Burroughs Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 331 (N.L.R.B. 1969)

BURROUGHS CORP.
Burroughs Corporation and International Union,
United Automobile Aerospace and Agricultural
Implement Workers of America. Cases
29-CA-1024 and 29-CA-1515
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On August 19, 1969, Trial Examiner E. Don
Wilson issued his Decision in the above -entitled
proceeding , finding the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended , and recommending that it cease
and desist therefrom and take certain affirmative
action , as set forth in the attached Trial Examiner's
Decision . He further found that Respondent had not
engaged in certain other unfair labor practices and
recommended that such allegations be dismissed.
Thereafter , the Respondent , the General Counsel,
and the Charging Party filed exceptions to the Trial
Examiner 's Decision . The Respondent and the
General Counsel filed briefs in support of their
exceptions . The General Counsel also filed a brief in
support of the Trial Examiner ' s Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act , as amended, the
National 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 this case , and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner for the following reasons.
For the reasons stated in the Trial Examiner's
Decision , we find that Respondent violated Section
8(a)(5) and ( 1) of the Act by refusing on and after
December 22, 1966, to recognize and bargain with
the Union for the employees in the certified unit. In
any event , as Respondent refused to bargain and
committed various other unlawful acts subsequent to
the Board ' s decision clarifying and amending the
previously certified unit,' we find for the reasons
stated below , that by refusing to bargain with the
Union as the representative of employees in the
certified unit on and after October 21, 1968,
Respondent violated Section 8(a)(5) and ( 1) of the
Act.
On September 19, 1968, the Board issued its
decision in the aforesaid UC-AC proceeding and
ordered that:
' Burroughs Corporation, 172 NLRB No. 247.
331
... the certification issued to the UAW in Case
29-RC-320 be, and it hereby is, clarified and
amended to reflect the facts that the New York
City branch has been renamed the New York
Commercial Branch, and that the service
employees assigned to the New York Financial,
Queens and Westchester branches of the
Employer's New York District are included in the
certified unit.2
Thereafter, by letter dated October 21, 1968, the
Union requested that it be recognized in all four
branches, and by letter dated November 6, 1968, the
Respondent refused. During this same period and
subsequent to the Board's decision in the UC-AC
proceeding, the Respondent refused to furnish the
Union with data relating to the names, addresses,
job classifications, branch assignments, rates of pay,
dates of last salary increase, and related matters
pertaining to all the employees in the unit involved.
In addition, during this period Respondent
unilaterally increased employee benefits when it
assumed the full cost of hospital and
medical-surgical insurance coverage for employee
dependents of all of the service employees in the
unit without prior notice to the Union and without
having afforded them an opportunity to negotiate
and bargain with Respondent concerning such
change in their terms and conditions of employment.
In defense of its actions Respondent contends that
the Board was wrong in its clarification and
amendment of the unit in that it was arbitrary and
capricious and denied the employees their protected
right to vote for or against the Union. In
challenging the Board's decision, the Respondent
insists that each of the branches of its business
constituted a separate, autonomous, and distinct
appropriate unit. In addition, Respondent contends
that it had a good-faith doubt as to the Union's
representative status inasmuch as the certification
year had passed and a decertification petition had
been filed which raised a question concerning
representation.'
We find no merit in Respondent's defenses. With
respect to Respondent's contention that it had a
good-faith doubt as to the appropriateness of the
unit , it is well settled that "good or bad faith is
irrelevant where an employer's refusal is bottomed
upon reasons other than those related to the union's
majority status."4 Furthermore, the Board has made
it quite clear that good faith doubt as to the
appropriateness of a unit based on an erroneous
view of the law is not available as a defense to a
refusal-to-bargain charge.'
'Id
'Burroughs Corporation , Case 2-RD-702
'H & W Construction Company. Inc, 161 NLRB 852, and cases cited
therein.
'H & W Construction Company. Inc., supra . See also Old King Cole,
Inc v N L.R.B, 260 F.2d 530, 532 (C A. 6); Tom Thumb Stores, Inc ,
123 NLRB 833. For reasons set forth in the decision clarifying the unit
(172 NLRB No. 247), we find no merit in Respondent 's contentions that
the clerical unit is not an appropriate unit for purposes of collective
180 NLRB No. 72
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also well settled that a certified union, upon
expiration of the first year following its certification,
enjoys a rebuttable presumption its majority
representative status continues .' This presumption is
designed to promote stability in collective - bargaining
relationships , without impairing the free choice of
employees.' Accordingly, once the presumption is
shown to be operative, a prima facie case is
established that an employer is obligated to bargain
and that its refusal to do so would be unlawful. The
prima facie case may be rebutted if the employer
affirmatively establishes either (1) that at the time
of the refusal a majority of the unit employees no
longer desired representation by the Union; or (2)
that the employer's refusal was predicated on a
good-faith and reasonably grounded doubt of the
union 's continued majority status .' As to the second
of these, i.e., "good-faith doubt," two prerequisites
for sustaining the defense are that the asserted doubt
must be based on objective considerations' and it
must not have been raised in the context illegal
antiunion activities, or other conduct by the
employer aimed at causing disaffection from the
union or indicating that in raising the majority issue
the employer was merely seeking to gain time in
which to undermine the union."
