Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 175 (N.L.R.B. 1970)

ARTHUR DERSE AND WILDER MFG CO
Arthur F . Derse, Sr., President , and Wilder Mfg.
Co., Inc . and Textile Workers Union of America,
AFL-CIO. Case 2-CA-10823
August 27, 1970
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
MCCULLOCH, AND BROWN
On October 21, 1968, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding, finding that Respondent had not
engaged in and was not engaging in unfair labor
practices in violation of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended, and
ordered that the complaint be dismissed.'
On November 14, 1969, the Court of Appeals
for the District of Columbia Circuit remanded the
case to the Board for further consideration "in the
f i r s t instance in the light of G i s s e l , but without limita-
tions. . . ."Z
Thereafter, on February 27, 1969, counsel for the
Union requested leave to file a supplemental brief,
and the Board granted all parties leave to file supple-
mental briefs. The Union timely filed its brief on
April 10, 1970.
Pursuant to the remand, the Board has again
reviewed the entire record in this case and, having
duly reconsidered the matter, has concluded for the
reasons set forth below that Respondent's course of
conduct herein constituted a violation of Section
8(a)(5) and (1) of the Act. Accordingly, we hereby
reinstate the complaint in this proceeding, and affirm
our previous decision and Order only to the extent
consistent herewith.
As found by the Board in its previous Decision,
on the morning of October 12, 1965, representatives
of the Union presented Walter Derse, secretary and
general manager of Respondent Company, with 11
signed and 2 unsigned union membership cards, and
requested recognition as bargaining agent of the Com-
pany's production and maintenance employees. There
were then 30 employees on the Company's payroll,
18 of whom were found to be in the production
and maintenance unit for which the Union claimed
representation rights, and which the Board found
to be appropriate for purposes of collective bargaining.
Derse, after examining the cards, disclaimed authority
' 173 NLRB 30
'Sub nom Textile Workers Union of America v N.L.R B, 420 F 2d
635 The court's reference to Gissel is to the Supreme Court' s opinion
in NL.R B v Gissel Packing Co, 395 U S 575 1969
175
to grant the request, but promised to give the Union
an answer the following day. The union representatives
insisted, however, on an immediate answer. Failing
to receive it, the employees who had signed the author-
ization cards left the plant and established a picket
line. They were joined the next day by two other
employees who had signed the 2 blank cards which
were among the 13 presented to Derse.
During the evening of the next day, October 13,
the Company's officers met. Upon Walter Derse's
report that there were 10 or 11 employees on the
picket line and as "we are about 30 (not including
the officers of the Company) it appears that they
do not represent a majority," the officers decided
not to recognize the Union. They then decided to
retain labor counsel. On October 25, a union represent-
ative encountered Derse in the parking lot, and asked
him if he had made a decision. (Derse had not
informed the Union of the decision reached at the
October 13 meeting.) Derse replied that he had no
comment to make and handed him a slip with the
name of a law firm on it. The union representative
contacted the named law firm and was told that
the firm had received no instructions from its client.
The Union subsequently renewed its bargaining
requests but at no time was it ever informed of
Respondent Company's decision not to recognize or
bargain with it or the reasons therefor.
The Board, reversing its Trial Examiner in its
original Decision, ruled that Respondent did not vio-
late Section 8(a)(5) by its refusal to recognize the
Union.
The court of appeals, noting that the opposing
arguments of both Board and union counsel, though
based on language from the Gissel decision, raised
issues not definitively dealt with by the Supreme
Court,' remanded the case for reconsideration. The
purposes of the remand are succinctly summarized
in the following sentence appearing at the conclusion
of the court's opinion:
Thus is would appear useful for the Board to
look at this case again not only in the light
of what the Court decided in Gissel but also
by reference to what the Court said it understood
the Board's practice to be in situations not involv-
ing independent unfair labor practices but where
the employer stands upon a doubt as to the
appropriateness of the unit.
