Larsen Supply Co., Inc.

LARSEN SUPPLY CO. Larsen Supply Co., Inc. and General Warehousemen, Local No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO." Case 21-CA- 20622 June 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On September 23, 1982, Administratve Law Judge Frederick C. Herzog issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. 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,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Larsen Supply Co., Inc., Santa Fe Springs, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 In adopting the judge's finding that the Respondent 's showing of ob- jective considerations was insufficient to establish a good -faith doubt of the Union's majority status, we have considered the cumulative impact of the factors advanced by the Respondent In this connection , we find that, even assuming arguendo the judge should have received the testimony of one of the Respondent owners, Ray Larsen , to the effect that eight or nine employees told him that other employees did not desire union repre- sentation, such "unvenfied assertions of disenchantment conveyed to Re- spondent secondhand" are insufficient to establish a reasonable good-faith doubt of the Union's majority status Cornell of California, 222 NLRB 303, 306 (1976), enfd 577 F 2d 513 (9th Cir 1978) Further, we agree with the judge's reliance on Arkay Packaging Corp, 227 NLRB 397 (1976), but only for the limited proposition for which he cited that case Lana Hill Parke, Esq., for the General Counsel. A. Patrick Nagel and David McVey, Esqs., of Newport Beach, California, for the Respondent. DECISION FREDERICK C. HERZOG, Administrative Law Judge. Based on a charge filed by General Warehousemen, Local No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) that Larsen Suply Co., Inc. (the Respondent) has engaged in unfair labor practices in vio- lation of Section 8(a)(5) and (1) of the Act, a complaint 295 was issued on October 31, 1981, by the Regional Direc- tor for Region 21 of the National Labor Relations Board. Accordingly, this case was tried before me at Los An- geles, California, on June 17, 1982. At the trial all parties were afforded the right to participate, to examine and cross-examine witnesses, and to adduce evidence in sup- port of their positions. All parties were also afforded the right to make oral argument and to file briefs at the con- clusion of the trial. The General Counsel chose to argue orally on the record, but waived the filing of a brief. Based on the record, plus my consideration of the brief filed by the Respondent, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation engaged in ware- housing and distrubuting plumbing supplies at its facility located in Santa Fe Springs, California. In the course and conduct of its business it annually purchases and receives goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. The Respondent is, and at all times material has been, an employer engaged in commerce and in a business af- fecting commerce within the meaning of the Act. H. THE LABOR ORGANIZATION The Union is now, and at all times material has been, a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Fact On June 21 , 1979, the Board conducted a secret-ballot election among the Respondent's employees based on a petition filed by the Union in a unit described as follows: All warehousemen, including order fillers , packers, stockmen, checkers, and truckdrivers employed by Respondent at its facility located at 12055 Slauson Avenue, Santa Fe Springs, California , excluding all other employees, office clerical employees , guards and supervisors as defined in the Act. Of 32 eligible votes, 28 cast ballots, with 14 voting in favor of representation by the Union, 12 voting against the Union, and 2 ballots being challenged . While the de- tails are unclear, it is conceded that one or both of the challeged ballots were resolved " and that the Union won the election. As a result, and apparently with no objec- tions to conduct affecting the results of the election being filed, the Union was certified as the exclusive col- lective-bargaining representative of the employees in the unit described above on August 6, 1979. Following the Union 's certification the parties met in negotiating sessions on December 1, 1980, and January 13, 16, and 26, March 3 and 12, April 7, and May 18, 1981. They failed to reach a collective-bargaining agree- ' As speculated by Respndent's counsel at the trial, perhaps by the Union withdrawing its challenge to the one ballot it had challenged 289 NLRB No. 41 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment. Jerry Stephens, a business agent and organizer for the Union, testified that he became involved with the Respondent's employees in November 1980, over a year after the election and certification. The first negotiating session came about only a month or so later . According to Stephens, negotiations continued until May 18, 1981, at which time the Respondent's attorney, Nagel, prom- ised to submit the Respondent's "final proposals" within a week or two thereafter . Stephens went on to state that the Union's repeated efforts since then to secure such proposals from the Respondent have proven fruitless. Instead of a proposal for a contract, the Union re- ceived a letter from the respondent 's attorney on August 28, 1981. The letter read as follows: My client, Larsen Supply Co., has just advised me that only 11 employees out of a total of 42 current- ly in the bargaining unit were employed at the time of the NLRB election in June, 1979. I am further informed by