Respondent here does not contend that it has
rebutted the presumption of majority status of the
Union; it contends, rather, that it has demonstrated
that it had reasonable grounds for doubting that the
Union continued to enjoy majority support. Upon
analysis, however, we find that Respondent's
contentions in this regard cannot be divorced from
its objection to the appropriateness of the unit
determined by the Board in the UC-AC case. In
other words, in asserting its good-faith doubt of the
Union's majority Respondent is obliged to rely on
its own view that each of its branches constitutes an
appropriate unit . Thus , Respondent argues that
inasmuch as the election resulting in the original
certification in the Commerical branch was won by
a vote of 107 to 64 and that shortly thereafter 86 of
these employees were transferred to the Financial
branch, Respondent had reasonable grounds for
doubting the Union's majority at that branch
because it was possible that the 86 transferees
included all or a substantial number of the 64
employees who voted against the Union. On
somewhat the same basis when employees were later
bargaining
'Celanese Corporation of America. 95 NLRB 664, 671-672.
'Id.
'Id See also Ingress-Plastene , Inc.. 177 NLRB No. 70; Terre!! Machine
Company. 173 NLRB No. 230; C & C Plywood Corporation. et al.. 163
NLRB 1022.
'See Laystrom Manufacturing Company, 151 NLRB 1482, 1484,
enforcement denied on other grounds (sufficiency of evidence) 359 F.2d 799
(C.A. 7); Ingress-Plastene . Inc., supra; Terrell Machine Company, 173
NLRB No. 230; cf. United States Gypsum Company. 157 NLRB 652.
"Celanese Corporation of America. supra at 673. See also
Ingress-Plastene , Inc ; Terrell Machine. supra; Bally Case and Cooler,
Inc., 172 NLRB No. 106; enfd . 416 F.2d 902 (C.A. 3), C & C Plywood
Corporation et al., 163 NLRB 136.
transferred from the Commercial to the other two
new branches, the Respondent asserts it had a
good-faith doubt in each instance as to the Union's
majority. It is theoretically possible, though
unlikely, that all 64 of the employees transferred
from the Commercial to the Financial branch might
have been those who voted against the Union. If
such were the case, then the employees remaining in
the Commercial branch undoubtedly would have all
been union supporters except possibly those few who
did not vote in the election. On the other hand, it is
as possible that all of the employees transferred to
the Financial branch were union supporters and that
the Union thus lacked a majority in the certified
unit. Respondent does not explain why it chose one
of two equally plausible - and equally unlikely -
possibilities upon which to act. The answer is plain,
it was acting on the basis of its conviction that the
Union's certification ran only to the Commercial
branch and not to new branches carved out of it.
This is confirmed by the Respondent's admitted
refusal to recognize the Union as the bargaining
representative of the employees in the Queen's
branch despite the fact that a majority of the
employees at that branch advised Respondent that
they wished to continue to be represented by the
Union as well as by the realities of the situation
which would indicate that in the absence of evidence
that employees who transferred out of the
bargaining unit are of one persuasion or another,
the mix of union and nonunion supporters is
presumed to continue unchanged.
We conclude, therefore, that Respondent's refusal
to bargain with the Union was not based on a
good-faith doubt of the Union's majority status, but
upon the conviction that its bargaining obligation
was limited to the Commercial branch.
In that conviction Respondent was in error"
whether or not the Union held a majority in each of
the various branches . In the UC-AC case, we
determined that the appropriate unit is made up of
the four branches. Prior to the fragmentization of
the original branch by the Respondent a majority of
the employees had voted for the Union, and we
discern nothing in the record to rebut the
presumption that this majority continued thereafter.
Nor does the record disclose a reasonable basis for
a good-faith doubt of the Union's majority in the
amended and clarified unit. Respondent points to
the decertification petitions, but they were filed after
Respondent ' s actions carving up the certified unit
and its refusal to continue to recognize the Union as
the representative of all unit employees occurred.
