an electwii' on'the Union's -petition, and that the Re- spondent was privileged .to.condition bargaining oa,the Union's winning .that election In! this case itns clear that the . Union would. not have filed the petition 'but for the Re'spondent's unlawful withdrawal of recogrirtwn Member Hunter disavows' any suggestion'that'a' certified mdumbent umon^caanot raise a'questioa coacernmg' representation' by- filing a peti- tion'for;an election - In appropriate circumstances the Regional .Director ,should process such a - petition On the facts here, however, Member Hunter finds that even if the Union's petition raised a question concern- ing representation and, should have been processed , the Respondent still would have been obligated -to recognize the Union See RCA Del Canbe, ;Inc; 262 NLRB-963 (1982). ;,, a -' ., - . , , • _ . the meaning of Section 8(a)(5) and (1), and Section 2(6) and (7) of the Act. - REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if- an understanding is reached, to embody the understanding in a signed agreement. ORDER The National Labor Relations Board, orders that the Respondent, Gentzler' -Tool & Die Corp:, Greensburg, Ohio, its officers, agents, successors, and assigns, shall _ ` , , ' 1. Cease and desist from (a) Refusing to recognize and bargain with Freight, Drivers, Dock Workers and Helpers, Local Union No. 24, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive, bargaining representative of the employees in the bargaining unit. - ' - (b) • In any like - or= related manner interfering with,, restrainiiig, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. ' '2. Take the following 'affirmative action neces- sary to effectuate the'policies of the Act.. '(a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on` terms and conditions of employment'--and, if an understanding is reached, embody-the understanding in a signed agreement: - All full-time and regular part-time production and maintenance employees excluding office clerical employees and professional employees, guards' and supervisors as defined in the Act, and all other employees. (b) Post at,, its facility in Greensburg, Ohio, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the'•Re- gional' Director for Region 8, after being signed by -the Respondent's authorized representative, shall be posted by ' the'-Respondent. immediately upon re- ceipt.and maintained for 60 'consecutive days in conspicuous places including-'all places where no- tices to employees are customarily posted. Reason= ab'le' steps' shall, be' taken'' by the Respondent to 9 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment •of the United, States Court of Appeals Enforcing an Order of the Nation- - al Labor Relations Board " GENTZLER TOOL & DIE CORP. ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us,to post and abide by this notice. WE WILL- NOT refuse to recognize and bargain with Freight Drivers, Dock Workers and Helpers, Local Union No. 24, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and ' Helpers of America, as the exclusive rep- resentative of the employees in the bargaining unit. WE WILL NOT in any - like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act.- - WE WILL, on request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time, production and, maintenance employees excluding office clerical employees and professional employees, guards and supervisors ' as defined in the Act, and all other employees. GENTZLER TOOL & DIE CORP. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held at Akron, Ohio, on Octo- ber 17, 1984, on complaint of the General Counsel against Gentzler Tool & Die Corp. (the Respondent - or the Company). The complaint issued on July, 10, 1984, on a charge filed on May 2, 1984, by Freight Drivers, Dock Workers and Helpers, Local Union No. 24, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union or the Charging Party). The sole question present- ed is whether the Respondent, in January 1984, -refused to bargain with the Union in violation of Section 8(a)(5) of the Act. Beefs were filed by all parties. On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT 883 1. THE BUSINESS OF THE RESPONDENT This Company, an Ohio corporation, is engaged in the stamping of metal parts at its sole facility in Greensburg, Ohio. Annually, in the course of its business , it ships goods valued in excess of $50,000 directly to out-of-state locations. I find that the. Respondent is engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint in this case should not have been issued, and I shall therefore recommend dismissal. It is an undisputed fact that in January 1984 the Union requested of the Respondent recognition and bargaining, and that the Respondent refused to recognize its majori- ty representation status . It demanded that the Union first prove its majority status in a Board election. It is also a fact-established by official Board records-that at that time the Respondent was under Board order to recog- nize the Union's majority status and to bargain with it in good faith. In August 1981 the Union was certified' by the Board as exclusive representative of the Company's employees. Between that date and June 1982 the Respondent com- mitted a number of violations of Section 8(a)(5) of the Act-bypassing the Union by dealing unilaterally with its employees, 'changing conditions of employment with- out discussing the changes with the Union, and refusing to sign a contract after agreement had been reached with the -Union. Those findings were made by the administra- tive law judge' in his decision issued on March' 21, 1983. On November 25, 1983, the Board - adopted those find- ings. 268 NLRB 330 (1983); In addition to its regular cease-and-desist order, the Board ordered the Respond- ent to execute the collective-bargaining contract agreed to between the parties in June 1982 . With the Respond- ent failing to comply with the Board's Order, that case was taken to the United States Circuit Court for enforce- ment. At the time of the hearing herein, the earlier case was awaiting decision by the circuit court. A. The Case-at-Bar in the Light of the Pending Enforcement Proceeding - ' An employer who is_ subject to an affirmative Board bargaining order commits.an ,unfair labor practice every single time it refuses to bargain with the union .until the day it has completely fulfilled its duty to bargain in -good faith as ' the statute commands. Had this 'Union, every Monday nioming ;from :June, 1982. to today; called upon the Respondent and requested bargaining , and been re- fused each time, it would have been a violation of Sec- tion 8(a)(5) of the statute by the Respondent on each and every occasion . Had this Union, or any union awaiting ,circuit court enforcement of- a, Board. order of this kind, filed separate, multiple charges of continuing refusals to 884 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD bargain with it, what purpose would have been served by processing such charges, and issuing repetitive com- plaints based upon such charges? None. Were I to find an unfair labor practice was committed in January 1984, as alleged in this complaint, and as in fact it was commit- ted, the parties would be in no different position than they find themselves without this proceeding ever, having arisen. The remedy would remain unchanged-to' bar- gain with the Union. How often has the Board, in the in- terest of administrative expedience and economy, ig- nored an additional unfair labor practice allegation be- cause the eventual remedial order to be issued would not change one wit? At-this hearing the Respondent's representatives made the implicit argument that because the' earlier ' Board order required it to sign an agreed upon contract which by its terms was to expire in May 1983, it, the Company, was free to ignore the. Union after that date, and never mind the reality of the bargaining order. The position is without merit. An order of the Board directing an em- ployer to sign a contract with a union-regardless of what kind of contract or for.whatever period of time-is by its very nature an order to recognize the union as' ex- clusive bargaining, agent. The very act of signing" any collective-bargaining agreement ' is literal acknowledg- ment that the union is-not was-the .statutory bargain- ing agent. This is, exactly what the. Respondent refused to do in January 1984, while the order` was still in effect and binding upon it. Of course, if the case be viewed in' this light, i.e.,inex- tricably joined with the earlier unfair labor practice case, one must consider the possibility that the circuit court might - deny enforcement' of the Boaid's earlier Order, and conclude- that the Respondent did not commit; any unfair labor practices during 1981 and` 1982..'In' 'that event, it could not be said that every unilateral action taken .4y the Respondent 'in the interval, any refusal 'to bargain that may have occurred on successive Mondays, was illegal . But again, if the duty to recognize: the Union in :January 1984' as _ based, on the earlier- Board finding, this entire proceeding appears pointless-and- `cau'se for dismissal -of the complaint. B' Tile Case-at-Bar in Isolation" The General Counsel started his case-in-chief by; offer- ing evidence about the contract having ,been agreed.upon by the Union and the. Company in-, 1982, {what -he- then called background. But, apparently , aware of ,the, weak- ness of; his position; when the two -cases are. viewed. to- gether, as he, went along: he argued,that•the first, case has nothing toy do with ,this one. Repeatedly he objected to the Respondent's attempts -to show what happened be- tween the parties with respect to. the pending enforce- ment proceeding. If we look at the' facts as though that entire case had never come into being, as the General Counsel suggests, the only relevant facts are as follows: The Union was certified in August 1981. The parties met and bargained until June 1982. No agreement was reached.' Seventeen months later,_ in November 1983, the Union again asked the Respondent to sign the con- tract that had been negotiated in June 1982. The Re- spondent ignored that request. But, whether or not the Respondent was required to execute that particular con- tract has nothing to do with this case, under the General Counsel's theory that the two proceedings are not relat- ed. The Union did not request bargaining in its letter of November 1983. In January 1984, the Union approached the Company and requested recognition and collective bargaining. The Respondent questioned its majority status and asked that it go to a Board election. The Union agreed to do that, and immediately .thereafter assembled 'the employees at the union hall where 14 of the 15 present signed-authori- zation cards. The foregoing are the-only facts put into the evidence by the General Counsel in support of this complaint. The question therefore becomes. Has the -General Counsel proved, affirmatively,-'by a preponderance of the evi- dence, that the Respondent committed an unfair labor practice when, not having heard from the Union for 19 months it asked for a Board .election? I think not. The presumption- of continued majority following a Board certification does not continue after 10 months of fruit- less- bargaining, throughout 19 months of silence by the Union. C. The Union's Request for a Board-Conducted Election As stated-above, the Union's immediate reaction to the Company's,demand that it prove its majority status in a Board election was to file a regular petition with the Board'ss Regional Office requesting such an election. When Rector,- for the Company, on January 24 told the Union it had to. go to an election, John Mozena, the Union's ,president, "immediately", called his lawyer, Vasko, who advised him to file an,RC petition. Three days., later the ;Union called an employee meeting where practically all of the employees signed union cards. I do not , know on what - day the petition was filed, . but Mozena said_it was filed "quickly." The Regional Office held-the petition for a month, and on March 2 advised the Union's lawyer it would not hold the election be- cause there-was no question concerning representation. This was another way of saying the Union had to file an unfair' labor practice charge instead. The result was con- . tinued litigation, this -very proceeding. In. my considered judgment, based upon 40 years of experience' drafting decisions and orders for successive