' In Gissel, the Supreme Court noted that because the cases before
it each involved independent unfair labor practices, it did not need
to decide whether a bargaining order is ever appropriate in cases where
there is no interference with the election processes Supra, 595, see
also p 601, fn 18
185 NLRB No. 76
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The reference to the Supreme Court's opinion in
Gissel is to that portion of the Supreme Court opinion
in which it was said:
The Board pointed out, however, (1) that an
employer could not refuse to bargain if he knew,
through a personal poll for instance, that a majori-
ty of his employees supported the union, and
(2) that an employer could not refuse recognition
initially because of questions as to the
appropriateness of the unit and then later claim,
as an afterthought, that he doubted the union's
strength.
As to the narrow question of a possible violation
of Section 8(a)(5) when an employer refuses to bargain
and "stands upon his doubt as to the appropriateness
of the unit," we do not believe the facts of this
case put this question squarely in issue. The Respond-
ents' response-or lack of response-to the Union
demand did not assert this as the ground of the
refusal, so that the record here does not, we have
concluded upon review, pose this question.'
We are left, however, with another issue suggested
by the court's reference to the Gissel opinion, and
have found it necessary to pursue upon this remand
the further question of whether, recognizing that there
are no independent unfair labor practices involved,
the facts here require a conclusion that the Employer
knew that a majority of his employees supported
the Union and nevertheless refused to bargain. A
finding of such knowledge would, of course, have to
be predicated upon more than the mere presentation
of authorization cards in a number sufficient to indi-
cate a majority inasmuch as the Supreme Court has
given tacit approval to the principle that an employer
may reject a card showing and insist upon an election.
We do not believe, however, that it has yet been
made clear whether a 8(a)(5) violation will be found
if the record contains (1) evidence in addition to
mere cards sufficient to communicate to the employer
convincing knowledge of majority status, and (2) insuf-
ficient evidence that the employer's refusal to grant
recognition was based on a genuine willingness to
resolve any doubts concerning majority status through
the Board's election processes.
In the instant case, the record demonstrates not
only that 11 out of the 18 production and maintenance
' The Respondents did later contend before this Board that certain
additional employees should be added to the Union's proposed unit
We have, however, in other cases been required to resolve such unit
questions in 8(a)(5 ) cases and , upon making a finding of appropriate
unit , then proceeded to direct the respondent to bargain in the unit
ultimately found appropriate UnitedAircraft Corp, 144 NLRB 492, enfd
333 F 2d 819 (C A 2) Generally, of course, any such doubts are
best resolved in the course of representation case procedures which
any party is free to invoke As we note infra, the Respondents here
made no attempt to resolve any doubts as to appropriateness of unit
by this method
employees had signed authorization cards, but also
that all of the card signers dramatically evidenced
their support for the Union by actively participating
in a picket line and in a strike, and, furthermore,
that an officer of the Respondent conceded in his
testimony that he told his fellow officers that the
Union "had 10 or 11" of the employees.
Upon this record we are compelled to find that
the Employer did have knowledge that a majority
of his employees supported the Union. We also do
not find any facts in the record which evidence a
genuine willingness , on the part of the Respondent,
to resolve any lingering doubts which might have
remained as to majority status by resort to the Board's
election procedures. The Employer 'did not itself file
an election petiton or urge or even suggest to the
employees or the Union the use of such procedures,
nor did it at any time indicate a willingness to partici-
pate in a representation proceeding, wherein any unit
question, as well as any issue of majority status could
have been resolved in an orderly manner. In the
interest of encouraging all parties to avail themselves
of our election procedures, we would not be inclined
to enter a bargaining order if, absent independent
unfair labor practices, the record supported a finding
that the Respondent had in good faith indicated a
willingness to utilize those procedures, since, as the
Supreme Court has said, a Board-conducted election
is indeed the "preferred route" for determining
employee desires.
On this record, however, where there is substantial
evidence to demonstrate employer's knowledge of
majority status and no evidence demonstrating a will-
ingness or desire on the part of the Employer to
resolve any doubt which it may have entertained
through the election process, we must conclude that
the refusal to bargain constituted a violation of Section
8(a)(5) of the Act and that a bargaining order is,
here, an appropriate remedy.