"The fact that Respondent 's conviction was not unreasonable in the light
of the Regional Director's unit determination in Case 29-RC-320 and the
General Counsel 's refusal to issue a complaint on the charge alleging a
refusal to bargain as to the Financial branch does not justi fy Respondent's
later refusal to bargain after the unit was clarified to include the
Commercial branch and the other branches carved out of it by
Respondent 's transfer of employees.
BURROUGHS CORP.
Moreover , we have found that Respondent 's refusal
to recognize the Union as the representative of
employees in the new branches was not based on a
doubt of majority status but on its views concerning
the appropriateness of separate bargaining units,
views which were found to be in error in the UC-AC
proceeding , which finding we have reaffirmed herein.
Accordingly, we find that Respondent has not
rebutted the presumption flowing from the Union's
certification , and we find that Respondent by
refusing to bargain with the Union on or about
October 21, 1969, in unilaterally assuming the
payment of medical insurance premiums and in
refusing information to the Union necessary for
collective bargaining violated Section 8 (a)(5) and (1)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Burrough
Corporation, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
MEMBER ZAGORIA, concurring:
I concur in the result.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Upon a charge in
Case 29-CA-1024 filed by International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, herein jointly and separately with its
Local 365 called the Union, and sometimes the former is
called the UAW or parent and the latter is called the
Local, on June 22, 1967, and amended on June 29, 1967,
and upon a charge filed by the Union in Case
29-CA-1515, on November 12, 1968, the General Counsel
of the National Labor Relations Board, herein the Board,
issued an Order Consolidating Cases, Complaint and
Notice of Hearing on February 28, 1969, and an
amendment to the Complaint deleting paragraph 25,
thereof, on May 12, 1969, alleging that Burroughs
Corporation, herein Respondent, violated Section 8(a)(5)
and (1) of the National Labor Relations Act, as amended,
herein the Act.'
Pursuant to due notice, a hearing in this matter was
held before me at Brooklyn, New York, on May 20 and
21, 1969. The parties fully participated and filed briefs
which have been duly considered.
Upon the entire record' in the case and from my
observation of the witnesses, I make the following:
'During the hearing , General Counsel amended the wording of portions
of the complaint and Respondent amended portions of his duly filed
answer
'The Charging Party's unopposed motions to offer letters dated June 30,
1966, and March 30, 1966, and to correct the transcript , have been
received and are granted . They are contained in one document with the
letters attached . They are marked T.X. Exh. I.
FINDINGS OF FACT
1. RESPONDENT S BUSINESS
333
At all material times, Respondent has been a Michigan
corporation , with its principal office in Detroit , Michigan,
and it maintains places of business in various other States,
where it engages in the manufacture , sale and distribution
and installation and service of business machines and
related products . During the past year , which is
representative of its annual operations , it manufactured,
sold, and distributed at its places of business, products
valued in excess of $50,000 which were shipped from said
places of business directly to States of the United States
other than the State in which said places of business are
located.
At all times material , Respondent has been an
employer engaged in commerce within the meaning of the
Act.
11. THE LABOR ORGANIZATIONS
The International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America and its Local 365, each and both of which are
called the Union herein, are labor organizations within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Did Respondent violate Section 8(a)(5) and (1) of the
Act by unlawfully refusing since December 22, 1966, to
recognize and bargain with the Union as the certified
representative of Respondent's employees at its Financial,
Queens and Westchester branches in the New York City
area as they came into existence; and did Respondent
unlawfully interrogate employees concerning their
activities on behalf of the Union on or about August 8,
1968?
B. The Facts, as to the Unlawful Refusal to Bargain
Many of the facts I shall find herein have already been
found by the Board in Cases 29-UC-9 and 29-AC-5,
reported at 172 NLRB No. 247, involving the Union and
Respondent. Respondent properly recognizes that this
decision of the Board is binding upon me, although its
counsel maintains the Board was in error in its decision
and was arbitrary and capricious.
On January 11, 1966, the Union's parent, the UAW,
was certified as the bargaining representative of
Respondent's employees in the following unit:
Includes: All field service engineers, including field
engineers 1, field engineers 2, field engineers 3, and field
engineers 4, sorter specialists, stockroom clerks, shipping
room clerks and receiving room clerks employed by
Burroughs Corporation, at its branch office in New York,
New York.
Excludes: Office clerical employees, sales
representatives, sales technical personnel, all other
employees, watchmen, guards and supervisors as defined
in the Act.3
'The UAW assigned to the Local the right to bargain for the employees
in the unit on behalf of the UAW and itself
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The election resulting in the certification of January 11,
1966, had a vote of 107 for the UAW and 64 against.