Larsen Supply that it has strong good faith doubt that your union currently represents that majority of the 42 employees in the bargaining unit. Based on the conviction that Teamsters Local 598 does not represent the majority of Larsen Supply's employees in the unit, Larsen Supply cannot as a matter of law engage in any further collective bar- gaining with you. At the trial the Respondent offered to prove that it met and bargained with the Union after the certification, but that it was continually frustrated by what it regarded as the Union's ineptness, such as repeated attempts to cause the Respondent to agree to a standard form of agreement used in the area, by changes in the Union's negotiating team, and by the Union's lack of preparation for negotiating sessions, etc. Moreover, the Respondent asserted that on December 19, 1979, it announced that it would not meet again with the Union until the Union re- sponded to prior proposals by the Respondent, and stopped treating each negotiating session as an opportu- nity to begin negotiations anew , with the Union's stand- ard area contract being used as a starting point for the bargaining. The Respondent also offered to prove that the Union was advised at the last bargaining session, on May 18, 1981, that the Respondent would await the Union's submission of "bottom line proposals" before the Respondent would make a "last and final offer." Finally, one of the Respondent's owners, Ray Larsen, testified that prior to August 28, 1981, he was ap- proached individually and at various times by eight or nine unit employees,2 and that each of them told him they "did not want the Union in there," and that they had "had enough of it" at the time the Union started its organizing campaign. The Respondent offered, but was not allowed, to prove that the eight or nine employees mentioned above had been told by other employees that they did not desire the Union's representation. At no time did the Respondent file a charge with the Board concerning its perception that the Union's con- 2 Only three of whose names he recalled fully, though he also did recall a fourth employee's first name duct in negotiations amounted to bad-faith bargaining. Nor was a decertification petition ever placed on file. B. Conclusion For many years it has been the law that a certified union enjoys an irrebuttable presumption of continuing majority status for 1 year after its certification. Ray Brooks v. NLRB, 384 U.S. 96, 98-102, 104 (1954). In the interests of stability in labor relations, the presumption of majority representative status continues after the first year (or, in the case of a voluntarily recognized union, after a "reasonable time") until it is rebutted by the em- ployer's proof that (1) at the time it withdrew recogni- tion the union, in fact, no longer enjoyed majority status, or (2) that the employer's refusal to bargain further was predicated on a reasonably grounded doubt as to the Union's continued majority status asserted in good faith, based on objective considerations, and raised in a context free of employer unfair labor practices. See U.S. Gypsum Co., 157 NLRB 65 (1966); Terrell Machine Co., 173 NLRB 1480 (1969). It is clear that the Respondent has neither succeeded nor offered to demonstrate that its asserted "strong good faith doubt" was based on the sort of objective consider- ations that should be recognized by the Board or the courts as valid excuses for refusing to bargain further. The evidence presented or proffered by the Respond- ent fails completely to reach the question of whether the Union had lost majority support as of the date that rec- ognition was withdrawn. That eight or nine employees told their employer that they remained firm in their con- viction that they opposed union representation serves the Employer not at all. Assuming for the sake of argument that as many as nines unit employees in fact came to Larsen and told him that they opposed the Union it re- mains true that these eight or nine constituted scarcely 22 percent of the employee complement. And even had their numbers been greater, it must be remembered that Larsen never testified that these employees told him that they had changed their minds, or that they no longer supported the Union. Instead, so he testified, they said they adhered to the same views they had held about the Union since before the election. Under these circum- stances, it seems most probable that the 8 or 9 employees who spoke to Larsen were among the 12 employees who voted against union representation. Thus, their views, as recounted by Larsen, create no doubt at all, good faith or otherwise.' The Respondent argues that the question of an em- ployer's "good faith" in asserting a doubt is not to be de- termined solely on the evidence available to the employ- er at the time it asserts that a doubt exists. Indeed, the Respondent's brief goes so far as to claim that the fact that "actual knowledge" was not in existence until subse- quent to August 28 , 1981, is immaterial. However, as has been stated, "when the Board makes this determination [as to the basis of the employer's doubt] it is not con- 3 Given Larsen's inability to recall more than three or four names, I find this a large assumption indeed 4 Golden State Habilitation Convalescent Center, 224 NLRB 1618, 1619 (1976), enf denied 568 F 2d 77 (1st Cir. 1977) LARSEN SUPPLY CO trolled, or even guided, by the later ascertained facts of union adherence or non-adherence. It is father the quesi- ton of fact whether the company had a reasonable basis at the time of its refusal to bargain for believing that