Lithium Corp. Of America, Inc.

1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lithium Corporation of America, Inc. and Local 3- 802, Oil, Chemical and Atomic Workers Inter- national Union, affiliated with Oil, Chemical and Atomic Workers International Union, AFL-CIO. Cases 11-CA-11248 and 11-CA- 11453- - ' 22 August 1985 _ :DECISION AND ORDER ,, -By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 5 March 1985 Administrative Law' Judge Lowell Goerlich issued the attached decision. The Charging ,Party filed exceptions and a supporting brief, and the Respondent filed 'an answering brief to the Charging Party's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding - to a three-' member panel.' 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, i and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative. law • judge is adopted and .the complaint is dis- missed. i In so doing, Chairman Dotson and Member Hunter do not adopt the judge's comment that the "coincidence of events and the timing of their occurrence create a strong suspicion that these events [behind the decer- tification petition] were machmated " Member Dennis agrees with the judge that the "coincidence of events and the timing of their occurrence" were suspicious, but she accepts - the judge's conclusions that the General Counsel did not ultimately prove a violation She finds it unnecessary to pass on the judge's reference to surface bargaining DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The charge and amended charge in Case 11-CA-11248 were filed by Local 3-802, Oil, Chemical and Atomic Workers International Union,.affiliated with, Oil, Chemical and Atomic Workers International Union, AFL-CIO (the .Union).on March 1 and, April 11, .1984,; respectively, and were served on Lithium, Corporation - of America, Inc. (the. Respondent) on March 1 and April 11, 1984,.,respec- tively. The charge -in -Case, 11-,CA-l 1453 was filed.,by .the Union'on September; 19, 19841-'and.was served on the Respondent on' September, 19;' , 1984.--A complaint and notice of hearing in Case 11-CA-11248 was issued on April 12,:1984. An.order consolidating cases,;consolidat- ed complaint, and notice' of hearing was issued in Cases 11-CA-11248 and_ 11-CA-11453 on October 10, 1984. The 'consolidated" complaint alleges that the Respondent has violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Respondent filed timely answers to the complaint and consolidated complaint denying that it had engaged in the unfair labor practices alleged. - The matter came on for hearing on November 27, 28, and 29, 1984, at Gastonia, North Carolina Each party was afforded a full opportunity to be heard, to call, ex- amine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and con- clusions of law, and to file briefs. All briefs have been carefully considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make'the fol- lowing 'FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR i 1. THE BUSINESS OF THE RESPONDENT The Respondent is now, and has been at all time mate- rial herein, a Delaware corporation with a plant located at,Bessemer City, North Carolina, where it is engaged in the manufacture of lithium compounds. During the past 12 months, which period is representative 'of all times material herein, the Respondent received at its Bessemer City, North Carolina plant goods and raw materials from points directly outside the State of North Carolina valued in excess of $50,000. During the past 12 months, which period is representative of • all times 'material herein, the Respondent shipped from its plant at Besse- mer City, North Carolina, directly to points outside the State of North' Carolina products valued in excess of $50,000. The Respondent is now, and has been at all times ma- terial herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A.-The Facts First: The Respondent admitted that the unit described in the consolidated complaint, i.e., "All hourly produc- tion and maintenance workers employed at the Respond- ent's,, Bessemer City, North Carolina, facility, excluding all salaried employees, managers, supervisors, office cler- ical employees and guards as defined in the Act," consti- tutes a unit appropriate for the purposes of collective .bargaining within the meaning of Section 9(b) of the Act. The parties stipulated as follows. 1. The Union was originally certified as the col- lective bargaining representative of Respondent's, employees in the unit set forth in paragraph 8 of the Consolidated Complaint on July 31, 1967 in Case No. 11-RC-2516. - 275 NLRB No. 206 LITHIUM CORP. 1483 2. The last contract between the Union and the Respondent expired on January 31, 1982 3 The Union and the Respondent engaged in col- lective bargaining, in a series of. approximately 40 sessions, over the time period from January 5, 1982 until the Respondent withdrew recognition from the Union on February 12, 1984.1 There were ap- proximately 22 negotiating- sessions from February 15, 1983 to January 12, 1984. 4. A decertification petition was filed, on Decem- ber 5, 1983 and was withdrawn on December 22, 1983 in Case No. 11-RD-382. Copies' of the petition were duly served on all the parties. Following Board procedures, a count of-the designations sub- mitted was conducted, and found to be 30 percent or more of the names in the claimed unit. The parties further stipulated: 1) On or about February 28, 1984, the Respond- ent unilaterally granted its employees a' lump sum payment consisting of an approximately 10.5% wage increase retroactive to June 5, 1983. 