Soon after the certification, the parties began
negotiations concerning the only branch then in question,
the Commercial branch. Early in February 1966,°
Respondent advised the Union it intended to open a
branch, herein, as in the Board's decision, supra, called
the Financial branch and assign approximately 86 unit
employees to the so-called new branch. The Union
requested Respondent to recognize it as the bargaining
representative of the employees at the Financial branch.
Respondent refused. As found by the Board, the UAW
filed an 8(a)(5) charge in Region 2, on March 15, 1966,
because of this refusal to bargain. The Regional Director
dismissed the charge and the General Counsel denied an
appeal on July 19, 1966. The Financial branch was opened
on April 11, 1966, and Respondent still refused to bargain
with the Union as the representative of the employees at
this branch, about 86 in number.
On July 13, 1966, Respondent and the Union executed
a contract covering the employees of only the Commercial
branch. Of course, Respondent refused to recognize the
Union as the representative of the Financial branch
employees at that time and the Union took the best it
could get, under the circumstances. The contract
contained a union security clause as well as checkoff
provisions. While Article XXIV of the contract contained
a "general" waiver clause, there is no evidence that
Respondent ever relied on this clause in its continuing
refusals to bargain with the Union as to the so-called
"new branches" it "carved out" of the certified unit. In
refusing to bargain with the Union concerning the
Financial branch employees, Respondent contended it did
not consider that branch as part of the certified unit and it
had a good faith doubt, particularly because of the
numerical results of the election, that the Financial branch
employees wished to be represented by the Union.
Respondent offered to enter into a consent election
agreement as to the Financial branch, which offer the
Union refused, insisting it was the certified bargaining
representative.
On February 13, 1967, Respondent opened its so-called
Queens branch to which it assigned eight or nine field
engineers from the Commercial branch. The Union
demanded bargaining recognition as the representative of
these employees. Respondent refused. About a week later,
six of the eight or nine Queens employees, during working
hours, visited a management representative at the
Commercial branch and stated they desired and wanted
Respondent to recognize the Union as bargaining
representative at the Queens branch. Respondent, through
its district manager , Kuhn, refused.' The Union requested
recognition for the Queens branch, with some fruitless
discussion about a consent election, but Respondent
refused recognition and bargain mg.
As the Board has already found, "On June 16, 1967,
after the Petitioner gave timely notice to terminate its
1-year contract, the Employer informed the Petitioner that
it intended to create a new branch office in Westchester
County for another segment of the Commercial branch
and transfer to it the 10 unit employees who serviced
accounts in that segment." Respondent again refused
recognition of the Union as bargaining representative of
'Note that the 10(b) cutoff date is December 22, 1966
'Respondent obviously knew from this meeting that the Union
represented a majority in Queens.
these employees on the grounds that the Westchester
branch was not a part of the certified unit and that
Respondent had a good faith doubt that the Westchester
employees wished to be represented by the Union. It again
offered to enter a consent election agreement. On June 22,
1967, the same date the original charge in this case was
filed, the Union filed the UC-AC petitions resulting in the
Board decision referred to, supra.
In June 1967, according to the credited testimony of
Allan De Lorenzo, the UAW international representative,
he asked the management representative at a bargaining
conference that if the Union produced a sufficient amount
of cards in Westchester and Queens, would Respondent
recognize the Union. Respondent, through its
representative,' stated it would not and that the only way
the Union could represent the employees in Queens,
Westchester and the Financial branch was to win an
election at each of those branches. Rozier insisted that
when they transferred men to a new branch they were no
longer considered part of the certified unit and
Respondent would not recognize the Union as bargaining
representative at any of the new branches. Each time
Respondent opened a new branch, Financial, Queens,
Westchester, the Union claimed each was a part of the
bargaining unit for which it was the certified bargaining
representative and demanded recognition and bargaining
and Respondent refused, claiming that each so-called new
branch was a separate unit and that it would recognize the
Union as the representative of the employees at each of
these so-called new branches only as a result of separate
elections.' Respondent refused to consider a card check in
each instance.
On June 22, 1967, the Union filed its UC petition and
the original charge herein. On June 29, 1967, the Union
filed the AC petition which was consolidated with the UC
and resulted in the Board decision, supra.
James Corbett, a member of the Union's negotiating
committee, testified credibly' that in June and July 1967,
the Union demanded and was refused recognition as the
bargaining representative of the Financial branch and
Queens and Westchester branches, until such time as the
unit was clarified.' The Union demanded, pending the
outcome of Board litigation, that it wanted employees of
all branches treated as union members, with dues
deductions until such time as the legal action was settled.
