Landmark International Trucks, Inc.

LANDMARK TRUCKS 675 Landmark International Trucks, Inc. and Local Lodge 555 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Case 10-CA-15673 28 September 1984 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 16 September 1981 the National Labor Rela- tions Board issued a Decision and Order in this proceeding,' adopting an administrative law judge's findings that the Respondent violated Sec- tion 8(a)(1) of the National Labor Relations Act by soliciting its service department employees to resign their membership in Local 555 of the Inter- national Association of Machinists and Aerospace Workers, AFL-CIO (the Union), and that the Re- spondent violated Section 8(a)(5) by refusing to bargain with the Union and by withdrawing recog- nition from the Union. The Board ordered the Re- spondent to cease and desist from the conduct found unlawful and to take certain affirmative action. Thereafter, the Respondent filed a petition for review of said Order, and the Board filed a cross-application for enforcement with the United States Court of Appeals for the Sixth Circuit. On 7 February 1983 a panel of the court of ap- peals declined to enforce the Board's Order and re- manded the case to the Board for further proceed- ings. 2 The court found that the Respondent did not unlawfully solicit its employees to withdraw from the Union, but the court questioned the legitimacy of the Respondent's requirement that it be in- formed of its employees' decisions. In the court's view, resolution of that issue turned on whether or not the Respondent had continued to deduct dues from its employees' paychecks and the Union had continued to accept dues payments after the Re- spondent succeeded International Harvester Co., the predecessor employer. The court framed the determinative issue as follows: If dues checkoff was continued after Land- mark succeeded Harvester on November 1, 1979, the requirement that resigning employees send copies of their resignations and dues checkoff revocations to the employer was per- missible and there was no violation of § 8(a)(1). The receipt of copies of resignation and revocation letters from 13 of the 18 serv- ice department employees was reliable objec- ' 257 NLRB 1375 2 699 F.2d 815 (6th Cir 1983) tive evidence that the union no longer had ma- jority status. This together with the other in- formation known to Landmark was sufficient to overcome the rebuttable presumption that majority status continued and to shift the burden to the General Counsel for the Board. The General Counsel presented no evidence that the union did retain a majority in fact. . . . Thus if Landmark was entitled to rely on the copies of resignations, it demon- strated its good faith belief that the union had lost its majority status, and its withdrawal of recognition was not a violation of § 8(a)(5). 669 F.2d at 821. The court remanded the case to the Board for further proceedings consistent with its opinion. By an Order dated 26 August 1983 the Board remanded this matter to an administrative law judge for further proceedings consistent with the Sixth Circuit's decision. On 7 February 1984 Administrative Law Judge William N. Cates issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the Union filed a brief in sup- port of the supplemental decision. . The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to issue the attached Order. As stated above, the court reversed the Board's earlier finding that the Respondent's 19 November 1979 letter to its employees was an unlawful solici- tation of employees to withdraw from the Union. The court left open, however, "whether it was wrong to require that the employer be notified of employee decisions"—i.e., whether the 19 Novem- ber letter constituted an unlawful interrogation or polling of employee sentiments because the letter instructed the employees to inform the Respondent if they wished to withdraw from the Union or revoke their dues-checkoff authorizations. The court held that resolution of the open issue depend- ed on whether or not the Respondent had contin- ued to make dues checkoffs after taking over the business. In our view, the court's opinion clearly mandates that if the Respondent was continuing to make dues checkoff, then it needed to know the employees' desires and its withdrawal of recogni- tion, predicated in large part on the information obtained, was lawful. Conversely, we also read the court's opinion as holding that if dues checkoffs were not being made, then the Respondent did not 272 NLRB No. 105 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD need to know the information it requested and its efforts to obtain that information would constitute an unfair labor practice Accordingly, if the ob tamed information, which formed a basis for the Respondent s withdrawal of recognition was se cured unlawfully the withdrawal of recognition was tainted and unlawful As the judge found, it is undisputed that the Re spondent was not continuing the dues checkoffs It necessarily follows from the court s opinion, there fore, that the withdrawal of recognition was un lawful because it was predicated upon information obtained in an unlawful manner Accordingly, our reading of the court's opinion 3 compels us to con dude that the Respondent unlawfully interrogated or polled its employees concerning their Union sen timents and, consequently, that the Respondent un lawfully withdrew recognition from the Union ORDER The National Labor Relations Board orders that the Respondent, Landmark International Trucks Inc Knoxville, Tennessee, its officers, agents, suc cessors, and assigns, shall 1 Cease and desist from (a) Interrogating or polling its employees on whether they wish to remain members of Local Lodge 555 of the International Association of Ma chinists and Aerospace Workers, AFL-CIO or whether they wish to maintain their dues check offs (b) Refusing to recognize and bargain collective ly with Local Lodge 555 of the International Asso ciation of Machinists and Aerospace Workers AFL-CIO as the exclusive collective bargaining representative of the employees in the following appropriate collective bargaining unit All mechanics helpers and apprentices em ployed by Respondent at its Knoxville, Ten nessee Motor Truck