Wells Fargo Armored Service Corp.

WELLS FARGO ARMORED SERVICE CORP. 881 Wells Fargo Armored Service Corporation and Northeast Armed Guards and Security Associa- tion. Case 1-CA-25070 August 19, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 13, 1988, Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Wells Fargo Armored Service Corpora- tion, Wakefield, Massachusetts its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(c). "(c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." than obtain a contract with that pay cut, continued to represent the employees without a written contract while organizing other armored guard company employees. On October 15, 1987, after being certified at a second company and after engaging an experienced negotiator to serve as business agent, the Union submitted a written "request for a speedy resumption of our return to the bargaining table." The Company refused to deal with the business agent and withdrew its recognition of the Union. Despite the near 100-percent membership of the guards in the Union, the Company contends that the Union "abandoned or disclaimed the unit it was certified to represent" and that the Company "has justifiable grounds to assert a good faith doubt of [the Union's] continued majority support." The primary issues are whether the Company , the Re- spondent, unlawfully withdrew recognition and refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the National Labor Relations Act. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT 1. JURISDICTION The Company, a corporation, at its facility in Wake- field, Massachusetts, transports money and other valua- bles for banks and other customers: It annually performs services valued over $50,000 in other States. The Com- pany admits and I fmd that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is labor organization within the meaning of Section 2 (5) of the Act. ' 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. Kathleen F. McCarty, Esq., for the General Counsel. Thomas Franklin, Esq., of Atlanta, Georgia, for the Re- spondent. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge. This case was tried in Boston, Massachussets, on March 10, 1988. The charge was filed November 2, 19871 (amended Dec. 9), and the complaint was issued January 15, 1988. In negotiations on May 1 , 1985, the Union (a newly formed guard union) rejected the Company's "final offer" of about $5.50 an hour for employees who were then being paid about $9.50 an hour. The Union, prefer- ring to retain the higher wage without a contract rather ' All dates are in 1987 unless otherwise indicated. II. ALLEGED UNFAIR LABOR PRACTICES A. Representation Without Written Agreement On January 9, 1985 , the Union was certified as the ex- clusive bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time messenger-guards and driver-guards employed by Wells Fargo Ar- mored Service Corporation at its Wakefield, Massa- chusetts location, but excluding all other employees, money room employees, vault employees, coin room employees, office clerical employees, techni- cal employees, mechanics, professional employees, and all supervisors as defined in the Act. The employees had voted 18-0 for representation by the Union (G.C. Exh. 2D). In the fifth negotiating session on May 1 , 1985, the Company made a final offer of a wage package of about $5.50 an hour for the crew members who were then "in the $9.50 range." As Union President Robert Currier credibly testified, "The Union, at that time, felt that things were better left alone. As long as the company didn't have a rollback on the employees . . . that we wouldn't attempt to come to a written bargaining agree- 290 NLRB No. 106 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment at the time." (Tr. 57-58.) The Company continued to pay the higher wages and in May 1987 gave the unit employees a wage increase (Tr. 73). It gave this increase and made other, changes in working conditions without consulting with the Union (Tr. 77-78). Meanwhile the Union continued to meet with the Company and attempted to resolve problems despite the absence of a grievance procedure. It is undisputed, as Union President Currier credibly testified, that he met with the branch manager quite often in 1985, 1986, and 1987. The Company "changed branch managers quite often, and I've met and talked with all of them about union activity." Either the new branch manager or Currier, the secretary-treasurer (John Caughey or Michael Costa), and Trustee Ralph Leavy would request a meeting. Ususally more than one of the union representatives would attend these meetings. They discussed with the branch manager the lack of a union agreement, working conditions, the shortage of employ- ees at the Wakefield branch, and various complaints and concerns. (Tr. 59-60, 67-69.) The union representatives also met with the branch manger concerning a number of disciplinary actions. On one occasion in the spring of 1987 the Union was suc- cessful in getting employee William Damon reinstated On other occasion that spring the Union succeeded in getting employee Ralph Leavy's suspension reduced. (Tr. 80-81.) About July 7 Union President Currier and Secretary- Treasurer Costa met Branch Manager Larry Gleak con- cerning the Company's withdrawing a 50-cent increase that