2) On or about February 12, 1983,2 the Respond- ent unilaterally granted its employees a wage' in- crease of approximately 8.5%. 3) On or about August 5, 1984, the Respondent' unilaterally granted its employees a wage increase of approximately 8%. Second: As noted, the Respondent withdrew recogni- tion from the Union on February 7, 1984. Thereafter, it refused to bargain collectively with the Union as the des- ignated bargaining agent of its employees in the appro- priate unit above described and made unilateral changes in working conditions Keefer R. Ling, manager of industrial relations, ex- plained that recognition was withdrawn because the fol- lowing factors caused him to doubt that the Union con- tinued to represent a majority of the employees in the appropriate unit: (1) "there was a letter from Hildreth3 with a copy attested to by a representative of the Na- tional Labor Relations Board indicating that he had re- ceived 156 copies of signatures from Lithium' employees indicating they no longer wished to be represented by this Union"; (2) "there was another letter later on that came through that indicated that there was a larger ma- jority and this was attested to by two independent people who verified that these were signatures- of em- ployees that no longer wanted to be represented by this Union"; and (3) "Charley McKee [Charles F. McKee, the Respondent's director of industrial relations] also in- dicated that he verified the authenticity of these cards themselves " Prior to the expiration of the certification year Hil- dreth had solicited from employees cards containing this language- "I, as an employee of the chemical plant at the Lithium Corporation of America,"Inc. in Bessemer City, N.C. no longer wish td be represented by the oil, chemi- i This date should be February 7, 1984 2 This date should have been 1984 3 Richard Alfred Hildreth was the sponsor of the decertification peti- tion above mentioned cal and atomic workers International Union-Local 3- 802" (G C Exh. 4). Hildreth had commenced the decer- tification campaign in August 1983. and filed a decertifi- cation petition with the Board on December 5, 1983. Prior to filing the petition, on December 1, 1983, Hil- dreth brought the signed decertification cards to Janet Greene, personnel supervisor (McKee was also present), seeking to get help "with putting the cards in alphabeti- cal order," which he said was required by the Labor Board. Greene and. McKee assisted _Hildreth in alphabet- izing the decertification cards and compared them to the Respondent's "cardex file, which is an alphabetical list- ing, or an alphabetical card on every hourly employee that we have." Greene listed the names on the cards and counted them. There were 156 cards,4 all employees in the appropriate unit. Later, Greene typed a list from the handwritten listing which she had made. Greene recog- nized the names and signatures of the signers as the Re- spondent's employees. Still later a Board agent verified that he received , 156 cards in support of the decertifica- tion petition filed on December 5, 1983. Apparently Hildreth, as a chairman of the decertifica- tion committee, continued to solicit decertification cards from employees, for on February 7, 1984, he addressed a letter to the Respondent in which he demanded that the Respondent. withdraw recognition from the Union "ef- fective immediately" in that the Union no longer repre- sented a majority of the hourly employees. This claim was supported by two enclosed statements in which the attesters declared that they had examined the cards given to: them by Hildreth and verified that there were 214 cards signed 'by the Respondent's employees who stated that they, no longer wished to be represented by the Union.5 . - - On February 7, 1984, the Respondent addressed the following letter to the Union's representatives: We have been given a letter by Richard Hildreth stating that a majority of our employees have signed a petition stating that they no longer wish to be represented by your union. This assertion has been attested to by independent sources. We would be willing to let you meet with these independent sources to corroborate this claim. On the basis of this objective evidence that your union no longer represents our employees, we must withdraw recognition from your union. At the time there were 289 employees in the bargaining unit. -Third: As noted above, the Respondent and the Union had engaged in 22 bargaining sessions from February 15, 1983, to January 12, 1984, and 18 • bargaining sessions prior to that period. According to Ling, the Union's lack of strength and its inability to conduct' an effective strike resulted in the Respondent's taking a 'hard line in bar- ' 4. One card was signed "Woodendick "This name did not appear in the cardex file This "prank" does not detract from the validity. of the other cards . 