Finally, we reject Respondent's contention that our
finding that it violated Section 8(a)(5) by refusing
to recognize and bargain with the Union in the circum-
stances of this case "will completely abrogate the
provisions of Section 8(b)(7)(C) of the Act," and
that those provisions support its position that is has
an absolute right to an election before being compelled
to bargain with the Union.
Section 8(b)(7) places restrictions on recognitional
and organizational picketing by noncertified unions.
Under Section 8(b)(7)(C), picketing for recognition
is unlawful if "conducted without a petition under
Section 9(c) being filed within a reasonable period
of time not to exceed thirty days from the commence-
ment of such picketing." Thus, a timely filed petition
operates as a defense to a charge and complaint
ARTHUR DERSE AND WILDER MFG CO
that a union's recognitional picketing violates
8(b)(7)(C). A proviso to the section directs the Board
to conduct an expedited election whenever a timely
petition is filed by the employer or the union.'
In Blinne Construction Company,' the Board held
that the restrictions placed on recognitional picketing
by 8(b)(7)(C) were applicable to majority unions;
i.e., that the fact of majority status does not excuse
a union from the necessity of timely filing a petition-
pursuant to which the underlying question concerning
representation could be resolved-as a defense to
a charge that its recognitional picketing violated Sec-
tion 8(b)(7)(C). It is this holding that Respondent
contends precludes a finding that its refusal to recog-
nize the Union violates Section 8(a)(5) where an
election has not been held.
We reject the contention for the following reasons.
Our decision in Blinne expressly rejects such a con-
struction of the statute where a union strikes and
pickets against an employer's unlawful refusal to rec-
ognize it and meritorious 8(a)(5) charges have been
filed.' The provisions of Section 8(a)(5) have since
been applied by the Board in a manner consistent
with such construction of 8(b)(7).5 At the time
Respondent made its decision to refuse to recognize
the Union, it was confronted by convincing evidence
of the Union's majority status,' and as we have shown
before, it never demonstrated a willingness to invoke
the election processes; nor did it file a charge that
the Union's strike and accompanying picketing consti-
tuted violations of Section 8(b)(7)(C).
We find, accordingly, that, by refusing on and
after October 12, 1965, to recognize and bargain
collectively with the Union Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In this latter respect, we shall order Respondent,
upon request of the Union, to recognize and bargain
collectively with the Union as the representative of
' To invoke this procedure , an 8(b)(7)(C) charge must be filed
Board's Rules and Regulations , Sec 102 76
International Hod Carriers' Building and Common Laborers' Union
of America, Local 840, AFL-CIO (Charles A 8lme d/b/a Blume
Construction Cumpanl ). 135. RB 1153
Id at p 1166, in 24
See, e g , Comfort, Inc, 152 NLRB 1074, enfd in pertinent part
365 F 2d 867 (CA 8), World Carpets of New York, Inc, 163 NLRB
No 74
' See Gissel, supra, 597-598
177
employees in the bargaining unit found appropriate
herein. We shall also order Respondent to offer rein-
statement to each striker upon his application and
reimburse these employees for any loss of earnings
suffered by Respondent's refusal, if any, to so reinstate
them. In this connection, we reject the Trial Examin-
er's recommendation that Respondent be ordered to
make whole each unfair labor practice striker for
loss of earnings he has suffered during the period
from the commencement of the strike until such
date as he applies for reinstatement. In our judgment,
there are no unusual circumstances present justifying
a departure from the existing Board precedent that
employees are not entitled to backpay while on strike. 10
CONCLUSIONS OF LAW
1. The Textile Workers Union of America, AFL-
CIO, is a labor organization within the meaning
of the Act.
2. The Respondent, Wilder Mfg. Co., Inc., is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and it will effectuate the
purposes of the Act for jurisdiction to be exercised
herein.
3. All production and maintenance employees of
the Wilder Mfg. Co., Inc., employed at its Port
Jervis, New York, plant, excluding all other employ-
ees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act, as amended.
4. At all times since October 12, 1965, the above
labor organization has been, and now is, the exclusive
representative of all the employees in the above
appropriate unit, for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain with the
Union on and after October 12, 1965, said Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of
the Act.
