Bally Case and Cooler, Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1968

172 N.L.R.B. 1127 (N.L.R.B. 1968)

BALLY CASE AND COOLER, INC.
Bally Case and Cooler, Inc. and Local 2130, Inter-
national Brotherhood of Electrical Workers,
AFL-CIO. Case 4-CA-4054
July 10, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 19, 1967, Trial Examiner Robert E.
Mullin issued his Decision in the above -entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint
herein be dismissed in its entirety , as set forth in the
attached Trial Examiner 's Decision . Thereafter, the
General Counsel and Charging Party filed excep-
tions to the Trial Examiner's Decision and support-
ing briefs. The Respondent filed a brief in support
of the Trial Examiner's Decision and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner 's Decision , the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are
consistent herewith.
As more fully set forth by the Trial Examiner, the
Union was certified on February 11, 1963, after an
election, and on August 9, 1963, following an
economic strike, the parties executed a 3-year con-
tract effective until August 8, 1966. On May 11,
1966, the Union gave timely notice of its desire to
modify the contract; on May 18, 1966, the Respon-
dent replied stating it questioned the Union's
majority status and wished to terminate the agree-
ment . The Union thereafter strongly asserted its
continued status as majority representative.
Despite the Respondent's asserted good-faith
doubt as to the Union's majority status and the
Respondent's statement that it would file a petition
for an election, it did not do so until August 9,
' The factors relied on by the Respondent are The Union 's narrow elec-
tion victory in 1963, lack of widespread employee support for the 1963
strike , union bulletins circulated to the employees in 1966 urging more em-
1127
1966, the day after the contract's termination date.
Nevertheless, and while it continued to repeat its
claim of doubt concerning the Union's majority, the
Respondent met with the Union on June 17, July 1,
28, and 29, and August 8 for the stated purpose of
engaging in collective -bargaining negotiations to
modify and renew the existing bargaining agree-
ment. In the course of those sessions the Respon-
dent presented proposals which included, inter alia,
a general raise of 5 cents an hour, paid vacations of
2 weeks after 8 instead of 10 years , an increase in
sick leave payments from $20 to $25 per week, and
payment of a 20-cent night-shift differential. How-
ever, on and after July 29, the Respondent would
not agree to a contract for longer than 1 week after
August 8. The Union subsequently was willing to
accept the Respondent's offer of the above in-
creases for a 1-year contract, but the Respondent
declined on the ground that this would prevent an
election and offered instead a day-to-day agree-
ment.
As noted above, the original contract expired on
August 8 and the Respondent filed a petition for an
election on August 9. On August 12, the Respon-
dent, in a speech to the employees , announced that
the increases offered during the negotiations would
become effective as of August 9, including the
added 5 cents an hour for all employees and in-
creased sick benefits of $25 per week. On August
23, the Respondent posted a notice informing its
employees that all would get an additional increase
of 20 cents per hour effective as of August 19. And
on September 1, another notice announced that all
employees with 15 years of service would receive
an additional 1-week paid vacation , making the
maximum vacation 3 weeks instead of 2 weeks as
previously.
The complaint alleges that by the above course
of conduct, i.e., by refusing to offer the Union a
contract of longer duration and by unilaterally
granting the increased wages and benefits in August
and September, the Respondent violated Section
8(a)(5) and (1) of the Act. The Trial Examiner
recommended that the complaint be dismissed
because he concluded that although none of the
considerations' cited by the Respondent was alone
sufficient to afford a reasonable basis for the as-
serted doubt as to the Union's continued majority
status, the "whole congeries of facts" provided suf-
ficient grounds therefor. Accordingly, as he also
concluded that, "[a]ll the while it insistently
preserved this position, Respondent met with the
ployee support of the Union , and the fact that checkoff authorizations
never exceeded 30 percent of the unit
172 NLRB No. 106
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and bargained in good faith [,]" the Trial
Examiner recommended that the complaint be
dismissed.
We conclude that the Trial Examiner's finding
that the Respondent bargained in good faith is
clearly erroneous. In our judgment, even if it were
to be found that the "whole congeries of facts ...
provided Respondent with sufficient grounds to
conclude that the Union's majority by the spring of
1966 was very dubious indeed [,]" the record
nevertheless supports a finding that the Respondent
did not assert such doubt in good faith.
It is, of course, well settled that after the first
year of a certification there is a presumption of
continued majority status, which is, however,
rebuttable by an affirmative showing to the contra-
ry.' "A direct corollary of this proposition is that
after the certificate is a year old ... the employer
can, without violating the Act, refuse to bargain
with a union on the ground that it doubts the
union's majority, provided that the doubt is in good
faith." (Celanese Corporation of America, supra.)
Clearly, the Respondent's evidence herein did not
affirmatively rebut the continuing presumption of
majority status flowing from the certification. At
most, it may have furnished a basis for doubt that the
Union had retained its majority status since the cer-
tification issued. But this alone would not justify a
refusal to bargain under the Celanese rule, for the
question would still remain whether the assertion of
doubt was in good or bad faith.
The answer to that question does not, however,
turn solely on whether there existed a reasonable
ground for such doubt, although that is a crucial
element. It turns also on whether or not the em-
ployer raised the majority issue for the purpose of
causing employee disaffection from the union or
seeking to gain time in which to undermine the
Union.3
On the basis of the entire record in this case, we
are satisfied that the Respondent did not question
the Union's majority in good faith. In the first
place, had the Respondent believed the grounds
which it asserts caused it to doubt the Union's
majority were reasonable grounds for such doubt,
and desired. for that reason an expression of the em-
ployees' untrammelled choice before extending its
bargaining relationship with the Union, its more
natural course of action would have been to file its
RM petition at the time the Union demanded bar-
gaining for a new agreement.' That it did not do;
rather, it entered into negotiations with the Union
during the initial stages of which it gave no indica-
tion that a successfully negotiated contract would
not govern their relations for a normal period. In
this respect its conduct, despite its pronounce-
ment , was contrary to the existence of the alleged
doubt. It was not until relatively late in the negotia-
tions, and after the Union gave indication that it
was moving closer to acceptance of the Respon-
dent's contract proposals, that the Respondent in-
jected the "one week" and "day-to-day" limitation
on any contract's duration, limitations obviously
not calculated to gain acceptance.