ma- jority support of the bargaining union no longer existed." Bartenders Assn. of Pocatello, 213 NLRB 651, 653 (1974), citing and quoting Gulfmont Hotel, 362 F.2d 588, 589 (5th Cir. 1966); Holiday Inn of Dayton, 212 NLRB 553 (1974), on remand from NLRB v. Holiday Inn of Dayton, 474 F.2d 328 (6th Cir. 1973); Arkay Packaging Corp., 227 NLRB 397 (1976). It is obvious that progress in negotiations has been, to say the least, less than reasonable people might hope for. But the precise cause of the lack of progress is not so clear. Whether it was due to some failing of the Union's negotiators or to intransigence on the part of the Re- spondent's negotiator seems largely irrelevant to the question of whether the Respondent acted lawfully on August 28, 1981, in withdrawing recognition. For, even if there has been established a sudden change in the Union's bargaining posture , it is settled law that vagaries in a union's tactics do not constitute "objective consider- sations" sufficient to justify withdrawing from bargain- ing. Peoples' Gas System, 238 NLRB 1008 (1978). Finally, while I doubt the adequacy of this record to support a finding that "turnover" in the employee com- plement has occurred, I am, for the sake of argument, as- suming to be true the statement asserted in the August 28, 1981, letter, i.e., that only 11 of the 42 then employed were employed there at the time of the election. None- theless, I find this inadequate to justify the Respondent's withdrawal of recognition. In this, I rely on the pre- sumption that newly added employees support the Union in the same proportion as was shown by the election. Laystrom Mfg. Co., 151 NLRB 1482 (1965); Peoples' Gas System, supra. In sum, I conclude that, "[I]n refusing to bargain be- cause of an alleged decline in union adherents, the em- ployer is acting as a vicarious champion of its employees, a role no one has asked it to assume." Sahara-Tahoe Corp. v. NLRB, 648 F.2d 553 (9th Cir. 1980), enf. denied 241 NLRB 106 (1979). By such actions the Respondent failed and refused to bargain collectively in good faith, and thereby violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and 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. The following employees of the Respondent consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All warehousemen, including order fillers, packers, stockmen, checkers, and truckdrivers employed by Respondent at its facility located at 12055 Slauson Avenue, Santa Fe Springs, California, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. 297 4. At all times since June 21, 1979, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of employees in the unit de- scribed above in paragraph 3 for the purpose of collec- tive bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. 5. The Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union on August 28, 1981, and, thereafter, failing and refusing to bargain collectively in good faith. 6. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Larsen Supply Co., Inc., Santa Fe Springs, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain collectively with General Warehousemen, Local No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive bar- gaining representative of the employees in the unit de- scribed below, concerning rates of pay, wages, hours of employment, and other conditions of employment: All warehousemen, including order fillers, packers, stockmen, checkers, and truckdrivers employed by Respondent at its facility located at 12055 Slauson Avenue, Santa Fe Springs, California, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain collectively with the above- named Union, as the exclusive collective-bargaining rep- resentative of all the employees in the unit described above, concerning rates of pay, hours of employment, and other conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post the attached notice marked "Appendix" at its Santa Fe Springs, California place of business.6 Copies of 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 All outstanding motions inconsistent with this recommended Order are denied 6 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 Nation- al 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 " 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this notice, on forms to be provided the Regional Direc- tor for Region 21, after being duly signed by Respondent or an authorized representative, shall be conspicuously posted immediately upon receipt and maintained for 60 consecutive days thereafter in all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent 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 or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT do anything that intereferes with these rights. More specifically. WE WILL NOT refuse to recognize and bargain collec- tively with General Warehousemen, Local No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive bargaining representative of the employees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment. The bargaining unit is: All warehousemen, including order fillers, packers, stockmen, checkers, and truckdrivers employed by the Respondent at its 12055 Slauson Avenue, Santa Fe Springs, California, excluding all other employ- ees, office clerical employees, guards and supervi- sors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL bargain collectively, on request, with the above-named Union, as the exclusive bargaining repre- sentative of all the employees in the unit described above, with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. LARSEN SUPPLY CO., INC.