6. The strike which commenced on October 12,
1965, was prolonged by said Respondent's unfair
labor practices and hence was an unfair labor practice
strike.
7. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
10 Baldwin County Electric Membership Corporation, 145 NLRB 1316,
Sea-Way Distributing , Inc, 143 NLRB 460
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent Wilder
Mfg. Co., Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively
with the Textile Workers Union of America, AFL-
CIO, in the following appropriate unit:
All production and maintenance employees of
the Wilder Mfg. Co., Inc., employed at its Port
Jervis , New York, plant , excluding all other
employees , guards and supervisors as defined
in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Upon request, bargain with the Union as the
exclusive representative of the employees in the
appropriate unit and , if an understanding is reached,
reduce it to writing and sign it.
(b) Upon application , offer immediate and full rein-
statement to their former jobs, or if those jobs no
longer exist , to substantially equivalent positions to
all its employees who went on strike on October
12, 1965, or thereafter, without prejudice to their
seniority or other rights and privileges , dismissing,
if necessary , all persons hired on or after that day,
and make such applicants whole for any loss of
pay suffered by reason of the Respondent 's refusal,
if any, to reinstate them by payment to each of
them of a sum of money equal to that which he
normally would have earned , less the net earnings,
during the period from 5 days after the date on
which he applied or has applied for reinstatement
to the date of the Respondent 's offer of reinstatement,
with backpay to be computed as set forth in F W.
Woolworth Company, 90 NLRB 289, and with interest
at the rate of 6 percent per annum to be added
to the backpay due, as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
(c) Notify any employees if presently serving in
the Armed Forces of the United States of their right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training Act, as amended, after discharge
from the Armed Forces.
(d) Preserve and, upon request, make available
to the Board and its agents , for examination and
copying, all payroll records , social security payment
records , timecards , personnel records and reports,
and all other records relevant or necessary to the
determination of backpay due and related rights pro-
vided under the terms of this Recommended Order.
(e) Post at its Port Jervis , New York, establishment,
copies of the attached notice marked "Appendix.""
Copies of said notice , to be furnished by the Regional
Director for Region 2, shall, after being duly signed
by Respondent 's representative, be posted by it imme-
diately upon receipt thereof and maintained by it
for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees
are customarily posted . Reasonable steps shall be
taken by said Respondent to insure that said notices
are not altered , defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 2,
in writing , within 10 days from the date of this
Order , what steps said Respondent has taken to com-
ply herewith.
" In the event that the Board's Order is enforced by a Judgment
of a United States Court of Appeals , the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to 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
We hereby notify our employees that:
WE WILL NOT refuse to bargain collectively
with the Textile Workers Union of America,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of the rights guaranteed them
by Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union as the exclusive representa-
tive of all employees in the bargaining unit
described below with respect to wages , hours,
and other terms and conditons of employment
and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees
of the Wilder Mfg. Co., Inc., employed at
its Port Jervis, New York, plant, excluding
all other employees , guards and supervisors
as defined in the Act.
ARTHUR DERSE AND WILDER MFG CO
WE WILL , upon application , offer immediate
and full reinstatement to their former jobs, or
if those jobs no longer exist , to substantially
equivalent positions to all our employees who
went on strike on October 12, 1965 , or thereafter,
without prejudice to their seniority or other rights
and privileges , dismissing , if necessary , all persons
hired on or after that day, and make such appli-
cants whole for any loss of pay suffered by
reason of our refusal , if any, to reinstate them
by payment to each of them of a sum of money
equal to that which he normally would have
earned , less the net earnings , during the period
from 5 days after the date on which he applied
or has applied for reinstatement.
WE WILL notify any employees if presently
serving in the Armed Forces of the United States
of their right to full reinstatment upon application
in accordance with the Selective Service Act
and the Universal Military Training and Service
179
Act, as amended , after discharge from the Armed
Forces.
Dated By
WILDER MFG. CO., INC.
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office , 36th Floor , Federal Building , 26 Federal Plaza,
New York, New York 10007 , Telephone 212-264-
0300.