Though the Respondent contends that the pur-
pose of these severe limitations on the duration of
any agreement that might be reached was to permit
the holding of an election to resolve the alleged
question concerning representation , the Respon-
dent's subsequent course of conduct reveals that
the Respondent's negotiating stand was part of a
calculated plan designed to impress upon the unit
employees that they could gain more through
voluntary action of the Respondent than through
representation by the Union. Thus, shortly after fil-
ing its representation petition and while it was still
pending, the Respondent, acting unilaterally, not
only put into effect without restriction the 5-cent
wage increase and added sickness and accident
benefits that had been offered the Union for a 1-
week contract, but also gave an additional 20-cent
wage increase, four times that which it had offered
the Union, and an improved vacation plan as well.
The unilateral granting of these added wages and
benefits, apart from being entirely inconsistent with
its responsibility to continue to bargain in good
faith until the Board determined whether to process
the petition,' was, we find, clearly coercive in pur-
pose and effect,' precluding the conduct of a fair
election at which employees could express their un-
trammelled choice. It is the antithesis of good faith
to insist upon the right to test a union's majority in
an election and then to obstruct the election
processes by unilaterally granting increases in
benefits which can only foreclose the possibility of
a fair election being held.
2 Celanese Corporation ofAinertca, 95 NLRB 664,672
' Celanese Corporation of America, supra at 673, C & C PI 3 a ood Corpora-
tion and Veneers, Inc , 163 NLRB 1022
' Contrary to the Trial Examiner's statement in his fn 14, the Respon-
dent would not have been precluded from filing a petition which was timely
with respect to the 60-day insulated period , subject to the usual require-
ments for an otherwise timely employer petition The cases cited by him
preclude an employer 's petition during that portion of a contract term
which would be unreasonably long and hence would not bar a rival peti-
tion
RavBroolsv NLRB.348US 96, 103
That such conduct constituted independent violations of Section
8(a)( I) of the Act whatever the merits of the Respondent's claim that it
had a bona fide doubt of the Union's majority, is not open to question
NLRB v Exchange Parts Co , 375 U S 405
BALLY CASE AND COOLER, INC. 1129
On the basis of the foregoing , we find that the
Respondent did not question the Union 's majority
in good faith , and that by withdrawing recognition
from the Union , and by unilaterally granting wage
increases and improved sick benefits and vacations,
the Respondent bargained in bad faith with the
Union in violation of Section 8(a)(5) and ( 1) of the
Act.7
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affir-
mative action to effectuate the policies of the Na-
tional Labor Relations Act.
We have found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bar-
gain in good faith with the duly certified bargaining
agent of its employees at its plant in Bally, Pennsyl-
vania. Consequently, we shall order the Respondent
to bargain upon request with the Union and to
cease and desist from any like or related unfair
labor practices in the future.
CONCLUSIONS OF LAW
1. Local 2130, International Brotherhood of
Electrical Workers, AFL-CIO, has been, and now
is, the exclusive bargaining representative of
Respondent's employees in the certified ap-
propriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
2. The Respondent has engaged in and is engag-
ing in conduct violative of Section 8(a)(5) and (1)
of the Act on and after May 18, 1966, by ( a) uni-
laterally granting substantial improvements in
wages and other conditions of employment; and (b)
withdrawing recognition from Local 2130 as the ex-
clusive representative of its employees in the ap-
propriate bargaining unit on and after August 8,
1966.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Bally Case and Cooler, Inc., Bally, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Upon request, refusing to bargain collective-
ly with Local 2130, International Brotherhood of
Electrical Workers, AFL-CIO, as the exclusive
representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours of
employment, or other terms or conditions of em-
ployment.
(b) Making any changes with respect to rates of
pay, wages, or other conditions of employment of
its employees in the appropriate bargaining unit
described below without prior consultation or bar-
gaining with Local 2130; failing to recognize and
bargain with the Union; provided, however, that
nothing herein shall be construed to require the
Respondent to rescind or discontinue new wage
rates or other benefits previously granted.
(c) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of their right to self-organization, to form
labor organizations, to join or assist the above-
named labor organization or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to en-
gage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, ex-
cept to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with
Local 2130, International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive representative
of all employees in the appropriate unit with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment, and, if any understanding is reached, embody
such understanding in a signed agreement. The bar-
gaining unit is:
All production and maintenance employees of
the Employer at its Bally, Pennsylvania, facto-
ry, including shop clerical employees, but ex-
cluding office clerical employees, guards,
professional employees, and supervisors, as
defined in the Act.
Member Brown concurs because , in the circumstances of this case, the
Respondent has not demonstrated adequate basis for rebutting the Union's
representative status
1130 DECISIONS OF NATIONAL
(b) Post at its plant in Bally, Pennsylvania, co-
pies of the attached notice marked "Appendix."'
Copies of said notice , on forms provided by the Re-
gional Director for Region 4, after being duly
signed by Respondent 's representative , shall be
posted by the Respondent immediately upon
receipt thereof, and be 'maintained by it for 60 con-
secutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing , within 10 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify you that:
WE WILL NOT refuse , upon request , to bar-
gain collectively with Local 2130, International
Brotherhood of Electrical Workers, AFL-CIO,
as the exclusive representative of all employees
in the appropriate unit with respect to rates of
pay, wages, hours of employment, or other
terms and conditions of employment.