Service Station excluding the foreman manager, clerical employees su pervisors as defined in the Act and all other employees (c) Withdrawing recognition from the Union as the exclusive bargaining representative of the em ployees in the appropriate bargaining unit de scribed above (d) In any like or related manner interfering with restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 3 Our holding here does not necessarily reflect the view this Board would express if this case were before us de novo Rather the court s opinion establishes the binding law of the case and our holding reflects only our application of the undisputed facts to the legal pnnciples the court set forth 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Recognize and, on request, bargain collec tively with Local Lodge 555 of the International Association of Machinists and Aerospace Workers AFL-CIO as the exclusive representative of all employees in the appropriate unit described above with respect to rates of pay, wages hours of em ployment, and other terms and conditions of em ployment and, if an understanding is reached embody such understanding in a signed agreement (b) Post at its Knoxville, Tennessee facility copies of the attached notice marked Appendix "4 Copies of the notice on forms provided by the Re gional Director for Region 10, after being signed by the Respondent 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 Respondent 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 his Order what steps the Respondent has taken to comply 4 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 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 NGT interrogate or poll our employees on whether they wish to remain members of Local Lodge 555 of the International Association of Ma chinists and Aerospace Workers AFL-CIO or whether they wish to maintain their dues check offs WE WILL NOT refuse to recognize and bargain collectively with the aforesaid Union as the exclu sive collective bargaining representative of the em ployees in the following appropriate collective bar gaining unit All mechanics helpers and apprentices em ployed by the Employer at its Knoxville Ten LANDMARK TRUCKS 677 nessee Motor Truck Service Station; excluding the foreman, manager, clerical employees, su- pervisors as defined in the Act, and all other employees. WE WILL NOT withdraw recognition from the aforesaid Union as the exclusive bargaining repre- sentative of our employees in the appropriate bar- gaining unit described above. 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 recognize and, on request, bargain col- lectively with the aforesaid Union as the exclusive representative of all employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached embody such understanding in a signed agreement. LANDMARK INTERNATIONAL TRUCKS, INC. SUPPLEMENTAL DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. On September 16, 1981, the National Labor Relations Board (Board) issued its Decision and Order (257 NLRB 1375) in the above-entitled proceeding. The Board adopted with additional rationale my decision that Landmark International Trucks, Inc. (Landmark) had violated Sec- tion 8(a)(1) of the National Labor Relations Act (Act), by soliciting its service department employees to resign their membership in Local Lodge 555 of the Internation- al Association of Machinists and Aerospace Workers, AFL-CIO (Union). The Board based its 8(a)(1) finding on the fact that Landmark had given its service depart- ment employees a letter on November 19, 1979, in which it advised its employees that they had a right to resign from the Union and revoke their union dues-checkoff au- thorizations. The letter outlined two methods of resign- ing from the Union. One of the methods outlined was to following a three-step procedure which entailed dating and signing two copies of a letter prepared by Landmark and then mailing by certified mail one copy to Landmark and the other to the Union. Envelopes in which to mail the letters were supplied by Landmark.' Landmark also advised its employees that a second method they could following in resigning from the Union was to sign a union withdrawal slip and send copies by certified mail both to the Union and to Landmark. In finding that the ' The letter prepared by Landmark for the employees to sign read as follows. Dear Sirs I am hereby notifying you that I revoke my authorization for deduc- tion of union dues from my wages and I hereby resign my member- ship in the Union Yours truly November 19, 1979 letters and attachments were coer- cive, and constituted an attempt to induce employees to withdraw from the Union in violation of the Act, the Board specifically noted that Landmark's acts of assist- ance were more than ministerial acts and were devised to allow it to monitor its employees' decisions on whether to resign from the Union, particularly where it had no contractual or other need to obtain the information. The Board also found that Landmark violated Section 8(a)(5) of the Act by withdrawing recognition from and refusing to bargain with the Union. The Board held that Landmark recognized the Union as the exclusive bar- gaining representative of its service department employ- ees on November 15, 1979, and that it commenced bar- gaining with the Union on that date. The Board held that Landmark had, in violation of the Act, withdrawn recognition from the Union on December 4, 1979, with- out affording a reasonable time for bargaining to suc- ceed. Further, the Board adopted the finding that Land- mark had not established that the Union had in fact lost its majority status at the time it withdrew recognition from and refused to bargain with the Union. In that same respect, the Board adopted the finding that Landmark had not established it had a good faith doubt of the Union's continued majority status, based on objective consideration, at the time it withdrew recognition from the Union. The Board agreed with the administrative law judge that the 13 letters Landmark received from its 18 unit employees in response to its November 19, 1979 letter could not form the basis of objective consideration of a good-faith doubt of the Union's continuing majority status inasmuch as the letters constituted unlawful solici- tations