On September 29, 1967, 29-RD-702 seeking to decertify
the Union as the representative of the Commercial
branch, was filed.' °
Rozier testified that from the time the General Counsel
sustained the Regional Director's dismissal of the Union's
8(a)(5) charge on July 19, 1966, until the Union filed its
first amended AC petition on November 1, 1967, the
Union made no claim for recognition at the Financial
branch. As noted, this testimony was credibly contradicted
by Corbett, and Rozier, himself, clearly and unequivocally
'Rozier.
'Respondent also claimed a good-faith doubt of majority.
'His demeanor impressed me favorably
'Note that throughout the transcript the reporter improperly used
"classified " rather than "clarified ." I was not pleased with the reporter's
lateness in arrival at the hearing and other aspects of his reporting It was
stated by me that it was quarter after ten and not quarter after eleven that
the parties discussed an interest in settlement discussions I should expect
that a reporter in an area which has all the rapid transit facilities such as
New York City, would arrive on time for a hearing . It may be that the
Board will seek to bring this to the attention of the CSA Reporting
Company . All the parties arrived at the hearing on time
"It was subsequently dismissed
BURROUGHS CORP
replied to the Trial Examiner's question that at all times
since February 1966 the Union claimed to be the
representative of Respondent's employees at its Financial
branch. He further testified that at all times Respondent
has refused to recognize the Union's demand for
recognition at the Financial branch.
I find that as the Financial, Queens and Westchester
branches opened the Union demanded bargaining and
since the particular dates has continued to demand
bargaining rights, and Respondent has consistently and at
all material times refused. In the negotiations culminating
in the execution of the contract from December 1, 1967,
to August 8, 1968, Rozier testified that the Union
demanded that the Financial, Queens and Westchester
branches be included within the bargaining unit to be
covered in the contract. Respondent refused. The same
was true for the August 15, 1968, to August 15, 1969,
contract.
The three contracts executed by the parties had
identical recognition, union security and waiver provisions.
Allan De Lorenzo, the Union' s international
representative, credibly testified that the Union has always
enforced the union security provisions of the contracts.
The Board, in its decision, found that the service
employees transferred to the new branch offices remained
part of the original certified unit . The Board found that
the transferred employees continued to share a community
of interest with those who remained attached to the
original New York Commercial branch office. The Board
ordered that the certification issued to the Union in 1966
he clarified and amended "to reflect the facts that the
New York City branch has been renamed the New York
Commercial Branch, and that the service employees
assigned to the New York Financial, Queens and
Westchester branches of the Employers New York
District are included in the certified unit.""
After the Board's decision, supra, the Union requested
that it be recognized at all four branches, on October 21,
1968, and on November 6, 1968, Respondent refused.
On October 24, 1968, a first amended decertification
petition was filed covering the four branches. It was
dismissed in March 1969.
On November 12, 1968, the Union filed the charge in
29-CA-1515, alleging a continued refusal to bargain in the
certified unit, as amended and clarified.
Respondent raises a number of reasons for its refusals
to bargain with the Union. It primarily contends that the
Board, in its decision, supra, was wrong in that it was
arbitrary and capricious, and denied the employees their
protected right to vote for or against the Union . It points
out that 64 employees had voted against the Union in the
election resulting in the original certification and it did not
know which of these employees were transferred to the
branches. It further contends that an original and
amended decertification had been filed, further raising a
good faith doubt as to the Union' s representative status.
In disagreeing with the Board ' s decision , Respondent
insists that each of the branches was autonomous and
constituted a separate and distinct appropriate unit. It
further claims that the Union over a long period of time
abandoned its claim to represent the employees at the
Financial branch. At all times, Respondent insisted that
each new branch as it opened was not a part of the
certified unit. Of course, Respondent has consistently
refused to bargain about any of the new branches, but the
"I find this equivalent to a finding that the employees as they were
transferred to the new branches always remained a part of the unit.
335
Respondent points out that the contracts with the Union
have covered only the Commercial branch.' 2 Respondent
contends that the dismissal of the RD petitions was
erroneous, claiming a question of representation existed.
Concluding Findings as to Refusals to Bargain
I find, as stated by the General Counsel in his brief
that:
From April 11, 1966 to February 13, 1967 the
Commercial and Financial branches constituted an
appropriate unit for purposes of collective bargaining;
from February 13, 1967 to July 3, 1967 the
Commercial, Financial and Queens branches
constituted an appropriate unit for purposes of
collective bargaining; since July 3, 1967 the
Commercial, Financial, Queens and Westchester
branches have constituted an appropriate unit for
purposes of collective bargaining; the Union has, at all
times since April 11, 196.6 been the certified
representative of these appropriate units, which at all
times constituted the certified unit of January 11, 1966.