WE WILL NOT make any changes with respect
to rates of pay, wages , hours of employment,
or other conditions of employment of our em-
ployees in the appropriate bargaining unit
described below without prior consultation or
bargaining with Local 2130, International
Brotherhood of Electrical Workers , AFL-CIO;
provided , however, that nothing herein shall be
construed to prevent , or is intended to prevent,
our continuing in effect new rates of pay,
wages , or other benefits previously given to
you.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to form labor organizations, to join
or assist the above-named labor organization
or any other labor organization , to bargain col-
lectively through representatives of their
choosing , and to engage in concerted activities
for the purpose of collective bargaining or
other mutual aid or protection, or to refrain
from any or all such activities , except to the
extent that such right may be affected by an
agreement requiring membership in a labor or-
LABOR RELATIONS BOARD
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor- Management Reporting
and Disclosure Act of 1959.
WE WILL bargain collectively upon request
with the above-named labor organization as
the exclusive representative of all employees in
the bargaining unit described below with
respect to rates of pay , wages , hours of em-
ployment , and other terms and conditions 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 Employer at its Bally, Pennsylvania, facto-
ry, including shop clerical employees , but ex-
cluding office clerical employees , guards,
professional employees , and supervisors, as
defined in the Act.
BALLY CASE AND COOLER,
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building , Walnut &
Juniper Streets , Philadelphia , Pennsylvania 19107,
Telephone 597-7601.
" In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words " a Decision and
Order" the words " a Decree of the United States Court of Appeals Enforc-
ing an Order "
TRIAL EXAMINER'S DECISION
ROBERT E. MULLIN , Trial Examiner: This case'
was heard in Allentown , Pennsylvania , on January
23 and 24, 1967, pursuant to charges duly filed and
At the outset of the hearing , appearances on behalf of the Respondent
were also entered by Irving W Coleman, Esq , and Clayton T Hyman,
Esq , of the firm of Coleman & Hyman, Allentown , Pennsylvania Prior to
the taking of any testimony , however, Attorney Coleman moved that his
firm be permitted to withdraw from the case since it would be necessary for
both him and his partner , Clayton T Hyman , to appear as witnesses for the
Respondent This motion was granted
BALLY CASE AND COOLER, INC. , 1131
served at various times in 1966 ,2 and a complaint
issued on November 17, 1966. The complaint
presents questions as to whether the Respondent
refused to bargain collectively with the Charging
Party ( herein called the Union , or IBEW), and
whether it engaged in various other acts of inter-
ference, restraint , and coercion in violation of Sec-
tion 8 ( a)(1) of the Act. In its answer , the Respon-
dent conceded certain facts as to its business opera-
tions , but it denied all allegations that it had com-
mitted any unfair labor practices.
All parties appeared at the hearing with counsel
and were given full opportunity to examine and
cross-examine witnesses , to introduce relevant
evidence , to argue orally at the close of the hearing,
and to file briefs . The parties waived oral argument.
At the conclusion of the hearing , a motion to
dismiss the complaint , made by the Respondent,
was taken under advisement by the Trial Examiner.
It is disposed of as appears hereinafter in this Deci-
sion . On March 7, 1967, the General Counsel and
the Respondent submitted thorough and com-
prehensive briefs on the issues . No brief was
received from the Union.:'
Upon the entire record in the case , including the
briefs of counsel , and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation,
with its principal office and plant at Bally, Pennsyl-
vania, is engaged in the manufacture and distribu-
tion of refrigerated cases for the food industry.
During the year preceding the issuance of the com-
plaint, the Respondent shipped manufactured
products valued in excess of $50,000 to customers
located outside the Commonwealth of Pennsyl-
vania. Upon these facts, the Respondent concedes,
and the Trial Examiner finds, that Bally Case and
Cooler, Inc., is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and the Trial Ex-
aminer finds, that the Union is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Sequence of Events
On February 11, 1963, the Union was certified
by the Board as the bargaining agent for a unit
made up of the Respondent 's production and main-
tenance employees . At the election which preceded
this certification ,4 out of some 221 valid votes cast,
113 were for and 108 were against the Union.
Thereafter , while negotiations for a contract were
in progress , the Union called a strike which began
on June 24 and lasted until about August 8, 1963.
During the first week of the strike the Respondent
petitioned a state court for a restraining order and,
as a result of this petition and the hearing held
thereon, the court set a limit on the number of
pickets which could patrol the plant entrances and
established various other rules with respect to the
picketing practices of the Union .' Irving W.
Coleman , attorney for the Respondent and its
director of industrial relations , testified , and his
testimony in this respect was in no way con-
tradicted or denied , that immediately after the
court restricted the number of pickets , approxi-
mately 190 of the employees crossed the picket line
and returned to work.' He further testified that dur-
ing the strike, approximately 16 of the strikers were
replaced permanently and after the conclusion of
the strike about 20 strikers never sought reemploy-
ment . Subsequent to the termination of the strike,
the parties executed a collective -bargaining con-
tract which , by its terms, was to be effective
through August 8, 1966 , and from year to year
thereafter unless either party gave written notice of
a desire to terminate , amend , or alter at least 60
days prior to the original expiration date.'