5 Both attesters appeared at the hearing and gave testimony and they 'confirmed the facts set out in their statements 1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining. McKee testified, "We stood to our bargaining position. We bargained 'tough' because there were some items in that, some language that crept into our contract language; and that we wanted to get it,' and it looked like this was an opportune time to get out."e Ling testified that -"[t]hey were negotiating hard and tough."v The Re- spondent's last contract offer included the modifications it wanted, no retroactivity as demanded by the Union, and a wage offer of 2.8 percent Duration of the contract had not been settled during the negotiations. On December 13, 1983, the Union capitulated and in- formed the Respondent that it was accepting the "com- pany's- last contract proposal" 'with 2 years' duration' and a reopener for wages for the second year of the contract. The Union "respectfully requested'..' a wage increase of 7.8 percent rather than 2.8 percent. The Respondent re- served its response to the Union's offer until James M. Miles, its attorney and chief negotiator, could be ad- dressed. The next day, December 14, 1983,'Hildreth addressed a letter to the Respondent. Hildreth pointed out that the Union was asking for a 2-year contract and that in view of the fact that' he had filed a decertification petition and a majority of the employees had supported the petition he was "demanding that the company not sign a contract that extends beyond February- 6, 1984." A Board agent's stateinent that 156 cards had been filed with the decerti- fication petition was enclosed. - The parties met again on January 12, 1984. Referring to Hildreth's December 14, 1983 letter, the Respondent refused to sign any contract which extended beyond February 6, 1984, the end of the certification year. Ac- cording to McKee, Miles said "that we would sign a 2.8 up to February 6th and after February 6th, if they had an 'election, 'that he would come back in- and sit down and talk to them about wages-only and the Union would have the opportunity to come in and open up and talk about anything they wanted to; non-economic items, et - cetera." Ling testified that this proposal was made to the Union: "Basically, when the Union agreed to all' of our proposals prior to the' decertification, why, we got the things that we were after in the contract and money was not particularly a significant factor." Ling also testified that' the wage proposal was not- increased because there were "still a lot of things that we needed -to get out of the way before we were interested in really- getting down to the various wages increases." Ling also testified that the Company's wage offer was not "particularly re- alistic" because the parties were "a long ways apart." e'According to Ling, some of these items were " [c]heck-off, no strike clause wasn't strong enough, voluntary overtime provision,.subcontract- ing provision r Ling explained the reason the Respondent took this position There were several, reasons, one , the economic situation was such that it was pretty much to our advantage to attempt to negotiate out of the contract some of the things that , had- crept in that we didn't particularly like for a period of time and Number Two, to get some things into the contract that we hadn't been able to get in We felt that we have the advantage in terms of negotiating strength because of the economic situation, with the high unemployment , our plant was on the verge of laying people off, we had high inventories, and there were relatively few jobs available so that we had a'bargaining advantage over the Union from an economic standpoint Wages were still open for negotiations when the Union capitulated. Ling testified that the Respondent did not need to make a final offer on wages because the Union accepted the offer made. Testifying further, Ling said that the Respondent's changed position on duration of the contract "came about as a result of information that we had received from Rich Hildreth that the Union no longer represented the majority of employees in the company and he indi- cated at that time that the Company ' should not sign a contract extending beyond the expiration date of the agreement." Fourth:, As noted above, the Respondent granted a ret- roactive wage increase and other wage increases to its employees after the certification year had expired and it had withdrawn recognition. Ling explained this circum- stance: "It was there and available for negotiations during the contract negotiations but the Union finally settled for a 2.8; we were willing to give more, it wasn't necessary; when we finally concluded the contract; why, we figured out what, [we] really ought to give and that is what we gave." During the foregoing period the Union was also solic- iting authorization cards but submitted nothing to the Respondent to support its strength although it knew the decertifiers had informed the Respondent that the major- ity of the employees no longer wanted to be represented by the Union. B. Conclusions and Reasons Therefor First: The resolution of this case hangs on whether the Respondent 'lawfully insisted on a contract coterminous with the certification 'year or whether such insistence constituted bargaining in bad faith . If it were the latter, the Respondent's subsequent withdrawal of recognition would have been unlawful because the presumption of the Union's continuing majority status may not be at- tacked "in -a context of illegal antiunion activities, or other conduct - by the employer aimed at causing disaffec- tion from the union." See Celanese Corp. of America, 95 NLRB 664, 673.