I find the Board's decision makes the above finding
abundantly clear and correct. The Board refers to the
three new branches as having been carved out of the
certified unit." As I read the Board's decision, it found
that as each new branch was carved out, the employees
remained part of the certified unit.
I note that the Board clarified and amended the
Union's certification. If a question concerning
representation had existed, it would have dismissed the
UC and AC petitions. Cf. General Electric Company, 127
NLRB 724; United Aircraft Corporation, 124 NLRB 392;
Mississippi Lime Company, 124 NLRB 884.
I find that as each new branch opened, the Union
demanded bargaining for the branch employees. I find
that the Union has at all times sought bargaining rights at
each of the four branches since the times they opened. I
find, based on the entire record, that the Union never
waived or abandoned its claim to be the bargaining
representative of the Financial branch employees. There is
a "general waiver" clause in each of the contracts
covering the Commercial branch. The Board had the first
two contracts before it and obviously found no waiver by
the Union to represent the employees at each of the four
branches." I find it abundantly clear that the Union did
"not clearly and unmistakeably" waive its statutory right
to be recognized as the bargaining representative at each
of the four branches which were part of the unit for which
it was certified. It is clear from the record that
continuously since December 22, 1966, Respondent has
refused to recognize the Union as bargaining
representative at any branch other than the Commercial.
It is particularly as to the Financial branch that
Respondent claims waiver or abandonment by the Union.
I -cannot ignore the testimony of Rozier, Director of
employee relations for Respondent, to the Trial Examiner,
alluded to above, that at all times since February 1966,
the Union has claimed to be the representative of
"The Union 's only choice under the circumstances.
"I understand the Board to find that each new branch was a part of the
certified unit.
"Otherwise it would not have found the employees of the four branches
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees at the Financial branch. I find
this to be true.
The Union's demand for bargaining for the employees
at the Financial branch has been continuing to date, since
April 1966 and particularly since December 22, 1966,
which latter date is not only within the Section 10(b)
period but is also within the certification year. Respondent
has refused to bargain with the certified Union since
December 22, 1966, within the certification year, as to
many employees within the certified unit. Respondent thus
began its continuing 8(a)(5) and (1) violations within the
certification year, and thus is not to be heard to argue
that subsequently the certification year ran out and the
Union's irrebuttably presumed continuing majority could
be questioned. During the certification year, and since,
particularly beginning with December 22, 1966,
Respondent has not recognized the Union as the certified
representative of the bargaining unit, as Respondent
carved out various segments which remained part of the
certified unit. Respondent has not complied with its
bargaining requirements by recognizing the Union as
representative of only a partial segment of the certified
unit. Since Respondent has continually refused to bargain
with the Union as the representative of all the employees
within the certified unit, since a period within the
certification year," the Union's irrebuttable presumption
of majority status should be extended for 1 year from the
date Respondent begins to bargain with the Union as the
representative of all the employees included in the unit as
clarified and as the certification was amended in the
Board's decision, supra Since Respondent has bargained,
despite the Union's requests, for only a partial segment of
the employees in the certified unit since December 22,
1966, it has failed to fulfill its obligations and has violated
Section 8(a)(5) and (1) of the Act.
Because Respondent, since December 22, 1966, has
continuously violated Section 8(a)(5) and (1) of the Act, it
is not to be heard to claim that the filing of the RD
petition, as amended," raised a good faith doubt of the
Union's majority, because the very fact of refusing to
bargain with the Union within and continuously since the
certification year, encourages employee dissatisfaction
with the certified representative and tends to encourage
the filing of RD petitions. For the Respondent to claim
that it had a good faith doubt as to the Union's majority
because of the filing of RD petitions, after its violation of
Section 8(a)(5) and (1) of the Act within and continuously
since the original certification year, is to claim a premium
for its unlawful activity which tended to cause the filing of
RD petitions. See Karp Metal Products Co., Inc., 51
NLRB 621, 624; Sankrete of Northern California, 142
NLRB 293.
Continuously since within the certification year,
Respondent has not given "the bargaining relationship .. .
a fair chance to succeed." Frank Bros. Company v.
N.L.R.B., 321 U.S. 702. Since this is so, the RD petitions
raised no questions concerning representation, were
properly dismissed, and cannot be considered as having
raised any good faith doubt in the mind of Respondent as
to the Union's continuing majority status.