During January and February 1966 the Union
distributed circulars to the employees at the plant
wherein it outlined the employee benefits it had
sponsored and solicited the support of all the em-
ployees in the bargaining unit . In these appeals, the
Union frankly conceded that many employees in
the unit , although sharing in the benefits of or-
ganization , had failed to join the IBEW. In one cir-
cular that was sent- out from the union headquarters
in February , after recounting the gains for which
Local 2130 gave itself credit , there appears the sug-
gestion that these gains could have been much
,greater "if all of us were together supporting the
Y The Union filed an original charge on August 3, a first amended charge
on August 22, a second amended charge on October 7, and a third
amended charge on November 10
' The Respondent 's brief was accompanied by a motion to correct the
transcript in certain minor particulars Since opposing counsel have filed
no objections, the aforesaid motion is hereby granted
' The election was held on August 29, 1962
' The state court did not grant an injunction , but after securing a com-
mitment from the Union that it would comply with the rules described
above , the court retained jurisdiction of the matter for the balance of the
labor dispute
' Mr Coleman testified that at the time of the strike there were about
250 employees in the appropriate unit
' There is no dispute , and the Trial Examiner finds , that at all times
material herein all production and maintenance employees at the Respon-
dent 's plant , including shop clerical employees, but excluding office cleri-
cals, guards , professional employees , and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
common cause." This same letter concludes an ap-
peal that more employees join the IBEW with the
declaration "It has been too long a time for so few
to be carrying the burden for so many." In another
letter distributed to the Bally employees that same
month, the officers of Local 2130 reiterated the
need for more support from the employees in the
bargaining unit. Thus, after recounting some of the
benefits which had been won during the past 2-1/2
years, the letter states:
Our job would have been a good deal easier
and we could have accomplished much more if
more of you had supported us. Our grievance
committee was told at one of their meetings
with the Company that they [the company] felt
that as long as so many of you did not join the
Union they [the company] assumed that you
were satisfied with things as they were .... In
a short time we will be negotiating for a new
contract. Our chances of getting the things you
want will be a great deal better if we can be
speaking for all of you at that time ... to be
successful let those that can give you these
things know how you feel. By signing those
cards and joining our organization you will be
letting management know what you expect ....
Have a voice in your future at the plant. Give
us your support. Help us get a good contract.
Join now.
The collective-bargaining agreement required all
employees who were members of the Union on Au-
gust 20, 1963, and all employees who thereafter
became members during the term of the contract,
to maintain that membership. Another provision
required the Respondent to deduct union dues from
the wages of those employees who signed a conven-
tional checkoff authorization. The extent to which
these contractual terms were utilized did not in-
dicate any widespread support for the Union among
the employees. Throughout the 3 years that the
contract was in effect, there was never a time when
as many as 30 percent of the employees authorized
dues deductions from their wages and at one point
this percentage dropped to as low as 20. Thus, Mr.
Coleman testified that, whereas the unit had from
230 to 250 employees, the highest number of
checkoff authorizations on file in the payroll office
was 73, a figure that was reached in April 1964. He
further testified that the lowest number was 48, the
total in June 1965, and that in August 1966, the
month that the contract expired, there were only 59
checkoff authorizations on file with the Respon-
dent.8
By letter dated May 11, 1966, the Union notified
the Respondent of its desire to amend the 1963
agreement. In its response, dated May 18, 1966, the
Company asserted that it had a good-faith doubt
that the Union represented a majority of the em-
ployees in the unit; gave notice of its desire to ter-
minate the agreement as of the anniversary date;
announced that it would file a petition for deter-
mination of the representation question "at the ap-
propriate time"; and asked that the Union expedite
the resolution of the latter issue by agreeing to a
consent election. The letter concluded with the
statement:
In the meantime, subject to the limitations of
this technical situation, we will meet with you
and discuss in good faith any subjects that you
deem to be relevant. But at no time, in doing
so, do we waive the position which we have
taken in the face of the evidence of your lack
of representation that is before us.
B. The Bargaining Conferences
The Respondent and the Union met for collec-
tive-bargaining sessions on June 17, July 1, 28, and
29, and August 8, 1966. No meetings were held
after the latter date. It is undisputed that from the
outset of the negotiations the Company's represent-
atives stated that they had a good-faith doubt that
the Union represented a majority of the employees.
Both at the first session and at numerous times
thereafter the Company sought, without success, to
secure the Union's agreement to a consent election.
Mr. Coleman testified, credibly and without con-
tradiction, that at no time during the negotiations
did the union representatives offer to prove that the
IBEW represented a majority of the employees in
the unit.
On June 17, when the parties met for their first
session , the Union was represented by Peter Mc-
Cue, International representative for the IBEW,
and Irvin Becker and Ralph Boyer, president and
financial secretary, respectively, of Local 2130.
The Company was represented by Mr. Coleman
who appeared by himself.
At this meeting, two sets of proposed contract
demands were presented to the Company, one from
the representatives of Local 2130 and the other
from Mr. McCue on behalf of the International.
Mr. McCue testified that, at the opening of the
meeting , Mr. Coleman restated the Company's
doubts as to the Union's majority in the unit and
requested a consent election. In response, accord-
ing to McCue, the Union representatives declared
that they were the certified representatives and that
they desired to commence negotiations for a 1-year
contract. McCue testified that the Union's demands
" Mr Coleman's testimony was credible , undenied , and uncontradicted
When he testified at the hearing he had the original checkoff authorizations
at hand These were offered to opposing counsel for use in his cross-ex-
amination During the latter , counsel for the Union intimated that the per-
centage of checkoff authorizations at any given time was not a fair index of
union strength because some of the employees paid their dues in cash
Although this avenue might have provided an effective rebuttal point, had
the supporting evidence been available , counsel for the Union thereafter
made no effort to produce any evidence along that line
BALLY CASE AND COOLER, INC. 1133
included a request for a "substantial wage in-
crease,"9 an increase in vacation benefits, and im-
provements in the health and welfare provisions of
the current agreement. McCue further testified that
he also requested that the Respondent supply the
Union with statistical data on the current wages,
total cost of holiday pay, the cost of all fringe
benefits being paid the unit employees, and a
seniority list of the employees.10 McCue conceded
that subsequent to this particular meeting all of the
data requested, was, in fact, supplied by the Com-
pany. In his testimony, Mr. McCue stated that there
followed a substantial discussion of the various
items in the Union's demands.
