Rdr Industries, Inc.

RDR INDUSTRIES RDR Industries, Inc. and International Association of Machinists and Aerospace Workers, AFL- CIO, District Lodge 157. Case 3-CA-13541 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On May 26, 1987, Administrative Law Judge D. Barry Morris issued the attached decision. The Re- spondent filed exceptions and a supporting 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order The Respondent and the Union began negotia- tions for a new contract on October 14, 1986.3 As of September, 7 of the 15 unit employees were union members on dues checkoff. Prior to the No- vember 12 negotiating session the Respondent's counsel, Murray Kirshtein, informed the Union's business representative, Lawrence Manca, that be- cause of promotions and resignations there were only 2 union members remaining in the now 10- person unit that were on dues checkoff. At the November 12 session Manca, Kirshtein, and the Respondent's president, John Rushton, were present. Kirshtein and Rushton both testified that Kirshtein asked Manca, "Can you represent to me that you represent the majority of the unit?" Kirshtein testified that Manca replied, "I cannot represent to you that I do." The Respondent contended that, based on Manca's statement, it had a reasonably grounded doubt as to the Union's majority status and that it therefore lawfully withdrew recognition from the I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We affirm the judge's quashing of the subpoena for the testimony of Federal Mediator Robert Clintshaw The Respondent seeks Clintshaw's testimony to corroborate the testimony of its witnesses that they asked Union Negotiator Manca if he could "represent that he represented a ma- jority" of the unit and that he answered that he could not Clmtshaw was not present when the question was allegedly asked and answered At most he could testify that Kirshtem told him over the phone that the question was asked and answered Thus, we find that Clintshaw's testi- mony would not be sufficiently probative to corroborate the Respond- ent's witnesses and that the judge did not abuse his discretion in exclud- ing this testimony 3 All dates are in 1986 101 Union. Manca denied that he made the statement attributed to him. We agree with the judge that Manca's ambigu- ous response to Kirshtein's question, even if made as Kirshtein testified, was insufficient to rebut the Union's presumption of continuing majority status. Therefore, it is unneccessary to remand the case to the judge to resolve the credibility conflict. If, in fact, Manca made such a statement, he could have meant only that he did not know that a majority of the unit were members of the Union or that a majority would agree to the contract terms he was negotiating. Futhermore, the statement is not couched in affirmative terms-that Manca did not represent a majority-but merely in terms of declining to make an express statement that he did. His alleged statement is in marked contrast to the statements in Upper Mississippi Towing Corp., 246 NLRB 262 (1979), relied on by our dissenting col- league. There, the majority relied on, among a number of factors rebutting the union's presump- tion of continuing majority status, three unambig- uous statements. Those statements were found to "clearly state NMU's estimate that it lacked em- ployee support" and that the NMU would "never be able to win the election." Manca's single ambig- uous statement here simply does not rise to the level of the union representatives' "admissions" in Upper Mississippi.4 In short, we agree with the judge that Respond- ent was not justified in withdrawing recognition from the Union here. Accordingly, we shall adopt his recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, RDR Indus- tries, Inc., Mohawk, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. MEMBER CRACRAFT, dissenting in part. Contrary to my colleagues, I would not adopt the judge's decision.' I would remand this case to the judge for resolution of the credibility conflict between the Respondent's witnesses (Attorney Kirshtein and President Rushton) and Union Busi- ness Representative Manca whether Manca was asked whether he could represent that the Union 4 See United Supermarkets, 214 NLRB 958 (1974), in which a Board majority found that an unclear statement was not an admission by the union that it did not have majority status That case bares a closer resem- blance to the situation here i I do, however, agree with the majority's quashing of the subpoena for the testimony of Federal Mediator Robert Chntshaw for the reasons stated 290 NLRB No. 18 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD represented a majority of the unit employees and whether Manca replied that he could not so repre- sent. The complaint alleges only an unlawful with- drawal of recognition. There is no evidence that the Respondent sought to undermine the Union or that it committed any other unfair labor practices. The Respondent bargained in good faith with the Union to reach a successor agreement until the al- leged question was asked and the alleged reply was given, whereupon the Respondent withdrew recog- nition. In the context of a sharp decline in the per- centage of unit employees on dues checkoff, record evidence, if credited, reveals that the Respondent merely asked the Union to confirm that it remained the employees' 9(a) representative and that the Union admitted in its answer that it lacked majori- ty support.2 Under these circumstances , I would find that Manca's statement, if credited, would pro- vide the Respondent with an objectively based, good-faith