(195 1). - The credited- facts establish that at the , time the Re- spondent insisted on a contract coterminous with the cer- tification year the duration of the contract was still open for negotiations and had not , yet been resolved. Thus, it is clear that the Union's acceptance of the Respondent's proposals on December 13, 1983, without the resolution of a duration clause did• not result in a binding contract nor did it foreclose the Respondent from lawfully pro- posing a duration clause ,8 albeit a clause of limited dura- tion. The Board has said in Grace & Hornbrook Mfg. Co, 225 NLRB 15, 17 (1976): Where an employer proposes a -contract of such limited duration [2-1/2 weeks], it must appear that the proposal is not in bad faith or to achieve an ille- gal purpose [Lloyd A. Fry Roofing Co., 123 NLRB 8 "[T]he term of a contract, like its substantive provisions, is a bargain- able matter " Hinde & Dauch Paper Co, 104 NLRB 847, 848 (1953) LITHIUM CORP 1485 647 at 650 (1959)] and it must be based on doubt of majority status supported by • objective consider- ations See also Cresthne Memorial Hospital, 250 NLRB 1439 (1980), in which the Board stated: [A]n employer may lawfully insist on a contract ter- minating with the certification year only when it has a reasonable belief based on' objective consider- ations that the union no longer possesses majority support In the instant case it is clear that the Respondent had a reasonable belief based on objective considerations and otherwise had met the criteria allowing it to lawfully insist on a duration clause coterminous with the certifica- tion year. Burger Pits, Inc., 273 NLRB 1001 (1984).9 Under the circumstances of this case the Respondent's insistence that the contract, be coterminous with the cer- tification year was lawful and did not constitute a viola- tion of its duty to bargain in good faith. Second. The Board has said in the case of Terrell Ma- chine Co., 173 NLRB 1480, 1480-81 (1969): It is well settled that a certified union, upon expi- ration of the first year following its certification,, enjoys a rebuttable presumption that its majority representative status continues. This presumption is designed to promote stability in collective-bargain- ing relationships, without impairing the free choice of employees. Accordingly, once the presumption is shown to be operative, a prima facie case is estab- lished that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer, af- firmatively establishes either (1) that at the time*of- the refusal the union in fact no longer enjoyed ma- 0 In the recent case of Harley-Davidson Transportation Co, 273 NLRB 1531 (1985), the Board viewed a petition signed by a majority of the em- ployer's employees stating that they did not wish to be represented by the union The Board opined, among other things We concluded that the employee petition constituted a sufficient ob- jective ground to support the Respondent's' good-faith doubt of the Union's majority status An employer may rely on a petition appar- ently signed by a majority of its employees as, a basis for good-faith doubt even though the employer did not authenticate the signatures jority representative status; or (2) that the employ- er's refusal was predicated on a good -faith and rea- sonably grounded doubt of the - union 's continued majority status As to the second of these, i.e., "good faith doubt ," two prerequisites for sustaining the defense are that the asserted doubt must be based on objective considerations and it must not have been advanced for the purpose of gaining time in which to undermine the union. See also Burger Pits, Inc., supra, and Celanese Corp. -of America, supra The Respondent, having rebutted the presumption that the Union's majority status continued beyond the termi- nation of the certification year and having i satisfied the criteria, could lawfully withdraw recognition of the Union. Thus, in withdrawing recognition from the Union the Respondent committed no unfair labor practice After the Respondent lawfully withdrew recognition from the Union it was under no further . duty to bargain with it and was legally free to make unilateral changes in wages and working conditions . Thus, the Respondent, by giving the wage 'raises which it . gave 'to its employees after the expiration of the certification year , did not vio- late the Act. Additionally, because the Respondent com- mitted no unlawful act in granting the wage increases under the circumstances , of this case, the fact that the wage increases were given after the expiration of the certification year may not be related back to sustain a claim that during the certification year the , Respondent engaged in surface bargaining. While the coincidence of events and the timing of their occurrence, create a strong _ suspicion that these events were machinated , the General Counsel has not proved - that the Respondent's conduct is proscribed by the Act. Thus, it is recommended that the Board issue the -following i 0 ' ORDER The consolidated complaint is dismissed. 10 If no exceptions are filed-as provided by Sec 102 46 of the Board's Rules and Regulations, -the findings , - conclusions, and recommended Order shall, as provided in Sec 102.48 of. the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses - . I '. t _. -: .