This latter testimony was contradicted by Mr.
Coleman. According to Coleman, after he had
stated the Company's belief that the Union did not
represent a majority and solicited the Union to join
with it in requesting an election, the Union
representatives thereafter handed him their con-
tract proposals and demands. Coleman testified
that the meeting ended shortly thereafter and
without any discussion of the various proposals. Ac-
cording to Coleman, the conference terminated
abruptly when McCue took offense at something
which the Respondent's attorney said, alleged that
it was tantamount to calling McCue a liar and
declared that if the remark was repeated he [Mc-
Cue] would "give [Coleman] a damn good
licking." Coleman testified that he thereupon
left the meeting, after having told the union
representatives that as a result of McCue's remarks
he would discuss nothing further with them that
day. Coleman's testimony as to this incident was
credible and it was neither denied nor contradicted
by any testimony offered by the General Counsel. It
is the conclusion of the Trial Examiner that the
meeting was concluded in substantially the manner
that Coleman testified.
On July 1, the parties met again. The Union was
represented by McCue, Becker, Boyer, and Eugene
Findlay, the latter being an officer of Local 2130.
The Respondent was represented by Attorneys
Kothe and Hyman. At the outset of the meeting the
Respondent had a court reporter present for the
purpose of transcribing the negotiations. When
McCue strongly objected to this procedure, how-
ever, the company representatives withdrew the re-
porter. Thereafter the parties proceeded to discuss
the Union's demands. Earlier, and at the outset of
negotiations, Attorney Kothe restated the Com-
pany's desire for an election and its request that the
Union join in an agreement for a consent election
because of the Respondent's doubt that the Union
represented a majority of the employees. Mr.
Hyman testified that at the end of the meeting,
McCue told the company representatives that the
Union would agree to an election provided that the
Company would stipulate that if it lost the election,
it would agree to a union-shop provision in a new
contract. To this proposal, Kothe replied that he
would have to discuss the matter" with the company
officials, but that, in any event, he did not believe
that the National Labor Relations Act permitted
such an arrangement as to an election.
On July 28, the parties met for their conference.
McCue, Becker, and Boyer were present for the
Union. Attorneys Kothe and Coleman, along with
Harry Margolis, accountant for the Company,
represented the Respondent. In addition. to the
foregoing, Walter Mosier, a mediator from the
Federal Mediation and Conciliation Service, was
present, along with Edward Feehan, a representa-
tive of the Pennsylvania State Mediation Service.
Once again, Kothe stated at the opening of the
meeting that the Company had a good-faith belief
that the Union did not represent a majority of the
employees and that it wanted an election to deter-
mine the issue . The parties then went to a discus-
sion of the Union's contract proposals. After
discussing these for some time, McCue announced
that in order to get a contract the Union would
agree to withdraw all of its demands on
noneconomic issues , other than its request for a
union shop and an improved management rights
clause, if the Company would bargain about the
economic issues immediately. The Respondent's
representatives thereupon asked for an opportunity
to consider this proposal and the meeting was ad-
journed until the following day.
On July 29, the parties resumed their negotia-
tions, with the parties represented by the same in-
dividuals as had been present the day before, in-
cluding the Federal and state mediators. At the
opening of the meeting the company representa-
tives presented a written proposal which set forth
the increased economic benefits which the Respon-
dent was prepared to offer in a new contract. These
included: (1) a general wage raise of 5 cents an
hour; (2) a full holiday before Christmas and a half
holiday on Good Friday; (3) increased vacation
privileges to be effected by reducing from 10 to 8
years the eligibility for 2 weeks' paid vacation; (4)
an increase in the amount of sick leave payments
from $20 to $25 per week; (5) payment of a 20-
cent night-shift differential; and new provisions on
(6) jury pay and (7) severance pay.
Immediately after the Respondent submitted its
counterproposal to the union representatives,
McCue inquired as to the proposed duration of any
new agreement. Kothe responded that because the
Company did not believe that the Union
represented a majority and for that reason had con-
sistently sought an election, the Respondent would
not agree to a contract that would be effective for
more than 1 week after August 8 in order that the
"Throughout the negotiations the Union's request for a "substantial"
wage raise was never translated into a specific figure.
10 Mr. McCue was not certain whether the latter information was
requested at the meeting on June 17 or at the next session.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new agreement would not act as a bar to such an
election . McCue characterized the Company's
proposal on the term of the new agreement as
ridiculous and predicted that it would be impossible
to secure its ratification by the union membership.
However, he promised that the Company's
proposals would be brought before the union mem-
bers shortly. With that, the meeting adjourned.
Hyman testified that on August 2, McCue
telephoned him at his law office to tell him that the
union membership had met the night before and
had rejected the company offer of July 29. He also
told Hyman that the membership had authorized
the Union to call a strike and that he wanted
another meeting with Respondent. Thereafter,
through an exchange of telegrams, the parties
agreed upon August 8 as the date for their next bar-
gaining session . Coleman testified that, in the
meantime , and shortly before the parties met again,
the Respondent received a petition which read "I
do not feel I should have to belong to the IBEW to
work at the Bally plant" and underneath that cap-
tion there were 75 to 80 signatures of individuals
employed at the Company."
The bargaining conference of August 8 was also
the last which the parties held. McCue, Becker,
Boyer, and Findlay were present for the Union, and
Coleman and Hyman represented the Company.