doubt of the Union's continuing majori- ty status. Upper Mississippi Towing Corp., 246 NLRB 262 (1979). Therefore, I would remand the case to the judge for this vital credibility resolu- tion. 2 If the Union had merely relied on its presumption of majority support in responding to the Respondent 's inquiry, I would have no problem af- firming the judge However, when, as here, it is alleged that the business representative and chief negotiator for the Union admitted that he could not represent that the Union had majority support , I believe a credibility resolution must be made Robert A . Ellison, Esq., for the General Counsel. Murray J. S. Kirshtein, Esq., of Utica, New York, for the Respondent. DECISION AND ORDER D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in Utica, New York, on 9 Feb- ruary 1987.' On a charge filed on 24 November 1986,2 a complaint was issued on 16 December, alleging that RDR Industries, Inc. (Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The complaint alleged that Respondent withdrew its recognition of International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 157 (the Union) as the exclusive collective-bargaining repre- sentative of its production and maintenance employees. In addition, the complaint alleged that Respondent failed to furnish the Union with information requested by it and increased the hourly wage rates of unit employees without prior notice to the Union . Respondent filed an answer denying the commission of the alleged unfair labor practices. The parties were given full opportunity to participate, produce evidence, examine and cross-examine witnesses, i The record was closed on 27 March 1987. a All dates refer to 1986 unless otherwise specified argue orally, and file briefs. Briefs were filed by the General Counsel and by Respondent. On the entire record of the case, including my obser- vation of the demeanor of the witnesses , I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation with an office and place of business in Mohawk, New York, is engaged in the fabrication of sheet metal and related products. It annually sells and ships from its New York facility goods valued in excess of $50,000 to consumers located outside the State of New York. Respondent admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and I so find. In ad- dition, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background On 1 July 1980 the Union was certified as the exclu- sive collective-bargaining representative of Respondent's production and maintenance employees . The parties sub- sequently entered into a 3-year collective-bargaining agreement . In 1983, pursuant to a decertification petition, an election was conducted that resulted in the Union's recertification . At the time approximately 15 to 17 em- ployees were in the unit. The parties then entered into a 3-year collective-bargaining agreement extending from 10 November 1983 to 10 November 1986. On 22 and 26 August 1986 the parties notified each other, in writing, of their intent to enter into negotiations for a successor agreement . In early September, Union Business Representative Lawrence Manca orally request- ed that Respondent President John Rushton provide a listing of the hourly earnings of the unit employees. On 19 September Rushton provided the requested informa- tion, which disclosed that wage increases were given to some unit employees beyond that provided by the con- tract. 2. Negotiations On 14, 21 , and 23 October the parties met to negotiate a successor contract, with Manca and Steward Dennis Quatrino, representing the Union , and Rushton and Re- spondent's counsel, Murray Kirshtein, representing Re- spondent. Manca and Kirshtein were the chief spokes- men. During these discussions the parties reached a number of tentative agreements , including an agreement to increase wages.8 8 According to Manca , on 28 October the parties agreed to extend the 10 November expiration date of the then-existing agreement . Kirshtein denied that the contract extension was agreed to. Art. 30 of the agree- ment provides that any changes or modifications to the agreement must be in writing and Manca conceded that there was nothing in writing ex- Continued RDR INDUSTRIES As of September, 7 of the 15 unit employees were union members whose dues were deducted from their earnings by Respondent. On 26 August Rushton posted an announcement that three foreman positions would be filled, advising those interested to apply by 29 August. Four employees, including Scott Fullington, all of whom were union members on dues checkoff, applied. During the last week of September, Fullington quit his employ- ment with Respondent. On 7 November Leland Smith notified Respondent and the Union, in writing, that he was terminating his union membership as of 10 Novem- ber.4 The parties resumed negotiations on 10 November, with Manca and Kirshtein present. Certain items were agreed on, subject to approval by Rushton and Quatrino. Manca and Kirshtein agreed to continue negotiations the following morning. The parties met again on 11 Novem- ber, at which time various contract items were discussed. The Smith resignation letter was shown to Manca, who was then informed that the three foreman positions were being filled immediately. Those selected were the indi- viduals who had signed the 26 August posting. Kirshtein then asked Manca whether all the members in the bar- gaining unit would vote on the agreement. Manca re- plied that only union members would vote. Kirshtein said he would be more "comfortable if everybody in the bargaining unit could vote on the agreement." Manca re- plied that he had no objection to meeting with everyone in the unit to inform them of the negotiations but that he could only permit union members to vote on the agree- ment. Manca and Kirshtein then agreed to speak with Robert Klimshaw, a mediator with the Federal Media- tion and Conciliation Service, as to the legality of having the entire bargaining unit vote on the agreement. In ad- dition, Manca said that he would discuss the question with the Union's legal department. 