Board Members and writing hearing examiners' interme- diate reports, I think it was error to have refused to hold the election which the Union desired. The pertinent statement of congressional policy, unchanged in the stat- ute since its inception in 1935, reads as follows: to at that time But, sticking to the General Counsel's theory of this case, that question is irrelevant. Surely there is no testimony here on that entire subject of whether or not a contract was really made That the ' At this hearing the company negotiators said no agreement was Board found, in 1983, that there was a final contract is one of the facts reached in 1982, while the union officers said a final contract was agreed that the General Counsel says must not be ignored GENTZLER TOOL & DIE CORP. It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstruction to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and pro- cedure of collective bargaining and by protecting the exercise by workers of full freedom of associa- tion, self-organization, and designation of represent- atives of their own choosing, for the purpose of ne- gotiaiing the terms and conditions of their employ- ment or other mutual aid or protection. The critical phrase here is "encouraging the practice and procedure of collective bargaining." It is one thing- when an employer, having violated the statute by refus- ing to bargain with a certified majority representative, and already subject to an affirmative Board bargaining order, requests a second election. He may not do that, for it would make a mockery of the entire statute. By an employer such a request to the Board is no more than a stalling tactic, aimed at further delaying the collective- bargaining process. But it is entirely a different story when the union itself is willing, and itself requests a new election. Its purpose is to accelerate the day when it can sit down and talk directly with the employer in a common effort to resolve whatever disagreement there may be between, the two. This is the fundamental objec- tive of the statute, plainly shown above. There can be no doubt as to the Union's purpose-when it files its petition. Not to- assist it in that objective is to discourage, rather than to encourage, the collective-bargaining process. To deny the Union that right is to deny it the right to seek to achieve the ultimate purpose of the Act itself. There is no question but had the election been held, as it could have been very quickly, the Union would have won, for virtually every .employee who attended the union meet- ing on January 27 signed. cards. Indeed, four others of the remaining five also signed cards just a few days later. The man who really understood the Union's desire, and problem, in January 1984, was Vasko, -its lawyer, who was also present at this hearing. Had the Union simply waited 'until the earlier litigation was completed, i.e., until the circuit court has made up its mind, in addi- tion to the privilege of bargaining it would have had the right to the benefits of the contract which by its terms was to, expire in May 1983. But it no longer cared .for that part of the remedy, the old contract, if only because the passage of time, and continuing inflation, made the economic - terms of that agreement worthless. Yes, it would have had the right to bargain, but, as' we all know, the longer the time a union must wait for. that privilege, the less it is worth. The Union wanted to;ne- 885 gotiate the appropriate ,conditions of employment now, not later. With the Respondent's representative saying they would bargain as soon as the Union won an elec- tion, without waiting until the first case, was resolved, and with the Union having all those signed authorization cards in his hands, all that stood as an obstacle was the Regional Office. And that the Union's desire was to start new negotia- tions could not be clearer. As early as March 1983 it wrote to the Company of its intent "to reopen" the old contract, "so that arrangements can be made for negotia- tions." Again in April 1983 it wrote of its desire to "set up negotiations as soon as possible." And even in May 1984, after the charge in the case-at-bar.,was filed, the Union wrote to the Company that it was "willing- to meet with you or your representatives . . . for the pur- pose of reopening negotiations." The Union's counsel also knew in January 1984, as we all know, that this Company may have been asking for an election as a ploy to continue to avoid bargaining at all. After all, it had flagrantly flouted the'statute before; certainly it might well do it again. But what the lawyer really appreciated is that all laws-like the morality prin- ciples set out in the Bible-are but dreams of men for a better world, statements of hope that the governed will abide by the rules established by the majority. The Re- spondent's representatives said they would bargain if the Union won in a Board election. The chances that this Company would tomorrow comply with the law should not be arbitrarily discarded. And finally, most important of all, what Vasko also knew is that even in the very unlikely event that the Union lost in a Board election that day, this Company would still be bound to recognize the Union as majority representative and bargain with it the day the circuit court enforces the order in the earlier proceeding. In Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944), the court considered a Board holding that a union's "lack of ma- jority" after the unfair labor practices had been commit- ted "was not the determinative of the remedy to be or- dered," and agreed with its decision that "a requirement that union membership be kept intact during delays inci- dent to hearings would result in permitting employers to profit from their own unlawful refusal to bargain." This means that, no matter what happens, or might have hap- pened in a Board election in the spring of 1984, this Company must still bargain in good faith with this Union when the earlier proceeding prevails in the circuit court. This decision is not to be taken as a finding that the Respondent did not, violate Section 8(a)(5) of the Act in January 1984. It holds only that- procedurally it was an error to have issued the complaint.