State Mediator Feehan was also present. McCue
opened the meeting with the statement that the
Union would not accept a contract of 1 week's du-
ration, but that it would accept the Company's
offer of July 29 if the latter would agree to a 1-year
contract. Coleman rejected the proposal for a 1-
year agreement. After reiterating the Respondent's
doubts as to the Union's majority standing, he
stated that since the Company planned to file an
RM petition for an election on the following day, at
that point, it would only offer the Union an agree-
ment on a day-to-day basis.
Shortly before this conference, the Union had
filed an unfair labor practice charge against the
Respondent, alleging that it was refusing to bargain
in good faith. McCue testified that at their last bar-
gaining session, when Coleman rejected the Union's
request for a 1-year contract, he told the company
representatives that the Union would withdraw the
unfair labor practice charge if the Company would
incorporate the offer of July 29 in a 1-year agree-
ment. The Respondent remained steadfast, how-
ever, in its insistence that because of its doubt as to
the Union's majority, an election was necessary,
and that it could not agree to any contract of 1
year's duration on the ground that such action
would forestall a balloting of the employees. On
this note, the meeting ended. There were no sub-
" Coleman 's testimony as to this petition was elicited on cross-examina-
tion . The petition itself was never offered in evidence. In his brief, the
General Counsel suggests that some of the names on the petition were
those of supervisors . This inference , however, is without the support of any
affirmative evidence . Significantly , at the hearing no amendment to incor-
porate such an allegation in the complaint was ever offered.
Sequent bargaining sessions , nor any requests for
meetings , and the Union never called a strike.
As a result of the Respondent 's termination
letter , written in May, the original 3-year contract
between the IBEW and the Company expired on
August 8 . On August 9, the Respondent filed an
RM petition with the Regional Office. ( Bally Case
and Cooler, Inc., Case 4-RM-577.)'2
In a speech to the employees on August 12,
1966, Coleman reviewed the course of the Com-
pany 's negotiations with the Union , the fact that the
original contract expired on August 8 and that the
following day the Company filed a petition for an
election with the Board . He further stated that,
since the Union had filed an unfair labor practice
charge, no election could be held until that charge
was disposed of. He also told the employees that
the reason that the Company had been unwilling to
offer the Union a contract with a duration of more
than 1 week was because of its doubts as to the
union majority . Thereafter he told them that the
items which the Company offered during the
negotiations would become effective as of August
9, and that , among other things, this included a 5-
cent-an-hour increase for each employee and an in-
crease in sick benefits from $20 to $ 25 a week. He
concluded by suggesting that in the event any of the
employees had any questions as to the present
status of affairs that they bring them to the Re-
gional Office of the Board.
On August 23, 1966, the Respondent posted a
notice in the plant that all employees would get an
additional increase of 20 cents per hour effective as
of August 19. On September 1, 1966, in another
notice, the Respondent announced that all em-
ployees with 25 years' service would receive a 3-
week paid vacation.13
C. Contentions of the Parties ; Findings and
Conclusions in Connection Therewith
The General Counsel contends that the Respon-
dent was lacking any reasonable ground for believ-
ing that the Union no longer had a majority at the
plant , that its course of conduct constituted bad-
faith bargaining and that , as a consequence, it vio-
lated Section 8(a)(5) by refusing to offer the Union
a contract of more than 1 week's duration. The
complaint further alleges that by withdrawing
recognition from the Union upon the expiration of
the old contract on August 8, 1966, and by its grant
of wage increases and vacation benefits on August
12 and 19 and September 1, the Company also vio-
lated Section 8(a)(5) and (1). All of these allega-
tions are denied in their entirety by the Respon-
dent.
12 On November 17, 1966, the Regional Director wrote the Respondent
that its petition in the RM case was being dismissed and that on that same
date a complaint was being issued alleging that the Company had refused to
bargain in good faith.
':4 Prior to this announcement , 2 weeks had been the maximum vacation
which any employee could earn.
BALLY CASE AND COOLER, INC. 1135
The Board has held that, although a certified
union 's majority status is unrebuttable during the
certification year , absent unusual circumstances,
after the end of the certification year, the presump-
tion of majority, though continuing, is rebuttable
even without the unusual circumstances. Celanese
Corporation of America, 95 NLRB 664, 672, cited
with approval by the Supreme Court in Ray Brooks
v. N.L.R.B., 348 U.S. 96, 104; U.S. Gypsum Com-
pany, 157 NLRB 652. The General Counsel has re-
lied, at the hearing and in his brief , on Deluxe Metal
Furniture Co., 121 NLRB 995, for the proposition
that if the Respondent desired an election it was
bound to file a representation petition prior to June
9, 1966, which was the last day prior to the so-
called 60-day insulated period. According to the
General Counsel, since the Respondent filed no
such petition until much later , it could not assert
thereafter the defense that it had a good-faith doubt
as to the Union's majority.
Deluxe Metal, however, compels no such impera-
tive as that set forth in the General Counsel's argu-
ment. The Board doctrine embodied in that case
had reference to the situation where a rival union is
attempting to upset an established bargaining rela-
tionship between an employer and an incumbent
union . During the 60 -day insulation period
established by that decision, the employer and the
incumbent are free to bargain without the "threat
of overhanging rivalry and uncertainty." (Deluxe
Metal, at 1001.) Apart from the fact that the rival
union situation considered by the Board in Deluxe
Metal has no relevance here , the latter case does
not stand for the proposition that an employer must
petition for an election before the 60-day period, or
be held to have waived his right to file a petition
later, as the General Counsel appears to argue.