3. Withdrawal of recognition Kirshtein testified that he told Manca that he and Rushton were concerned because less than a majority of the unit employees were on checkoff. According to Kirshtein he then asked Manca, "Can you represent to me that you represent the majority of the unit?" Kirsh- tein testified that Manca replied, "I cannot represent to you that I do." Kirshtein further testified that he told Manca: If you can't provide for a majority of the employees affected ratifying whatever agreement we come to, and we're very close, and you can't represent to me you represent a majority of the people, you give me a problem. I can't negotiate with you. Manca denied that he was asked whether the Union rep- resented a majority of the employees. Kirshtein and Manca then spoke by telephone to Clintshaw, who sug- tending the agreement I find, therefore, that the agreement was not ex- tended Under the maintenance-of-membership clause of the 1983 contract, employees had the right to resign from union membership between 1 and 10 November 103 gested that the Union obtain a legal opinion regarding nonmember participation in the ratification process.5 On 12 November Manca was informed by the Union's attorney that only members could participate in the rati- fication. Manca so informed Kirshtem who replied that Respondent would not negotiate further with the Union Rushton acknowledged that Respondent would have continued to negotiate with the Union had the Union al- lowed the entire unit to ratify the agreement. Also on 12 November Manca made a written request for an updated list of employees' earnings. Respondent never answered the request. On 13 November Kirshtein and Rushton met with the unit employees and informed them that Re- spondent was implementing the wage increase that it had tentatively agreed to with the Union This action was taken without prior notice to the Union. Respondent has refused to negotiate with the Union after 12 November. B. Discussion In Robertshaw Controls Co., 263 NLRB 958, 959 (1982), the Board stated. We have consistently held that a union enjoys a presumption of continuing majority status. In order to rebut that presumption , an employer must either show that the union in fact no longer retains majori- ty support, or that its refusal to bargain was based on a reasonably grounded doubt as to the union's majority status. As to a reasonably grounded doubt, the doubt must be based on objective consider- ations. When Respondent's representatives realized that less than a majority of the unit employees were on checkoff, they requested that all the unit employees ratify the agreement. The union representative refused to accede to this request and stated that only union members would be eligible to vote on the agreements Kirshtein testified that he then asked Manca whether Manca could affirm that the Union represented the majority of the unit, to which Manca replied that he could not so affirm. Manca denied that such a question was asked or that such an answer was given It is not necessary for me to resolve the credibility issue, for even were I to credit Kirshtein's version of the events, Respondent has not sustained its burden of showing that the Union no longer retained ma- jority support or that its refusal to bargain was based on a reasonably grounded doubt as to the Union's majority status. Even crediting Kirshtein's version, the question and answer are ambiguous. Kirshtein conceded that he ad- vised Manca that, "You may have other people who are s Respondent served a subpoena on Chntshaw to testify concerning the telephone conversation The-General Counsel moved to revoke the sub- poena, arguing that Federal mediators should not be required to testify at Board proceedings The petition to revoke the subpoena was granted NLRB v Lemon Tree, 618 F 2d 51, 54 (9th Cir 1980), Tomlinson of High Point, Inc, 74 NLRB 681, 685 (1947) 6 The ratification process is an internal union matter and a union's de- termination to limit participation to its members is a matter within its dis- cretion See Darlington Veneer Co, 113 NLRB 1101, 1117 (1955), enfd 236 F 2d 85 (4th Cir 1956) 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union members who are not part of the checkoff ." Thus, even if the question were asked as Kirshtein testified, it could have meant whether Manca could represent that a majority of the unit were union members . Indeed, it is unlikely that an experienced union agent like Manca would have told an employer with whom he was negoti- ating that the Union did not speak on behalf of the ma- jority. This is so, especially here, where there was no un- derlying factual basis to make such a statement adverse to the Union's interest. Similarly, in United Supermarkets, 214 NLRB 958, 964 (1974), the union representative ad- mitted that "he did not believe he had a majority." The Board, however, in observing that the number of dues- checkoff authorizations is immaterial to the issue of ma- jority status, held that respondent did not establish that the union lost its majority status or that respondent had a reasonable basis for so believing . The Board pointed out that "the crucial question is whether a majority of em- ployees have expressed dissatisfaction with the Union as their collective-bargaining representative, and there is no evidence showing such majority dissatisfaction" (id. at 958). In Roberishaw Controls Co ., supra, the Board found that the factors on which respondent based its refusal to bargain were insufficient to support a reasonable doubt as to the Union's continuing majority status. The Board stated (at 959): With regard to union membership , we have held that a showing that less than a majority of the em- ployees in the unit are members of the union is not the equivalent of showing , that the union lacked ma- jority support, because no one can know with cer- tainty how many employees who favor union repre- sentation do not become or remain members of the union. As appears from his closing statement, Kirshtein un- derstood that the fact that less than a majority of the unit employees were on checkoff was not sufficient to create a good-faith doubt of majority status, where Respondent was unaware of substantial dissatisfaction among the em- ployees. Manca's ambiguous response, even if credited, that he did not represent a "majority," was insufficient to rebut the Union's presumption of continuing majority status. I therefore conclude that Respondent was not justified in withdrawing recognition from the Union . I further conclude that Respondent violated the Act by failing to furnish the Union with the information it requested on 12 November7 and by increasing the employees' wage rates on 13 November without prior notice to the Union. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(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. ' See B. F. Diamond Construction Co, 163 NLRB 161, 175-76 (1967), enfd 410 F.2d 462 (5th Cir. 1969), cert denied 396 U.S 835 (1969) 3. By withdrawing recognition of the Union as the ex- clusive collective-bargaining representative of its produc- tion and maintenance employees , by failing to furnish the Union with the information it requested , and by increas- ing the employees' wage rates without prior notice to the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take fur- ther action necessary to effectuate the policies of the Act. Inasmuch as I have found that Respondent unlaw- fully refused to bargain collectively with the Union, I shall recommend that Respondent be ordered to bargain with the Union as the representative of its production and maintenance employees. The General Counsel has requested that the order in- clude a visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure for the purpose of securing compliance with the Board's Order. However, the General Counsel has not shown any special circumstances necessitating a de- parture from the standard remedy in similar cases. Ac- cordingly, I will not include that requested remedy in this Order. See Northwind Maintenance Co., 281 NLRB 317 (1986); O. L. Willis, Inc., 278 NLRB 203 ( 1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondents, RDR Industries, Inc., Mohawk, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to meet and bargain collectively with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 157 as the exclusive representative of the employees in the following appro- priate unit: All production and maintenance employees em- ployed by Respondent at its Mohawk facility, ex- cluding office clerical employees , watchmen, guards and supervisors as defined in the Act. (b) Refusing to furnish necessary and relevant informa- tion requested by the Union. (c) Unilaterally changing wage rates or other terms and conditions of employment of unit employees, with- out prior notice to or bargaining with the Union. 8 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. RDR INDUSTRIES (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain in good faith with the Union as the exclusive representative of the above unit of employ- ees and, on request, embody in a signed agreement any understanding reached. (b) Furnish necessary and relevant information re- quested by the Union in a timely manner. (c) Post at facility in Mohawk, New York, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to 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 material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. i, 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 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 " APPENDIX NOTICE To EMPLOYESS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 105 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 bargain in good faith with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 157 as the exclusive representative of the employees in the following appro- priate unit: All production and maintenance employees em- ployed by Respondent at its Mohawk facility, ex- cluding office clerical employees, watchmen, guards and supervisors as defined in the Act WE WILL NOT refuse to provide necessary and rele- vant information requested by the Union in a timely manner WE WILL NOT unilaterally change wages and other terms and conditions of employment without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive representative of the employees in the appropriate unit WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL, on request, bargain collectively in good faith with the Union as the exclusive representative of the employees in the above-mentioned unit and WE WILL, on request, embody in a signed agreement any un- derstanding reached. WE WILL furnish necessary and relevant information requested by the Union in a timely fashion. RDR INDUSTRIES, INC