employees Paul Brickley and John Martin had re- ceived in May. The union representatives "explained to [Gleak] that we were short manpower, there was a labor shortage on the premises, and to bring the rollback in pay would only create more headaches." Gleak promised to speak to Assistant Vice President Joseph Marinelli about it. (Tr. 29-30.) On July 21 Currier and Costa again met with Gleak, along with Assistant Branch Manager David Heagan. Gleak stated that he had spoken to Marinelli and told them that the wage increase had been a clerical error (the employees being in the wrong classification) and that the rollback would stand. Currier stated that they were seeking "some kind of compromise that we could bring back to the membership, that would pacify the membership." He asked that the Company restore the wages immediately "because we should be talking about other things that were a concern in the garage, working conditions and so on." Then "we came to an impasse, and I suggested that they were backing us into a corner, and we couldn't do anything else except have a job action." It is undisputed that Gleak stated, or agreed, that "the ball is really in our court." (Neither Gleak nor Heagan testified.) (Tr. 30-311, 61-63, 73-75.) The next day, Wednesday, July 22, the Union met and decided to have a 1-day job action. Then on Friday morning, July 24, President Currier telephoned the vault supervisor and advised him that the crewmembers in the bargaining unit would not be showing up to work that day "because of the impasse we had with the company in regards to the Brickley and Martin case." All except two of the unit employees stayed off the job that day- without any placards or picketing. (All, or nearly all the approximately 22 crewmembers were union memebers. A total of 19 of them paid dues that month. (Tr. 42; G.C. Exh. 5.) The employees returned to work Saturday, the following day, and continued to work without a union agreement. (Tr. 32-33, 35, 43, 63-64.) B. Withdrawal of Recognition The Union was conducting a successful organizing campaign at Brinks in Boston and also in Providence. It was certified for the guard unit in Boston on September 25 and in Providence about December or early 1988. (Tr. 16.) On October 4 (Tr. 7) the Union selected Bertram Farnham, an experienced labor leader (Tr. 17), to be its business agent and secretary-treasurer. (He had briefly (Tr. 8) served as secretary-treasurer when the Union was founded in November 1984.) On October 15 Farnham and President Costa, along with Trustee Leavy, who had been discharged about a week earlier, met with Assistant Vice President Marinelli and Branch Manager Heagan. Franham handed Marinelli a letter, dated October 15, that read: Please accept this notice as a request for a speedy resumption of our return to the bargaining table for the purpose of concluding a collective bargaining agreement. The [Union] waits your early reply. Please contact the undersigned [Farnham] at the following address. Farnham identified himself as the Union's secretary-treas- urer and business agent. (Tr. 9-13, 18, 36-37.) Marinelli refused to recognize the Union or to deal with Farnham. He stated that the Company would not recognize Farnham as the secretary-treasurer of the Union and would not discuss anything with him, but that he had no objection to talking to employee Costa and to Leavy about his discharge (Tr. 12, 37). Neither Marinelli nor anyone else with the Company responded to the Union's written request to resume bargaining (Tr. 14). Thus the Company on October 15 withdrew its recog- nition of the Union and since then has refused to bargain with it. C. The Company's Defenses The Company offers two defenses for withdrawing recognition and refusing to bargain with the Union. First, the Company contends in its brief (at 4) that the Union "abandoned or disclaimed the unit it was certified to represent." It refers (at 5) to the Union's decision that "it was better to negotiate a collective-bargaining agree- ment and to leave everything status quo." Then, ignoring the evidence that the Union continued to represent the employees in meetings with the branch managers, the Company claims that the Union "never did again repre- sent the employees." I reject this defense as frivolous. Second, the Company contends (at 8) that "the facts of this case give rise to good faith, reasonable doubt as to [the Union's] majority status." It argues (at 9-10) WELLS FARGO ARMORED SERVICE CORP. 883 The Union exerted no authority and no power from May 1985 until it filed the present charge. Wells Fargo Armored made many unilateral changes in working conditions without consulting anyone or any union. The Union never complained of these changes and never filed any unfair labor practice charges over them. Wells Fargo fired 18 people between 1985 and 1987. No grievances were filed or pursued. There was a one day strike on 24 July 1987. No one from [the Union] called Wells Fargo Armored and identified the strike as a [union] event... . The turnover at this branch was tremen- dous. Two hundred and nine employees worked in the unit classifications in a three year period. Today only six of the original group of employees remain in the unit. The large amount of time which was passed without union activity further suggests a lack