It is not unnatural in claiming a good faith doubt as to
appropriateness of the bargaining unit as consistently
claimed by the Union, and as found by the Board, supra,
included in the certified unit
"At least since December 22, 1966, within the 10(b) period
"Dismissed
that Respondent should rely on the Regional Director's
dismissal of the Union's 8(a)(5) charge in Case
2-CA-10932, and the dismissal's affirmance by the
General Counsel primarily because both found the
Financial branch to be a unit separate and distinct from
the Commercial branch, and further that it should rely on
the fact that the Regional Director found, as reversed by
the Board, in its decision, supra, that there were four
separate and distinct units. However, it is the Board,
under the Act, which is charged with making
determinations as to the appropriateness of units. The
Board here found that since the certification in January
1966, there has been one and not two or three or four
appropriate units and that the Union is the certified
bargaining representative of the one unit, including four
branches. Thus, the Board, in its decision, supra, has
found and spoken, and held, "that the service employees
assigned to the New York Financial, Queens and
Westchester branches of the Employer's New York
District are included in the certified unit." The Regional
Directors for Regions 2 and 29, and the General Counsel
and Respondent were wrong. Respondent's defense that at
all material times it had a good faith doubt as to the
appropriateness of the unit as continuously contended for
by the Union and as found by the Board, is of no avail to
it. "Good or bad faith is irrelevant where an employer's
refusal is bottomed upon reasons other than those related
to the union's majority status." H & W. Construction
Company, Inc , 161 NLRB 852. That Respondent had an
erroneous view of the law, as found by the Board in its
decision, supra, does not constitute a defense to
Respondent's continued refusal to bargain with the Union
since December 22, 1966. Good faith but erroneous doubt
as to the appropriateness of a unit is not a good defense
to a refusal to bargain complaint, where the unit is
appropriate. Here, the Board has made its finding as to
the appropriateness of the unit and assuming, arguendo,
that Respondent, buttressed by the actions of two
Regional Directors and the General Counsel, at all
material times, had a view and a doubt contrary to the
Board's holding and the Union's claim, such view and
doubt avail it naught.
The Union having been the certified bargaining
representative of all the employees included in the unit as
found above, I make the following concluding findings
based upon admitted allegations of the complaint, as
amended.
As stated by General Counsel in his brief:
Respondent, . by unilaterally changing pension,
insurance and vacation coverage, unilaterally assuming
medical insurance premiums, and refusing information
to the Union necessary for collective bargaining
violated Section 8(a)(5) and (1) of the Act."
It is noted that some of the refusals to furnish information
occurred subsequent to the Board's decision, supra
B. The Alleged Interrogation of Employees, Members
of the Union's Negotiating Committee on August 8,
1968
The facts as to the alleged interrogation are in sharp
dispute. The alleged interrogation admittedly occurred, if
at all, in the absence of the Union's representative and
during the course of bargaining.
"Of course , while admitting the factual allegations of the complaint in
these regards , Respondent , consistent with its overall position , denies any
violations of Section 8(a)(5) or (I).
BURROUGHS CORP. 337
In view of the primary importance of the 8(a)(5) and
(I) issue which has been an issue since April 1966, beyond
the Section 10(b) period, I certainly agree with the
statement of counsel for the Charging Party in his brief
that the question of interrogation is "irrelevant."
Assuming, arguendo, that the testimony of General
Counsel's witnesses as to what was said by way of
interrogation at the bargaining session were credited, I
would not find it coercive or violative of Section 8(a)(1) of
the Act. I note the principal witness, James Corbett, told
the Trial Examiner, when asked what employee was
interrogated, that Rozier "didn't interrogate any
particular person. There was talk going on between the
whole committee and who was there." When he named an
employee, Buser, he didn't remember "what he" did say."
It is clear that the employee negotiating committee agreed
to proceed with the bargaining without the union
representative. I find no substantial evidence of a violation
of Section 8(a)(1) by coercive interrogation on August 8.
In any event, I would not recommend a remedial order
for it. If it occurred, it was insubstantial and of no
moment in the course of bargaining negotiations. If it
occurred, it did not tend to be coercive. Let this very old
question of bargaining rights of the Union be firmly and
finally established and the Board should pay no heed to
this alleged isolated instance of interrogation.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities in violation of Section 8(a)(5)
and (1), set forth in section 111, above, occurring in
connection with the operations of Respondent described in
section 1, above, have a close, intimate, and substantial
relation to trade, traffic and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that since December 22, 1966,
Respondent has unlawfully refused to bargain with the
Union as the certified bargaining representative of all the
employees in the unit for which the Union was certified. I
shall recommend that Respondent, upon request, bargain
with the Union and, if any understanding is reached,
embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The UAW and its Local 365 are labor organizations
within the meaning of the Act.