to its employees to withdraw from the Union. The Board ordered Landmark to cease and desist from interfering with its employees' statutory rights and fur- ther ordered it to take certain affirmative actions to ef- fectuate the purposes and policies of the Act, including recognizing and bargaining with the Union. Landmark filed a petition for review of the Board's Decision and Order (257 NLRB 1375) and the Board filed a cross-application for enforcement with the United States Court of Appeals for the Sixth Circuit. On Febru- ary 7, 1983, a panel of the court of appeals issued a deci- sion (699 F.2d 815 (6th Cir. 1983)) vacating the Board's Decision and Order and remanding the case to the Board for further proceedings. The court of appeals held in its decision that Landmark had not unlawfully solicited its employees to withdraw from the Union. Further, the court of appeals stated that It appeared the Board had held in its decision that regardless of how long a union had been certified, a successor employer which "volun- tarily" recognized a union could not then withdraw rec- ognition from that union for a reasonable time, regardless of the fact it may have a good-faith doubt about the con- tinuing majority status of that union. The court of ap- peals found no basis for such a holding and stated, "A successor's duty to continue recognition under such cir- cumstances is no different from that of any other em- ployer after the certification year expires." The court of appeals further stated: "Once a successor employer forms a reasonable, good faith doubt as to the union's continu- 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing majonty status it is no longer bound to continue rec ognition and bargaining [citation omitted] A portion of Landmark s claim of a good faith doubt of the Union s continuing majority status was based on 13 letters it re ceived in response to its November 19 1979 letter in which it informed its employees how to resign from the Union Although the court of appeals held that the No vember 19 letter did not constitute a solicitation to resign from the Union it did find that the letter raised the ques non of whether it was wrong to require that Landmark be notified of its employees decisions with respect to their resignations from or cancellations of dues to the Union The court of appeals stated (699 F 2d 821) If dues checkoff was continued after Landmark succeeded Harvester on November 1 1979 the re quirement that resigning employees send copies of their resignations and dues checkoff revocations to the employer was permissible and there was no vio lation of § 8(a)(1) The receipt of copies of resigna lion and revocation letters from 13 of the 18 service department employees was reliable objective evi dence that the union no longer had majority status This together with the other information known to Landmark was sufficient to overcome the rebuttable presumption that majority status continued and to shift the burden to the General Counsel for the Board The General Counsel presented no evidence that the union did retain a majority in fact Thus if Landmark was entitled to rely on the copies of resignations it demonstrated its good faith belief that the union had lost its majority status and its withdrawal of recognition was not a violation of § 8(a)(5) The court of appeals ordered the case remanded to the Board to mark factual determinations with respect to whether Landmark continued to deduct dues from its service employees after November 1 1979 and whether the Union continued to accept dues payments from Landmark after that date Following the remand the Board informed the parties they could file and each did file statements of position with it regarding the remand The Board in an unpublished order dated August 26 1983 remanded the case to an administrative law judge for the purpose of reopening the record and for the taking of additional evidence consistent with the court of appeals decision The Board in acccepting the remand stated that it respectfully recognizes the court s decision as binding for the purposes of deciding this case A hearing was held before me in Knoxville Tennes see on October 28 1983 All parties were afforded full opportunity to participate to call to examine and cross examine witnesses and to present evidence Following the close of the hearing all parties filed briefs on the issues presented On the entire record including my observation of the demeanor of the witnesses and after due consideration of the briefs I make the following findings of fact conclu mons of law and recommendations It is clear that the court of appeals decision is control ling in this case and it is just as clear that the court s remand was very limited in scope The sole factual issue for determination is whether dues were continued to be deducted by Landmark and accepted by the Union after November 1 1979 I find therefore Landmark s President Clarence M Sydes establishes that no union dues were deducted by Landmark on behalf of the Union after November 1 1979 I find therefore recommended that Landmark had no lawfully valid reason to direct its employees that it in addition to the Union be notified of any resignations from or revocation of dues authorizations for the Union I also find that the actions of Landmark constituted a monitoring of its employees decisions regarding the Union and amounted to an unlawful informal poll of its employees sentiments toward the Union and as such constituted coercive conduct in violation of Section 8(a)(1) of the Act Consistent with the court of appeals decision I find that inasmuch as Landmark had no valid reason for being notified of any resignations from or rev °cations of dues to the Union it may not rely on the 13 resignation and revocation letters it received from its service department employees to establish any part of its good faith doubt of the Union s continuing majority status Absent the use of the letters in question I find that Landmark did not have and could not have had a good faith belief supported by clear cogent and con vincing objective considerations that the Union no longer had the support of a majority of the unit employ ees at the time it withdrew recognition from the Union [Recommended Order omitted from publication ] k