of support by the employees of the Union. The last bargaining session was 1 May 1985. Twenty nine months passed before the [Union] made a request to meet with and bargain with the Company in Octo- ber 1987. All the above factors form the basis for a reason- able, good faith doubt as to [the Union's] continued majority support. Thus the Company cites no evidence of any employee disaffection with the Union and ignores the evidence that a large majority of the unit employees were dues-paying members. It also ignores the undisputed testimony that before the 1-day strike Union President Currier told the branch manager and his assistant that the union repre- sentatives were seeking a compromise "we could bring back to . . . pacify [our] membership" and warned them that they "were backing us into a comer, and we couldn't do anything except have a job action." The Company was therefore aware that the strike was a union event. The failure to protest the Company's unilat- eral actions and to file grievances relates to the absence of a collective-bargaining agreement and to the per- ceived relative strength of the parties in the bargaining relationship-not to any doubt of union support. Although unable to negotiate a satisfactory collective- bargaining agreement, the Union continued to represent the unit employees and to command their support. D. Concluding Findings In Alexander Linn Hospital, 288 NLRB 103 (1988), the Board quoted the "longstanding legal principals" govern- ing the withdrawal of recognition: After the certification year the presumption of ma- jority status becomes rebuttable. . . . An employer who refuses to bargain with an incumbent union may rebut the presumption of majority status by es- tablishing either (1) that at the time of the refusal to bargain the union in fact did not enjoy majority status, or (2) that the refusal was predicated on a good-faith and reasonably grounded doubt, support- ed by objective considerations, of the union's major- ity support. As in that case, at fn. 19, "There is no evidence, nor any contention, that the Union had in fact lost its majori- ty status." Instead, the evidence shows that a large ma- jority of the unit employees were dues-paying members. The Company, however, argues in its brief (at 7) that "A lot of time has passed since the date of certification" and "there was a tremendous amount of turnover." But, as in Alexander Linn Hospitals, the Company's "reliance on employee turnover is misplaced. The Board presumes that new employees support the union. See Laystrom Mfg. Co., 151 NLRB 1482 (1965), enf. denied 359 F.2d 799 (7th Cir. 1966)." The Company has offered no evi- dence of union nonsupport to rebut that presumption. I find that the Company did not have a good-faith and reasonable doubt, supported by objective considerations, of the Union's majority status. I, therefore, find that its October 15 withdrawal of recognition from the Union and its refusal to bargain since then violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By withdrawing recognition from the Union on Octo- ber 15, 1987, and refusing to bargain since then, the Company engaged in unfair labor practices affecting commerce within 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 engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed2 ORDER The Respondent, Wells Fargo Armored Service Cor- poration, Wakefield, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Northeast Armed Guards and Security Association as the exclusive representative of the employees in the bargaining unit. (b) In any like or related manner restraining or coerc- ing 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, recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of 2 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. 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time messenger-guards and driver-guards employed by Wells Fargo Ar- mored Service Corporation at its Wakefield, Massa- chusetts location, but excluding all other employees, money room employees, vault employees, coin room employees, office clerical employees, techni- cal employees, mechanics, professional employees, and all supervisors as defined in the Act. (b) Post at its facility in Wakefield, Massachusetts, copies of the attached notice marked "Appendix. 113 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to 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 Re- spondent has taken to comply. 8 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 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. WE WILL NOT refuse to bargain with Northeast Armed Guards and Security Association as the exclusive repre- sentative of our employees in the bargaining unit. WE WILL NOT in any like or related manner coerce you in the exercise of the rights guaranteed you in Sec- tion 7 of the Act. WE WILL, on request, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time messenger -guards and driver-guards employed by Wells Fargo Ar- mored Service Corporation at its Wakefield, Massa- chusetts location , but excluding all other employees, money room employees , vault employees, coin room employees, office clerical employees, techni- cal employees, mechanics, professional employees, and all supervisors as defined in the Act. WELLS FARGO ARMORED SERVICE CORPO- RATION