3. All field service engineers, including field engineers 1,
field engineers 2, field engineers 3, and field engineers 4,
sorter specialists, stockroom clerks, shipping room clerks
and receiving room clerks employed by Burroughs
Corporation at its Commercial, New York Financial,
Queens and Westchester branches of its New York
"Rozier.
District, excluding office clerical employees, sales
representatives, sales technical personnel, all other
employees, watchmen, guards and supervisors as defined
in the Act, constitute an appropriate unit for the purposes
of collective bargaining within the meaning of the Act.
From April 11, 1966, to February 13, 1967, the
appropriate unit was as above but limited to Respondent's
Commercial and Financial branches, and from February
13, 1967, to July 3, 1967, was limited to Respondent's
Commercial, Financial, and Queen's branches, and since
the latter date has included Respondent's Westchester
branch. Since the original certification, there has only
been but one unit.
4. Since January 11, 1966, the Union has been, at all
times material, the certified exclusive bargaining
representative of all the employees in the aforesaid unit,
including the branches as carved out of the original
Commercial branch unit, the latter branch and the three
carved out units, constituting the unit as certified on
January 11, 1966.
5. By refusing on and since December 22, 1966, within
the certification year, to bargain collectively with the
Union as the exclusive representative of all the employees
in the certified appropriate unit, including the "carved
out" branches, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By unilaterally changing pension, insurance, and
vacation coverage, unilaterally assuming medical
insurance premiums, and refusing to furnish information
to the Union necessary for collective bargaining,
particularly with respect to the three branches carved out
of the Commercial branch, and which were part of the
certified unit, Respondent violated Section 8(a)(5) and (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
acct.
8. The refusal to bargain since December 22, 1966,
began within the so-called certification year and the
Union, not having been afforded a fair chance to succeed
in bargaining for all the employees within the certified
unit, within the certification year, the certified Union's
majority status cannot be successfully challenged until
Respondent accords the Union a full and reasonable
opportunity to bargain with Respondent for all the
employees of whom the Union is the certified bargaining
representative.
RECOMMENDED ORDER
Upon the entire record in the case, including the
foregoing findings of fact and. conclusions of law, it is
recommended that Respondent, its agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union,
upon request, as the exclusive bargaining representative of
all the employees in the above-described unit, including
Respondent's Commercial, Financial, Queens and
Westchester branches.
(b) Unilaterally making changes in the wages, hours
and working conditions of any of the employees in the
unit described in (a) immediately above.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their rights to join or assist the Union or any other labor
organization or otherwise engage in activities protected by
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union
as the exclusive representative of its employees in the
certified unit as clarified and amended in the Board's
decision, supra, with respect to wages, hours of work, and
other conditions of employment and, if an understanding
is reached, embody same in a signed agreement.
(b) Post at its Commercial, Financial, Queens and
Westchester branches of its New York District, copies of
the attached notice marked "Appendix."" Copies of said
notice on forms provided by the Regional Director for
Region 29, shall, after being duly signed by Respondent's
authorized representative, be posted by Respondent
immediately upon receipt thereof and maintained by it for
a period of 60 days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the above Regional Director, in writing,
within 20 days from the date of the receipt of this
Decision and Recommended Order, what steps
Respondent has taken to comply herewith.20
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read - "Notify the said Regional
Director, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith." •
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse, upon request, to bargain with
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
and/or its Local 365, as the exclusive representative of
all our employees in the unit described below.
WE WILL NOT unilaterally make any changes in the
wages, hours and working conditions of any of our
employees in the unit described below.
WE WILL NOT in any like or related manner,
interfere with, restrain or coerce our employees in the
below described unit, in the exercise of their rights to
join or assist the above Unions or any other labor
organization or otherwise engage in activities protected
by the Act.
WE WILL, upon request, bargain collectively with
either or both of the above Unions as the exclusive
collective-bargaining representative of all our employees
in the following unit with respect to wages, hours of
work, and other conditions of employment and, if an
understanding is reached, embody such understanding
in a signed agreement. The bargaining unit:
Includes: All field service engineers, including field
engineers 1, field engineers 2, field engineers 3 and
field engineers 4, sorter specialists, stockroom clerks,
shipping room clerks and receiving room clerks
employed by us in our New York District, at our
Commercial, New York Financial, Queens and
Westchester branches.
Excludes: Office clerical employees, sales
representatives, sales technical personnel, all other
employees, watchmen, guards, and supervisors as
defined in the Act.
Dated By
BURROUGHS
CORPORATION
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 4th Floor, 16
Court Street, Brooklyn, New York 11201, Telephone
212-596-3535.