Even Deluxe provides that if "the parties have
forstalled automatic renewal and no new or
amended agreement has been executed within the
60-day period, a petition will be timely if filed after
the terminal date of the old contract. . . ." (Ibid. at
1000.) Here the Company forestalled automatic
renewal of its contract with the IBEW by its notice
of termination on May 18, 1966. No new or
amended agreement was executed thereafter and
by its terms the old contract expired on August 8,
1966. In these circumstances , it would appear that
Deluxe Metal would support the filing of the
representation petition which the Company did, in
fact, file on August 9, 1966. See Electric Boat Divi-
sion , General Dynamics Corporation, 158 NLRB
956.14
Earlier herein it was found that the Union's
original election victory in 1962 had been won by a
narrow margin, that there was widespread lack of
employee support for the strike in 1963, and that
this was followed by the replacement of strikers and
by some degree of turnover. During January and
February 1966, in bulletins to the employees which
came to the attention of the plant management, the
Union conceded that its support from the personnel
in the unit left much to be desired, and that it
greatly needed additional members to strengthen its
position at the forthcoming bargaining sessions.
Throughout the 3 years that the contract was in ef-
fect the employees demonstrated a patent lack of
enthusiasm for the checkoff, and the number of
personnel who authorized the deduction of their
dues never exceeded 30 percent. In the year
preceding the expiration of the contract, the
number dropped as low as 20 percent and, in Au-
gust 1966, when there were about 250 employees
in the unit, the Respondent had only 59 checkoff
authorizations on file. As the General Counsel ar-
gues in his brief, none of these items, when viewed
separately, might be considered substantial
evidence on which the Employer could assume that
the Union had lost its majority. The foregoing fac-
tors, however, cannot be viewed separately or in
isolation. When taken together this whole congeries
of facts certainly provided the Respondent with suf-
ficient grounds to conclude that the Union's majori-
ty by the spring of 1966 was very dubious indeed.
For this reason, it is the conclusion of the Trial Ex-
aminer that at all times material herein the Respon-
dent had a good-faith doubt as to the Union's
majority in the appropriate unit.[' Moreover, this
doubt was set forth in the Respondent's letter to the
Union on May 18, 1966, when it notified the latter
of its desire to terminate the contract. At all sub-
sequent bargaining sessions, the company represent-
atives reiterated this doubt as to the Union's stand-
ing and the Respondent's desire for an election to
resolve the question.
All the while it insistently preserved this position,
the Respondent met with the Union and bargained
in good faith. On July 29, the Company made a
substantial offer as to economic items including
wages and vacations, which the Union stated that it
would accept only if it could have a 1-year con-
tract. Since it is the conclusion of the Trial Ex-
aminer that under the circumstances of this case
the Respondent was entitled to insist upon an elec-
tion,'6 the company representatives were not
obligated to waive that right and accede to the
" Although the General Counsel assumes that the Respondent's RM,
petition would have been timely if filed prior to June 9 , 1966, the beginning
of the 60-day insulated period , this position does not find support in certain
decisions issued subsequent to Delure Metal Thus , the Board has held that
where there is no rival, as in the present instance , an employer 's petition is
barred by a current agreement to which it is a party throughout the entire
term and until the expiration of such a contract Absorbent Calton Corn-
pany, 137 NLRB 908, 909, Montgomery Ward & Co, 137 NLRB 346,
347-348, cf Budding & Constriction Trades Council (Alfred A Wesiman),
147 NLRB 1464, 1484
" It is also the conclusion of the Trial Examiner that the Respondent
here involved demonstrated "by objective considerations that it ha(dJ
some reasonable grounds for believing that the union ha(d) lost its majority
since its certification " U S Gypsuni Co , 157 NLRB 652, 656
" See Frito-Las, Inc , 151 NLRB 28, 31-33, Hammond & Irving, Inc ,
154 NLRB 1071, 1073, Cameo Lingerie, Inc, 148 NLRB 535, 538-539
1136 ',DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's demand for a yearlong contract that would
eliminate the prospects of an election for at least
another 12 months.
The term of a contract is a mandatory subject for
bargaining, but subsequent to the end of the certifi-
cation year there is no requirement in the Act fix-
ing any minimum requirement as to the length of
such term. The Hinde & Dauch Paper Company, 104
NLRB 847, 848.17 Here the Respondent, in an ef-
fort to preserve its request for an election upon the
expiration of the old contract, first offered the
Union a contract for 1 week's duration and then,
on August 8, when the old agreement was expiring,
it offered a day-to-day term. Unable to secure a 1-
year contract from the Respondent, and thus avoid
the confrontation with the employees which an
election would necessitate, the Union rejected this
offer and did not ask for any further meetings after
August 8.18
Apart from its attack on the Respondent's good
faith during the negotiations, the complaint did not
allege any independent acts of interference,
restraint, or coercion during the bargaining period
that would support an allegation that the Respon-
dent's insistence on an election was motivated by a
design to gain time during which to destroy the
Union's majority. Nor is there any basis in the
record for such a contention.
The record supports the Respondent's argument
that at their last meeting on August 8, the parties
were at an impasse , and that the Respondent stood
ready to `continue the negotiations, but that the
Union, unwilling to accept the challenge of an elec-
tion, did not seek any further meetings. Since, as
has been found above, the Respondent in this in-
stance had good-faith grounds on which it could in-
-sist upon an election, the Union here must bear the
burden for the breakdown of negotiations. Ac-
cordingly, the Trial Examiner concludes and finds
that the Respondent did not violate Section 8(a)(5)
and (1) by its conduct during the course of the
negotiations from June 17 through August 8, 1966,
or at any time prior thereto. Poray, Inc., 160 NLRB
697; Frito-Lay, Inc., 151 NLRB 28, 32, 33; Mitchell
Standard Corporation, 140 NLRB 496, 499-500;
Randall Company, 133 NLRB 289, 295; Diamond
National Corporation, 133 NLRB 268, 269-270.
Since the Respondent had a good-faith reason to
doubt the Union's majority, it was not a violation of
the Act for the Respondent to withdraw recognition
from the Union at the expiration of the old contract
on August 8, 1966,19 to file a petition for an RM
election on August 9, and to put into effect those
benefits which it had first offered to the Union on
July 29, 1966, and which the then bargaining agent
had rejected unless it could have a contract of I
year's duration . Empire Terminal Warehouse Com-
pany, 151 NLRB 1359, 1360-62; Taft Broadcasting
Company, 163 NLRB 475.20
The General Counsel further contends that the
Respondent violated the Act when, on August 23,
1966, it announced a wage increase of 20 cents an
hour, and, on September 1, 1966, it announced a
liberalized vacation benefit for those with over 15
years' service with the Company.
These allegations should be viewed in the context
of the prior bargaining relationship between the
Company and the Union. On February 17, 1966,
the Respondent notified the Union that it planned
to effectuate a 10-cent-an-hour increase on Februa-
ry 22 . In its letter to the Union on the former date,
the Respondent set forth the view that although it
was giving this notice to the Union as a courtesy, it
was not compelled to do so because the broad
managerial rights clause in the collective -bargaining
agreement permitted the Company to take this ac-
tion without any communication with the Union. In
the Union's response , Mr. McCue acknowledged
that the IBEW would not challenge the course of
action which the Company announced in its letter
of February 17.
The same management rights provision of the
collective-bargaining agreement was used by the
Respondent to support another decision, taken uni-
laterally and about the same time as the above
sequence of events, to close its porcelain plant.
Once again, the Union did not challenge the
Respondent's construction of the managerial rights
clause in the bargaining agreement . Later , during
the summer of 1966, the Union strove to secure a
greatly modified management rights clause. In this,
it was unsuccessful. Indeed, on August 8, the Union
offered to accept all the Company's terms for a new
contract, including the old management rights
clause, if only the Respondent would agree to a
contract of 1 year's duration.21 It is also significant,
that during the course of the spring and summer of
1966, both the Union and the Company had stu-
"Cf. N.L.R.B. v. Yutana Barge Lines, Inc., 315 F.2d 524, 529 (C.A.9);
N.L.R.B. v. Southern Coach & Body Co., 336 F.2d 214,219-220 (C.A.5).
'" "The Union's refusal , when challenged , to submit the issue to an elec-
tion where each employee would be permitted in secrecy to make his cho-
ice, leads to the inescapable inference that it, too, was doubtful and fearful
of the result ." N.L.R.B. v. Laystrom Manufacturing Co., 359 F.2d 799,
801 (C.A. 7).
'" Under the circumstances present here, had the Respondent continued
to recognize the Union as the exclusive bargaining agent after the expira-
tion of the old contract, it would have done so at its peril and subject to the
stern injunction set forth in the Act and in those cases which forbid recog-
nition and bargaining with a union that does not represent a majority. See
International Ladies Garment Workers [Bernhard-Alnnann Texas Corp.] v.
N.L.R.B., 366 U.S. 731, 737-740 , and cases there cited.
t1 The General Counsel likewise alleged , in his brief , but not in the com-
plaint , that the Respondent also violated the Act when , in his speech on
August 12, 1966, Attorney Coleman informed the employees that they
should feel free to submit their grievances directly to the management.
Since, as has already been found herein , the Respondent had a bona fide
doubt that the Union any longer represented a majority of the employees in
the appropriate unit , and the collective-bargaining agreement had expired,
the Respondent could not require that the employees continue to channel
their complaints through the union grievance machinery . It was no viola-
tion of the Act for Coleman to tell them what the law permits.
t' See the credible and uncontradicted testimony of Irving Coleman to
this effect.
BALLY CASE AND COOLER, INC 1137
died the need for substantial wage increases to
meet the competitive conditions of the labor mar-
ket.
Since the Trial Examiner has already found that
the Respondent bargained in good faith with the
Union up to the point of impasse on August 8, a
discriminatory motivation for the subsequent exer-
cise of its business judgment is not to be imputed
lightly. Drug Fair-Community Drug Co., 162 NLRB
843, 854-855. Most particularly would that appear
to be true in a case such as the present where the
earlier, unilateral action as to wages and other
managerial decisions had gone unchallenged by the
Union.22
Under the circumstances present here, it is the
conclusion of the Trial Examiner that the General
Counsel has not established by a preponderance of
the evidence that the Respondent violated the Act
by its grant of the wage increase announced on Au-
gust 23, 1966, or by its announcement on Sep-
tember 1, 1966, of additional vacation benefits for
its senior employees. Fleming & Sons of Colorado,
Inc., 147 NLRB 1271, 1274, 1284; Harvey Alu-
minum , Inc., 156 NLRB 1353, 1363-64.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and
the Union is a labor organization, all within the
meaning of the Act.
2. The Respondent has not engaged in the unfair
labor practices alleged in the complaint.
On the basis of all the foregoing, therefore, the
Trial Examiner will recommend that the complaint
in this proceeding be dismissed in its entirety.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, the complaint heretofore issued
in this proceeding is hereby dismissed.
''` In one instance the Respondent 's action had been challenged by the
Union, but with no success This was an earlier matter involving the Com-
pany and the Union, Bally Case and Cooler, Inc, Case 4-CA-3307, which
had been resolved in a settlement agreement approved in July 1964 The
case concerned , inter alga , the Respondent 's discontinuance of a Christmas
bonus At the present hearing, Mr McCue testified that the Board's Re-
gional Office had sustained the Company's position as to the bonus issue
and, in so doing, had relied on the broad managerial rights clause in the ex-
isting collective-bargaining agreement
354-126 O-LT - 73 - pt. 1 - 73